The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner George Rembert, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Rembert is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California Medical Facility. Respondent ("State") has answered. Rembert has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In March 1976 Rembert was convicted on a guilty plea in the Los Angeles Superior Court of Robbery in the First Degree (Cal. Penal Code § 211) and Felony Murder (Cal. Penal Code § 187). The trial court sentenced Rembert to an indeterminate prison term of seven years to life. Rembert does not challenge his conviction or sentence in this proceeding.
In May 2006 Rembert made his twelfth appearance before the Board of Parole Hearings ("Board"). The Board found Rembert unsuitable for parole, concluding that: "Petitioner was unsuitable for parole and would pose an unreasonable risk of danger to society and a threat to public safety."*fn2 Rembert timely filed a petition for habeas corpus relief in the Los Angeles Superior Court, which was denied in an unpublished, reasoned decision. Rembert's subsequent petition for habeas relief was denied by the California Court of Appeals in a partially reasoned decision. The California Supreme Court summarily denied Rembert's petition for review without opinion or citation to authority on March 12, 2008. Rembert timely filed his Petition in this Court on April 6, 2008.
The facts underlying Rembert's conviction, as recited by the Los Angeles Superior Court, are:
The record reflects that the Petitioner and his crime partner intended to steal televisions. They went to the Horn residence on the pretense of seeking work clearing brush. Mrs. Horn became suspicious of the gentleman and declined the offer. Later, Mrs. McIntyre, a neighbor, came home from work to find her house ransacked and her husband murdered. The offense involved deliberate violence. The husband's arms and ankles were bound with wired [sic] coat hangers. Several of his ribs were broken. Although the husband was bound and severely beaten, the assailants nevertheless decided to strangle him to death by wrapping a belt around his neck.*fn3 After briefing was completed in this case, the United States Court of Appeals for the Ninth Circuit, sitting en banc, decided Hayward v. Marshall.*fn4 At Docket No. 11 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."*fn5 The Court also directed the parties to consider two Ninth Circuit Decisions applying Hayward.*fn6 Both parties have submitted supplemental briefing.
II. GROUNDS RAISED/DEFENSES
In his Petition Rembert raises as his ground for relief that he was denied due process of law because the decision of the Board was unsupported by sufficient evidence of current dangerousness and impermissibly relied on the underlying commitment offense. The State does not assert any affirmative defense.*fn7
Rembert argues that the Board's decision, which was based primarily on the commitment offense, prior criminal history, and unstable social history occurring more than 30 years prior, are insufficient to support a finding that he currently poses an unreasonable risk of danger to public safety if released on parole. In denying Rembert's petition, the Los Angeles Superior Court held:
The Court finds that there is some evidence to support the Board's finding that Petitioner's commitment offense was committed in an especially cruel manner in that the offense was carried out in a dispassionate and calculated manner, the victim was abused, defiled or mutilated during the offense, the offense was carried out in a manner that demonstrated an exceptionally callous disregard for human suffering, and the motive for the crime was trivial in relation to the offense. Cal. Code Regs., tit. 15, § 2281(c)(1). The record reflects that the Petitioner and his crime partner intended to steal televisions. They went to the Horn residence on the pretense of seeking work clearing brush. Mrs. Horn became suspicious of the gentleman and declined the offer. Later, Mrs. McIntyre, a neighbor, came home from work to find her house ransacked and her husband murdered. The offense involved deliberate violence. The husband's hands and ankles were bound with wired coat hangers. Several of his ribs were broken. Although the husband was bound and severely beaten, the assailants nevertheless decided to strangle him to death by wrapping a belt around his neck.
The Court finds that there is some evidence to support the Board's finding that Petitioner's previous record showed an escalating pattern of criminal conduct and violence. An inmate may be unsuitable for release on parole if the inmate has on "previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age." Cal. Code Regs., tit. 15, § 2281(c)(2). The record reflects that Petitioner's criminal conduct began at early age. As a juvenile, Petitioner committed several offenses including curfew violation, burglary and robbery. As an adult, Petitioner continued his criminal conduct. Petitioner was arrested for petty theft, gambling, burglary and robbery. A couple of weeks prior to the commitment offense, Petitioner participated in a residential robbery. The victims of the robbery were assaulted.
In its decision, the Board noted that Petitioner committed several disciplinary violations while incarcerated. An inmate may be unsuitable for release on parole if the inmate has "engaged in serious misconduct in prison or jail." Cal. Code Regs., tit. 15, § 2281(c)(6). The Board noted that Petitioner has not committed any serious disciplinary violations since 2001. However, the record reflects that Petitioner has received twenty-three or twenty-four 115s, which ...