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 and Rehabilitation ("CDCR") following his 1994 conviction of second degree murder. Petitioner is serving a sentence of 15 years-to-life in prison, plus a three year sentence enhancement for use of a firearm.
In the instant petition for writ of habeas corpus, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings' ("Board") 2007 decision finding him unsuitable for release on parole.
In 2007, Petitioner filed a state petition for writ of habeas corpus in the Alameda County Superior Court challenging the 2007 Board's decision. The superior court denied the petition, finding that "The record presented to this Court for review demonstrates that there was certainly some evidence, including, but not limited to the committing offense, Petitioner's failure to maintain sufficient and genuine participation in self-help and counseling programs to help Petitioner gain insight into the source of and ways to control his emotions of anger and rage that led to the committing offense, and the Board's finding that Petitioner was at least a moderate [risk] of dangerousness if released, and would remain so, until he gained better understanding and insight into his ability to cope with frustrations and stress in a non-controlled situation." (Exhibit B, to Answer, at 1.)
Petitioner then raised the same claims to the California Court of Appeal and California Supreme Court. (Exhibits C & E.) Both petitions were summarily denied. (Exhibits D & F.)
Petitioner filed the instant federal petition for writ of habeas corpus on January 5, 2009. Respondent filed an answer to the petition on August 3, 2009, and Petitioner filed a timely traverse on October 5, 2009. (Court Docs. 16, 19.)
On January 27, 1992, Petitioner drove to the home of his father, George Cloyd, during the predawn hours. Petitioner was armed with a loaded 12-gauge shotgun. During an argument with his father inside the residence, Petitioner produced the shotgun and brandished it at his father. Petitioner ended the argument by firing the shotgun at his father from a distance of approximately ten feet. The blast from the shotgun struck Petitioner's father on the left side of his face causing major trauma. It was estimated that this type of injury would result in death within a few minutes. After killing his father, Petitioner attempted to clean up the site of the murder and placed the body of his father in the basement of the residence inside a hidden room behind a bookshelf. Petitioner removed large portions of blood stained carpet after failing in his efforts to clean the carpet with a commercial shampooer, which he rented after the murder. Petitioner removed several of his father's personal affects including a computer, a wallet with credit cards, and personal files. Petitioner discarded the shotgun at the San Leandro Marina. Petitioner feigned ignorance of his father's whereabouts when questioned by individuals concerned about his disappearance.
After being arrested by Oakland Police, Petitioner admitted shooting his father once but only after confronted with the fact that his father's blood was found on his tennis shoes. Petitioner claimed the shotgun discharged accidentally during a verbal dispute.
Aasylei Hutcherson testified that during a jail visit with Petitioner in late 1992, he told her that if he had to do it all over again he would do it the same way. Trial testimony included evidence that Petitioner harbored ill will toward his father for several months preceding the murder. Petitioner left his father's business after an internal audit disclosed that he had embezzled several thousand dollars. A confrontation between Petitioner and his father in November of 1991 ended when Petitioner brandished a loaded shotgun at him. Petitioner apparently threatened to report his father to the Internal Revenue Service and Federal Bureau of Investigations due to his father's unlawful use of aliases to run his business ventures.
On January 12, 1992, Petitioner stole his father's vehicle and was arrested by Oakland Police. In addition, during January 1992, Petitioner left a message on his father's telephone answering machine stating, "You have 48 hours to live, 48 hours." Petitioner also indicated to several people that he was not ...