The opinion of the court was delivered by: Christina A. Snyder, District Judge.
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge, and the objections filed by Respondent and Petitioner, de novo. The Court concurs with and adopts the findings, conclusions, and recommendations of the Magistrate Judge.
IT IS ORDERED that Judgment be entered: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered granting a writ of habeas corpus as follows: The Board shall find Petitioner suitable for parole at a hearing to be held within 30 days of the finality of this decision, unless new, relevant and reliable evidence of her conduct in prison or change in mental status subsequent to the March 24, 2006, parole consideration hearing is introduced that is sufficient to support a finding that Petitioner currently poses an unreasonable risk of danger to society if released on parole; and in the absence of any such new relevant and reliable evidence showing Petitioner's unsuitability for parole, the Board shall calculate a prison term and release date for Petitioner in accordance with California law. Further, if the release date already has lapsed, Respondent shall, within ten days of the Board's hearing, either release Petitioner forthwith if his release date lapsed more than three years earlier, or release Petitioner on parole for that period of her three year parole term that remains if the release date lapsed less than three years earlier.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE OSWALD PARADA, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
On July 3, 2007, Maria Nestle ("Petitioner"), filed the current Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner challenges the California Board of Parole Hearings' ("BPH" or "Board") decision finding her unsuitable for parole after a subsequent parole suitability hearing conducted on March 24, 2006. On October 22, 2007, Respondent filed an Answer to the Petition. On November 1, 2007, Petitioner filed a Traverse to the Answer. Thus, this matter is ready for decision.
A. Commitment Offense.*fn1
The Board incorporated by reference the statement of facts as set forth in the California Court of Appeal's reasoned decision. It then read into the record the summary of the crime from the probation officer's report:
On or about July 16th, 1977, Ms. Nestle shot both victims in the head with a .22 caliber rifle. She then had her son and two of his friends dig a large hole, a grave by the motel which the victims owned. She and her son then placed both victims in the grave and covered it with dirt. Between July 16th, 1977 and July 22nd, 1977, Ms. Nestle had taken over the running of the victim's motel. On July 16th, 1977 she reported to the Fresno County Sheriffs that six male Mexicans had taken money from her and demanded a car for which they would return the following day. Four of the six male suspects were arrested on July 16th, 1977. July 17, 1977, Ms. Nestle contacted Fresno Sheriff and turned over a .22 caliber rifle identified as the murder weapon. On July 22nd, 1977, Ms. Nestle again contacted the sheriff's department concerning a foul odor outside the motel where she believed the two bodies might possibly be buried. Excavation of the grave site revealed both victims' bodies. Later the appellant was arrested on July 28th, 1977. Her son Peter was arrested on July 2nd, 1977.
The Board also read these additional facts from the appellate decision:
The appellant was arrested on July 28th, 1977 and her son Peter was arrested on August 2nd, 1977. A tape recorded conversation in the Fresno County Jail with her daughter Janette Juanita ..., on August 6, appellant urged her to convince Peter not to admit that he'd buried the victim's bodies. Appellant also conceded to daughter Felicia ... that "Mr. Morris wouldn't give us no money ."
Petitioner declined to speak about the crime at the hearing. ( Id. at 16.) Her attorney noted for the record that she did not agree with the recitation of the circumstances of the events, but recognized that that had been the operative version of the offense at all times since her conviction. ( Id. at 16.) He also noted that she denies culpability or involvement in the crime as she had for many years. ( Id. at 17.) Petitioner has always denied murdering the victims. Her account is that the victims were probably killed in retaliation for a drug transaction gone bad, that she was raped by the murderers and held in a hostage situation for several days, and that they ordered her to bury the victims' bodies which she did with Peter's help. Petitioner states that she did not report the crimes because of threats against her family. (Pet. at 3 .)
Petitioner was sentenced to seven-years-to-life with a minimum eligible parole date of August 3, 1984. (Pet. Ex. A at 1.)
C. March 24, 2006, Parole Denial.
On March 24, 2006, Petitioner appeared for her thirteenth parole consideration hearing. (Pet. at 6.) Petitioner was denied parole at each of these hearings. ( Id.)
The Board's March 24, 2006, decision finding Petitioner unsuitable for parole is the decision challenged by the current Petition. In denying Petitioner parole, the Board stated as follows:
[T]he crime you committed, we believe you committed was a horrific crime, in which two people were beaten and murdered, eventually buried, bodies attempted to be hidden and later found. You were then arrested and convicted on two counts of first-degree murder. [The victims] were owners of a motel that you were working at. This occurred on or about the 16th of July 1977. Both of the victims were shot with a .22 caliber rifle. At least one of the victims was beaten with a blunt object. In fact, both of them appeared to have been beaten in or around the head area. The offense was carried out in an exceptionally violent and brutal and cruel manner. There were multiple victims killed in the same incident. The victims were abused, tied up, one of the reports indicated the male was hogtied, beaten, and shot to death. They were then taken out to a shallow grave and buried. They weren't dug up for almost a week once they started emanating a foul odor. The motive of the crime was truly inexplicable. While you did not have a criminal history in your background, we believe you had an unstable social history. We believe you had a chaotic childhood, multiple moves, hard to define who brought you up, it appears it may have been your godparents. You would never learn how to read or write. If you went to school, you went to school at a very low level and didn't complete your schooling. You have multiple marriages, the last being as late as 1997 while you were in prison.
You have failed to develop certified marketable skills since you've been in prison. However, we do understand you have well developed sewing skills that you could possibly take into the marketplace and be able to earn income. You have failed to upgrade yourself educationally or vocationally while you have been in prison, though you have participated in self-help programs..... In regard to parole plans, she does not have residential plans in her last county of legal residence. Now you do have an opportunity to live with a lady by the name of Aral ... Braman .... Does she have acceptable employment plans? Well, no, you do not.
The Board reviewed the many self-help programs with which Petitioner was involved, her work at the prison in the Forestry Department, and the fact that she had done "plenty of volunteer work." ( Id. at 81-82.) It also mentioned Petitioner's excellent disciplinary record while in prison-her last 128 *fn2 was in 1988; her last 115 was in 1981 for initiating and spreading rumors. ( Id. at 75-76.) With respect to her psychological reports, the Board noted that the last report, dated March 1, 2006, was favorable. ( Id. at 76.) It noted, however, two prior reports, one in January 2004 and the other in July 2001, both of which found "that it would be impossible to make any prediction regarding her potential for violence from a psychological perspective given her advanced age and her decreasing cognitive capacity." ( Id. at 77.) The 2006 report, and two 2005 reports, specifically rejected the finding of these two previous reports, stating that "[i]t is not `impossible' to make a prediction of future risk, and it is noted that declining cognitive capacity and advancing age both operate to lower the risk of violence." (Pet. Ex. B at 8.)
D. Denials of Habeas Corpus Relief in State Courts.
On October 13, 2006, the Fresno County Superior Court denied Petitioner's habeas petition in a reasoned decision. (Pet.Ex. M.)
On March 15, 2007, the California Court of Appeal summarily denied Petitioner's habeas petition. (Pet.Ex. N.)
On June 20, 2007, the California Supreme Court summarily denied Petitioner's habeas petition. (Pet.Ex. O.)
Petitioner contends her due process rights have been violated because:
1. The Board failed to state a nexus between her current risk of danger to public safety and its decision to deny parole;
2. The Board impermissibly based its decision on the unchanging factors of ...