The opinion of the court was delivered by: Consuelo B. Marshall, District Judge.
ORDER DENYING PETITIONER'S WRIT FOR HABEAS CORPUS
The matter before the Court *fn1 is Petitioner David Englund's Petition for Writ for Habeas Corpus challenging the Board of Prison Terms's (hereinafter, "the Board") denial of parole at his October 11, 2007, suitability hearing. The Court hereby DENIES the Petition and dismisses it with prejudice.
California state prisoner David Englund (hereinafter "Petitioner") filed the instant federal petition for writ for habeas corpus (hereinafter, "the Petition") on December 23, 2008, challenging the Board's denial of parole at his October 11, 2007, suitability hearing (the "Hearing"). [Docket No. 1.] On March 19, 2009, warden D.K. Sisto filed an Answer and Memorandum in Opposition, and on April 10, 2009, Petitioner filed his Traverse. [Docket Nos. 11, 12.]
The Petition was initially assigned to the Honorable John A. Mendez, but was transferred to this Court pursuant to a related case order.*fn2 [Docket Nos. 10, 15.]
I. Factual Background Of Petitioner's Conviction
Petitioner was convicted *fn3 in 1976 of thirteen counts of criminal misconduct, including: four counts of kidnapping to commit robbery with bodily harm pursuant to California Penal Code section 209; first degree robbery; assault with a deadly weapon with force likely to produce great bodily injury; and attempted murder. Petitioner was sentenced to seven years to life.*fn4
At the time of his 2007 parole suitability hearing, Petitioner had served thirty one years of his sentence. The facts relating to Petitioner's commitment offense are as follows.*fn5
Petitioner was raised in Oregon, and is the youngest of five children. TR at p. 32:9-15. Petitioner's parents divorced when he was 12, and his mother was his sole care giver. See id. at p. 32. His mother would not let him see his father, in part because of his father's "excessive drinking". Id. at p. 32:17-25.
Petitioner started using alcohol and drugs at 13. Id. at p. 34:9-25. At 16 he dropped out of school, and later ran away from home. Id. at p. 35:7-9. Petitioner ended up in San Die go, where he met Steve Caswell. Id. at p. 20:1-4.
By May 20, 1976, Petitioner, then 20 years old, and Caswell, had hitchhiked to the Lake Shasta area of Shasta County. Id. at p. 20, p. 32:3-4. Under the influence of marijuana (and after using speed and drinking alcohol in the preceding few days), the two decided to rob people in the Lake Head, Antlers Campground where they had been staying. See id. at pp. 20-21.
At around 9 p.m. that evening, four college students entered the campground to eat and go swimming. Id. at p. 10. The students parked their vehicle. Later, on their way back to their car, the students passed through campsite # 16 where Caswell and Petitioner were staying, and spoke to the two men. Id. The students then returned to their car to leave. Id. On their way out of the campsite, Caswell and Petitioner appeared on the road. Id. Petitioner brandished a gun and ordered the students out of the car. Id.
Pointing the gun at them, Petitioner ordered the students to the picnic benches at campsite # 16. Id. Petitioner and Caswell demanded money from the students; after the students gave them all their money, Petitioner and Caswell demanded more. Id. When one of the male students responded that they did not have more money, Petitioner struck him with the gun. Id.
Petitioner and Caswell then decided to tie the students up so the two of them could escape. Id. They marched the students to the edge of an embankment where they ordered the students to disrobe. Id. One of them then fired a shot at one of the male students which missed. Id. Caswell then tied the students up with twine, rope and the clothing. Id. While the students were being tied up, Caswell told the group he wanted to have sex with one of the girls. Id. at p. 12.
Once the students were tied up, Petitioner and Caswell had a discussion in front of them about whether to kill them, or leave them naked and tied up. Id. Petitioner then struck one of the male students with a gun, and Caswell pushed him over the embankment. Id. Petitioner walked over to the side of the embankment, shot at the student, and "rolled rocks down at him until [he] believed he was dead." Id. The student in the embankment was able to climb back up the embankment and run for help. Id.
In the meantime, believing the male student thrown over the embankment was dead, the two men debated what to do with the remaining three students. Id. Petitioner shot the other three students, all of whom survived: he shot the other male student in the stomach, one of the females in the chest, and the other female he struck with the gun four to six times and shot twice, with the first bullet barely missing the ear and second hitting her hands. Id.
Petitioner and Caswell left the scene in the students' car and proceeded to flee on the interstate. Id. at pp. 15-16. Later that evening, at around 10:45 p.m., a police officer observed the duo on the road, and a high speed chase ensued. Id. at p. 16. Petitioner and Caswell swerved a police road block. Id. Law enforcement initiated a search for the two men, and on May 21, 1976, Petitioner and Caswell "gave themselves up." Id.
Petitioner states he never intended to harm the students. He and Caswell intended to rob the students for more money for beer and drugs, id. at p. 17:25 to p. 18:1, but they later decided to tie up the students and shoot them to "slow them down" so the "[we] could get away and run." Id. at p. 21:5-6.
II. Procedural Background
After he was denied parole on October 11, 2007, Petitioner initiated a series of state court challenges to the decision.
First, on June 24, 2008, Petitioner filed for writ for habeas corpus in Shasta County Superior Court challenging the Board's denial of his parole on the same due process grounds as the instant Petition. Answer at Ex. 1. The court denied Petitioner's petition on August 19, 2008, on the grounds that the Board's denial was supported by "some evidence." Answer at Ex. 2. Next, Petitioner filed a petition for writ for habeas corpus in the California Court of Appeal on September 11, 2008. Answer at Ex. 3. The court denied the petition on September 25, 2008, in a non-reasoned decision. Answer at Ex. 4. Petitioner then filed a petition for writ for habeas corpus with the California Supreme Court on October 6, 2008, which was also denied in a non-reasoned decision on October 20, 2008. Answer at Ex. 6. Petitioner now seeks habeas relief in this Court.
PETITIONER'S GROUNDS FOR RELIEF
Petitioner challenges the Board's denial of parole on due process grounds. Petitioner contends that the Board's October 11, 2007, finding that he was unsuitable for parole was based solely on the nature of his commitment offense and ...