The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge
Pending before the Court are James Mackey's ("Petitioner") application for a writ of habeas corpus pursuant to 28 U.S.C. §2254(a) (doc. 1), Respondent's Answer (doc. 19), and Petitioner's Traverse (doc. 21). Also before the Court are the parties' supplemental briefs filed in response to this Court's April 7, 2008 order requesting additional briefing on supplemental authority, if any, related to this matter (doc. 23). For the reasons discussed below, Petitioner's application is denied.
Pursuant to a plea agreement, Petitioner entered a guilty plea to one count of first-degree murder in violation of California Penal Code § 187. He was sentenced on November 20, 1990, to serve a sentence of twenty-five years to life.
As part of the written plea agreement, the District Attorney agreed to write a letter recommending the Petitioner's early release, in exchange for the Petitioner's cooperation and testimony in another case arising out of the same murder.
The probation report prepared for the trial court's sentencing proceedings described Petitioner's crime as follows:
The real estate agent Lawrence Carnegie stood with his back to an open garage door on property at 14152 East Tokay Colony Road, Lodi, he was shot in the back with the bolt from a crossbow fired by James Mackey. Mackey had been hiding inside the garage, waiting for Carnegie to be lured into position by Carl Hancock, so Mackey could shoot Carnegie.
The shooting occurred the evening of February 28th, 1989. Moments after Carnegie was shot, a car driven by Denise Brock drove onto the property. Brock and the children in her car saw Carnegie on the ground, saw Carl Hancock running toward Brock's car, and saw Mackey standing over Carnegie with his back to the car. Those in the car were unable to give Sheriff's Deputies any more complete description of Mackey than the description of his clothing.
Brock was frightened by the activity she happened upon and quickly backed out of the driveway. She drove to a residence on Tully Road and called the "911" emergency dispatcher and reported what she had seen.
When deputies from the Sheriff's Department went to the residence on Tokay Colony Road, they found a bloody sleeping bag, the bloody bolt from a crossbow, and Lawrence Carnegie's car. Carnegie and the two men described by Brock could not be found.
Carnegie's body was found the next afternoon in a rural area along Highway 128 in Sonoma County. Subsequent investigation by Sheriff's Deputies, involving hundreds of man-hours of investigation, reveled that James Mackey had rented a Ford on February 28, 1989, that matched the description of the car Brock had seen parked at the shooting scene. The car eventually was traced to Southern California. Deputies retrieved the car and had it examined by criminalists who found dried blood in the Ford that matched Carnegie's blood.
Mackey was arrested for Carnegie's murder on June 1, 1989. He told investigators before and after his arrest several different versions of his role in the murders.
Mackey eventually implicated Carl Hancock as the person who helped him kill Carnegie. Mackey implicated Michael T. Blatt, a wealthy local businessman, property developer, and business agent for athletes, as the individual who solicited and paid Mackey to have Carnegie killed.
Ex. "A" to Application, Probation Officer's Report, November 20, 1990.
On May 6, 2005, the Board Of Prison Terms ("BPT") concluded that Petitioner was not suitable for parole because he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Petitioner filed a petition for a writ of habeas corpus before the San Joaquin County Superior Court claiming that the BPT's May 6, 2005 decision and the prosecutor's statements at the BPT hearing violated the plea agreement. The San Joaquin County Superior Court denied his petition in a written order on March 6, 2006.
On May 1, 2006, Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. That court summarily denied the petition on December 13, 2006. Petitioner filed a timely application for a writ of habeas corpus in this Court pursuant to 28 U.S.C. §2254(a) on January 13, 2007 raising the same claim asserted in his state court petition. Respondent concedes that Petitioner exhausted his state court remedies.