FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges the 2005 decision of the California Board of Parole Hearings (the "Board") to deny him parole. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
Petitioner is confined pursuant to a judgment of conviction entered in the Santa Clara County Superior Court in 1976. (Pet., Ex. A.) In that case, petitioner waived jury trial and, on April 14, 1976, was found guilty of first-degree murder in violation of California Penal Code § 187. (Id.) Petitioner was subsequently sentenced to a state prison term of seven years to life with the possibility of parole. (Id.)*fn1 Petitioner has since remained incarcerated. His sixteenth parole consideration hearing was held on December 27, 2005. (Resp't's Mot. to Dismiss, Ex. 1.) On that date, the Board found petitioner not suitable for parole and deferred his next parole suitability hearing for two years. (Pet., Ex. B.)
On May 26, 2006, petitioner filed a petition for a writ of habeas corpus in the Santa Clara County Superior Court, claiming that the Board's 2005 decision denying him parole violated his state and federal constitutional rights. (Answer, Ex. 1.) The Superior Court rejected petitioner's claims in a reasoned decision issued July 7, 2006. (Id., Ex. 2.) The court's opinion stated as follows:
The habeas corpus petition of ROGER A. BETTENCOURT is denied. If the "offense is characterized by the presence of special circumstances justifying punishment by death or life without the possibility of parole, then these special circumstances are particularly egregious acts beyond the minimum necessary to sustain the conviction." (In re Van Houten (2004) 116 Cal.App.4th 339, 352.) In the instant case, as outlined in the trial court's statement of decision, Petitioner surreptitiously followed his ex-girlfriend and waited around the corner after she parked her car and went into the mall to meet her new boyfriend. If Petitioner had wanted to make contact with his ex-girlfriend and discuss their relationship he could have done so earlier when he first followed her to her home. The evidence showed that Petitioner wanted to catch his ex-girlfriend with her new boyfriend so that he could confront him. There is ample evidence of lying in wait which is a special circumstances [sic] under Penal Code § 190.2, subd. (a)(15). As the trial judge noted: "the place that the Defendant decided to lurk [was] admirably suited to his purpose." "The People clearly [showed] a lurking and lying in wait by the Defendant which is the hallmark of one type of premeditated and deliberated murder." Based on the special circumstance Petitioner's life crime continues to show his unsuitability for parole. Petitioner's numerous other criminal convictions also supports [sic] the Board's finding and the parole denial satisfies due process. (Id.) The Superior Court denied petitioner's motion for reconsideration on August 14, 2006. (Id., Ex. 4.)
On October 24, 2006, petitioner raised the same constitutional claims in a habeas petition filed in the California Court of Appeal for the First Appellate District. (Id., Ex. 5.) By order dated November 9, 2006, the state appellate court denied the petition without prejudice and directed petitioner to re-file his petition in the Court of Appeal for the Sixth Appellate District. (Id., Ex. 6.) Petitioner did so on December 21, 2006. (Id., Ex. 7.) The California Court of Appeal for the Sixth Appellate District summarily denied the petition on January 12, 2007. (Id., Ex. 8.)
Petitioner next filed a habeas petition in the California Supreme Court on March 8, 2007, raising the same claims he had presented in his petitions filed with the lower California courts. (Answer, Ex. 9.) That petition was denied by order filed August 8, 2007, with citation to People v. Duvall, 9 Cal. 4th 464, 474 (1995). (Pet., appended documents.)
In his petition filed with this court on October 22, 2007*fn2, petitioner incorporated the description of the facts surrounding his 1975 murder of Thomas Mallory, as recited by the Santa Clara County Superior Court in a 1976 Memorandum of Decision. (Pet., Ex. A.) The Superior Court's decision stated, in relevant part:
It is conceded by both sides that a homicide was committed on the person of Thomas Mallory on November 6, 1975, and that the defendant Roger Bettencourt committed the homicide. Leaving for determination by the Court, a jury having been waived, the decisions as to the nature and seriousness in terms of degree of the homicide....
In its decision the Court has found that the nature of the homicide was murder and that the murder was in the first degree. Does the evidence show a motive to kill? Does the evidence show premeditation and deliberation?
Defendant did have a motive for killing. Without fault on his part, he was pursued, while in Soledad [for a burglary conviction], by the People's primary witness Patricia Campbell. Love letters were exchanged between the parties, nude pictures of the young lady sent to him, approximately 50 visits were made by the lady to the defendant's place of confinement. Promises of marriage were made by the lady not only to the defendant but to the penal authorities as well. All of Miss Campbell's objective protestations up to and shortly after the defendant's release from custody bespoke of mutual love, marriage, and the promise of family. Yet sometime within one and a half months of the defendant's release from custody, Miss Campbell's interest in the defendant began to wane. In late October of 1975, the defendant has testified that she confessed to him a casual, but intimate dalliance with a former gentleman friend. To this news, the defendant reacted impulsively and fractured Patricia Campbell's jaw. From the evidence it is clear that from this point the loving relationship of the parties began to deteriorate.
On October 24, 1975, the defendant states that he convinced Patricia Campbell to go to Merced with him to see his parole officer. It is his belief that she traveled with him to Merced willingly. Yet on October 25, 1975, he is arrested in Atwater, California, for the kidnapping of Patricia Campbell and also detained because of a parole hold. He is jailed for seven days.
On his release, he is hostile and angry. It is his belief that he did not kidnap Patti Campbell. He did not do anything to be jailed. He believes that Patti Campbell could have secured his early release from an unjust imprisonment. From the defendant's point of view Patti Campbell should be taking care of his business rather than sleeping around with everybody else.
To ensure that he is not returned to prison; and to also ensure that he may gain access to Patti Campbell and talk to her or kill her, he steals two guns, a 30.06 rifle and a 12 gauge shotgun. This is done, despite the knowledge that he is forbidden to have weapons as a parolee. In the company of two other young men, he travels to Santa Clara County arriving on or about November 4, 1975. He knows that he should not leave Merced and return to the San Jose area, but he comes seeking an accounting with Patti Campbell.
In San Jose, his anger is further inflamed by news that Patti is seeing another young man. She is receiving advice from a person named Tom. Tom is acting as a protector of Patti Campbell. He is telling Patti to send the defendant to jail for kidnapping. This man Tom Mallory is a snitch in the defendant's opinion, since Tom Mallory wants to place the defendant into prison. He would rather be six feet under than in prison and he has the weaponry to ensure that he will not return.
Preparation by the defendant for the accounting continues. He has prior to November 4th test fired the 30.06 rifle with its telescopic sight. He realizes that it is a good long range weapon. He has shot it in practice three times. For close in shooting, he prepares the shotgun by sawing off the barrel to 13 1/4 inches. Because he realizes that without a driver's license he can't purchase ammunition for the rifle he secures the help of Vikki Parker, a lady friend who is in love with the defendant. For him she purchases three boxes of 30.06 ammunition. Shotgun ammunition he can buy himself, and he does so. On November 6, 1975, he works himself into an ugly mood. He rehears stories of what Tom has said. He weighs and considers killing Patti. He mutters threats. Knowing Patti Campbell like the back of his hand he watches the clock on the evening of November 6 and proceeds to steal or, as is more likely, openly confiscates without protest a Polara vehicle in the possession of Vikki Parker. He leaves the Parker residence at 8:30 P.M., goes to the home of Billy Hardcastle and secures his property, the two guns and his clothes. On leaving the Poinciana Street home of Billy Hardcastle he proceeds to Patti Campbell's place of employment in the Pruneyard in San Jose and a confrontation with her. He expects that he will also meet with Patti's new boy friend Tom Mallory. From the evidence, this expectation on the defendant's part, arises as the defendant follows Patricia Campbell to the shopping center at Valley Fair in San Jose.
The defendant observes Patti Campbell leaving the Pruneyard parking lot. He follows her, making no attempt to stop or communicate with her. She drives to her home. She parks, dashes in and returns to her car. At no time does the defendant attempt to communicate with her, although this may easily be done.
Patti Campbell drives on to Valley Fair, an area of San Jose that is unfamiliar to the defendant. Because he is forced to stop for a traffic signal, Patti Campbell enters the Valley Fair parking lot well ahead of the defendant, exits her car and disappears from the defendant's view. When the signal permits him to cross Stevens Creek the defendant drives to the place where Patti has parked. Her red Mustang is in a parking stall at the base of a "Y" formed by a building on the left arm of the "Y" and a parking ramp on the right arm. The tail of the "Y" being a driveway area between the ramp and the building....
At this point, there is a serious dispute in the evidence as to what the defendant did. His testimony at trial is that he waited by the Campbell Mustang, began to give up on the idea of seeing Patti, went for gas exiting the parking lot onto Stevens Creek. After securing gas he traveled around the Valley Fair parking lot returning to the Mustang's location along the driveway that forms the tail of the "Y" and espied Patti Campbell and a male person. Thinking that something sinister may be happening, the defendant drove up to the couple, exited his vehicle saying, "What is going on?" The People's version of the events immediately preceding the fatal confrontation is supplied by admissions made by the defendant to Patti Campbell and other evidence. This version is that the defendant waited at Patti's car, actually laid down in it in the back seat with a gun, found that it was too small, returned to his car and waited. He observed the victim and Miss Campbell come to her Mustang, load a bicycle into the trunk, kiss and grew madder and madder. He decided to drive out from his parked place at the tail of the "Y" and confront the two people. Bringing his car to a screeching halt he jumped out wielding a 30.06 rifle in his hands saying: "Hold it right there or I'll blow your head off." The People clearly indicate by these facts a lurking and lying-in-wait by the defendant which is the hallmark of one type of premeditated and deliberated murder.
Which version is the more reasonable and logical? In the Court's view it is the People's version. The reason that defendant gave for following Patti Campbell on November 6, 1975, was to talk with her. The evidence shows that when the defendant, however, slowly, decides on a course of action he pursues it to completion. In this instance after having followed Patti Campbell so far, he was not going to give up his vigil so easily. The evidence further shows that the defendant is unfamiliar with the San Jose area and Valley Fair. It seems illogical to assume that a person with his knowledge of the locality would look for a different route to get back to the eventual death scene via the back door, risking losing his way and a loss of precious time. More logically he would return to the scene from the way in which he left it. Further isn't it just too coincidental that he returns to the scene at a time when the preparations of the parties in storing the bicycle are complete and they are about to leave? Most telling, however, is that the place that the defendant has decided to lurk is admirably suited to his purposes. Even in daytime, the driveway area between the ramp and the building are in dark shadows.... His vehicle is unlikely to be seen by the unwary. His vantage point provides him with a clear unimpeded view of the Mustang, a good place to wait and watch.
In a scene that is somehow reminiscent of the last act of Bizet's Carmen, the defendant confronts the eventual victim and Patricia Campbell. He states: "Hold it right there or I'll blow your head off" aiming the gun at Tom Mallory. Mallory raises his hands saying something to the following effect, "Hey, man, I don't have anything against you." Patti Campbell, remarkably, appears without fear or great concern. She thinks: "Oh... what is that... doing here. Why bother me. He is botching everything up."
Tom Mallory's pacifistic and friendly overtures to the defendant momentarily spare his life. In fact, there is no evidence worthy of consideration to indicate that Tom Mallory tried to aggravate or escalate the defendant's apparent hostility. Nor is there any evidence to show that the victim acted aggressively or angrily towards the defendant or to Patti Campbell. Without realizing it, his opening overture was the only key to his survival, but this last chance was quickly lost.
Patti and Tom walk towards the defendant's car. The defendant eventually makes it clear that he wants Patti in his car to "talk to her." He doesn't want Tom. As or shortly after Patti gets in from the driver's side of the Polara she says to the defendant, "Give Tom my keys." Obviously meaning that the defendant is to give the keys to her car to Tom so that he may use her Mustang. Defendant's growing conviction that this is the snitch Tom is crystalized. He confronts the victim with the statement, "You, Tom?" Tom Mallory denies this. The defendant accuses the victim of being the person who desires to see him imprisoned; who wants Patti to press charges. In a cat and mouse game, the defendant attempts to get Tom to reveal his true identity. Tom neither admits nor denies his real identity. Roger Bettencourt makes the final accusation, "You are the one trying to hurt me. Play the hero and stuff." Tom's evasions have confirmed the defendant's suspicions as to the identity of this person. Roger Bettencourt had just held court. Roger Bettencourt's hostility was now fully reawakened. He was getting madder and madder. He thought of what Smoky Hardcastle had said regarding Tom, Patricia Campbell, and himself. Tom Mallory was lying.
In some way, Tom Mallory was caused to turn his back from his direct confrontation with Roger Bettencourt. He proceeded to walk towards the vehicle of Patricia Campbell, parked opposite to the defendant's Polara and some 25 feet away.... Roger Bettencourt got madder and madder. "Tom was a snitch." Roger Bettencourt hated snitches. Snitches sent people to prison. Roger Bettencourt raised his gun, aimed deliberately for seven to eight seconds and calmly and coldly fired.
Without determining what damage he had wrought or to aid his victim the defendant hurriedly fled. He knew he had hit the victim because Patti told the defendant that Tom had been shot in the back. (Pet. filed Oct. 22, 2007, Ex. A at 5-14.)*fn3
In denying petitioner parole in 2005, the Board also relied on the following summary of the crimes committed by petitioner immediately following his murder of Mallory:
Bettencourt and Ms. Campbell had gone to the Merced area, to Yosemite Park, and as far away as Long Beach before they began their return to the San Jose area. They had a car accident on November 10, 1975, near Camp Robertson, southern Monterey County. They were left without a car and continued their journey on foot. Finally, on November 11, 1975, Bettencourt and Campbell broke into a trailer home in Bradley, California. The victim, Donald D. Woody, returned home at about [9:30 in the evening] and was accosted by Bettencourt who was armed with a shotgun. Bettencourt instructed Campbell to tie the victim up, which she did. Initially, however, Bettencourt retied the bonds, leaving them loose enough that the victim was expected to free himself within 30 minutes. The victim then gave Bettencourt the keys to his car and they took approximately $89.25 worth of property and money from the victim. Bettencourt also placed a couch and a large stuffed chair over the victim to prevent him from freeing himself too quickly. The victim indicated that Ms. Campbell seemed to help Bettencourt willingly. Mr. Woody eventually freed himself, contacted law enforcement officials at approximately 2155 hours, informing them of the crimes and that his car had also been stolen. As a result, at approximately 2220 hours, Monterey County Sheriff Deputies observed Bettencourt and Campbell driving and attempted to stop them. This resulted in a high-speed chaise with speeds up to 80 miles an hour on a curvy country road, which only ended due to the road coming to a dead end at a farmhouse, where the deputies were able to exit the car. Bettencourt had already fired several shotgun rounds at them. The shootout, which involved numerous rounds being exchanged between Bettencourt and the deputies erupted. At one point, Bettencourt used Ms. Campbell as a shield while he reloaded. As noted above, only one of the deputies was injured and that was minor. This incident ended when Bettencourt was shot in the foot and surrendered. The number of rounds fired by Bettencourt is unclear. One report indicates that four spent 30-06 rounds and three expended shotgun shells were found on the ground near the stolen car. The report by Deputy Price indicates he believes Bettencourt fired at least 20 unspecified rounds. The result of the second search for expended rounds, which was to occur after daybreak, are not located within the available reports. This information is drawn from Monterey Sheriffs Department reports and Probation Officer's Reports from the San Jose Police Department.
(Answer, Ex. 1 at 24-27.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1993) (quoting Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets ...