The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Daniel Stanley Van Hoosen, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Van Hoosen is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Folsom State Prison.
Respondent has answered, and Van Hoosen has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In April 1998, after entering a plea of guilty in the San Bernardino County Superior Court, Van Hoosen was convicted of one count of Torture (Cal. Penal Code § 206). The trial court sentenced Van Hoosen to a prison term of life with possibility of parole.*fn1 Van Hoosen does not challenge his conviction or sentence in this proceeding.
In November 2007 Van Hoosen made his second parole-suitability appearance before the California Board of Parole Hearings ("Board"). The Board found Van Hoosen posed an unreasonable risk of danger to society and denied him parole for a period of two years. Van Hoosen timely filed a petition for habeas relief in the San Bernardino County Superior Court.
The San Bernardino County Superior Court denied the petition in an unpublished, reasoned decision. Van Hoosen's subsequent petition for habeas relief was summarily denied by the California Court of Appeal, Fourth District, without opinion or citation to authority. The California Supreme Court summarily denied review without opinion or citation to authority on February 11, 2009. Van Hoosen timely filed an incomplete Petition for relief in this Court on March 13, 2009, and an Amended Petition on April 5, 2009.
The facts of the underlying conviction, as stated by the Board are:
On December 23, 1997, at approximately 10:30 P.M., Daniel Vanhoosen was visiting Nancy Evans at her home at 35452 Yucaipa Y-U-C-A-I-P-A Boulevard in Yucaipa, California. He became irate when Miss Evans advised him she no longer wished to be involved in a relationship with him and asked him to leave. He became verbally abusive and struck her multiple times with his closed fist on her face and chest.
Miss Evans ran to the phone in the kitchen, and dialed 911. Mr. Vanhoosen obtained a butcher knife and waved it threateningly, advising her to tell the operator there was no problem. She complied and terminated the phone call. Mr. Vanhoosen continued to batter the victim with his fists about the head and chest area.
Mr. Vanhoosen remained at Miss Evan's home throughout the night, disallowing her to leave her home. He proceeded to assault and torture the victim over the next 12 hours. Miss Evans would fall asleep periodically, only to be awakened by Mr. Vanhoosen straddling her, and pummeling her with his fists on her head and chest. At one point, Miss Evans managed to flee to the front yard, however, Mr. Vanhoosen overtook her, dragging her over the gravel driveway and back into the house.
On another occasion during the night, Mr. Vanhoosen took a knife and slightly cut Miss Evans about the chest, shoulders, arms and inner thigh, telling her "this was just a taste of" what he could do. The beatings continued throughout the night until the morning hours of December 24, 1997.
At approximately 10:00 A.M. on December 24, 1997, Mr. Vanhoosen left the residence, advising Miss Evans not to contact the police. He specifically informed her if she told the police and he went to prison for this incident, he would locate and kill her when he was released.
Out of fear for her safety, Miss Evans did not contact the police until approximately 4:00 P.M. on December 24, 1997, at the urging of a female neighbor. Due to her extreme fear of Mr. Vanhoosen, Miss Evans would not give a statement to the police in her home and had to be transported to the San Bernardino Police Department to do so.
The victim was observed by responding police officers, to have extensive injuries. Her right eye was black, bleeding and swollen shut. She had bruising on both sides of her face, extending from her hairline to underneath her chin. She had scratches on her cheekbone and near her mouth, and had a bruised right ear. Miss Evans also sustained bruises and scratches on her shoulders, chest and breast area. She had a deep bruise on her left bicep that was approximately four inches long and two inches wide. Skin had been scraped off her lower back, buttocks and her left thigh. She had a full set of teeth marks on her right wrist area.
Medical aid was summoned and at the advice of medical staff, the victim was transported to the Redlands Community Hospital by a friend. It was determined by medical staff that Miss Evans suffered a broken nose, a fractured eye socket and multiple abrasions on her lower back.
Approximately two hours later, Daniel Vanhoosen was stopped after his vehicle was pulled over by San Bernardino police officers during a traffic stop. It's noteworthy the victim remains fearful of Mr. Vanhoosen. She attributes the commitment offense to his alcohol use. She states her physical and mental health have improved over the years through therapy. However, she has only recently ceased having nightmares of the incident.
According to the victim and supplemental police report dated February 17, 1998, on the same day Miss Evans returned to her residence following a court hearing for Mr. Vanhoosen, to discover a butcher knife, similar to the one used during the commitment offense, on her front porch. This was viewed as a threatening gesture on the part of the inmate. The origin of the knife remains unknown.
Finally, Deputy District Attorney Jay Robinson reiterated that the San Bernardino District Attorney's office strongly opposes Mr. Vanhoosen's release. He specifically cites Mr. Vanhoosen's threats to the victim on the day of the offense wherein Vanhoosen informed Miss Evans if she called the police and he went to prison, he would kill her upon his release to the community.*fn2
After briefing was completed, the United States Court of Appeals for the Ninth Circuit, sitting en banc, decided Hayward v. Marshall.*fn3 At Docket No. 21 this Court entered its Order directing the parties to file supplemental briefs addressing the Hayward decision, in particular that "[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."*fn4 The Court also directed the parties to consider two Ninth Circuit Decisions applying Hayward.*fn5 Both parties have submitted supplemental briefing.
II. GROUNDS RAISED/DEFENSES
In his Amended Petition, Van Hoosen asserts that his right to due process was violated in two respects: (1) the Board's reliance on dismissed charges in violation of his plea agreement; and (2) the Board's determination that he presents a threat to public safety was not ...