The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Benjamin Ramos.
Petitioner is in the custody of the California Department of Corrections and Rehabilitation following his conviction in Orange County, for second degree murder. (Petition, at 5-6.) Petitioner is serving a sentence of fifteen years to life in prison. (Id. at 5.)
In the instant petition, Petitioner does not challenge the validity of the state court conviction; rather, Petitioner challenges the Board of Parole Hearings' (hereinafter Board) June 10, 2008 decision finding him unsuitable for parole. Petitioner claims that his due process rights were violated because the Board's decision was not supported by some evidence and the Board has implemented a policy against granting parole in violation of his constitutional rights.
On October 16, 2008, Petitioner filed a petition for writ of habeas corpus in the Orange County Superior Court. (Petition, Appendix 1.) On November 3, 2008, the superior court denied the petition in a reasoned decision finding some evidence to support the Board's decision. (Id.)
On February 3, 2009, Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District. (Petition, Appendix 1.) On February 10, 2009, the petition was denied without prejudice to refiling in the Fourth District Court of Appeal. (Id.)
Petitioner then filed a state petition for writ of habeas corpus in the California Court of Appeal, Fourth Appellate District, which was summarily denied on March 12, 2009. (Petition, Appendix 3.)
Petitioner filed a petition for review in the California Supreme Court, which was summarily denied on May 13, 2009. (Petition, Appendix 4.)
On June 22, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Petition, Appendix 5.) The petition was denied on November 19, 2009, with citation to In re Miller, 17 Cal.2d 734 (1941). (Petition, Appendix 5.)
Petitioner filed the instant federal petition for writ of habeas corpus on December 14, 2009. Respondent filed an answer on February 16, 2010, and Petitioner filed a traverse on March 4, 2010. (Court Docs. 11, 12.)
A decomposed body, wrapped in blankets, was found in a ravine on February 3, 1991. It took several months to identify the victim, Theresa Cacho. Within two weeks of the identification, however, [Petitioner], Cacho's live-in boyfriend, was arrested and charged with her murder.
[Petitioner] admitted he killed Cacho, but insisted it was an accident. He testified they were arguing and twice when he tried to leave the house to avoid further unpleasantness, she shoved him into the couch. When she appeared ready to push him a third time, he pushed back. She stumbled, hit her head on the door, and lost consciousness.
[Petitioner] attempted to revive her by splashing water on her face, but soon realized she was dead. He succumbed to panic and enlisted the aid of two friends to dispose of the body. Brian Davidson and Thomas Good testified they helped [Petitioner] take it to a hillside off the Ortega Highway.
Forensic evidence and other testimony strongly suggested the victim's death was not an accident, however. A prosecution expert testified the victim died from asphyxiation caused by strangulation and airway obstruction. A pair of socks and a plastic bag were in her mouth when the body was recovered. They were similar to socks and plastic bags found in [Petitioner's] apartment.
Davidson's testimony was particularly damning. He lived with [Petitioner] and Cacho at the time of the killing and left one afternoon during the Christmas season because they were arguing. When he returned, [Petitioner] hysterically claimed Cacho died accidentally. She was wet, gaged, and handcuffed. [Petitioner] removed the handcuffs before they put the body in the car.*fn2
Davidson insisted he helped [Petitioner] "[b]ecause I feared... him at the same time I feared that he would catch up with me [and kill me]." A month before the killing, [Petitioner] told Davidson that Cacho "called his work and told somebody there, a manager or somebody, that he was selling drugs out of there and they put on an investigation and whatnot." Davidson added [Petitioner] wanted to "get rid of" the victim because she "was going to ruin his life."
Davidson was questioned exhaustively concerning a videotaped police interview he gave after Cacho's body was identified. He admitted he was not always truthful with the police and could no longer recall many of his statements.
Over a defense hearsay objection, the interrogating officer was recalled to the stand and read portions of the transcript of the interview. Davidson's statement in the interview that [Petitioner] harped for more than a month on his need to get rid of Cacho because he was afraid she would report his drug activities to the police was consistent with his trial testimony. But Davidson failed to state in the interview that [Petitioner] said he accidentally killed the victim.
Various prosecution witnesses testified concerning the relationship between [Petitioner] and Cacho. After several preliminary questions to the first of these witnesses, the judge said, "I am going to interrupt. With regard to drugs, ladies and gentlemen, as I said, drugs are a problem in our society, and the fact whether or not [Petitioner] did or did not deal in drugs and so forth is just for a limited purpose of possibly motive and so forth. No one's on trial for drugs here, so don't get carried away....
... Ronald Carter, who rented a room in [Petitioner's] home between June and October 1990, testified he watched one evening shortly before he moved out as Cacho made a telephone call and reported that someone was dealing drugs at work and she would identify him for a certain sum of money. Several weeks later Carter saw [Petitioner] parked down the street from the house. [Petitioner] got out of his car as Carter approached and mentioned that someone at work received information that he was dealing drugs. When Carter told him Cacho was the one who made the call, [Petitioner] reacted with disbelief.
Davidson then testified to a conversation with [Petitioner] concerning the anonymous drug dealing telephone call. No one asked whether he had a similar conversation with Cacho. Three other prosecution witnesses (Christopher Barba, Frank John Rocha, and John Alvarado) testified in quick succession and reported Cacho told them the drug dealing story.
When [Petitioner] took the stand, his attorney stated, "We've entered a stipulation at least concerning one phone call. And correct me if I am wrong, Mr. Cafferty [the prosecutor]. My recollection was the month of July someone from Lucky's received the phone call concerning an employee that might have been selling drugs there, and the informant was willing for money to turn that person in. Were you aware of that?" [Petitioner] answered in the affirmative and explained he learned of the phone call several weeks later from a store manager and confronted the victim with the information that same evening. [Petitioner] confessed to being "really ...