FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel in an action seeking a writ of habeas corpus under 28 U.S.C. § 2254. He does not challenge the constitutionality of his underlying conviction; rather, he challenges the 2002 determination by the California Board of Prison Terms (hereinafter, the "Board")*fn1 that he was unsuitable for parole. Petitioner contends that (1) the Board's denial of parole violated his due process rights because there was no evidence to support the Board's decision, the Board considered improper evidence in reaching its decision, and the Board failed to consider positive aspects of his incarceration; (2) the Board violated his due process rights by not timely responding to his appeal of its parole denial; (3) the Board violated his due process rights by failing to provide him with a copy of the lifer packet used at his parole hearing; (4) the Board improperly failed to grant him a postponement of the parole hearing; (5) the Board should not have allowed an attorney he fired to speak on his behalf at the hearing; and (6) the Board was biased against him and retaliated against him by denying him parole. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.*fn2
FACTUAL AND PROCEDURAL BACKGROUND
In October 1987, petitioner pled guilty in Los Angeles County Superior Court to one count of second degree murder. Answer, Ex. A. Due to enhancements and the revocation of the suspended status of a previous charge of lewd acts with a child under age 14, petitioner was sentenced to a state prison term of twenty-seven years to life with the possibility of parole.*fn3
On January 10, 2002, the Board held a parole hearing for petitioner. Pet., Ex. Z. Prior to the hearing, petitioner was sent a Notice of Hearing Rights and thereafter waived his right to an attorney and chose not to attend the hearing. Answer, Exs. E, F, G. Although petitioner waived his right to an attorney, the Board insisted that his attorney attend the hearing based upon petitioner's questionable mental state and ability to knowingly waive an attorney at the hearing.
At the hearing, the Board found petitioner unsuitable for parole and determined that a subsequent hearing would be held in four years. Id. The Board based this determination on its findings that (1) the offense was carried out in an especially cruel, callous, dispassionate and calculated manner, and demonstrated an exceptionally callous disregard for human suffering, since petitioner hit and strangled the victim with his belt and cut the victim's breasts and pubic area and since the motive for the crime was inexplicable or very trivial in relationship to the offense (id. at 19); (2) petitioner had a record of assaultive behavior and an escalating pattern of criminal conduct and violence, including a charge of lewd and lascivious conduct upon a child under 14 years of age, and had failed to demonstrate evidence of positive change (id. at 20, 21); (3) petitioner had a history of unstable relationships, mental illnesses, and substance abuse (id.); (4) petitioner failed to profit from society's previous attempts to correct his criminality (petitioner was on probation at the time of the crime at issue) (id. at 20); (5) although petitioner received only two serious rules violation reports during his incarceration (one for being involved in mutual combat and one for being out of bounds), he received several very concerning counseling chronos: on September 22, 1988, petitioner wrote and gave his teacher a paper that contained sexually explicit information; on September 24, 1990, he was found with sexually explicit pictures of children in his cell; and on March 23, 1993, he was counseled regarding his sexually explicit correspondence with a fifteen year old (id. at 22; Answer, Ex. I); and (6) petitioner lacked realistic parole plans (Pet. at 24). The Board also noted that the Los Angeles County District Attorney's Office strongly opposed petitioner's release on parole (id.), and considered a July 19, 2001 psychiatrist report which was not supportive of petitioner's release. Id. at 22. Even though petitioner refused to meet with the psychiatrist and the psychiatrist indicated that he could not give an accurate assessment of dangerousness, the psychiatrist did opine that petitioner needed to undergo further interviews regarding the sexually based infractions. Id. at 23-24.
The Board commended petitioner for his satisfactory work reports and his enrollment in a number of self-help programs and vocational programs, but determined that such behavior was not enough to overcome the factors indicating he was unsuitable for parole. Id. at 25. The Board concluded that petitioner "needs therapy in order to face, discuss, understand and cope with stress in a non-destructive manner" and that "[u]ntil progress is made, [petitioner] continues to be unpredictable and a threat to others." Id. at 24.
On March 11, 2002, petitioner sent a BPT Form 1040 Appeal to the appeals office at Mule Creek State Prison and, on September 14, 2002, after not receiving a response to that appeal, petitioner filed an inmate appeal form (CDC 602). Pet., Exs. A, B. On December 10, 2002, the Board denied petitioner's appeal. Pet., Ex. Q. The Board stated:
1. The Prisoner Contends the Hearing Panel Based its Decision on Incomplete Information
Appeal Denied: Had the prisoner chosen to attend his hearing he would have had the opportunity to make any clarification in the record and submit any additional documents. The Appeals Unit finds the hearing panel did a thorough review of the prisoner's central file but could find no evidence that the prisoner has completed any vocation training. He was commended for participating in vocational training, but he was lacking completion certificates.
2. The Prisoner Contends the Hearing Panel Failed to Take into Consideration his Positive Programming
Appeal Denied: The primary consideration of the panel in setting a parole release date is the vast consideration of public safety (see PC § 3041(b)). The elements upon which that consideration is based are vast. The discretion to weigh these factors is vested in the Board and, therefore, in the hearing panel. Even an "amazing in-prison record" does not, in and of itself, demonstrate what the prisoner's behavior might be out of prison or mandate a finding of suitability.
3. The Prisoner Contends the Psychological Report Indicating a Longer Period of Incarceration is Necessary, is not Valid Since he was not Interviewed by the Psychologist
Appeal Denied: The prisoner on his own volition chose not to be interviewed by the psychologist. This is the prisoner's right but he must understand that this report and any future reports will be based on the psychologist's consideration of the documents available without any clarification or input from the prisoner.
4. The Prisoner Contends the Hearing Panel Cannot Require he Participate in Therapy Since none is Available and Would Jeopardize his Safety
Appeal Denied: The Board recognizes that self-help and therapy programming is limited in some institutions but did make the appropriate finding that, if any becomes available, the prisoner should participate to become more suitable for parole.
5. The Prisoner Contends the Hearing Panel Used Incorrect Information in Denying Parole since he Cannot Reduce his Custody Level Until More Programming Becomes Available
Appeal Denied: The hearing panel did not deny parole based on his custody level but recommended he work to reduce his custody level. In the written finding the hearing panel did not make that recommendation. The Appeals Unit finds this oversight had no bearing on the finding of unsuitability.
6. The Prisoner Contends his Rights were Violated when the Board Retained an Attorney to Represent him Over his Objections
Appeal Denied: The Board of Prison Terms is under court imposed supervision and order based on the Americans with Disabilities Act. If there is a concern a prisoner may not be able to adequately represent himself and understand his rights then the Board will appoint an attorney regardless of any objections by the prisoner. The prisoner's mental health history suggests that the hearing panel made a correct decision.
7. The Prisoner Contends the Hearing Panel Used Criminal Conduct in Which there were no Convictions to Deny Parole
Appeal Denied: From reading the hearing transcript the Appeals Unit concludes that the hearing panel realized what the prisoner had been convicted of but was negatively impressed by the totality of the circumstances surrounding the prisoner's portion of the crimes. This appears appropriate since Title 15 CCR § 2402(b) indicates that behavior before, during, and after the crime is relevant in parole consideration for life prisoners.
On November 14, 2002, petitioner filed a petition for a writ of habeas corpus in Amador County Superior Court. Answer at 4. After numerous transfers, the Los Angeles County Superior Court denied the petition on July 7, 2003 in a reasoned opinion. Pet., Ex. J. The court stated:
Petitioner was committed to prison on October 16, 1987 after pleading guilty to one count of second degree murder. He also had a concurrent commitment for a violation of section 288(a) P.C., lewd and lascivious acts with a child under 14 years of age. In the life offense, petitioner strangled and mutilated the female victim by ...