The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REVISED REPORT AND RECOMMENDATION*fn1
Petitioner Ricardo Hernandez is currently incarcerated at the Mule Creek State Prison in Ione, California. Upon his conviction in 1985 of two counts of second degree murder, and assault with a deadly weapon, he was sentenced to a term of fifteen-years-to-life with the possibility of parole, and a concurrent term of six years on the assault charge.
In 2005, the Board of Parole Hearings of the State of California (the "Board")*fn2 granted his application for release on parole. But Governor Arnold Schwarzenegger reversed that decision, and denied parole. The same sequence was repeated in 2006: a new hearing, a new grant by the Board, but again a reversal by the Governor. Having exhausted his remedies in the courts of California, petitioner seeks federal habeas corpus relief, under 28 U.S.C. § 2254.
Petitioner had been in custody for almost twenty years at the time of his 2005 hearing -- and over twenty-four years as of this writing.
The Court, having thoroughly reviewed the record and briefing of the parties, recommends that the Court find as follows:
(1) The U.S. Supreme Court has clearly held that where a state statutory scheme includes mandatory language that creates a presumption of parole release based on certain designated findings, that statute gives rise to a federal constitutional liberty interest in parole;
(2) California statutes and regulations contain such mandatory language;
(3) That language provides that a prisoner serving an indeterminate life sentence has an expectation of parole release unless the Board or Governor finds that he will pose an unreasonable risk of danger to society if released on parole;
(4) The California Supreme Court has interpreted this statutory language to provide that an adverse parole decision must be supported by "some evidence" of current dangerousness;
(5) Whether "some evidence" of current dangerousness exists is to be determined in accordance with California law;
(6) Applying these standards, the record in this case does not contain "some evidence" of petitioner's dangerousness when the Governor denied his parole in 2005 and 2006;
(7) The denial of parole therefore violated petitioner's federal due process rights, and the decision of the California Supreme Court upholding the denial was an unreasonable application of clearly established federal law; and
(8) The Court should therefore grant the petition for a writ of habeas corpus.
II. FACTUAL BACKGROUND*fn3
In January 1985, the date of the assault offense, petitioner was twenty-one years of age, and lived with his large family in Compton, California. He was associated with a gang, the "Tortilla Flats." Before his 1985 offenses, he had a prior conviction for spray-painting a wall with graffiti, and a misdemeanor conviction for possession of a controlled substance.
On January 11, 1985, petitioner and two co-defendants, both of whom were minors, confronted Pedro Gil at his residence about a prior incident in which Gil nearly ran over petitioner with a car. (See Dkt. 6, Exhibit 3 at 9.) After petitioner allegedly threatened Gil, one of the minors shot Gil in the chest and injured him. (See id.) Petitioner later pled guilty to assault with a deadly weapon for his role in this offense.
Petitioner's murder convictions arose from a gang-related shooting that took place on June 16, 1985, about five months later. (See id. at 10.) Members of a rival street gang, "the Rebels," drove into petitioner's neighborhood to "settle" a dispute between the two gangs which had taken place earlier that day. (See id.) A fight broke out when members of the "Rebels" began throwing bottles and other objects at "Tortilla Flats" gang members. (See id.) After several members of the "Rebels" tried to scale a fence in order to harm petitioner, who was on the other side, petitioner retrieved a rifle from one of his friends and began firing. According to petitioner, he missed the persons climbing the fence, but hit two other members of the "Rebels" who were sitting in the back of a pick-up truck. (Id.) Petitioner's shooting resulted in the deaths of Andrews Ortega and David Flores. (See id. at 10-11.)
Petitioner pled guilty to two counts of second degree murder with the use of a deadly weapon, and one count of assault with a deadly weapon in Los Angeles County Superior Court on December 12, 1985. (See id., Ex. 6 at 1.) He received two concurrent terms of fifteen-years-to-life with the possibility of parole for the murder charges, and a six-year term for the assault charge to run concurrently with his life sentence. (See id.) His minimum eligible parole date was set for June 24, 1995. (See id., Ex. 3 at 1.)
At his parole hearings, petitioner volunteered the fact that he had also been involved in two drive-by shootings during approximately the same period as the offenses for which he was convicted. He was never charged for this conduct, and does not know whether there were any resulting injuries. (See id., Ex. 2 at 16-17.)
During his first several years in prison, petitioner continued his gang affiliation. In 1986, an inmate was stabbed on the weight pile at San Quentin. Petitioner was charged as the assailant and given 15 months in the Security Housing Unit ("SHU"), but he steadfastly denies any involvement in the stabbing. (See id., Ex. 3 at 69-70.) On a different occasion, petitioner was charged with using force and violence in the yard, but that was later reduced to a less serious infraction. When petitioner was at Chino in 1987, he was disciplined for possession of a double-edged razor blade. He explained, "I was told through gang traditions that you always have to arm yourself, because you're going to be challenged and you have to meet the challenge . . . I think the razor blade was found in the cell. It was used for cutting cardboard, but it is dangerous contraband and I took responsibility for it." (See id. at 70-71.) He was also disciplined for possession of marijuana, and for possession of an inmate-made metal weapon. All of this occurred during his first four years in prison.
In 1989, however, petitioner made an abrupt, positive change in his behavior. At the 2006 hearing, the Presiding Commissioner of the Board asked:
PRESIDING COMMISSIONER GARNER: What happened in 1989 that turned you around? You had a lot of trouble, it seems, adjusting. Was there any one event or revelation that came to you that got you turned around?
INMATE HERNANDEZ: Yes, it did. Having my mother come see me in San Quentin in the SHU, behind a granite wall and through a small window and seeing me in shackles, and seeing the tears fall from her eyes. That day told me that I need to change, because everything that I was doing on the streets I was still doing in prison, and seeing her and the sadness in her eyes led me to the (indiscernible) where I am today. (Id. at 64-65.)
Most significantly, petitioner terminated his gang affiliations. In 1992 he was ordered by members of the "Mexican Mafia" to stab another individual within the prison. Petitioner told the Board that he had no affiliation with the Mexican Mafia. But, "[o]nce you're in a SHU in any prison, the Mexican Mafia runs the SHU. In order for you to stay out of the SHU you have to play by the rules, and I was done after seeing my mom, following those rules. So I refused to do it." (See id. at 72-73.) As a result of his refusal, petitioner himself was stabbed in 1992.
Commenting on these two events, the Board observed that "[e]ither of those could be a life altering [event] for [petitioner] and whichever one it was, [it] worked." (Id. at 114.)
The record of progress and achievement by petitioner since 1989 fully bears out that observation. He had no significant disciplinary problems starting in 1989, and continuing for at least seventeen years through the 2006 parole hearing. But above and beyond the lack of trouble, he has compiled an exemplary record of achievement.
Petitioner has been involved in a wide variety of self-help and therapy programming within the institution. The most significant, for him, has been his extensive involvement with the 12-step Criminal Gangs Anonymous ("CGA") program. (See id. at 45 and 112.) Specifically, petitioner has served as a facilitator in the CGA program, and he personally developed the CGA Spanish program in 2003. (See id. at 55-56.) During the 2005 hearing he told the Board that, through the CGA program, he developed insight into why he became involved in gang activity:
I was always a chubby kid and . . . I still am. I'm a chubby man now, but back then the bullying I received at school and as a little kid, it hurt me. And I got to a certain age that I got tired of all the bullying and the laughter. And people used to look at me, I felt . . . with disgust and I wanted to change that. I tried sports and that didn't help. My family has always been loving to me, you know, and I've always known that, but it wasn't enough. And it wasn't until I joined that gang that it got me what I felt that I needed, the acceptance. You know, people didn't look at me as a fat kid no more. And it wasn't because all the [sic] sudden they loved me, because I became a very violent gang member. And that brought me the acceptance and once I ...