The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge
REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS
BEFORE THE COURT is a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a person in state custody (Ct. Rec. 1), Respondent's Answer (Ct. Rec. 8), and Petitioner's Traverse (Ct. Rec. 9). Respondent is represented by Deputy Attorney General Kasey E. Jones. Petitioner appears in propria persona. This matter was heard without oral argument. After careful review and consideration of the pleadings submitted, it is recommended that the Petition for Writ of Habeas Corpus be denied.
At the time his petition was filed, Petitioner was in custody of the California Department of Corrections and Rehabilitation, pursuant to his 1974 San Diego County conviction for murder in the first degree with an enhancement for use of a firearm. (Ct. Rec. 1 at 1; Penal Code sections 187, 189, 12022.5). Petitioner, represented by counsel, pleaded not guilty to the charge, but was convicted to life imprisonment plus five years with eligibility for parole after seven years on December 4, 1974. Id. Petitioner challenges the Board of Prison Terms's (now the Board of Parole Hearings) decision to deny him parole at his 2004 parole consideration hearing.
On July 19, 2004, the Board of Prison Terms ("the Board") decided that Petitioner was not suitable for parole because he posed a danger to public safety. During the parole consideration hearing, Petitioner took responsibility for the crime described by the Board's Statement of Facts:
Presiding Commissioner Daly: 'This was a crime that occurred on May 19th of 1974, at about 5:30 p.m., and the victim was Kenneth Riser. He was 21 years of age. He was sitting on the grass in Moutainview Park in San Diego with a group of friends. And he was approached by two black males, one of them being you, and they said something to the victim, and the friends did not understand. And then one of the defendants produced a pistol and commenced firing. Riser jumped to his feet and began running with two men in pursuit shooting as they ran, and the victim discarded his jacket. He then disappeared on the crest of the hill, and the gunman picked up the jacket and two men entered an automobile and sped away, and the victim collapsed nearby. And enroute to the hospital he said that he had been shot by Stephen Jacquett, and he died soon after reaching the hospital and was found to have three .32 caliber wounds in his back and his thigh, and the cause of death was hemorrhage due to a perforated aorta.' And witnesses also identified you as the gunman. And when the officers searched your room, they found clothing that was similar to what had been described as being worn by the person who did the shooting. And it just indicates that you and the victim had known each other for several years. Is this a true kind of, a true reflection of what happened that day?
Inmate Jacquett: The circumstances, yes. The only disputed fact is he was shot in the back, because if you'll read the legal documents from the District Attorney's Office, they say he was shot three times in the chest and once in the thigh.
Presiding Commissioner Daly: Okay. So do you take responsibility for this crime?
Inmate Jacquett: Yes, Ma'am. (Ct. Rec. 1 at 80-82.)
Petitioner claimed that the reason for shooting the victim were previous threats the victim made against his family. (Ct. Rec. 1 at 83.) However, there was also evidence that Petitioner may have been motivated by two recent altercations with the victim, which the victim had won. (Ct. Rec. 1 at 131.) Petitioner also claimed that he entered the park intending to shoot the victim, but did not consider that he would kill him. (Ct. Rec. 1 at 84.)
The Board found that Petitioner was not yet suitable for parole because he would "pose an unreasonable risk of danger to society or a threat to public safety if released from prison." (Ct. Rec. 1 at 130.) The Board based this finding on several factors. First, in regard to the nature of the original crime, the Board found that the offense was "carried out in a very callous manner" and "in quite a calculated manner" because Petitioner brought a firearm with him when he saw the victim and got out of his car. (Ct. Rec. 1 at 130.) The Board also found that the offense demonstrated "a total disregard for human suffering" because Petitioner shot the victim multiple times, and continued shooting though the victim was "running for his life." (Ct. Rec. 1 at 130). Finally, the board found that the motive for the crime was "very trivial in relation to the offense." (Ct. Rec. 1 at 130.)
The Board also found that there were reasons to deny parole that did not relate to the original offense. First, the Board pointed to Petitioner's record of assaultive behavior including battery on a police officer and resisting arrest. (Ct. Rec. 1 at 132.) Petitioner had also been charged with marijuana possession, burglary, loitering, possession of firearms on campus, and possession of narcotics. (Ct. Rec. 1 at 132.) Second, the Board found that Petitioner had an unstable social history. Petitioner admits to using alcohol and marijuana and trying Benzedrine and Seconal. (Ct. Rec. 1 at 132.) Third, the Board was concerned by Petitioner's institutional behavior. Petitioner had recently (March 2004) had a 115 disciplinary report for disobeying a direct order as well as three previous 115s in 1994-1995. (Ct. Rec. 1 at 132.) The Board referred to the psychological report created for the parole hearing that indicated that Petitioner was "somewhat hesitant to take full responsibility for his actions" in receiving the 115s. (Ct. Rec. 1 at 132.) The Board was also concerned that the report says that Petitioner has avoided Alcoholics Anonymous. (Ct. Rec. 1 at 132, 136.) The report concluded that Petitioner posed a moderate degree of threat at the time of the hearing. (Ct. Rec. 1 at 134).
The Board did find some factors in Petitioner's favor. Petitioner's parole plans were found to be valid and Petitioner has family dedicated to his success if released. (Ct. Rec. 1 at 134.) The Board was also pleased with Petitioner's progress toward furthering his education, learning vocational skills, and his involvement with prison programs such as being Chair of the Men's Advisory Council. (Ct. Rec. 1 at 134-135). However, ...