The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C § 2254, AND DENYING MOTION FOR DISCOVERY.
Petitioner Lawrence Morris ("Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 26, 2007. (Doc. No. 1.) He challenges a September 13, 2005 Board of Parole Hearings' ("Board") decision denying his parole. Respondent filed an Answer on July 16, 2007. (Doc. No. 14.) On August 21, 2007, Petitioner filed a traverse. (Doc. No. 16.) The Magistrate Judge issued a Report and Recommendation on October 5, 2007, recommending that the Court deny the petition and deny Petitioner's motion for discovery. (Doc. No. 18.) Petitioner filed objections to the Report and Recommendations on November 9, 2007. (Doc. No. 19.) Respondent did not file a reply to Petitioner's objections.
After careful consideration, the Court ADOPTS the Report and Recommendation, DENIES the petition, and DENIES the motion for discovery. The Court also DENIES a Certificate of Appealability.
The California Court of Appeal described the facts as follows: After a night of drinking, Morris and a co-defendant drove to the apartment of the victim, Lee Hill, for the purpose of getting Hill intoxicated, driving him to the desert and killing him. Although Morris and Hill were close friends, Morris was angry with Hill about financial issues and Hill's attempt to rape Morris's wife. Hill agreed to accompany Morris and the co-defendant. When they were in an isolated area, Morris approached Hill from behind and cut his throat with a knife. After Hill fell to the ground, the co-defendant cut off Hill's genitals and stabbed him in the back of the skull. Morris and the co-defendant took Hill's identification and left him there where his decomposed remains were later discovered by some campers. (Lodgment 6 at 1-2.)
Petitioner was convicted of first degree murder with a deadly weapon in violation of California Penal Code §§ 187, 189, and 12022(b). (Lodgment 1.) On or about April 26, 1988, the trial court sentenced Petitioner to 26 years to life in prison, with the possibility of parole. (Lodgment 1.)
On September 13, 2005, the Board held Petitioner's initial parole consideration hearing. (Doc. No. 1) Petitioner contends that the Board's Presiding Commissioner ("Commissioner") made statements during the hearing that demonstrated that the Board had predetermined the hearing's outcome. (Doc. No. 1-2.) During the hearing, the Board considered numerous parole suitability factors, including Petitioner's social history, his past and present mental state, his criminal history, his commitment offense, his behavior before, during and after the crime, and his attitudes towards the crime. In particular, the Board considered Petitioner's six rule violations while institutionalized, his resistance to substance abuse assistance, his cruel and calculated commitment offense, his trivial motive in committing the offense, his non-violent history prior to the commitment offense, and his recent psychiatric report. (Lodgment 2 at 59-64.) The Board denied Petitioner's parole based on these factors. (Id. at 59:4-10.)
On April 21, 2006, Petitioner filed a petition for writ of habeas corpus with the state court, appealing the Board's ruling. (Lodgment 3.) The Superior Court of San Diego County denied his request on June 16, 2006. (Lodgment 4.) On September 6, 2006, the California Court of Appeal also denied the petition. (Lodgment 6.) On December 13, 2006, the California Supreme Court denied the petition for review. (Lodgment 8.) Petitioner filed his petition to this Court on February 27, 2007. (Doc. No. 1.)
A. Standard of Review of Magistrate Judge's Report and Recommendation
The district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If a party objects to any portion of the report, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made." Id. The Court reviews de novo the magistrate judge's conclusions of law. Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983) overruled on other grounds by United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003).
B. Scope of Review for 28 U.S.C. § 2254 Petitions
28 U.S.C. § 2254(a) sets forth the scope of review for federal habeas corpus petitions:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State Court only on the ground that he is in custody in ...