The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation following his 1991 conviction for second-degree murder, with use of a firearm. Petitioner is serving a prison term of fifteen-years-to-life.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, Petitioner challenges the Board of Parole Hearings' (Board) September 22, 2008 decision finding him unsuitable for release.
In February 2009, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the 2008 decision by the Board claiming it was not supported by some evidence of his current dangerousness. On April 1, 2009, the superior court denied the petition in a reasoned decision finding some evidence supported the Board's decision that Petitioner remained an unreasonable risk to public safety.
Petitioner then filed the same claims in habeas corpus petitions to the California Court of Appeal and the California Supreme Court, and both petitions were summarily denied.
Petitioner filed the instant federal petition for writ of habeas corpus on march 10, 2010. Respondent filed an answer to the petition on July 1, 2010, and Petitioner filed a traverse on July 19, 2010.
On June 1, 1990, the victim, a transient, was involved in an altercation with Petitioner's aunt who was using cocaine at the time. Petitioner's aunt tried to "steal" empty cans and an abandoned shopping cart from the victim. The victim hit Petitioner's aunt in the face. Upon learning about the attack on his aunt, Petitioner became enraged. Feeling that it was his duty to protect his family, Petitioner and his crime partner confronted the victim. Petitioner admitted that he hit and kicked the victim until he was unconscious. There were allegations that Petitioner threw a shopping cart at the victim, but he denied doing so. Unbeknownst to Petitioner or his crime partner, the victim suffered from a heart disease. As such, the trauma from the fight caused the victim's death. Petitioner assumes full responsibility for the death of the victim. (Answer, Ex. 2, at 1.)
There is no independent right to parole under the United States Constitution; rather, the right exists and is created by the substantive state law which defines the parole scheme. Hayward v. Marshall, 603 F.3d 546, 559, 561 (9th Cir. 2010) (en banc) (citing Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). "[D]espite the necessarily subjective and predictive nature of the parole-release decision, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause." Bd. of Pardons v. Allen, 482 U.S. at 371.
In California, the Board of Parole Hearings' determination of whether an inmate is suitable for parole is controlled by the following regulations:
(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for a denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.
(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.
Cal. Code Regs. tit. 15, §§ 2402(a) and (b). Section 2402(c) sets forth circumstances tending to demonstrate unsuitability for release. "Circumstances tending to indicate unsuitability include:
(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The ...