The opinion of the court was delivered by: Robert H. Whaley United States District Judge
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Petitioner's Petition for Writ of Habeas Corpus, 28 U.S.C. Section 2254 (Ct. Rec. 1). Petitioner is a state prisoner currently confined by the California Department of Corrections in Vacaville, California. Petitioner is proceeding pro se. The State of California is represented by Jessica Blonien.
Petitioner challenges the Board of Parole Hearings' denial of parole on March 22, 2005. In his Petition, Petitioner is asserting eight claims for relief: (1) the participation of the Attorney General in the parole hearings denied Petitioner a fair hearing; (2) the decision to deny parole was arbitrary because there is no evidence that Petitioner is a danger or threat to society; (3) Petitioner was denied parole due to the circumstances of the commitment offense; (4) the Parole Board considered factors that were not proven before a jury and for which Petitioner was acquitted; (5) Petitioner's sentence is excessive, oppressive, and cruel and unusual; (6) the Parole Board re-characterized Petitioner's commitment offense as First Degree Murder, even though he was acquitted of this charge; (7) the decision to deny parole was due, in part, to collusion within the California Executive branch; (8) Petitioner's sentence is disproportionate to that of similar crimes and terms, in violation of the Equal Protection clause of the United States Constitution.
PROCEDURAL AND FACTUAL BACKGROUND
Petitioner was convicted by a jury of second degree murder in 1985. On December 20, 1985, he was sentenced in the Mendocino County Superior Court to fifteen years to life, with the possibility of parole, plus a two-year determinate, consecutive enhancement for the use of a firearm.
In June, 1995, Petitioner appeared before the Board for his initial parole consideration hearing, and he was found unsuitable for parole at that hearing. His second parole consideration took place in July, 1998. He was again found unsuitable for parole and was denied parole consideration for three years. In 2000, Petitioner filed a Petition for Writ of Habeas Corpus in the Mendocino County Superior Court, which was granted. Later that year, the Board conducted a parole consideration hearing, pursuant to the court order, but found Petitioner unsuitable for parole. Petitioner filed another habeas petition, and in December, 2001, the Superior Court granted the petition, finding that the Board's decision to deny parole was arbitrary and capricious and a violation of Petitioner's substantive procedural and due process rights. The Court ordered the Board to conduct a new parole hearing and find Petitioner suitable for parole. In accordance with the Superior Court's order, the Board held another parole consideration hearing in April, 2002, and this time, found Petitioner suitable for parole. In August, 2002, however, then-Governor Gray Davis found Petitioner unsuitable for parole and reversed.
A fourth parole consideration hearing was held on June 24, 2003. The Board denied parole. A fifth parole consideration hearing was held on March 22, 2005. Parole was denied for one year. The sixth parole consideration hearing was held on July 19, 2006, and parole was denied for one year. The denial of the March 22, 2005 parole hearing is the subject of this petition. On October 18, 2006, the Supreme Court of California summarily denied Petitioner's writ of habeas corpus.*fn1
In order to succeed with his § 2254 petition, Petitioner must establish that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Petitioner must also establish that his claims were adjudicated on the merits in state court proceedings and that the adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d). A determination of a factual issue made by the State court shall be presumed to be correct. § 2254(e). Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.
A state court's decision is "contrary to" clearly established federal law only where "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-24 (2000). There is an "unreasonable application" of clearly established federal law when a state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. A state court decision can also involve an unreasonable application of clearly established precedent "if the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. The state court's error must be one that the habeas court concludes is objectively unreasonable, not merely erroneous or incorrect. Id. at 409-11.
Recently, the Ninth Circuit set forth the law that governs the determination of federal habeas claims in which a California prisoner asserts that he was denied parole in the absence of "some evidence. See Pearson v. Muntz, 606 F.3d 606 (9th Cir. 2010). In that case, the Circuit, relying on Hayward v Marshall, 603 F.3d 546 (9th Cir. 2010), instructed federal courts to examine the reasonableness of the state court's application of the California "some evidence" requirements, as well as the reasonableness of the state court's determination of the facts in light of the evidence. Stated another way, compliance with the state requirement is mandated by federal law and specifically by the Due Process Clause. Id. at 611."Once a state creates such a system, however, it must operate it in a manner that comports with due process." Id.
State regulatory, statutory, and constitutional law shape the "some evidence" analysis. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1021 (9th Cir. 2010). California law requires the Board to grant an eligible inmate a parole date unless the Board determines that "consideration of the public safety requires a more lengthy period of incarceration for this individual." Cal.Penal Code § 3041(b). The "overriding statutory concern" of the state's parole scheme is "public safety." In re Dannenberg, 104 P.3d 783, 795 (Cal. 2005). "'[S]ome evidence' of future dangerousness is indeed a state sine qua non for denial of parole in California." Hayward, 603 F.3d at 562.
California parole regulations set forth circumstances that may indicate unsuitability for release. Cal. Code Regs. tit. 15, § 2402(c). These circumstances include the aggravated nature of the commitment offense, a previous record of violence, an unstable social history, sadistic sexual offenses, a history of severe mental problems related to the offense, and serious misconduct in jail. Id. The regulations also identify circumstances that "tend to show suitability" for parole, including the lack of a juvenile record, a stable social history, signs of remorse, significant stress as a motivation for the crime, lack of criminal history, realistic plans for the future, and good institutional behavior. Id. § 2402(d).
While the regulatory factors are designed to guide the Board's decision, the ultimate question of parole suitability remains whether the inmate poses a threat to public safety. "There must be 'some evidence' of such a threat," Hayward, 603 F.3d at 562, and not merely evidence that supports one or more of the Board's subsidiary findings. Pirtle, 611 F.3d at 1021. In particular, the Board may not rely solely on the circumstances of a commitment offense, because "[t]he prisoner's aggravated offense does not establish current dangerousness 'unless the record also establishes that something in the prisoner's pre-or post-incarceration history, or his or her current demeanor and mental state' supports the inference of dangerousness." Hayward, 603 F.3d at 562.(citations omitted).
In denying parole, the panel found that the December 14, 2004 psychosocial evaluation was the big stumbling block. The psychologist's report indicated that Petitioner would be a danger to society if he resumed drug and alcohol abuse. The panel considered the opposition to parole by the victim's family and the Deputy Attorney General. The panel found that Petitioner posed an unreasonable risk of danger to society and threat to public safety if released from prison, given the nature of the offense and the manner in which it was carried out. Specifically, the panel found that the offense was carried out in a manner that showed a total disregard for human suffering. The panel concluded that there were two victims, given that his ex-wife was in the room. The panel noted that Petitioner had failed to profit from society's previous attempts to correct his criminality with respect to his DMV violations, including adult probation and county jail, although it noted that Petitioner did not have prior criminal history. The panel relied on the fact that Petitioner had significant alcohol and drug use, including methamphetamine and cocaine. The penal noted that there was a certain amount of stalking or tracking conduct. The panel was concerned about Petitioner's sense of disconnect and what it believed was Petitioner's failure to come to grips with the commitment offense, and specifically what led up to the commitment offense.
The panel also indicated that Petitioner should be commended with respect to the amount and extent of programming in which he has participated. He received a Bachelor of Science from the University of Davis. He acquired four trades and worked for PIA optical. He was a disciplinary clerk, a teacher's assistance, clerical support services, a porter, a Chaplain's clerk, and computer clerk. The panel noted that he was involved in culinary and academics. He had taken 20 FEMA courses and been involved in AA and NA, Insight and Anger Management workshop. He received exceptional work performances and facilitated numerous programs and courses. Notably, since he has been incarcerated, Defendant has never received any CDC 115s or 128s. In other words, he has been disciplinary-free for the entire time he has been incarcerated.
Even so, the panel issued a one-year denial. In doing to, the panel indicated that this decision was based on the commitment offense and the psychologist's report.
1. Claim One: Denial of Due Process Rights by Deputy Attorney General's Presence at Parole Hearing
Petitioner argues that he was denied his due process rights because the California Penal Code barred the Attorney General's participation in the Parole Board Hearing. He asserts three arguments: (1) the Court should enforce the language of Section 3041.7 of the California Penal Code and find that the Attorney General is prohibited from representing the State during the Board of Parole Hearing; (2) the Superior Court does not have jurisdiction over the matter; and (3) the ...