FINDINGS AND RECOMMENDATIONS
Petitioner, Thomas Montalvo , 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 serving an indeterminate life sentence following his 1988 convictions in Shasta County Superior Court for attempted murder, auto theft, and second degree robbery. Here, petitioner does not challenge the constitutionality of those conviction, but rather, the execution of his sentence, and specifically, the May 18, 2007 decision by the Board of Parole Hearings (the "Board") finding him unsuitable for parole.
A. The Board's 2007 decision to deny him parole was arbitrary because it was unsupported by any relevant or reliable evidence that he currently poses an unreasonable risk of danger to society, in violation of his federal right to due process.
B. The Board's 2007 decision to deny him parole extended his term of imprisonment beyond the statutory maximum term of confinement for his convicted offense based on facts not proven beyond a reasonable doubt.
C. The California Code of Regulations governing parole determinations are void and unconstitutional.
Upon careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.
The basic facts of Petitioner's life crime were summarized from the deputy probation officer's report at his May 18, 2007 parole suitability hearing:
Officer Cunningham contacted the victim, who indicated that the previous day she had received a telephone call regarding a vehicle which she had advertised in the paper for sale. The victim met with Mr. Montalvo on Lake Boulevard at a store. . . . Mr. Montalvo, indicated that he wished to purchase the vehicle and that he would get a check for the vehicle at that time.
According to the victim, she met Mr. Montalvo again at the same store and then later drove to Mr. Montalvo's residence, where his mother was to provide a check. The victim further indicated that they drove to an area off Keswick Dam Road, where Mr. Montalvo pulled over to the side of the road and then exited the vehicle. At this point he bent over the car, looking into the driver's window and she observed a weapon.
Mr. Montalvo told her to get out of the vehicle, at which time she exited on the passenger side. Montalvo had her walk approximately 50 feet away from the vehicle down a dirt road and had her kneel on the gravel. The victim stated she was asking Montalvo not to shoot her because she had two children and would not tell anyone if he would just leave her alone and take the vehicle. Mr. Montalvo shot her in the right leg. The victim indicated that she fell to the left, landing on her side, and tried to act like she was dead, but Mr. Montalvo shot her again anyway.
After the second shot, the victim stated she felt her hands and arms twitching, she did not realize where she had been shot. Again, the victim made her hands go limp and acted as if she were dead and she heard the suspect, Mr. Montalvo, run away. The vehicle started and left the area. The victim then stated she crawled up to Keswick Dam Road, where she flagged down a passing motorist to give her a ride to the hospital. According to the victim, Mr. Montalvo had also left the area with her purse in the vehicle. The victim was able to give a good description of Mr. Montalvo, as well as provide and [sic] address on August Way.
Several sheriff's deputies went to the described address on August Way, observed the stolen vehicle drive into the area and a man who fit the description provided by the victim. Initially, Mr. Montalvo indicated he had just purchased the vehicle from the victim, and that he had last seen her at a restaurant located on Lake Boulevard.
As the interview progressed the information was obtained that the parents of the defendant's girlfriend had recently had a burglary in which three weapons were stolen, one of them believed to be the weapon that had shot the victim. As Mr. Montalvo was appraised of this, he finally admitted to the shooting of the victim with a .25 automatic pistol, which had been stolen approximately two months earlier from his girlfriend's residence.
Now we'll skip down to the bottom of page three where it says defendant statement on the last paragraph.
On July 1, 1987, Ms. Jackson came to my home at 11:00 a.m., we went out to Keswick Dam Road and I asked her to please get out of the car. I did raise a gun at her, but I did not plan on using it at all. I then asked Ms. Jackson to walk down this little trail and to turn to the left where there was a cove. She was crying and said, quote, that nothing had been going right since we moved to Redding. I told her, don't worry, I'm not going to hurt you, please be quiet. She just got louder and louder. I didn't know what I was doing. I did not plan anything, it just happened. I turned my head and fired twice and ran to the car and left. (Transcript of May 18, 2007 Hearing, Pet. Ex. D at 21-24.)
Petitioner was convicted after a jury trial of attempted murder with the use of a firearm, auto theft, and second degree robbery. The jury also found true a special circumstance: that the attempted murder was willful, premeditated and deliberate. Petitioner was sentenced to life with possibility of parole on the attempted murder charge, plus an additional two years on the auto theft charge. Petitioner's minimum eligible parole date passed on October 25, 1995. On May 18, 2007, Petitioner appeared before the Board of Parole Hearings (the "Board") for a subsequent parole suitability hearing. After considering numerous positive and negative suitability factors, the panel concluded that Petitioner would pose an unreasonable risk of danger to society if released, and thus he was not suitable for parole. Petitioner then sought habeas corpus relief in the Shasta County Superior Court. On December 4, 2007, the court denied the petition, finding the Board's determination that petitioner was unsuitable for parole was supported by some evidence in the record. Petitioner then sought relief in the state appellate court. The California Court of ...