Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, District Judge, Presiding. D.C. No. CV-04-00518-FCD/KJM.
The opinion of the court was delivered by: Judge Reinhardt
Argued and Submitted March 12, 2008 -- San Francisco, California
Submission Vacated December 3, 2008
Before: REINHARDT, NOONAN, and FISHER, Circuit Judges.
California state prisoner John H. Pirtle was given a parole date in 1990, but in 1994, the California Board of Prison Terms rescinded his parole. After that, the Board denied Pirtle parole three other times prior to a denial in 2002.*fn1 Pirtle filed a petition for a writ of habeas corpus, asserting that the Board's 2002 denial of parole violated his constitutional right to due process. The state courts denied his petition, but the district court granted the writ. The State appeals. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
In 1980, Pirtle was convicted of second-degree murder for killing his wife. He was sentenced to a term of seventeen years to life in prison. Ten years later, after a hearing, the Board determined that Pirtle was "suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison." The Board found that Pirtle committed the crime "as a result of significant stress in his life," that he showed remorse, and that he accepted responsibility for his actions. It also found that Pirtle had a stable social history prior to his marriage to the victim, had no juvenile or adult convictions for violent offenses, had performed well in his prison job assignments, had matured since his crime, had received positive psychiatric reports, and had developed realistic plans for his parole. The Board set his release date for December 30, 1994.
In March 1994, however, the Board rescinded Pirtle's parole. It found that the previous panel had not given sufficient weight to the gravity of the original offense, the fact that he had been carrying a concealed weapon, or his history of alcohol abuse, crime, and domestic violence. The Board denied Pirtle's parole again in 1995, 1996, 1998, and 2002. Each time, the Board relied on the circumstances of Pirtle's crime, his history of criminal conduct, and his failure to attend a substance abuse program. The Board's 2002 denial of parole is the subject of this appeal.
At the 2002 hearing, the Board considered two descriptions of Pirtle's crime. The first was from the 1990 Board report following Pirtle's first parole hearing, at which he was deemed suitable for parole. That report was read into the record at the hearing and was transcribed as follows:
On March the 8th, 1980 at approximately 1:17 a.m., the Gridley Police Department was notified of the shooting at The Moose Lodge. Upon arrival at the scene, the responding police officers observed the victim, Diane Pirtle, lying on the floor with a gunshot wound to her upper chest area. The victim was transported to the memorial hospital where she was pronounced dead at approximately 1:20 a.m. The prisoner, John Pirtle, arrived at the police department and informed personnel on duty that he had just shot his wife at The Moose Lodge. He then produced a small pistol and placed it on the counter. Pirtle then was taken into custody, and when informed that the victim, his wife, had died, responded by stating, okay. An autopsy performed on the victim revealed that she had died as a result of a single 25 caliber bullet entering her upper chest and penetrating her heart and liver. Witnesses relate that at approximately 10:30 p.m. on March 7, 1980, the defendant -- the prisoner had entered The Moose Lodge, approached his wife, slapped her in the face and then left. At approximately 1:00 a.m. on March 8, 1980, the prisoner returned to the Moose Lodge, ordered a drink at the bar and paced around the bar area while the victim and another man danced to the music. When the music stopped, the prisoner walked up to the victim, placed his arms around her and shot her in the chest. The prisoner then exited the building. (name spelling and reading errors omitted).
Next, the Board read into the record Pirtle's own account of the crime that he gave in 1990. It ...