The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REVISED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Revised Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner, represented by counsel, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on November 14, 2007, challenging a decision of a panel of the California Board of Parole Hearings ("BPH") on April 27, 2005, deeming Petitioner unsuitable for parole. Petitioner filed a First Amended Petition ("FAP") on February 5, 2008.
On June 10, 2008, Respondent filed a request for a stay pending the issuance of the mandate in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008). On June 23, 2008, Magistrate Judge Rayburn issued an order granting the stay.
On July 2, 2008, the case was transferred from Magistrate Judge Rayburn to the undersigned Magistrate Judge. On August 5, 2008, the District Judge issued an order vacating the June 23, 2008 stay order and denying Respondent's request for a stay.
On September 4, 2008, Respondent filed an Answer. On October 20, 2008, Petitioner filed a Traverse.
The Answer and the Traverse both referred to a June 21, 2005 en banc BPH decision. On October 22, 2008, the Magistrate Judge ordered the parties jointly to expand the record by lodging copies of all documents relating to the en banc proceedings and decision, to the extent any such documents were not already before the Court. On November 14, 2008, Respondent filed "Respondent's Request for Review by the District Court of Magistrate Judge's Order to Expand the Record." On December 11, 2008, the District Judge issued an order overruling Respondent's objections to the Magistrate Judge's October 22, 2008 Minute Order.
On March 4, 2009, Respondent filed "Respondent's Response to the Court's October 22, 2008 Order, etc." and a "Notice of Additional Lodgments." Also on March 4, 2009, Petitioner filed a "Response to Court's October 22, 2008 Order, etc." ("Petitioner's Response"), inter alia, seeking a Court order directing Respondent to prepare a transcript of the BPH's en banc proceedings and striking Respondent's Lodgment No. 9.
On March 9, 2009, the Magistrate Judge ordered Respondent to file a Reply to Petitioner's Response. On March 27, 2009, Respondent filed an "Ex Parte Application for an Order Extending the Time to Respond to the Court's March 10, 2009 [sic] Order, etc." ("Ex Parte Application"), which the Magistrate Judge granted by Minute Order issued on that date. On April 10, 2009, Respondent filed "Respondent's Reply to Petitioner's Response, etc."
The declaration of Respondent's counsel filed in support of Respondent's Ex Parte Application stated that Petitioner's "recent parole grant, in which he received a future date of release, has been finalized," and suggested that "the instant matter may be moot, which Respondent shall address in a separate pleading." On April 15, 2009, the Magistrate Judge ordered the parties to confer forthwith regarding the mootness issue and to file briefing, either jointly or separately, discussing the mootness issue.
On May 4, 2009, Respondent filed "Respondent's Notice of Motion and Motion to Dismiss the First Amended Petition, etc." ("Motion to Dismiss"), contending that the Court should dismiss the Petition as moot. On June 1, 2009, Petitioner filed an "Opposition to Respondent's Motion to Dismiss" ("Opposition").
On June 8, 2009, the Magistrate Judge recommended that the case be dismissed without prejudice as moot. The Report and Recommendation relied on an October 30, 2008 BPH panel determination that Petitioner was suitable for parole. Petitioner filed objections on August 21, 2009, pointing out the pendency of administrative proceedings through which the October 30, 2008 panel determination might be rescinded.
On October 19, 2009, the District Judge issued a minute order effectively denying Respondent's motion to dismiss. The District Judge found that this case is in fact moot, but that the BPH's April 27, 2005 denial of parole suitability is "capable of repetition yet evading review." The minute order directed the Magistrate Judge to address the merits of the case. On October 26, 2009, the Magistrate Judge recommended that the Petition be conditionally granted. See Report and Recommendation of United States Magistrate Judge, filed October 26, 2009. Respondent filed objections on December 18, 2009.
On February 25, 2010, the District Judge stayed these proceedings pending the decision of the Ninth Circuit in Hayward v. Marshall. On April 22, 2010, the Ninth Circuit decided Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) ("Hayward").
On June 1, 2010, Respondent filed a "Supplemental Brief Re: Hayward v. Marshall." On July 1, 2010, Petitioner filed a "Supplemental Brief Re Application of En Banc 9th Circuit Decision in Hayward v. Marshall."
The Magistrate Judge now withdraws the Report and Recommendation, filed October 26, 2009, and files the instant Revised Report and Recommendation in light of Hayward and its progeny.
On the afternoon of July 15, 1976, Petitioner, Petitioner's brother and a companion kidnapped a busload of school children and the bus driver at gunpoint in Chowchilla, California, drove the victims to an abandoned quarry in Livermore, and buried the victims alive in a furniture van the perpetrators previously had secreted beneath the quarry. See People v. Schoenfeld, 111 Cal. App. 3d 671, 168 Cal. Rptr. 762 (1980). The bus driver and the twenty-six children managed to escape the next evening. See id. Petitioner pled guilty to twenty-seven counts of kidnapping for ransom and received concurrent life sentences on each of the twenty-seven counts. See id.
On April 27, 2005, Petitioner appeared before a BPH panel for his nineteenth subsequent parole hearing (FAP, attached Memorandum, p. 7, & Ex. A). The BPH panel deemed Petitioner unsuitable for parole and denied parole for one year (Id., pp. 85-91). In pertinent part, the BPH stated:
[W]e have denied your parole for one year. And the basis of it is the gravity of the instant offense. This is a kidnap for ransom and it certainly rises to the top of it -- of it being egregious in the area of commitment offenses of the like. There were 27 victims in this crime, ages from 5 to 15 and then, of course, the bus driver. This crime was carried out in an exceptionally cruel and callous manner, multiple victims. The victims were abused... The emotional trauma, I'm sure, was great.
The inmate has one conviction for petty theft in 1974 and no other record... He has programmed in a satisfactory manner... He has a number of psychological evaluations, all of which are positive... He has parole plans, places to live... He also has job offers...
Id. at 86-88. Notwithstanding the fact that a denial of parole suitability necessarily entails a finding under section 3041(b) of the California Penal Code that "consideration of the public safety requires a more lengthy period of incarceration for [Petitioner]," one of the BPH panel members stated, "I don't see you as being a threat to anyone." Id. at 86. On June 21, 2005, an en banc BPH panel adopted the April 27, 2005 decision.
Petitioner then filed a habeas corpus petition in Alameda County Superior Court, which that Court denied in a reasoned opinion on March 27, 2007 (Exhibit I). In ruling that "some evidence" supported the BPH decision, the Superior Court discussed the egregiousness of the commitment offense as the only relevant factor militating against parole suitability. Id.
Petitioner then filed a habeas corpus petition in the California Court of Appeal, which that Court summarily denied on August 9, 2007 (Exhibit J). On October 24, 2007, the California Supreme Court summarily denied Petitioner's petition for review (Exhibit K).
A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but ...