The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Jerry G. Wills, a state prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging as a violation of his constitutional rights the denial of parole by the California Board of Parole Hearings (Board).*fn1 Specifically, Petitioner claims that the Board's decision was arbitrary and capricious and failed to meet the "some evidence" standard identified in Superintendent v. Hill, 472 U.S. 445, 455 (1985).
In response to Petitioner's original petition, the Court issued an Order to Show Cause on January 19, 2006. Petitioner had filed an amended petition on the previous day, raising the same claims. On March 16, 2006, Respondent filed a motion to dismiss claiming that Petitioner does not have a federally protected liberty interest in parole, and that therefore the Court lacks subject matter jurisdiction. Citing Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1125 (9th Cir. 2006), the Court denied Respondent's motion on February 1, 2007 and ordered Respondent to file an answer. On March 30, 2007, Respondent Warden Ben Curry*fn2 filed an answer addressing the claims in Petitioner's original petition.*fn3 Petitioner has filed a traverse. Having considered all of the papers filed by the parties, the Court DENIES the petition.
At Petitioner's fourth parole suitability hearing on June 1, 2004, the Board considered the following information, derived from the Orange County Probation Officer's Report: Records of the Fountain Valley Police Department (case # 79-7951) reveal that on December 22, 1979, shortly after 4:00 A.M., a report was received of possible gunshots being fired and a woman screaming, at 10355 Slater, Building 12, Apartment 201. Officers responded to that location, and heard a man and woman talking in subdued voices, within the apartment. Officers knocked on the door and identified themselves, and the door was opened by the defendant, Jerry Gene Wills. He was put under gunpoint and was searched for weapons. A .38 calibre revolver was located in his rear trouser pocket.
The defendant was placed in custody at that time. A search of the interior of the residence revealed the nude, face-down body of twenty-seven-year-old Mark Stephen Pesanti, who appeared to be deceased. Investigation showed that he had been shot three times by the defendant's weapon. Lying next to Pesanti, on the floor, was twenty-two-year-old Joelle Catherine Sennewald, one of the two female residents of that apartment. She too was nude, and appeared to be suffering from a gunshot wound in her upper chest.
Additionally present in the apartment was twenty-five-year-old Carol Ann Walker, Miss Sennewald's roommate.
Miss Walker was uninjured. Investigation revealed that Miss Sennewald had been dating both Mark Pesanti and the defendant, Jerry Wills, and that late in the evening, on December 21, 1979, the three of them had had a lengthy discussion, at Miss Sennewald's residence, regarding her intentions with reference to the two men. At that time, she reportedly had told the defendant that she no longer wanted to date him, and that she was going to exclusively see Mark Pesanti. The defendant reportedly left her residence at that time. Approximately fifteen minutes later, he called Miss Sennewald on the telephone and told her to listen carefully, and that the next sound she heard would be a gunshot. At that time, she reportedly slammed the receiver down on the hook and then disconnected the line.
According to the report, Miss Sennewald and Mark Pesanti then went to bed together, and apparently engaged in sexual intercourse. At approximately 4:00 A.M., on December 22, 1979, the defendant had apparently scaled a tree, next to Miss Sennewald's apartment, and had then entered the sliding glass door on the second floor of the residence. He reportedly held a gun on Mr. Pesanti and Miss Sennewald, and turned on a nearby light. While he was reaching to turn on a bedside lamp, Mark Pesanti reportedly attempted to knock the gun from his hand, and a struggle ensued. Miss Sennewald ran from the room, after hearing one gunshot, and was followed several seconds later by Mr. Pesanti. He in turn was pursued by the defendant, into Miss Walker's bedroom, where the defendant apparently fired two more shots at Mr. Pesanti, ultimately causing fatal injuries. He then shot Miss Sennewald in the upper chest. The report indicates that he reloaded his weapon, and that shortly thereafter the police arrived and placed him under arrest. (Resp't Ex. 2, Orange County Pre-Sentence Report at 3.)
On July 16, 1980, Petitioner was convicted of one count of first degree murder and one count of attempted murder in the Orange County Superior Court. (Id. at 3.) On August 13, 1980, Petitioner was sentenced to twenty-seven years to life in state prison. (Id.; Pet. at 9.) Petitioner was received into the California Department of Corrections and Rehabilitation on September 10, 1980, and his minimum parole eligibility date was set for January 5, 1996. (Pet'r Ex. A, Cumulative Case Summary at 1.) At Petitioner's fourth parole suitability hearing, the Board found Petitioner unsuitable for parole because he posed an "unreasonable risk of danger to society or a threat to public safety if released from prison." (Resp't Ex. 1, Parole Consideration Hearing Transcript at 77.) The Board issued a three- year parole denial. (Id. at 81.) The Board found that the commitment offense demonstrated an "exceptionally callous disregard for human suffering and life" and was carried out in an "especially cruel, brutal, and violent manner." (Id.) The Board took into consideration the fact that multiple victims were involved in the attack as well as the fact that Petitioner fired multiple shots at point-blank range. (Id. at 77-78.) The Board further found that Petitioner lacked sufficient participation in self-help, anger management and substance abuse programming. (Id. at 80.) The Board considered Petitioner to be both unpredictable and a threat to others due to his failure adequately to participate in such programming. (Id.) In addition, the Board found that Petitioner had an "unstable social history" as shown by his time in foster care after his parents divorced as well as his admitted previous use of alcohol and drugs. (Id. at 78-79.)
The Board examined Petitioner's psychological evaluation from December 24, 1999. (Id. at 35.) In the 1999 psychological evaluation, Dr. Carswell wrote of Petitioner:
[I]t is felt that he would pose a less than average risk for violence when compared to this Level II inmate population. If released to the community, his violence potential is estimated to be no higher than the average citizen in the community. The most significant risk factor as a precursor for violence for this inmate would be a return to polysubstance abuse. (Pet'r Ex. D, 1999 Psychological Evaluation at 5.) The Board also considered Petitioner's psychological evaluation from January 28, 2004, which incorporated the 1999 psychological evaluation. The Board found that the 2004 psychological evaluation was not "totally supportive of release" because it said that Petitioner's only risk of future criminality would be if he returned to substance abuse. (Resp't Ex. 1 at 79.) The Board desired further psychological evaluation regarding Petitioner's relationships with women and potential spousal abuse problems that it considered inadequately addressed. (Id. at 82.) The Board considered the opposition to parole voiced by the surviving victim Sennewald, the murdered victim's next of kin, and the Orange County District Attorney's Office. (Id. at 80.) The surviving victim Sennewald testified in part:
Jerry said he wants to be paroled in San Diego. I live in San Diego. . . . And I really hope that Jerry can do his Christian work here in prison. I really don't want him out on the streets because I really don't think -- I ...