FINDINGS AND RECOMMENDATIONS
Petitioner, Martin Barragan-Mendoza, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate term of nineteen years to life following his 1990 jury conviction for second degree murder with a penalty enhancement for use of a firearm. Here, Petitioner does not challenge the constitutionality of his conviction, but rather, the execution of his sentence and, specifically, the 2008 decision of the Board of Parole Hearings (the "Board") finding him unsuitable for parole.
Petitioner sets forth a single ground for relief in his pending petition. Specifically, Petitioner claims that the Board's determination that he was unsuitable for parole violated Petitioner's federally protected right to due process of law. In addition, Petitioner requests the appointment of counsel.
The basic facts of Petitioner's commitment offense were summarized by the Presiding Commissioner at Petitioner's parole hearing as follows:
On February 10th, 1990, at 9:45 p.m., Antonio Sanchez Guizar [ ], the victim, went to a Redwood City pool hall with his brother and two nephews, and while there while the victim sat at the bar with his nephews, his brother was having a conversation with an individual later identified as Hector Mendoza, Martin Barragan-Mendoza, the inmate's cousin. Meanwhile, the victim was approached by Pablo Oseguera [ ] , Mendoza [ ], Barragan-Mendoza's other cousin, who pointed a gun at the victim and demanded that he accompany him to the restroom. The victim refused and a struggle ensued. Barragan-Mendoza stood at the rear exit of the pool hall and pointed a gun at the victim's back. Oseguera Mendoza yelled at Barragan-Mendoza and told him to shoot him. Barragan-Mendoza subsequently fired four shots into the victim's back. As the victim fell to the ground, Oseguera Mendoza fired several more shots at the victim. Barragan-Mendoza and his cousins ran out of the bar and escaped. Barragan-Mendoza was arrested on April 30th, 1990, at a bar in San Jose, California. The shooting is believed to be the result of a longstanding family feud emanating out of Chila [ ], Mexico, and spanning over many years. The original reason for the feud is no longer known; however, there is a long history of revenge, retaliation, and murders that have left numerous victims and innocent individuals injured or dead. (Pet. Ex. C at 10-11).
Following a jury trial, Petitioner was found guilty of second degree murder with a penalty enhancement for use of a firearm. Petitioner was sentenced to nineteen years to life imprisonment with the possibility of parole. His minimum eligible parole date passed on August 24, 1992. On June 20, 2008, Petitioner appeared before the Board of Parole Hearings for his third subsequent (fourth overall) parole consideration hearing. After considering various positive and negative suitability factors, the panel determined that Petitioner would pose an unreasonable risk of danger to society if released, and concluded that he was not suitable for parole. Petitioner sought habeas corpus relief from this decision in the California Court of Appeal, First Appellate District. The court denied his petition on June 10, 2009, finding that the Board's decision was supported by some evidence that Petitioner remained an unreasonable risk of danger to society. The California Supreme Court denied relief on September 30, 2009. Petitioner filed this federal petition for writ of habeas corpus on December 28, 2009. Respondent filed an answer on March 9, 2010 and Petitioner filed his travers on March 11, 2010.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under 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 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). See also Penry v. Johnson, 531 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or ...