ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus raising a single ground for relief: that the "unreasonable risk of danger" factor for parole suitability as applied to him is unconstitutionally vague and violates his right to due process. He supports this claim with an examination of the reasons the panel denied him parole, focusing on the panel's discussion of petitioner's explanation of the commitment offense. Petition (Pet.) at 24-27.*fn1
Respondent has filed a motion to dismiss arguing that the petition was filed outside the statute of limitations and that this court cannot reach the claim because of a procedural default.
Petitioner seeks sanctions against respondent on the ground that the motion is a sham pleading.
On July 13, 2007, petitioner appeared before the Board of Parole Hearings, which denied his application for parole. Pet., Ex. 1 at 143-150. As part of the denial, the panel said that the psychiatric evaluation from 2004 was "sorely lacking in information" and so it would request that a new evaluation be prepared before the next hearing. Id. at 147. The panel told petitioner he appeared to be "very arrogant, not very humble. We call that narcissism." Id. at 144. It recommended that petitioner "not intellectualize so much" and "continue with self-help," as well as learn a trade. Id. at 149-150.
On August 11, 2007, petitioner filed a petition for a writ of habeas corpus in San Diego County Superior Court. Petitioner sought an order enjoining the Board of Parole Hearings from directing the preparation of a new psychological evaluation when there was no evidence supporting the panel's belief about petitioner's mental health; enjoining the Board from requiring petitioner to follow through with the panel's other requests because there was no evidence that petitioner would be required to do so in order to be found suitable; enjoining Board members from "their unlawful practice of rendering psychological advice" and recommending treatment when there was no evidence that petitioner needed treatment. Petitioner said there was no administrative review available for these claims. Motion To Dismiss (MTD), Ex. 1. Petitioner supported this initial state petition with the decision portions of parole hearing transcripts not only from the 2007 hearing, but also from 2003, 2004 and 2005. Id.
On November 2, 2007, the San Diego County Superior Court found that petitioner had not stated a prima facie case for relief. It noted that because he had not provided the entire transcript of the July 13, 2007 hearing, it could not determine whether there was "some evidence" supporting the denial of release. The court also said that institutional activities, mental health and marketable skills were all factors relevant to the parole determination. MTD, Ex. 2.
Petitioner returned to the Superior Court on December 7, 2007. He said he would dismiss the earlier petition if it would "conflict with or disparage the resolution" of the second habeas action. MTD, Ex. 3 ¶ 7. This petition raised the following grounds: (1) the fact that he maintained his innocence does not show he would be a danger if released; (2) his commitment offense and the events surrounding it are compatible with the minimum elements necessary to sustain the conviction; (3) the panel's other reasons are not supported by reliable evidence and are not based on detailed standards; and (4) basing the denial on his refusal to admit guilt violated his rights. Id. Ex. 3 at 12-37.
On February 1, 2008, the Superior Court denied the second petition, finding that "the BPH did consider the requisite factors, but the major concern was the nature of the commitment offense and Petitioner's lack of acceptance of his role in, and attitude toward that crime. Together, these factors provided an uncertainty about future behavior about which the BPH was not willing to risk at this time or in the next two years." MTD, Ex. 4 at 5.
Petitioner filed his next collateral attack in the Court of Appeal on February 14, 2008. MTD, Ex. 5. It raised the same grounds presented in the second superior court petition. Id. The Court of Appeal denied this petition in an order filed December 9, 2008. MTD, Ex. 6.
On December 16, 2008, petitioner filed a petition for review in the California Supreme Court, with three questions presented for review: (1) does a panel's reinterpretation of the criteria for parole suitability violate an inmate's right to due process; (2) did the panel's denial violate petitioner's right to due process when it was based on evidence of which petitioner was not given notice, evidence not introduced at the hearing and on the commissioners' beliefs; and (3) is petitioner required to admit guilt and show remorse in order to be given a parole date? MTD, Ex. 7. This petition for review was denied on January 28, 2009. MTD, Ex. 8.
On February 2, 2009, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. This petition raised a single ground: the "unreasonable risk of danger" factor as applied to petitioner is unconstitutionally vague and violates his right to due process. MTD, Ex. 9. The petition in this case, raising the same ground, was filed February 3, 2009.
The Supreme Court denied this last state petition on July 15, 2009 with citations to In re Clark, 5 Cal.4th 750 (1993) and Ex parte ...