The opinion of the court was delivered by: Patel, District Judge.
Re: Petition for Writ of Habeas Corpus
Eulogio Martin, an inmate at the California Men's Colony in San Luis Obispo, California, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. section 2254. His petition is now before the court for review pursuant to 28 U.S.C. section 2243 and Rule 4 of the Rules Governing Section 2254 Cases. Having considered the arguments presented and for the reasons stated below, the court enters the following memorandum and order.
Petitioner was convicted of second-degree murder in connection with a shooting that took place on November 15, 1979 in San Francisco. *fn1 The facts surrounding petitioner's crime are largely undisputed, and are set forth in petitioner's Life Prisoner Evaluation (Pet.'s Exh. E). One of the victims, Walter Acosta, had a prior relationship with petitioner relating to the sale of drugs. Acosta was well known in his neighborhood as a drug dealer with a penchant for violence. Petitioner owed Acosta money for drugs and for damage to a car petitioner had borrowed. Petitioner claims that Acosta had threatened and harassed him in the weeks leading up to the shooting.
On November 15, 1979, petitioner was sitting in a restaurant with two friends. Acosta entered the restaurant and approached petitioner. Petitioner asked Acosta to leave, but Acosta refused. Petitioner was convinced that Acosta had come to the restaurant to shoot him. Petitioner had entered the restaurant unarmed, but one of his friends passed him a gun. It was clear that Acosta would not leave the restaurant, and when petitioner saw him reach into his pocket, petitioner began to shoot at him. He shot Acosta seven times, killing him immediately. Petitioner claims he had lost control of himself at this point, and continued shooting, hitting two innocent bystanders. One bystander died, while the other sustained a non-fatal shot to the foot. A .39 caliber gun was found on Acosta.
On February 22, 1980, petitioner was sentenced to a prison term of fifteen years-to-life, with a five year enhancement. Petitioner's fifth parole hearing took place on April 30, 2003. At that hearing, the Board of Prison Terms ("Board" or "BPT") concluded that petitioner was suitable for parole. The Board detailed its findings in its order. See Pet.'s Exh. B, at 57-61. The Board found that petitioner had no juvenile criminal record. Id. at 57. Petitioner's only prior offense was a charge of possession of a controlled substance in 1978, to which he pleaded no contest. Pet. at 12. He was placed on probation for this crime and was deported to Mexico. Id. The Board also found that petitioner lacked a significant history of violent crime, and that he committed the instant offense as a result of stress in his life. Pet.'s Exh. B at 58. Petitioner showed signs of remorse, understood the nature and magnitude of the offense and accepted responsibility for his criminal behavior. Id. The record indicated that his last psychological evaluation, performed by Dr. Kate Burkham, supported release. Id. at 59. Dr. Burkham had found that petitioner fell in the low-moderate range for future offense within the community as long as he abstained from substance abuse and followed through with his plans for parole. Id. The doctor also found petitioner a low-medium risk for future violence. Id. Because of maturation, growth, a better understanding and advanced age, the Board found that petitioner had a reduced possibility of recidivism. Id. at 58.
The Board also outlined petitioner's accomplishments while in prison. Id. at 57-58. Petitioner participated in education programs, self-help and therapy, vocational programs, institutional job assignments, and volunteer work. Id. Petitioner had been involved in Alcoholics Anonymous and Narcotics Anonymous since 1990. Id. at 59. He participated in several courses, including a marriage and family course, an anger management course, The Big Four Fellowship and the Inmate Peer Education Program. Id. Petitioner also improved his marketable job skills while in prison. Id. at 57. He earned a certificate in Vocational Sewing Machine Repair and completed a Vocational Automachine Shop course. Id. Since February 2001, petitioner has worked in the Prison Industry Authority shoe factory, earning above average to exceptional work reports. Id. at 39, 57.
The Board found that petitioner had realistic parole plans in Jalisco, Mexico, including job offers in his brother's auto shop and his sister's textile shop, and family support. Id. at 58. He planned to live with his parents on their ranch. Id. The Board found these plans realistic due to an INS hold indicating that petitioner would be deported to Mexico after release. Id. at 36.
The Board's Decision Review Unit approved the grant of parole on September 2, 2003. Governor Gray Davis reversed the grant of parole on September 24, 2003. *fn2
In his review of petitioner's parole grant, Governor Davis cited several reasons for reversing the Board's decision. See Pet.'s Exh. D. First, Governor Davis stressed the gravity of petitioner's crime, highlighting the facts that petitioner continued to fire the gun after Acosta was dead and that petitioner failed to call for help after committing the crime. Governor Davis stated that petitioner's crime demonstrated a "callous disregard for human life and a lack of remorse." Second, Governor Davis disagreed with the Board's finding that the crime was a result of stress in petitioner's life. Governor Davis concluded that petitioner was responsible for his stress because he voluntarily entered into a life of selling drugs and he failed to go to the police when Acosta threatened him. Third, Governor Davis stated that petitioner's parole plans in Mexico were unrealistic. The Governor pointed out that petitioner has a history of entering the United States illegally. Therefore, the Governor concluded, petitioner should have viable parole plans in the United States as well as in Mexico.
The Governor also relied on at least two facts that were not discussed in petitioner's April 30th hearing. First, petitioner has received twenty disciplinary violations while in prison. Ans. at 7. The disciplinaries included "possession of drugs, weapons materials and gambling paraphernalia." Pet.'s Exh. D at 3. Since 1995, however, petitioner has not had a serious rules violation. Ans. at 7. Second, the Governor asserts that petitioner was stabbed three times between 1987 and 1990 as a result of his involvement with loan sharks in prison. *fn3 Id. The Governor found that these two facts belied the Board's finding that petitioner was suitable for parole based on positive institutional behavior.
After the Governor reversed petitioner's parole grant, petitioner filed a petition for writ of habeas corpus in the San Francisco Superior Court ("Superior Court"). The Superior Court denied the petition. The California Court of Appeal and the Supreme Court subsequently denied the petition without comment. After exhausting his state remedies, petitioner filed a petition for writ of habeas corpus in this court.
Petitioner contends that there was no evidence to support the Governor's reversal of petitioner's parole grant, and that petitioner was therefore denied due process of the law.
I. Liberty Interest in Parole
The Fifth and Fourteenth Amendments prohibit the government from depriving an inmate of life, liberty, or property without due process of law. U.S. CONST. amends. V, XIV. In the parole context, a violation of an inmate's due process occurs when (1) the inmate has been deprived of a constitutionally protected liberty interest in parole, and (2) the inmate has been denied adequate procedural protections in the parole process. See, e.g., Biggs v. Terhune, 334 F.3d 910, 913 (9th Cir.2003).
There is no cognizable right to parole under the Federal Constitution. The Supreme Court has held, however, that when a state's parole statute uses mandatory language, the statute "creates a presumption that parole release will be granted" unless certain findings are made, and thereby gives rise to a constitutionally protected liberty interest. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Board of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). California Penal Code section 3041 states that "[t]he panel or board shall set a release date unless it determines that" statutorily defined determinations are met. Thus, under Greenholtz ...