The opinion of the court was delivered by: M. James Lorenz, United States District Court Judge
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION AND REMANDING THE CASE TO THE MAGISTRATE JUDGE FOR A SUPPLEMENTAL REPORT AND RECOMMENDATION
Petitioner David Avila, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). He claims that his due process rights were violated because he was denied parole and that his due process and Eighth Amendment rights were violated by delay in the parole proceedings. The case was referred to United States Magistrate Judge Nita L. Stormes for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). The Magistrate Judge issued a Report and Recommendation, recommending the Petition be denied in its entirety. Petitioner timely objected. Respondent did not respond. For the reasons which follow, the Report and Recommendation is ADOPTED as modified herein insofar as it addresses Petitioner's claims. Petitioner's claims that denial of parole violated his due process rights and that the delay in the parole proceedings violated his Eighth Amendment rights are DENIED WITH PREJUDICE. The recommendation to deny the Petition in its entirety is REJECTED. The case is REMANDED with respect to Petitioner's due process claim based on the delay in parole proceedings, which was not addressed in the Report and Recommendation.
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "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). Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review). Petitioner objects to the recommendation to deny the Petition and to several of the Magistrate Judge's findings in support of that recommendation. Upon performing the requisite de novo review, the court concurs with Judge Stormes' recommendations to deny the claims addressed in the Report and Recommendation. The case is remanded with respect to the claim which was not addressed.
In 1986 Petitioner pled guilty to first degree murder and received a sentence of 25 years to life. He became eligible for parole on July 6, 2004. (Pet. Ex. A at 1.) At his first parole hearing on July 16, 2003 parole was denied for two years. (Pet. Ex. D at 53.) After two years and six months, on January 10, 2006, parole was denied again for two years. (Pet. Ex. A at 92.) Despite Petitioner's progress while incarcerated and other factors tending to indicate suitability for parole, the denial was based on several unsuitability factors: (1) the crime had been carried out in an especially cruel and violent manner; (2) escalating pattern of criminal conduct prior to the commitment offense; (3) unstable social history and drug abuse at a young age; (4) prison disciplinary history, including violence, until 1998, with the last two offenses being mutual combat and possession of contraband; (5) significant risk factors noted in the mental health evaluation from 2003; and (6) the relatively recent nature of Petitioner's gains during commitment. (Id. at 82-89.) Petitioner was denied parole again on January 16, 2008. (Objections at 8.) Only the denial of parole in 2006 is the subject of the Petition before the court. (See Pet. at 1.)
The Supreme Court has "clearly established that a parole board's decision deprives a prisoner of due process with respect to [his liberty interest in parole], if the board's decision is not supported by some evidence in the record or is otherwise arbitrary." Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007) (internal quotation marks and citations omitted); see also id. at 850. The relevant inquiry is whether any evidence supports the board's decision to deny parole. See Superintendent of the Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56 (1985); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006).
Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the . . . board. , 472 U.S. at 455-56. This standard "does not require evidence that logically precludes any conclusion but the one reached by the . . . board." Id. at 477. However, "[t]he evidence underlying the board's decision must have some indicia of reliability" and "continued reliance . . . on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." Biggs v. Terhune, 334 F.3d 910, 915, 917 (9th Cir. 2003); see also Irons, 505 F.3d at 854.
Petitioner first objects to the Report and Recommendation arguing that denial of parole was based only on unchanging factors. (Objections at 3-10.) The argument is based on the premise that any factor which occurred in the past is considered unchanging for purposes of the due process analysis. The relevant case on this point, Biggs v. Terhune, identified "the circumstance of the offense and conduct prior to imprisonment" as "unchanging." 334 F.3d at see also Irons, 505 F.3d at 854 (inmate's commitment offense); In re Lawrence, 44 Cal.4th 1181, 1221 (2008) (circumstances of the offense and criminal history). The court is not aware of any binding federal authority for the proposition that a prisoner's post-incarceration disciplinary record or mental health evaluations are also considered unchanging. In this case, in addition to the unchanging factors of his commitment offense and conduct prior to imprisonment, the decision to deny parole is supported by Petitioner's disciplinary record in prison, the 2003 mental health evaluation, and the relatively recent nature of his rehabilitative gains. Petitioner does not dispute his disciplinary record, the contents of the 2003 evaluation or the time line pertaining to his gains while incarcerated.
Assuming arguendo, that, as Petitioner contends, the denial were based primarily on the circumstance his commitment offense, a finding of a due process violation does not follow in this case. The inquiry whether the board's suitability determination was supported by "some evidence," as required by clearly established federal law, is "framed by the statutes and regulations governing parole suitability determinations in the relevant state." Irons, 505 F.3d at 851 ("we must look to California law to determine the findings that are necessary to deem a prisoner unsuitable for parole").*fn1
In California, "the denial of parole may be predicated on a prisoner's commitment offense only where the Board can 'point to factors beyond the minimum elements of the crime for which the inmate was committed' that demonstrate the inmate will, at the time of the suitability hearing, present a danger to society if released." Irons, 505 F.3d at 852 quoting In re Dannenberg, 34 Cal.4th 1061, 1071 (2005); see also Lawrence, 44 Cal.4th 1181. Specifically,
The Board's parole decisions are governed by section 3041 and Title 15, section 2402 of the California Code of Regulations. Pursuant to statute, the Board shall normally set a parole release date one year prior to the inmate's minimum eligible parole release date, and shall set the date in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. Subdivision (b) of section 3041 provides that a release date must be set unless the Board determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.
Title 15, section 2402 of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statutes. This regulation is designed to guide the Board's assessment of whether the inmate poses an unreasonable risk of danger to society if released from prison, and thus whether he or she is suitable for parole.
In re Shaputis, 44 Cal.4th 1241, 1256 (2008) (internal quotation marks, ellipses, brackets, citations, and footnotes omitted, emphases in original).
One of the circumstances enumerated in the regulations tending to show unsuitability is whether "[t]he prisoner committed the offense in an especially heinous, atrocious or cruel manner." 15 Cal. Code Regs. § 2402(c)(1). In Petitioner's case, the board made this finding. (Pet. Ex. A at 82, 88.)
The factors to be considered in making this determination include, in pertinent part, whether "the victim was abused, defiled or mutilated during or after the offense;" the offense "was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering;" or "[t]he motive for the crime is inexplicable or ...