FINDINGS AND RECOMMENDATIONS
Petitioner Robert Miranda is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of second degree murder on November 5, 1985. On April 27, 2005, the Board of Prison Terms (now the Board of Parole Hearings and hereinafter Board) found him suitable for parole. Petitioner challenges California Governor Arnold Schwarzenegger's September 15, 2005, reversal of the Board's decision. Petitioner claims that the Governor's reversal violated his right to due process.*fn1 Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be granted.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Board recited the facts of petitioner's commitment offense as follows: PRESIDING COMMISSIONER DALY: Okay. Counsel, I'm going to - - I'm going to go through the Statement of Facts as they're spelled out in the Board report, dated August 15th, 2003 and:
"This was a crime that occurred on November 1st, 1981 and the victim, David Larsen, was a 32-year-old merchant seaman. He had been paid 1800 dollars in cash by his employer and on the same date, at about 11:00 p.m., the victim's corpse was found in San Francisco, lying on the sidewalk of Seneca Street. A subsequent review of the victim's body revealed he had been stabbed numerous times.
Initially, the victim was unable to be identified by Investigative Services because there was no available information on the identification - - on the corpse. On November 1st, 1981, an employee for a local pizza restaurant, Tony Fano, F-A-N-O, reportedly found the victim's wallet. A review of the wallet revealed the presence of personal papers and adequate identification of the victim, David Larsen. It is noted that the victim's wallet was found approximately two blocks from the location of his body. Supporting documents indicate that approximately four years later, on February 4th, 1985, inmate Miranda's sister, Diana Zelms, Z-E-L-M-S, contacted Inspector Erdlate, E-R-D-L-A-T-E, and informed him Miranda had admitted to killing the victim, David Larsen. According to Ms. Zelms, Miranda had admittedly been patronizing the Algiers Bar located on Mission Street in San Francisco. During his presence, inmate Miranda reportedly observed a man at the bar revealing a large amount of money in his wallet. Subsequently, Miranda and his associate, Cliff Green, proceeded to follow the victim as he exited the bar. Miranda and accomplice Green then proceeded to follow the victim as they rode along in Cliff Green's automobile and plotted to rob the victim. Diana Zelms further states that Miranda exited the vehicle and proceeded to attack the victim with a knife, as he stabbed him in the neck several times and culminated the attack by taking the victim's aforementioned wallet containing a large amount of cash. On February 27th, 1985, accomplice Cliff Green was officially interviewed by Inspector Erdlate.
At that time, Mr. Green essentially corroborated the statement previously noted by Miranda's sister, Diana Zelms. However, Mr. Green did add that subsequent to committing of the instant offense, he and Miranda returned to the residence of Mr. Green, where Miranda proceeded to change his bloodstained clothing and give Mr. Green two hundred or three hundred of the victim's stolen money. It is further noted that Inspector Erdlate interviewed an acquaintance of Miranda by the name of John Ray. It is noted that Mr. Ray also confirmed that Mr. Miranda had admitted to him having perpetrated the instant offense. Based upon the aforementioned information, Miranda was apprehended by [the] San Francisco Police Department on March 5th, 1985. Pursuant to the preliminary hearing transcripts, starting on page 70 through page 123 was the testimony of Cliff Green. Green states that he received a telephone call from Miranda on the night of that David Larsen was stabbed. Miranda had indicated to Green that Larsen wanted to buy some weed. Green met Miranda and Larsen at a gas station directly across from the Algiers Bar. Both Miranda and Larsen got into the car driven by Green for the purpose of giving Larsen a ride to get some weed. Green drove Seneca - - to Seneca and Mission and parked the car. Both Miranda and Larsen got out of the car. A few minutes later, Miranda returned to the car and told green, quote, let's go, end quote. Green noticed what appeared to be blood on Miranda's hands and asked him what happened. Green indicated that Miranda asked [sic], quote, don't ask, you don't know nothing, end quote. Green drove to his parents' house and Miranda washed up and changed his clothes. Miranda gave Green 700 dollars that he owed him. Green then drove Miranda to Miranda's sister's, Diana Zelms' house. It was not until the following evening that Green and Miranda learned that David Larsen had died. Green also states that he believed Miranda was under the influence of PCP because his eyes were glassy and he was acting differently. It is noted that Green was convicted of PC 32, accessory after homicide. Miranda is in agreement with Green's testimony."
Petitioner told the Board that he met David Larsen at the Algiers Bar and that Mr. Larsen asked if petitioner "could get him a pound of marijuana." Id. at 77. Petitioner then contacted Cliff Green to arrange the purchase. Id. Mr. Green picked up petitioner and Mr. Larsen and the three drove a few blocks before Mr. Green stopped the car to buy cigarettes. Id. At that point Mr. Larsen told petitioner that he had changed his mind did not want to purchase the marijuana. Id. Mr. Larsen got out of the car and began to walk away. Id. Petitioner described the events leading up to the stabbing as follows:
INMATE MIRANDA: At that time I was high and under the influence and when he started walking away, I approached him and said, hey, I just set this, you know, deal up. We've got to go check it out. I just got this guy out of bed. It was about 11:30. And he said, I have changed my mind and I don't want to do it. So I started arguing with him. I said, well, we've got to at least check this out. So that escalated into an argument and then we started fighting and then at that point in time, I just pulled out my knife and I stabbed him.
PRESIDING COMMISSIONER DALY: Okay. It says, he said he was leaving so you grabbed him by the arm and told him he had to go and at least check it out. He swung his duffel bag at you. Is that true?
PRESIDING COMMISSIONER DALY: And you started fighting in the middle of the street and the next thing you know, you had your knife that you always carried in your knife case. And that's because you were dealing drugs and - -INMATE MIRANDA: No. That was because I worked at the shipyards and I was a rigger and we used it to cut rope all the time so I'd always have it right on the side of (inaudible).
PRESIDING COMMISSIONER DALY: Okay. You started slinging and punching with it and he fell down to the ground and you reached in and took his wallet and then jumped in the car and had - -Cliff drove you away. Did Cliff see what was going on? INMATE MIRANDA: Yes, he did.
PRESIDING COMMISSIONER DALY: Okay. And you said you had no idea he was dead. Did - - was there anything you did to try to check on him?
INMATE MIRANDA: I was - - I was so panicked and so freaked out, I just ran to the car and then we left. We drove away.
On September 26, 1985, petitioner pled guilty to second degree murder while armed with a deadly weapon and was sentenced to a term of 16 years to life on November 5, 1985. Answer, Exhibit A at 2-4.
On April 27, 2005, the Board held a Subsequent Parole Consideration Hearing for petitioner. Petition at 64. At the conclusion of that hearing the Board found petitioner suitable for parole, stating:
PRESIDING COMMISSIONER DALY: Okay. We're back on record in the matter of Robert Miranda. And the Panel has reviewed all of the information received from the public and relied on the following circumstances in concluding that the prisoner is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison.
The prisoner has no juvenile record of assaulting others. And while imprisoned, he had enhanced his ability to function within the law upon release through his participation in educational programs, self-help therapy, vocational programs, institutional job assignments and correspondence courses. And I want to elaborate on this just a little bit. The inmate has completed two vocations, vocational Eyewear certification on December 15th of '04. And he is certified by the American Board of Optometry and he completed his vocational Silk-screening in - - on August 21st of 1992. He also received his GED in - - I show 1989, but we had 1987 in the records. At any rate, you do have your GED and you have worked in PIA Optical. You've worked as a lead man, as a plumber, you've worked as a clerk, you've worked in the Canteen and you've also worked as a barber. You have taken a number of correspondence courses at Solano Adult School. You've had Substance Abuse Program, Beginning Reading Curriculum, Advanced Reading Curriculum, Job and Life Skills Curriculum, Parenting for Young Parents Curriculum, Math and Language Arts Curriculum. These are all the PLATO courses and then from the (indiscernible) Bible Studies, you have taken a - - many, many of the courses. Also, through the American Bible Academy, you have taken six courses through there. Crossroads Bible Institute, you've had two of their classes. Solano Chapel Studies, you've completed the Christian Discipleship and you are currently in attendance at the Family Stations Bible College.
Self-help programs, you started out working on the Men's Advisory Council here at Solano. You had Victim Offenders Learning Together at Vacaville in '95 to '97. Alcoholics Anonymous, almost continuously. Narcotics Anonymous at - -here at Solano. In January of '96, you had the Breaking Barriers Program. You also had the Advanced Breaking Barriers Program and you've had the Framework for Recovery. I have the Creative Conflicts course, which was also taken on January 29th of '04. You have been - - received a number of laudatories and you've also been receiving above average to exceptional work reports. Because of maturation, growth, greater understanding and I won't say advanced age, but older age, you have a reduced probability of recidivism. You have realistic parole plans, which include a job offer and/or family support. In fact, you've had extremely strong family support throughout your incarceration from the very beginning. You've maintained close family ties and you've made amends with your family members. You have maintained positive institutional behavior and the Panel does note that you did have some write-ups and you've not had a discipline for any drugs or alcohol since 1990 and there was just one at that time. You have shown signs of remorse and you understand the nature and the magnitude of the offense and you accept responsibility for the criminal behavior and have a desire to change towards good citizenship.
The Panel has also noted that there is no letter or physical presence from the District Attorney's Office. There is no letter from the police agency. And the one member of the victim's family spoke very eloquently about the pain that [the] loss of David Larsen had meant to their family. And also spoke of reconciliation which is very rare in these cases.
The psychiatric, psychological factors, the psychiatric, psychological report, dated February 2nd, of '05 by Dr. Nancy Van Couvering is a favorable report. And in that report, Dr. Van Couvering indicates that your Global Assessment score is 85 and that you have good functioning in all areas. That you are interested and involved in a wide range of activities. You are socially affective, generally satisfied with life and no more than every day problems or concerns. And she also goes on to say that you have completed your GED. You've been employed as a procurement clerk in Maintenance and Repair. You've worked in Canteen, IDL, Kitchen, as a barber, as a plumber and certified American Board of Optometry in the Voc Lens Lab. She says if released, you would like to work in Optics. In prison, you have been - - she talks about the disciplines that you have, so that was taken into consideration. You've been clean and sober for the past 12 years and actually, it's been longer than that. And you have adopted a religious faith, which you practice and:
"The inmate's life crime was committed under the influence of drugs and alcohol. There is no question that he needs and will continue to need program support for that addiction. On the other hand, he has established strong ties with the Christian community in prison and intends to continue those ties if released. And he has been incarcerated for 20 years and his last 115 was 11 years ago. And I concur with Dr. Clair's previous evaluation, that his present risk to the community is low."
And then we go to Dr. Clair's psychiatric evaluation and in Dr. Clair's psychiatric evaluation, he refers to a 1997 report, which concluded that you are progressing very well throughout your participation. And it says:
"Almost exactly a year after that evaluation and as a matter of fact, the inmate gives a precise date of October 14th, 1998, the inmate found that he was born again. He has become almost excessively religious and talks of being a new creature in Jesus Christ. He is a constant reader of the Bible. He feels that any possible new life on the streets for him will be complete [sic] if his [sic] is not spreading the word, even if he must interrupt this activity to earn a living."
"The inmate is being genuine in what he says and this provides a further positive in a behavioral picture, which suggests that this man is no longer a threat to public order." Respectfully committed - - submitted, Dr. Dean Clair, Psychiatrist.
On September 15, 2005, California Governor Arnold Schwarzenegger reversed the Board's decision, concluding in his statement of the reasons for his decision that:
The gravity of this crime alone is sufficient for me to conclude that [petitioner's] release from prison would pose an unreasonable risk to public safety.
Mr. Miranda has been incarcerated for more than 20 years now and is 49 years old. But after carefully considering the very same factors the Board must consider, I find the gravity of the second-degree murder he committed presently outweighs any factors supportive of his parole. Accordingly, because I believe Mr. Miranda's release from prison would pose an unreasonable ...