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 pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is presently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his conviction of second degree murder with use of a knife. Petitioner is serving a term of sixteen-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") April 8, 2009 decision finding him unsuitable for release.
On December 14, 2009, Petitioner filed a petition for writ of habeas corpus in the Ventura County Superior Court challenging the Board's 2008 decision. The superior court denied the petition in a reasoned decision finding some evidence to support the determination that Petitioner remains an unreasonable risk to public safety.
Petitioner then filed petitions for writs of habeas corpus in the California Court of Appeal and California Supreme Court. Both petitions were summarily denied.
Petitioner filed the instant petition for writ of habeas corpus on April 9, 2010. Respondent filed an answer to the petition on July 7, 2010, and Petitioner filed a traverse on July 22, 2010.
On May 2, 1992, in retaliation for the vandalism of Petitioner's vehicle, he and several other members of the Avenue Gang went to Camino Real Park to approach revival gang members believed to have committed the vandalism. Petitioner, Miguel Morales, Rafael Robles, and others confronted victims Navarro and Villanueva. Petitioner struck Villanueva with a metal pipe and then attempted to stab him after Villanueva claimed no gang affiliation. He was ultimately chased down the street by Morales. In the meantime, Navarro was pushed up against the wall by several males but was able to break loose. Villanueva and Navarro attempted to get into their vehicle to escape but were not successful because the car was locked. After chasing Navarro, Petitioner stabbed him three times resulting in his death.
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 factors to be considered include:
(A) Multiple victims were attacked, injured or killed in the same or separate incidents.
(B) The offense was carried out in a dispassionate and calculated manner, such as an ...