The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS (Document 1)
Petitioner Edward B. Hernandez ("Petitioner") is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation ("CDCR") pursuant to a valid judgment and conviction in the Sacramento County Superior Court for second degree murder with a firearm use enhancement. Petitioner was sentenced to 17 years to life in state prison. Exh. A, attached to Answer. His term began on July 17, 1986.
In the instant petition, Petitioner does not challenge the validity of the state court judgment. Rather, he challenges the March 1, 2005, decision by the Board of Parole Hearings ("BPH") denying parole at his third parole consideration hearing. Exh. 1, attached to Petition.
Petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. The petition was denied on February 15, 2006. Exh. 7, attached to Answer.
Petitioner next filed a petition for writ of habeas corpus in the Third District Court of Appeal. The petition was denied on July 13, 2006. Exh. 8, attached to Answer.
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on February 14, 2007. Exh. 9, attached to Answer.
Petitioner filed the instant federal petition for writ of habeas corpus on March 19, 2007. He argues that (1) the actions of the Sacramento County Superior Court amount to judicial misconduct; (2) there is no evidence to support any of the reasons given to deny parole; and (3) the BPH failed to consider many of their own parole suitability criteria.
Respondent filed an answer to the petition on August 8, 2007. Petitioner filed his traverse on September 6, 2007.
FACTS OF THE COMMITMENT OFFENSE*fn1
Nicknamed "Shady," Petitioner trained at the Washington Neighborhood Center in hopes of someday boxing in the Olympics. Although not a boxer, Isidro Joseph Garcia also went to the center to play handball in the gym. He too had a nickname -- "Speedy." Petitioner and Garcia were friends, and when together, they got along without incident until the day of the fatal shooting. Petitioner and his girlfriend, who later became his wife, Maria Savala Hernandez (Savala), fought often and would break-up only to make-up and date once again. Prior to the victim's death, Petitioner and Savala were in the break-up mode.
Just three days before his death, Garcia started seeing Savala. Accompanied by Olga Samudio and another friend, Savala rode around with the victim in his car. For three days in a row, the four of them drove around and on the last day, February 21, 1985, Garcia dropped everyone off around 3 or 4 p.m. As he was curious whether Savala was seeing Garcia, Petitioner called Samudio a couple of days before the victim's death. Although repeatedly asked, Samudio did not tell him. At trial, she stated that Petitioner told her that he would find out and would beat up Savala if such was true. Late in the evening, Petitioner went to Savala's house. They argued and Petitioner pulled her hair away from her neck looking for "hickeys."
Sometime after dropping off Savala and her friends, Garcia went home. In the early evening, he offered to sell a pair of pants he had in order to get some money to buy his family something to eat at McDonald's. When he left home he was wearing a white T-shirt, gray sweatpants and tennis shoes. Petitioner and his mother went to McDonald's restaurant on Fruitridge Avenue. After receiving their food order, they sat down and started eating. Thereafter, Garcia entered the same McDonald's restaurant and placed his order for four hamburgers, four cheeseburgers and a quarter pounder. As he stood at the counter, the victim was approached from behind by Petitioner who said either, "I've been looking all over for you," or "I've been looking for you all day." Petitioner and Garcia exited the restaurant and stood facing each other, the victim leaning against a gas meter and Petitioner leaning against a car. As he passed between Petitioner and Garcia on his way to the trash bin, David Bingenheimer, a McDonald's employee, observed them standing approximately one and one-half feet apart, neither one of them with anything in his hands, and overheard one of them use the term "greenbud" in an apparently serious conversation. Shortly after Bingenheimer reentered the restaurant, the other employees and patrons heard three to five loud noises as if a car had backfired or firecrackers or a gun had gone off. Immediately thereafter, Petitioner opened the door to the restaurant and yelled "Come on mom, let's go." Petitioner's mother exclaimed either "What's happening" or "Oh, no, what did you do" or "are you doing?" She quickly ran out of the restaurant and entered a van with Petitioner in the passenger side and drove off. Petitioner attempted to shield his face as they left the parking lot.
On March 1, 2005, the BPH held Petitioner's Subsequent Parole Consideration Hearing.
Parole was previously denied for three years on July 30, 2001.
The BPH incorporated the following facts, taken from the counselor's BPH report dated July 2004, relating to the commitment offense into the record:
On February 21, 1985, just prior to 7:30 p.m., the victim, Isidiro Garcia, entered McDonald's restaurant near Stockton Boulevard and Fruitridge Road in Sacramento. While the victim was standing in the food order line, he was approached by Edward Hernandez, who reportedly told the victim that he had been looking for him. They spoke briefly and then the victim walked out into the parking lot followed by Edward Hernandez. A short time later gunshots were heard. Edward Hernandez then opened the east door to the restaurant and told a female, who had accompanied him, come on, let's get out of here. The female ran out of the restaurant and entered the driver's side of the vehicle with Hernandez as a passenger. The vehicle drove west on Fruitridge. The autopsy report revealed that the victim was shot five times apparently with a .25 caliber, like a -- There was a gunshot wound which perforated the heart, a gunshot would which perforated the diaphragm, spleen and left kidney, a gunshot wound that perforated the lumbar vertebrae column, and finally a gunshot to the right back perforated the superior pole of the right kidney and right diaphragm. The cause of death was multiple gunshot wounds.
Exh. 2, attached to Answer, at 11-13.
Petitioner indicated that he did not dispute any facts of the case and took full responsibility for his actions. He chose not to further discuss the case.
The BPH also read a portion of a letter from Sacramento Chief of Police Albert Najera into the record:
In 1985 Edward Hernandez, age 19 years, was involved in a tumultuous relationship with Maria Zavala, age 16 years. Maria Zavala broke the relationship between them. She stated that Edward Hernandez was extremely jealous. Maria Zavala had begun casually dating Isidro Garcia for approximately one week. Zavala advised detectives that two days before the murder of Isidro Garcia, Edward Hernandez confronted her. Edward Hernandez came to her house unexpectedly and grabbed Maria Zavala by the hair and threatened her about her relationship with Isidro Garcia. Witnesses would later advise detectives that Edward Hernandez had said that if he ever found Maria Zavala with Isidro Garcia together he would kill him.
Exh. 2, attached to Answer, at 14-15.
The BPH reviewed Petitioner's prior criminal record (six months probation in 1982 for assault and battery). It recounted his personal life as well as numerous letters of support and offers of employment upon release. The BPH also read into the record a portion of Chief Najera's letter in which he opposed parole for Petitioner due to "his callous ...