The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner 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 in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his 1989 conviction for second degree murder. Petitioner is serving a sentence of seventeen years to life.
In the instant petition, Petitioner does not challenge the validity of the state court conviction; rather, he challenges the Board of Parole Hearings' (hereinafter Board) April 30, 2008, decision finding him unsuitable for release on parole.
In 2008, Petitioner filed a state petition for writ of habeas corpus in the Kern County Superior Court. (Answer, Exhibit 1.) In a reasoned decision, the superior court denied the petition finding some evidence supported the Board's decision that Petitioner presented a threat to public safety. (Answer, Exhibit 2.)
Petitioner then filed a petition in the California Court of Appeal, which was summarily denied. (Answer, Exhibits 3 & 4.)
Petitioner also filed a petition in the California Supreme Court, which was summarily denied. (Exhibits 5 & 6.)
Petitioner filed the instant federal petition for writ of habeas November 16, 2009. (Court Doc. 1.) Respondent filed an answer to the petition on February 1, 2010, and Petitioner filed a traverse on February 25, 2010. (Court Docs. 12, 13.)
On November 7, 1987, police found the body of Russell Allen Clark, Jr., located in the north alley of the 2100 block of Second Street, in Bakersfield, California. Mr. Clark was lying on his back and had a near-contact gunshot wound to the left rear side of his neck. On August 1, 1988, an article appeared in the Bakersfield Californian detailing the unsolved murder of Clark. Police received information from Andy Gonzales, indicating that Petitioner was responsible for the murder of Russell Clark. Gonzales indicated that he received the information from his estranged wife, Linda Gonzales-who had been living with Petitioner on the night of Clark's murder. Linda Gonzales told police that on the night of the murder, she and Petitioner were at a bowling alley and Petitioner became intoxicated and she believed he had used cocaine. The two were involved in a heated argument and returned to their residence where they continued to argue. Petitioner had a small gun, and when Linda went to bed Petitioner left the residence through the front door. He returned shortly thereafter and informed Linda that he had just shot somebody.
Linda agreed to make a pretext phone call to Petitioner. She engaged Petitioner in a recorded conversation and he admitted to shooting Russell Clark. Petitioner was later arrested on October 11, 1988. When interviewed by police, Petitioner stated that on the night of the shooting, he had left Linda's house. He saw a person walking southbound down Gonzales' driveway. Petitioner said as soon as the person saw him he took off running. Petitioner obtained his gun, cocked it, and told the person to stop stating "I've got a gun." Petitioner chased the person because he believed he was a prowler and he wanted to apprehend him for police.
Petitioner caught Clark and grabbed him with one hand and placed the gun to his head with the other. Petitioner admitted that Clark did not resist or say anything to him. Petitioner claims he became overwhelmed with anger, and attempted to strike Clark on the head with the gun when it fired shooting him in ...