The opinion of the court was delivered by: Charles R. Breyer, District Judge.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, a state prisoner incarcerated at the Correctional Training Facility in Soledad, California, has filed a pro se Petition for a Writ of Habeas corpus under 28 U.S.C. § 2254 challenging the California Board of Parole Hearings' ("BPH") May 9, 2007 decision to deny him parole on the ground that the decision does not comport with due process. Doc. # 1. Per order filed on July 22, 2008, the Court found that the Petition, when liberally construed, appeared to state a cognizable claim under 28 U.S.C. § 2254 and ordered Respondent to show cause why a writ of habeas corpus should not be granted. Doc. # 5. Respondent has filed and Answer and Petitioner has filed a Traverse. Doc.6 & 7.
A. The Commitment Offense
On May 5, 1990, Petitioner was convicted of attempted murder in Contra Costa County Superior Court and sentenced to an indeterminate term of sevenyears-to-life in state prison. At his May 9, 2007 parole suitability hearing, BPH read the following summary of Petitioner's commitment offense, as derived from the first two pages of a November 2005 counselor's report.
In Spring of 1990, ... [Petitioner] and victim June Hidalgo began a roman [tic] relationship. During the following two or three months, the two spent a great deal of time together, evenings and weekends.
During this time, the two became intimate physically and in late April, [Petitioner] asked the victim to marry him. Approximately two weeks later, the victim told [Petitioner] that she no longer wanted to go out with him. [Petitioner] became extremely upset, crying, locking himself in his bedroom all night.
The following day, May 4th, 1990, [Petitioner] came out of his room to help his brother with a stalled vehicle. This was when [Petitioner] acquired the handgun used in the attempted homicide, locating the gun in his uncle's toolbox.
After starting and stalling the vehicle, [Petitioner] set out to the victim's home to contact the victim's grandmother. He then went to a mutual friend's home, Corey, who stated that he and ... other friends at the apartment were waiting for [the victim] to arrive.
While there, the victim called and after speaking to her friends, [Petitioner] got on the telephone and asked her why she was breaking up with him. The victim told him that she no longer wanted to speak with him and hung up on him.
[Petitioner] began crying and told his friends "I'm going to get that bitch" and "Nice knowing you guys." He then followed Stacey Cushman, one of their mutual friends from the apartment, to Mount Diablo High School tennis courts, ... where she and [the victim] had earlier agreed to meet.
Upon arrival of the victim at the parking lot of the high school on a motorcycle driven by Ron Adams, [Petitioner] drove up in his car, exited the vehicle with the gun in his hand, and the victim cried out, "Jose, no" ... and bent down, cowering and ... putting ... her hands protectively over her head.
[Petitioner] pulled the trigger, but no bullet came out. Then he fired three more times, hitting the victim through her hands, entering the rear of her head. She collapsed and [Petitioner] then shot himself in the head as well.
Both were transported to John Muir Trauma Center. The victim was in a coma for [ten] days, remained hospitalized for two months. As a result of the bullet wound to her head, June Hidalgo sustained permanent serious visual impairment. She has no direct vision and ... can no longer see shapes in detail, nor can she read.
[Petitioner] sustained a head wound that affected his speech, necessitating extensive speech therapy. [Petitioner] was subsequently convicted by a jury for attempted murder on 11/25/91.
B. The May 9, 2007 Parole Suitability Hearing and Petitioner's State3 Court Challenge to BPH's Decision to Deny Him Parole
On May 9, 2007, Petitioner appeared before BPH for his fifth parole suitability hearing. Doc. # 6-1 at 70. At that hearing, BPH again found Petitioner was not suitable for parole and would pose an unreasonable risk to society or threat to public safety if released from prison. Doc. # 6-2 at 60-61. In denying Petitioner parole, BPH relied on the circumstances of the commitment offense, which it noted "was carried out in an especially cruel manner" and "demonstrate[d] disregard for human suffering." Id. at 61-62. BPH also cited the district attorney's opposition to Petitioner's release, as well as concern over what it termed a "little gap" in Petitioner's "understanding of the critical elements that led to the life crime." Id. at 66, 68 & 70. Petitioner's minimum eligible parole date was October 30, 1998. Doc. # 6-1 at 3 & 32.
After BPH recited the facts of Petitioner's commitment offense, he was asked to explain his actions. Petitioner stated:
Well, first of all, sir, I'm so ashamed of what I did back in those days, you know. I know that now the way I feel about life is just [no] way to think about the pain. I know I remember back in those days, back in that moment I had so many problems in my house and I was getting legalized and all those things ha [d] got into my mind and at that moment, I didn't care for life and she got me upset and problems that were in my house. All those things made me lose my head.
I know I can't believe I did it, you know? It's so hard for me to even think that I'd go and hurt a person at that time ... I was still solely immature. Now that I'm totally mature, I think-Now I think that, God, it was so-it was just-Think about it, it just makes me drop down and get-
I know she doesn't deserve no [sic] pain of any kind, ... it's just so difficult for me to even express myself in front of you, sir, and to a whole community, to a whole world.
In announcing its decision denying Petitioner parole, BPH acknowledged Petitioner's remorse, noting:
[W]e believe there's no question in our mind that you feel horribly sorry for the events that occurred, ... you've come to grips with this horrible crime ... that you did. That's at least something in terms of you.
Your family has suffered ... and her family has certainly suffered. Your friends that were surrounding this have all suffered and I think ...