FINDINGS AND RECOMMENDATIONS
Petitioner McFarland 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 serving an indeterminate sentence of life in prison following his 1989 convictions for attempted robbery and first degree murder. In the pending petition, petitioner challenges the execution of his sentence, and specifically, the decision of the Board of Parole Hearings following his second parole suitability hearing, held on December 19, 2006, that he was not suitable for parole. After a thorough review of the record and applicable law, it is recommended that the petition be granted.
On June 19, 1987, victims Jesse Cole, Richard Clay, and Jeffrey Richardson, Marines stationed at 29 Palms, went into town to celebrate their recent graduation from communications and electronics school. They rented a room at the El Rancho Motel. Around 10:00 p.m. that night Richardson and Clay decided to go to a local bar. Cole, who was under 21, stayed at the motel. Clay and Richardson met Jamette Misener on the street and started talking with her. She invited them to come with her and her friend Adrianna Medezma to a housewarming party, and they agreed to go. They all got into a truck and went to the motel to pick up Cole. After picking up Cole, Jamette drove the five of them out to an abandoned house. Petitioner and his co-offenders, Richard Misener, Jerry Givens, Bradley Bork, Terry Gump, were waiting outside the abandoned house.
At trial, Richard Misener testified that the group had met earlier that evening at Givens's house. Givens and Richard Misener started talking about committing a robbery by using the girls to lure some Marines out to an abandoned house. Neither petitioner nor Gump participated in the conversation at first, and at one point petitioner started to leave. Richard Misener started "leaning on him," however, and petitioner agreed to go along with the others. Later, after they reached the abandoned house, petitioner and Bork wanted to leave but Richard Misener started "leaning on them again, and they finally gave in."
When Jamette Misener and Medezma arrived at the house with Clay, Cole, and Richardson, Jamette went into the house with Cole and Clay while Medezma and Richardson stayed outside. Richard Misener was standing near the garage holding a loaded shotgun along with petitioner and Bork, who were also holding loaded guns. Cole heard someone say "hold it" or "freeze." About the same time, Cole and Clay started to go back outside when they heard a gunshot. Clay started running outside and noticed that Richardson was running near him but appeared to trip and fall. Clay continued running into the desert and managed to escape. When Cole heard the gunshot, he turned and ran toward the rear bedroom attempting to escape out a window. About the same time he heard someone yell, "Stop or I'll kill you," and saw someone holding a shotgun. Cole later identified Misener as the one that told him to stop. Cole was forced to crawl on his hands and knees to the bathroom where someone searched his pockets.
Misener then told Cole to crawl outside into the truck. Misener drove Cole to an isolated area in the desert and released him with instructions not to contact the police. Cole flagged down a truck and was taken to the Joshua Tree station where he reported the crime. Meanwhile, Clay was able to reach town and contact the police. Clay returned to the abandoned house with police where they found twenty-one year old Richardson shot dead. Officers obtained a description of the pickup truck which led to the arrest of petitioner and his co-offenders.
In a tape recorded interview, petitioner stated he was backup in the attempted robbery and did not intend to use his loaded shotgun unless "something came down like one of them having a pistol or something." Petitioner maintains that he heard two shots fired that night and saw two muzzle flashes coming from different areas, but thought the shots were fired into the air. He claims he left the scene on his motorcycle, unaware that one of the victims had been shot, and that he did not find about the murder until he was apprehended the next day.
At trial, the prosecutor contended Richardson was shot by Misener, but there was also evidence which would suggest that Givens shot him. There was no evidence to suggest that petitioner shot Richardson. Pursuant to the felony murder rule, petitioner was convicted by jury of first degree murder and multiple counts of attempted robbery. It was further found, for enhancement purposes, that petitioner was armed with a deadly weapon. Petitioner was sentenced to 26 years to life in state prison.
Petitioner's life term began in 1989 and his minimum eligible parole date passed on February 15, 2005. On December 19, 2006, a panel of the Board of Parole Hearings ("Board") conducted a first subsequent (second overall) parole suitability hearing to determine if petitioner would pose an unreasonable risk of danger or threat to society if released from prison, and thus whether he was suitable for parole. Citing circumstances related to petitioner's commitment offense and various other factors, the Board determined that petitioner was not suitable for parole.
Petitioner challenged the Board's decision in a petition for writ of habeas corpus to the San Bernardino County Superior Court. The San Bernardino County Superior Court denied his claims in a brief written decision dated November 29, 2007. The California Court of Appeal, Fourth District, likewise denied relief, and the California Supreme Court denied review.
In two separate claims petitioner argues that Board's decision to deny parole violated his right to due process of law because (1) the decision was not supported by "some evidence" in the record nor was there a rational link or nexus between the conclusion reached and the evidence cited; and (2) he meets 7 out of 9 circumstances tending to show parole suitability and cannot comply to any greater degree with them. Since the allegations in petitioner's claims both assert due process violations in relation to the sufficiency of evidence supporting the Board's parole decision, they will be addressed together herein as a single issue.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) 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
(2) 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.
28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't. of ...