The opinion of the court was delivered by: Anthony W. Ishii, Chief Judge.
ORDER DECLINING TO ADOPT AMENDED FINDINGS AND RECOMMENDATION [Doc. # 18]; ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS; ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Magistrate Judge issued a Findings and Recommendation on September 4, 2008, that recommended the petition be DENIED with prejudice. The Magistrate Judge further recommended that the Clerk of Court be DIRECTED to enter judgment. The Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order.
On September 25, 2008, Petitioner filed objections to the Findings and Recommendation, in which Petitioner cited extensively to the new California Supreme Court decision In re Lawrence, 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535 (Cal.2008). The Court referred the petition back to the Magistrate Judge on October 23, 2008, to consider the effect of Lawrence.
The Magistrate Judge issued an Amended Findings and Recommendation on October 29, 2008, that recommended the petition be DENIED with prejudice. The Magistrate Judge further recommended that the Clerk of Court be DIRECTED to enter judgment. The Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order.
Petitioner filed objections to the Amended Findings and Recommendation on November 14, 2008. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file and having considered the objections, the Court respectfully declines to adopt the Magistrate Judge's Findings and Recommendation.
On October 25, 1989, a jury convicted Petitioner on one count of second degree murder and one count of grand theft.*fn2 On February 23, 1990, Petitioner was formally sentenced to 15 years to life in prison. On January 24, 2005, Petitioner appeared before the Board of Parole Hearings ("BPH") for a parole consideration hearing. The BPH granted parole. However, the Governor reversed the BPH's decision. Through state habeas corpus proceedings, the California courts denied Petitioner's challenges to the Governor's decision.
At the time of the commitment offense, Petitioner was 17 years old. See Transcript at p. 9, 82 Cal.Rptr.3d 169, 190 P.3d 535. Briefly, on February 17, 1988, Petitioner and another teenage friend (Birl) killed 60-year old Richard Hopking. Hopking was living with 15-year Rachel C. and Rachel's mother. Rachel and Petitioner were friends and romantically involved. On the day of the murder, Petitioner, Rachel, Birl, and another friend (Laura) basically skipped school and went to Rachel's house. Hopking called Rachel's mother and said that Rachel and Petitioner were in Rachel's bedroom. Rachel talked with her mother and then left the house crying. Petitioner asked Laura if Hopking "messed with" Rachel, and Laura said that Hopking sometimes would stare at Rachel. Laura said that Petitioner then picked up a rock and said that he would hit Hopking in the head and take care of Rachel's problem. Rachel and Laura then left the house, but returned later. Upon their return, Petitioner told Laura that he had spoken to Hopking to apologize for causing a problem with Rachel's mother, was going to hit Hopking with a rock, but Hopking turned around too quickly; Laura did not know if Petitioner was serious. See Respondent Exhibit C at p. 4, 82 Cal.Rptr.3d 169, 190 P.3d 535.*fn3 Later that day, Rachel and Hopking had some kind of altercation. Rachel screamed for help, Petitioner and Birl came into the house and attacked Hopking with rocks.*fn4 See Transcript at pp. 10-11, 82 Cal.Rptr.3d 169, 190 P.3d 535; Respondent Exhibit C at pp. 6, 10, 82 Cal.Rptr.3d 169, 190 P.3d 535; Respondent Exhibit D. Petitioner, Birl, and Hopking fought through the house, and, in addition to rocks, it appears that a trophy and a glass vase were used as weapons against Hopking. See Respondent's Exhibit C at p. 5, 82 Cal.Rptr.3d 169, 190 P.3d 535. After Hopking fell, Petitioner stepped away from the melee, but Birl continued to attack Hopking until Birl later announced that Hopking was dead.*fn5 See Respondent's Exhibit C; Respondent Exhibit D. An autopsy report revealed that Hopking had sustained at least 20 wounds, including 19 head injuries. See Respondent's Exhibit C at p. 5, 82 Cal.Rptr.3d 169, 190 P.3d 535. After Hopking was murdered, Petitioner, Birl, and Rachel unsuccessfully tried to clean the house. They then placed Hopking's body in the trunk of his car and drove off. Petitioner and Rachel used Hopking's credit card to buy gasoline. Petitioner took Hopking's cellular telephone and sold it to his uncle for $200. Petitioner contends he did so to get money for Rachel. On February 22, 1988, Petitioner was arrested.
At the parole hearing, it was determined that Petitioner had no prior criminal history. See Transcript at 50. Petitioner had turned 34 years old. See id. at 51, 82 Cal.Rptr.3d 169, 190 P.3d 535. In prison, Petitioner had improved himself educationally and vocationally. See Transcript at 24-31, 50-54. He had participated in self-help. See id. He had made viable housing and employment plans. See id. His classification score in prison was the lowest possible. See id. He worked exceptionally well within the prison making furniture. See id. He had one serious rules violation in prison in 1994. See id. at 52, 82 Cal.Rptr.3d 169, 190 P.3d 535. Petitioner was counseled seven times, the last being in 1996. See id. at 52, 82 Cal.Rptr.3d 169, 190 P.3d 535.*fn6 His psychological reports were very positive and supportive of release. See id. Petitioner expressed remorse and accepted responsibility for Hopking's death, and the BPH found that Petitioner's remorse was evident through the hearing, the counselor reports, and the psychological evaluations. See id. at 11-14, 34, 48-49, 52, 82 Cal.Rptr.3d 169, 190 P.3d 535 One of the panel members spoke of Petitioner in glowing terms, after describing Petitioner's positive write ups, evaluations, and activities. See id. at 25-29, 82 Cal.Rptr.3d 169, 190 P.3d 535. After reviewing the information in Petitioner's file and interviewing Petitioner, the BPH gave Petitioner a parole date. See id. at 50, 82 Cal.Rptr.3d 169, 190 P.3d 535.
The Governor reversed the parole decision and relied on essentially two considerations: the commitment offense and a transcript of Rachel's testimony.*fn7 See Respondent Exhibit D. With respect to the commitment offense, the Governor focused on the number of wounds sustained by Hopking, that Hopking was outnumbered and struggled to flee, and there was some indication of premeditation (from Petitioner's earlier statement with a rock in hand and the theft of Hopking's car). See id. With respect to Rachel's transcript, the Governor noted that it indicated that she only expressed dislike of Hopking (because Hopking frequently sided with Rachel's mother) and that Hopking did not try to assault her on the day of the murder. Rachel's testimony is contrary to Petitioner's contention that he was trying to prevent a sexual assault against Rachel. See id. The Governor explained, "Although [Petitioner] need not admit to the same version of events as depicted in the appellate record or as described by the witness to be found suitable by the Board for parole, I need not accept his version of events as true. Nor do I, and his version of events is some evidence that he lacks remorse and understanding of the nature and magnitude of the offense he committed." The Governor then reversed the BPH's decision. Id.
In State proceedings, the Orange County Superior Court (the only state court to issue a reasoned opinion) denied Petitioner relief. See Respondent's Exhibit F. The Superior Court found support for the Governor's conclusions regarding the crime and Petitioner's insight/remorsefulness, and thus, upheld the Governor's reversal.*fn8 See id.
When a petitioner is imprisoned from a state court adjudication and files a federal habeas petition after April 24, 1996, AEDPA governs and a court will not issue a writ of habeas corpus unless it is shown that the state court decision denying relief was "contrary to, or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1); Irons v. Carey, 505 F.3d 846, 850 (9th Cir.2007); Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir.2006).
California Penal Code § 3041 vests all California prisoners "whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause." Irons, 505 F.3d at 850; see Sass, 461 F.3d at 1128; Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.2003). Prior to 2005, "the Supreme Court had clearly established that a parole board's decision deprives a prisoner of due process with respect to this interest if the board's decision is not supported by 'some evidence in the record,' or is 'otherwise arbitrary.' " Irons, 505 F.3d at 851; see Sass, 461 F.3d at 1128; Biggs, 334 F.3d at 915. The "some evidence" standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the decision...." Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Sass, 461 F.3d at 1128. State statutes and regulation concerning parole suitability frame the "some evidence" analysis. Irons, 505 F.3d at 851. Therefore, courts "must look to California law to determine the findings that are necessary to deem a prisoner unsuitable for parole, and then must review the record in order to determine whether the state court decision holding that these findings were supported by 'some evidence' ... constituted an unreasonable application of the 'some evidence' principle articulated in Hill." Id.
Under California law, with respect to an eligible "life prisoner," the BPH "must 'normally set a parole release date' before the minimum term has been served," but "an inmate shall be found unsuitable for parole and denied parole if, in the judgment of the [BPH], the prisoner will pose an unreasonable risk of danger to society if released from prison." Id. (quoting In re Dannenberg, 34 Cal.4th 1061, 1078, 1080, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005) (quoting 15 C.C.R. § 2402(a))) (emphasis added); see also In re Lawrence, 44 Cal.4th 1181, 1204, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008). The BPH determines whether a prisoner is presently too dangerous to be released on parole by examining criteria set forth in regulations. See 15 C.C.R. § 2402; Irons, 505 F.3d at 851-52; Biggs, 334 F.3d at 915-16. The criteria set by regulation reads:
(b) All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.
(c) The following circumstances each tend to indicate unsuitability for release. These circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate unsuitability include:
(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The ...