FINDINGS AND RECOMMENDATIONS
Petitioner Curtis Lee Morrison 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 serving an indeterminate sentence of seven years to life in state prison following his 1974 convictions for murder and other offenses in Contra Costa County. Here, petitioner does not challenge the constitutionality of those convictions, but rather, the execution of his sentence, and specifically, the December 17, 2003 decision of the Board of Prison Terms finding him unsuitable for parole.
The facts of petitioner's life crime were summarized by the Contra Costa County Superior Court on state habeas corpus review:
[O]n April 21, 1973, Officer Tarantino responded to a request for assistance on Alhambra Avenue, Martinez. As the officer approached the scene, Petitioner was observed to be laying on the grass approximately four feet from his truck. Witnesses observed Officer Tarantino approach Petitioner in a half-kneeling position to take a pulse. The next observation of a passing witness was that the officer and Petitioner were standing near the truck with the officer talking to Petitioner in a search position, being frisked. A scuffle ensued and Petitioner took Officer Tarantino's gun. Officer Tarantino was shot in the abdomen, and fell to the ground, rolling in pain. Nevertheless, Officer Tarantino got up and continued to fight with Petitioner. Petitioner dragged the officer and kicked him while dragging him. Petitioner was observed to beat Officer Tarantino in the head while he was lying on the ground with his head raised, as if he was pleading with Petitioner. Petitioner put the gun to Tarantino's head and shot him between the eyes. The witnesses thought they heard four shots. Petitioner was observed to throw the gun he used to a hill.
Officer Tarantino died several hours later at the county hospital. The coroner's report revealed that Officer Tarantino's body was grossly traumatized: he was shot in the head and in the abdomen; substantial force which was unrelated to the shooting was applied to Officer Tarantino's head.
Petitioner's driver's license was found in Officer Tarantino's shirt pocket, with a.22 caliber pistol. The pistol had been used in the December 3, 1972 murder of Doris Vogan, an Antioch liquor store clerk. (Resp. Ex. D.)
The probation officer's report prepared prior to petitioner's sentencing indicated in addition that after petitioner shot Officer Tarantino between the eyes, he was observed to proceed to the officer's patrol car, and then return to his truck where he sat on the passenger's side with the door open. (Resp. Ex. C at 3.) A California Highway Patrolman drove up and petitioner approached with his hands in the air. (Resp. Ex. C at 3.) It was noted that petitioner's wrists were soaked with blood and there was blood above his right ear. (Resp. Ex. C at 3.) Blood and urine specimens were later taken and results showed petitioner's blood alcohol content to be.18 percent in one test and.19 percent in a second test. (Resp. Ex. C at 3.)
After his apprehension, petitioner told police that he and his cousin had taken a truckload of scrap metal to a junk dealer in Richmond and were on their way home when his truck broke down. (Resp. Ex. C at 4.) Two unidentified black male adults drove up in a vehicle and requested assistance in finding an address in nearby Pittsburg. (Resp. Ex. C at 4.) Petitioner stated that he sent his cousin to Pittsburg with the men to bring back assistance for the broken down truck. (Resp. Ex. C at 4.) Petitioner states that he crawled underneath the truck to make emergency repairs so the vehicle could be towed to Pittsburg. (Resp. Ex. C at 5.) Petitioner stated that while he was under the truck, a Martinez police officer drove up, parked, and ordered him to come out from underneath the truck. (Resp. Ex. C at 5.) Petitioner stated that before he came out from underneath the truck, two unidentified black males on a single motorcycle drove up, shot the officer, and sped off at a high rate of speed. (Resp. Ex. C at 5.) Petitioner stated that he was attempting to assist the wounded officer when he was arrested. (Resp. Ex. C at 5.)
Petitioner was found guilty by jury of first degree murder, assault with a deadly weapon, and two counts of possession of a firearm by a convicted felon. (Resp. Ex. D.) He was sentenced to an indeterminate term of seven years to life in state prison. (Resp. Ex. D.) His minimum eligible parole date passed on April 16, 1980. (Resp. Ex. B at 2.)
On December 17, 2003, a panel of the Board of Prison Terms ("Board") conducted petitioner's tenth subsequent parole suitability hearing. When asked, petitioner maintained that he had not committed the crime in question, indicating that the officer was killed by one of the motorcyclists who came upon the scene. (Resp. Ex. B at 25.) After considering the positive and negative factors for petitioner's release, the panel determined that petitioner would pose an unreasonable risk of danger to society if released, and thus that he was unsuitable for parole. (Resp. Ex. B at 92.) Petitioner sought habeas corpus relief in the Solano County Superior Court. (Resp. Ex. D.) The matter was transferred to Contra Costa County, and the petition was denied. (Resp. Ex. D.) The California Court of Appeal, First District, and the California Supreme Court likewise denied petitioner's claims. (Resp. Ex. E & F.)
The pending petition presents three separate grounds for relief. In the first ground, petitioner contends that there was no evidence to support the Board's determination that he would pose a risk of threat to the public if released and thus that he was not suitable for parole. Petitioner further contends in this ground that there is no support for the Board's recommendation that he seek therapy because he has no diagnosed need for therapy. For his second ground, petitioner claims that the application of California's parole suitability criteria to his case has caused him to serve a constitutionally disproportionate sentence. For his third ground, petitioner claims that the Board improperly relied upon the unchanging circumstances of his commitment offense in finding him unsuitable for parole. For purposes of this opinion, petitioner's claims will be analyzed under the following two inquiries (A) whether the Board's decision ...