The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Amy A. Daniel, Esq., of the California Office of the Attorney General.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his 1990 conviction in San Joaquin County Superior Court for first degree murder, robbery, assault with a deadly weapon, and various sentencing enhancements. (Answer, Ex. 1, ECF No. 15-1.) Petitioner was sentenced to an indeterminate term of thirty years to life. (Id.)
In the instant petition, Petitioner does not challenge the validity of his conviction. Petitioner presents two claims. First, he challenges the Board of Parole Hearings' (Board) May 5, 2009 decision finding him unsuitable for release on parole. Petitioner claims that his due process rights were violated because the Board's decision was not supported by some evidence. Second, Petitioner claims that Marsy's Law*fn2 violates the ex post facto and due process clauses of the state and federal constitutions. (See Pet., ECF No. 1 at 4.)
On September 14, 2009, Petitioner filed a state petition for writ of habeas corpus in the San Joaquin County Superior Court challenging the Board's 2009 decision. (Answer, Ex. 2, ECF Nos. 15-2 to 15-12.) On November 16, 2009, the Superior Court denied the petition. (Id. at Ex. 3, ECF No. 15-3.) On December 1, 2009, Petitioner filed a state petition with the California Court of Appeals, Third Appellate District. (Id. at Ex. 4, ECF Nos. 15-14 to 15-23.) The petition was denied on December 17, 2009. (Id. at Ex. 5, ECF No. 15-24.)
Finally, Petitioner also filed a petition with the Supreme Court of California on December 28, 2009, which was denied on July 14, 2010. (Id. at Exs. 7-8, ECF Nos. 15-25 to 15-37.)
Petitioner filed the instant petition for writ of habeas corpus on July 21, 2010. Respondent filed an answer to the petition on January 18, 2011, and Petitioner filed a traverse on February 22, 2011.
A. Standard of Habeas Corpus Review
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.
Petitioner is in custody of the CDCR pursuant to a state court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 U.S.C. § 2254 remains the exclusive vehicle for his habeas petition because he meets the threshold requirement of being in custody pursuant to a state court judgment. Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir. 2006), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010), and citing White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) ("Section 2254 'is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petition is not challenging his underlying state court conviction.'").
Under the AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Federal habeas corpus relief is available for any claim ...