The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner challenges California Governor Arnold Schwarzenegger's reversal of the May 22, 2006 decision by the Board of Parole Hearings (hereinafter Board) finding petitioner suitable for parole. He claims that the Governor's action violated his rights to due process and equal protection. Upon careful consideration of the applicable law, the undersigned will recommend that respondent's motion to dismiss be denied and petitioner given the opportunity to exhaust the new factual basis for his claims in the California Supreme Court.
PROCEDURAL AND FACTUAL BACKGROUND
In 1985, petitioner pled guilty to second degree murder and was sentenced to 15 years to life in state prison. (Doc. 1 (hereinafter Pet.) at 1.) On May 22, 2006, at his eighth parole hearing, the Board found petitioner suitable for parole. (Pet. at 102, 106*fn1.) The Board concluded that "the negative aspects [of petitioner's crime 21 years earlier] are outweighed by the period of time that you've been in custody... and the fact that you've put that time to productive use." (Id. at 101.) It noted petitioner's "minimal disciplinary history" and "maturation, growth... [and] sincere expressions of remorse." (Id. at 102.) Having noted that his pre-commitment crimes were "all the result of you apparently abusing alcohol" (id. at 100), the Board recognized that petitioner had "consistently involved yourself in programs addressing the use of alcohol, either AA or Christian based 12 step program [and] appear to have adopted attendance of those programs[.]" (Id. at 101.)
The Board also found "indications that if released you will have a high likelihood of succeeding on parole." (Id. at 102.) These included petitioner's "change in attitude that would reside [sic] in good citizenship," his parole plans of living with family in Redding, and his relationship with a woman he had known for many years. (Id.) "What's critically important," the Board concluded, "... [is] you absolutely have to stay away from alcohol." (Id. at 103.) Accordingly, the Board granted parole on the "special conditions" that petitioner not use any alcoholic beverages, and that he submit to alcohol testing by his parole officer or other law enforcement and continue to participate in a substance abuse program. (Id. at 104-105.)
On October 10, 2006, Governor Arnold Schwarzenegger reversed the Board's grant of parole. In his written decision (Pet. at 154-155 (hereinafter, 2006 decision)), the Governor summarized his reasons for reversal as follows:
I have considered various positive factors in reviewing whether Mr. Ross is suitable for parole at this time. [Cites petitioner's vocational training, institutional jobs, self-help and therapy including programs for alcohol addiction, close ties with family and friends, positive evaluations from mental health and corrections professionals, and plans to live and work with a family upon release.
Despite the positive factors I have considered, the second-degree murder for which Mr. Ross was convicted was extremely brutal and callous... The gravity of the second-degree murder perpetrated by Mr. Ross is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk.... [H]e has a lengthy adult criminal record. Mr. Ross's criminal history, which includes incidents of violent and assaultive behavior, demonstrates his inability or unwillingness to conform his behavior to the rules of free society and weighs against his parole suitability at this time.... [G]iven the current record before me, and after carefully considering the very same factors the Board must consider, I find that the negative factors weighing against Mr. Ross's parole suitability presently outweigh the positive ones. Accordingly, and because I believe his release would pose an unreasonable risk of danger to society, I REVERSE the Board's 2006 decision to grant parole to Mr. Ross.
The 2006 decision triggered a lengthy course of litigation in the state courts in which petitioner challenged the Governor's decision and sought his release pursuant to the Board's grant of parole. As described below, his efforts met with some success. Most pertinent here are petitioner's first habeas petition to the California Supreme Court; the Court of Appeal's grant of a subsequent habeas petition in In re Ross, 170 Cal. App. 4th 1490 (2009); petitioner's second habeas petition to the California Supreme Court; and the Governor's revised decision, again reversing petitioner's 2006 grant of parole, which issued in 2009 as a direct result of petitioner's legal challenges to the 2006 decision. These events and their context are described below.
A. First Petition to the Supreme Court
On November 20, 2006, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, challenging the Governor's 2006 decision. (Pet. at 109-122.) On December 21, 2006, the Court of Appeal denied this petition for failure to first seek relief in the trial court. See Ross, supra, 170 Cal. App. 4th at 1496-1497 (summarizing procedural history of Ross litigation) (also attached as Motion to Dismiss (Doc. 12, hereinafter MTD), Ex. 4.)
On January 4, 2007, petitioner filed a habeas petition in the California Supreme Court, incorporating by reference his earlier petition to the Court of Appeal. (Pet. at 28-32; 109-122.) On March 21, 2007, the Supreme Court granted this petition and ordered the Court of Appeal to vacate its summary denial and issue "an order to show cause, returnable before the Shasta County Superior Court[,]" requiring the Director of Corrections and Rehabilitation to show cause "why the Governor did not abuse his discretion in reversing" the Board's 2006 grant of parole "and why petitioner remains a danger to public safety." (MTD, Ex. 2).
This first, successful habeas petition to the California Supreme Court bears reviewing in some detail. In it, petitioner cited federal authority in claiming that the Governor improperly relied solely on petitioner's pre-prison record as the basis for finding him unsuitable for parole. (Pet. at 116.) Also citing federal authority, he argued that the Governor improperly based his denial of parole on the "unchanged circumstances" of petitioner's crime without factoring in petitioner's behavior in prison and present danger to society. (Pet. at 120-121.) In attached materials labeled "Exhibit A," petitioner included a recent federal opinion in support of his argument that the Governor violated his due process rights by basing the decision to deny parole on petitioner's crime and pre-imprisonment criminal history. (Pet. at 113 (incorporating Exhibit A), 133-138 (letter to Governor and attached case).)
Petitioner further alleged to the Supreme Court that the Governor improperly disregarded (1) the 2004 finding of a forensic psychologist that petitioner posed a low risk to society; (2) "current laws providing for an individual consideration" of an inmate's suitability for parole; and (3) petitioner's "liberty interest," instead relying on "immutable facts, such as the triggering crime[.]" (Pet. at 30.)
As directed by the Supreme Court, the Court of Appeal issued an order to show cause to the Director of Corrections and Rehabilitation, returnable before the Shasta County Superior Court. Ross, 170 Cal. App. 4th at 1496. On September 12, 2007, "[t]he superior court denied the petition for writ of habeas corpus, ruling that the Governor's decision was supported by defendant's criminal history and the nature of his crime." Id. (See MTD, Ex. 3.)
B. Court of Appeal's Habeas Grant and Remand
On October 30, 2007, petitioner filed another petition for writ of habeas corpus with the Court of Appeal. Id. The Court of Appeal issued an order to show cause on February 7, 2008. Thereafter, the California Supreme Court decided In re Lawrence (2008) 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535 (hereafter Lawrence ) and In re Shaputis (2008) 44 Cal.4th 1241, 82 Cal.Rptr.3d 213, 190 P.3d 573, clarifying its decisions in In re Rosenkrantz (2002) 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174 (hereafter Rosenkrantz ) and In re Dannenberg (2005) 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 and the limits on the Governor's broad discretion to deny parole.
Id. at 1496-1497. The parties submitted supplemental briefing addressing the impact of these decisions on petitioner's writ. Id. at 1497.
On February 10, 2009, the Court of Appeal held that the 2006 decision was supported by "some evidence" that petitioner was unsuitable for parole, as required by law. Id. However, it also concluded that, under the Supreme Court's recent holding in Lawrence, "the Governor's written decision is flawed because it does not contain a more explicit 'articulation of a rational nexus between th[e] facts and current dangerousness.'" Id. (citing Lawrence, supra, 44 Cal. 4th at 1227). On this basis, the Court of Appeal granted the habeas petition and remanded the matter to the Governor with instructions to vacate his 2006 decision "which reversed the Board's finding in 2006 that defendant was suitable for parole, and to reconsider the matter consistent with the standards articulated in Lawrence[.]" Id. at 1515.
Significantly, although issued in 2009, the Court of Appeal's opinion in In re Ross repeatedly notes that the issue is whether the Governor properly evaluated petitioner's suitability for parole in 2006. See id. at 1497 (summarizing "evidence supporting the Governor's finding that defendant was unsuitable for parole in 2006"); id. at 1508 (considering whether "defendant would be a danger to public safety if he were released on parole in 2006" or "if granted parole in 2006"); id. at 1510 (considering "whether defendant remained a threat to public safety in 2006" or "presented a current danger to public safety if paroled in 2006"); id. at 1511 (same); id. at 1512 (same); see also id. at 1501 (describing petitioner's "most recent psychological evaluation, prepared in December 2004" and "life prisoner evaluation report prepared in 2005"); id. at 1502 (concluding summary of relevant evidence with petitioner's behavior at his "parole hearing in 2006").*fn2
"We reiterate," the Court wrote, "that the Governor had to base his decision on the same factors that restricted the Board's discretion in determining whether a life-term inmate 'will pose an unreasonable risk of danger to society if released from prison [citation], but that the Governor had the 'discretion to be more stringent or cautious.'" Id. at 1512 (citing Lawrence, supra, 44 Cal. 4th at 1204.); see also id. at 1505 ("In reviewing the Board's finding, the Governor's decision must be based upon the same factors that ...