The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se 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 pursuant to a judgment of the Superior Court of California, County of Merced, following his conviction by jury trial on April 29, 1976, of first degree murder. See Petition at 2. Petitioner was sentenced to serve an indeterminate term of 7 years to life in state prison with possibility of parole. Id.
On March 13, 2008, a parole suitability hearing was held before the California Board of Parole Hearings ("Board") to determine Petitioner's eligibility for parole. See Hearing Transcript attached to Answer, Exhibit 1 (hereinafter "Transcript"). Petitioner attended the hearing and was represented by his attorney. Id. At the conclusion of the hearing, the Board denied parole and deferred rehearing for one year. Id. at 121.
On October 23, 2008, Petitioner filed a petition for writ of habeas corpus in the Merced County Superior Court challenging the Board's decision. See Answer, Exhibit 1. On January 14, 2009, the petition was denied in a reasoned decision. See Answer, Exhibit 2. The superior court issued an amended order on January 15, 2009. See Answer, Exhibit 3. Petitioner then filed a habeas petition in the California Court of Appeals, Fifth Appellate District, on January 29, 2009. See Answer, Exhibit 4. The petition was denied on February 26, 2009. See Answer, Exhibit 5. On March 9, 2009, Petitioner filed a petition for review in the California Supreme Court. See Answer, Exhibit 6. On April 15, 2009, the petition was denied. See Answer, Exhibit 7.
On April 28, 2009, Petitioner filed the instant petition for writ of habeas corpus in this Court. The petition for writ of habeas corpus challenges the 2008 decision of the Board denying parole. Petitioner claims there is not "some evidence" to show he is currently a dangerous risk to society in violation of his constitutional rights. He further claims the Board pursues a discriminatory practice by finding Petitioner's crime to be "especially cruel" so as to deny parole. On July 20, 2009, Respondent filed an answer to the petition. Petitioner filed a traverse to Respondent's answer on August 12, 2009.
According to the Merced Sheriff's Office reports, on January 3, 1978, at approximately 3:34 p.m., officers were dispatched to Salter's Market on East 21st Street in Merced as it was reported that a man had been shot during a robbery at the establishment. Officers reported to the scene where they observed the victim, Hubert Morgan, 60 years old, lying in a prone position between two checkout counters, approximately five feet from the entrance. An officer checked the condition of the victim and began administering CPR as the victim did not appear to be breathing or have a pulse at that time. The officer was assisted by other deputies until the arrival of the ambulance. It was noticed that the victim had blood stains on his lower right abdomen area with a single bullet hole slightly lower, into the right of his navel. Further checking of the area revealed a cash register open and emptied with a quarter lying on the floor between the register and the counter.
According to Mr. King, a friend of the victim, he and the victim were in the store preparing to make some popcorn at the checkout counter when the suspect, described as a black male wearing a black ski cap and blue jacket, entered the store and proceeded to the soft drink counter. King stated he remarked to the suspect, "You look like O.J. Simpson." According to King, at that time, the suspect approached the counter, produced a weapon, and demanded money. The victim at the time opened the cash drawer and the suspect reached for the cash and the gun discharged, striking Morgan, who fell to the floor.
Deputies searched the area, including small cabins located approximately 600 feet northeast of the store. Each cabin was searched, including one which had been burned. Officers did not enter the burned cabin as the doors and most of the windows were boarded and the interior of the cabin was observed only through the windows. The search and investigation continued until approximately midnight, then terminated for the evening.
On January 4, 1976, at approximately 9:00 a.m., a detective from the Merced Sheriff's Office was contacted by an informant who named Petitioner as the perpetrator of the offense and was afraid to turn himself in. The detective later received a phone call from Petitioner who stated he wished to talk to the detective and would meet him at the A&W parking lot on East Sixteenth Street in Merced. Petitioner met the detective at that location and was placed in custody and transported to the Sheriff's Office for further questioning. During the interview, Petitioner stated the gun had discharged by accident and that he did not intend to shoot the victim. He had reached into the cash drawer with the gun in his hand. The victim moved the cash drawer and the gun discharged, hitting the victim. According to Petitioner, he then departed the store, ran north, turned up the alley, and hid in the burned cabin in the rafters. Petitioner stated he had thrown the gun over the fence after running from the scene of the robbery. He later accompanied officers to the area, indicating he had thrown the gun into a residence's yard. The area was searched with negative results.
On January 8, 1976, Petitioner was interviewed by the detective and stated the weapon had been thrown into a canal in the country. Petitioner showed the officers the location, indicating the gun might be at a location at the head gate. A search was conducted with negative results. Petitioner then spoke to the detective alone, stating that he had told his sister that he had placed the gun under the chicken house at the Jones's residence. He indicated he observed his sister proceed from the area of the chicken house to the canal, at which time he yelled at her, believing his sister had already disposed of the weapon. Petitioner later informed officers that his sister did not know anything about the weapon.
Petitioner requested to call another sister. He was allowed a phone call, at which time he made contact with Harvey Williamson, who requested of the deputy that he be allowed to meet Petitioner in the city. Clearance was granted and the deputies arranged the meeting, at which time Williamson left the area for several minutes, then returned to produce a brown paper bag containing a blue steel .38-caliber revolver, saying, "That's it." Petitioner was allowed to view the weapon and stated, ...