The opinion of the court was delivered by: Barbara Jacobs Rothstein U.S. District Court Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a California state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is serving a sentence of fifteen-years-to-life imprisonment in the California Department of Corrections imposed following his 1988 conviction for second degree murder. Petitioner became eligible for parole on September 27, 1997; he has been denied parole a total of six times since then. In this petition, Petitioner challenges the denial of parole that occurred in 2006.
II. FACTURAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner was sentenced to life in prison, with the possibility of parole after fifteen years, as a result of his 1988 convictions for second degree murder, hit and run death, gross vehicular manslaughter, and felony drunk driving. Petitioner's 1988 convictions were based on the following events: while operating his truck under the influence of drugs and alcohol, Petitioner drove into oncoming traffic and caused a head-on collision, which killed a 27-year-old woman who was five months pregnant. At the time of the collision, Petitioner had four DUI convictions on record, with three more DUI charges pending. He had failed previous grants of probation.
Petitioner does not challenge the validity of his 1988 convictions with the present petition. Rather, he seeks collateral relief from the decision of the California Board of Parole Hearings (the "Board"), which has denied him parole six times. The current petition challenges the results of the 2006 parole proceedings.
The Board first found him unsuitable for parole on November 25, 1996. On March 25, 1999, the Board held a subsequent parole consideration hearing, and found Petitioner unsuitable for parole because Petitioner "would pose an unreasonably risk of danger to others-to society and a threat to public safety if released from prison." See Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1125 (9th Cir. 2006) (Judge Reinhardt dissenting). The Board cited the "especially cruel manner" in which his offense was carried out, "[his] escalating pattern of criminal conduct," and his "unstable social history with prior criminality" to support its unsuitability determination. Id. On July 27, 2000, the Board held a third parole hearing, and again found that Petitioner would pose an unreasonable risk of danger to society if released from prison. Id. at 1126. The Board cited the "total disregard for human suffering" demonstrated by the manner of his offense and his previous criminal history to support its determination. Id.
Petitioner challenged the Board's 1996, 1999 and 2000 decisions in a habeas petition filed in the United States District Court, Eastern District of California. On September 12, 2002, the district court held that all challenges to Petitioner's 1996 parole proceeding were time-barred. Consequently, the district court only addressed Petitioner's challenge to the 1999 and 2000 parole proceedings, both of which were affirmed by a state trial court, a state appellate court, and the Supreme Court of California. On March 16, 2005, the magistrate judge recommended that Petitioner's habeas petition be granted and that he be given a parole date within thirty days of the adoption of the findings. On June 15, 2005, the district court rejected the magistrate's findings and recommendations, and denied the petition. The district court held that Petitioner did not have a liberty interest in parole under clearly established federal law.
Petitioner appealed to the United States Court of Appeals, Ninth Circuit, which affirmed the decision on August 31, 2006. See Sass, 461 F.3d at 1123. The Court held that Petitioner does have a constitutionally protected liberty interest in a parole date, but affirmed the decision on other grounds supported by the record. Id. at 1128-29.*fn1 Specifically, the Ninth Circuit held that the Board's reliance on the gravity of Petitioner's convicted offenses in combination with his prior offenses amounted to "some evidence" sufficient to support the Board's determination. Id.
Thereafter, on November 14, 2001, the Board once again denied Petitioner parole. The Board again cited as support for its decision that the "offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering." The Board concluded by stating: "You know, it's-it comes down to-sometimes it comes down to-just what's a life worth? How long? And you're in that tunnel and you're starting to get there to see the light at the end of it. You just have to continue to go through it for a while longer." (Dkt. No. 1, Exhibit B at 36.) The Board denied Petitioner parole again on November 15, 2002, citing substantially identical support for its determination. Id. at 40-41.
Petitioner met with the Board again on March 25, 2004 and it again denied parole. Id. at 43. This time the Board was concerned with a letter that Petitioner submitted to the Board at some point in 2002.*fn2 Petitioner stated in the letter:
Scientifically and medically a DUI causes fatality from an automobile accident at no more or less an act of malice or unlawful intent to cause human suffering than a vehicular fatality caused by a driver with a diagnosed risk of heart failure, cerebral haemorrhage, diabetic coma, hypoglycaemia, narcolepsy, epilepsy, or a host of other physical and psychological health problems and addictions, which could easily mimic alcohol intoxication. The only difference is simply that the degree and application of the law used to punish a person who has indulged in one or the other while being involved in a vehicular accident under the California Highway System.
Id. at 68. The Board felt that the letter strongly indicated that Petitioner had not yet accepted responsibility for his crime. Id. at 51. The Board instructed that a new psychiatric evaluation be done by a doctor, specifically addressing Petitioner's potential for violence and substance abuse. Id. at 53.
The Board once again denied Petitioner parole in 2006, the subject of the present petition. The Board questioned Petitioner extensively about the 2002 letter. Petitioner claimed that he did not write the letter, rather a "jailhouse lawyer" wrote the letter for him and submitted it on his behalf. Id. at 49. However, he admitted that he reviewed the letter before it was submitted to the Board. He acknowledged that he used poor judgment in submitting the letter and stated that the content of the letter does not "accurately describe [his] rehabilitation that [he has] gotten from all those self-help programs, and how [he] really feels about what [he] did to the victim and her family." Id. at 46. Nevertheless, the Board was not persuaded that Petitioner had accepted ...