The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Gregory Barnes Watson, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254 challenging the action of the California Board of Prison Hearings ("Board") in denying him parole. Watson is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Mule Creek State Prison. The Respondent ("State") has answered, and Watson has replied. At Docket No. 29, Watson's father, Byrn A. Watson, has filed a motion requesting permission to file an amicus brief in support of Watson's Petition. Respondent has not opposed the motion. Watson has also requested an evidentiary hearing.
Ordinarily, a federal habeas proceeding is decided on the complete state-court record and a federal evidentiary hearing is required only if the trier of fact in the state proceeding has not developed the relevant facts after a full hearing.*fn1 It does not appear from the record that the California courts made any independent evidentiary findings, and review in this case is based upon the findings of the Board, which did hold a full hearing developing the facts. Watson has not identified any factual conflict that would require this Court to hold an evidentiary hearing to resolve. The request for an evidentiary hearing is, therefore, DENIED.
In his proposed amicus brief, Watson's father, Byrn A. Watson, requests that this Court re-weigh the evidence and substitute its judgment for that of the Board. This, as is more fully explained below, the Court may not do. Accordingly, the motion for leave to file an amicus brief at Docket No. 29 is DENIED.
II. BACKGROUND/PRIOR PROCEEDINGS
In September 1987, following a trial by jury, Watson was convicted in the Ventura County Superior Court of one count of Murder in the First Degree (Cal. Penal Code § 187) and two counts of Assault with a Deadly Weapon (Cal. Penal Code § 245(a)(2)), with a finding of true as to the allegations of Use of a Firearm (Cal. Penal Code § 12022.7) as to the murder and one assault conviction, and Great Bodily Injury (Cal. Penal Code § 12022.7) as to the other assault conviction. The trial court sentenced Watson to an aggregate, indeterminate prison term of 34 years to life. Watson does not challenge his conviction or sentence in this proceeding.
In July 2007 Watson, whose Minimum Parole Eligibility Date was July 10, 2008, made his first parole-suitability appearance before the California Board of Parole Hearings. The Board found Watson unsuitable for parole and denied him parole for a period of four years. Watson timely sought habeas relief in the Ventura County Superior Court, which denied his petition in an unpublished, reasoned decision. Watson's subsequent petition for habeas relief in the California Court of Appeal, Second Appellate District, was summarily denied without opinion or citation to authority. The California Supreme Court also summarily denied Watson's petition for habeas relief without opinion or citation to authority on December 17, 2008. Watson timely filed his Petition for relief in this Court on January 26, 2009.
After briefing was completed, the United States Court of Appeals for the Ninth Circuit, sitting en banc, decided Hayward v. Marshall.*fn2 At Docket No. 25 this Court entered an Order directing the parties to file supplemental briefs addressing the Hayward decision, which understood that California law created a liberty interest in each prisoner that he or she would be paroled unless the parole authority found that the prisoner presents a current danger to the community. In particular, this Court directed that the State address the Hayward holding that under California law "[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."*fn3 The Court also directed the parties to consider two Ninth Circuit Decisions applying Hayward.*fn4 Both parties have submitted supplemental briefing.
The facts of the underlying commitment offense, as summarized by the California Court of Appeal on direct appeal and quoted in part by the Board, are:
The Prosecution's Case Marlen Gonzalez lived with her boyfriend, Jose Salinas, at the Simi Valley home of Hope Rodriguez. They were all home on the afternoon of November 10, 1986, when Watson came to see Rodriguez.
Gonzalez testified that Watson, Rodriguez and Salinas were in the dining room. She was in the kitchen preparing lunch when she heard a noise. She turned and saw Watson shooting Rodriguez. Watson then pointed the gun at the head of Gonzalez' young daughter. Gonzalez screamed, and Watson shot at her but missed. Watson fled out the door. At trial Gonzalez identified a grey sweatshirt with a red circular design as the one worn by Watson at the time of the shooting. The day after the shooting someone brought the sweatshirt to the cleaners.
Salinas testified at the preliminary hearing that Watson and Rodriguez were talking about money, and that Watson wrote something down on a piece of paper. Salinas left the dining room to go to the bathroom when he heard a shot. He turned and saw Watson shooting Rodriguez. Watson then shot Salinas twice, hitting him in the side and the throat. Salinas, despite his injuries, ran to his bedroom, got a revolver, and shot at Watson through a window as Watson ran to a yellow mini truck. Watson drove away and Salinas then called the police.
Later, while in a hospital emergency room, Salinas told police that a man named Greg, whom he had met before, was the assailant. (This was Watson.) The day after the shooting, Gonzalez also identified Watson as the gunman. A piece of paper with words on it written by Watson was found in the Rodriguez living room.
Marc Holmes, Watson's employer, testified under a grant of limited immunity as follows: Holmes, Rodriguez, Salinas and others attended a meeting at Rodriguez' home in late October 1986. Several of those attending were later arrested for possession of cocaine. Rodriguez was frightened after this drug arrest, and asked Holmes for his help in leaving the country. Holmes had planned to meet with Rodriguez early in the day of the shooting, but Salinas called him before lunch to postpone the time of the meeting. Sometime after 1 p.m. Rodriguez called Holmes and asked him for help in hiding her automobiles. A little while later, Watson called and told Holmes that he had driven by Rodriguez' house, and that it was surrounded by police. Holmes said he thought Rodriguez had been arrested for cocaine. Concerned that they might be vulnerable to arrest, Watson and Holmes met that afternoon and disposed of drug paraphernalia. Holmes provided police with the cleaner's ticket for the grey sweatshirt worn by the gunman.
Matthew Talbert, an acquaintance of Holmes and Watson, testified that Holmes told him that Watson admitted killing Rodriguez, and that Holmes and Watson disposed of the gun together.
Officer John Samarin of the Simi Valley Police Department was the first police officer at the scene. Samarin testified that he questioned Salinas and Gonzalez separately, and that they both described the assailant as a white male between 20 and 30 years old, 5 foot 6 to 7 inches tall, and slender build. Both Salinas and Gonzalez repeatedly told Samarin that they did not know the identity of the shooter. Gonzalez described him as clean shaven. In fact, Watson is six feet tall and wore a moustache at the time of the shootings.
Salinas did not tell Officer Samarin that he had a gun and fired back at the assailant. Gonzalez testified that she did not know the name of the gunman and did not remember she had previously met him until she spoke with Salinas on the day after the shootings.
Los Angeles Police Department Detective Ramon Madrid testified that several days before the shooting he took part in a drug raid where nine persons were arrested and 95 kilograms of cocaine seized. During the raid the detective found notes with Hope Rodriguez' telephone number.
Holmes denied telling Talbert that Watson admitted killing Rodriguez or that they disposed of the murder weapon together.*fn5
Although Watson had not previously given a statement describing his version of the facts of the underlying crime, at the parole-suitability hearing he made the following statement:
PRESIDING COMMISSIONER MARTINEZ: And now, let's go back a little bit, what was the reason that you were at the residence of Ms. Rodriguez?
INMATE WATSON: On that morning my employer, Mr. Holmes, had asked me to collect money that was owed to Mrs. Rodriguez. He told me to meet him out at Mrs. Rodriguez' home, to meet him at Mrs. Rodriguez' home at a specific time to give her the money that was owed to her.
PRESIDING COMMISSIONER MARTINEZ: So you were instructed by Mr. Holmes to go to the residence?
INMATE WATSON: Yes, to meet him at the residence.
PRESIDING COMMISSIONER MARTINEZ: To meet him at the residence, and the reason for it was to give her money.
PRESIDING COMMISSIONER MARTINEZ: -- that was owed to her?
PRESIDING COMMISSIONER MARTINEZ: So did you have money to give her?
PRESIDING COMMISSIONER MARTINEZ: What was that amount?
PRESIDING COMMISSIONER MARTINEZ: And this money that was owed, the $20,000, what was the circumstances to be there?
INMATE WATSON: I learned from Mr. Holmes that Mrs. Rodriguez had given him a large quantity of cocaine to sell to purchase a home that he and I were both going to be living in, and then we were going to keep the home for investment purposes. And so she was giving him the money -- excuse me, giving him the drugs up front to sell, and she was going to be, not a silent investor, but just giving him the drugs up front to pay for the whole house in advance.
PRESIDING COMMISSIONER MARTINEZ: So you get there.
INMATE WATSON: So I show up at the time that I'm supposed to. I waited out front, and Mr. Holmes never showed up. So I waited about five to ten minutes, and decided, well, I'll just give her the money like I had a couple times in the past. I go to the door and knock, hand it to her and I leave. At that point she opened the door. She was talking on the phone, so she motioned me into the kitchen. There I was met by Mr. Salinas who brought me into the living room area, and basically said wait until Mrs. Rodriguez is off the phone, and did I bring the money? I said, yes, I've got it right here. And so we talked just for a few minutes. It was about ten minutes I believe, she came into the living room. She asked for the money. I gave it to her. I expected at that point I would just leave as I had done in the past. She counted the money. She said, well, where's the rest of it? At that point I was a little confused because I was told by Mr. Holmes to bring the money that was in the safe, and I said, well, that's all that I was told to bring. And she said, well, that's not Mark had told her the previous week, or that morning on the phone. I said, well, I don't know anything about that. I was just told to bring this to you. So she said, well, where is Mark? He was the one that was supposed to be here. I said again, he said to meet me here. Here I am. I don't know where Mark is. She said, well, try and call him. So I go use the phone in the kitchen, because there wasn't any living room, called the business. I called his cell phone. I called his pager. There was no answer. So I went back in the living room and I said, well, I don't know where Mark is. So Mrs. Rodriguez started asking me, well, what escrow company are you guys using? And I told her, well, it was Pinnacle Escrow. It's in Reseda. And at this point I'm a little confused because I thought that she already had all this information. I said, well, I'll write it down for you if you need me to. So Mr. Salinas gets up. He gets me something to write with and something to write on. As I'm doing so then Mrs. Rodriguez and Mr. Salinas move into the dining room area. I'm starting to write this down, and I'm looking at her expressions, and I'm thinking there's something that's not right here because just bringing the money, as I've done in the past, and why is she so upset? When I get upset I usually have to use the restroom because I have kind of a bladder problem. And so when I was done I asked her if I could use the restroom. She said, yeah, it back through the doors. So as I went by her I was trying to think of something, you know, ease her fears or her concerns, and I said I'm sure everything is going be all right. Didn't Mark tell you Friday that things are okay? She kind of nodded, and so I went to use the restroom. I was trying to stall for time because I'm thinking, well, Mark has got to show up. Why would he tell me to meet him here if he wasn't going to show up? And, again, I was just -- I didn't understand why she kept grilling me about the escrow company, and was the money placed in the escrow company. I was telling her yes. So finally I left the bathroom, came back out, and I asked her the question, I said, well, why do you need -- why are you asking me about the escrow company? You know where it is. Mark told me a week and a half ago approximately to get the money that was out of there because he said he was giving that to you. And at this point she's got this look on her face, and she turns to Salinas and says, take him out back and kill him. And I'm just like -- it's like a movie, and it's like what is she saying? Why would she say that? I mean this had got to be a joke, right? And I look at Mr. Salinas and at that point he just reaches for the gun that was in his waistband and he starts standing up, and I just ran as fast as I could. And I was just get out of the house is all I could think about, and I ran to the front door, which was locked, couldn't get out. And so I'm thinking to myself I'm trapped. There's no way I can get out of here. And so I know he's coming at me, so I pulled out the gun that I was carrying. And as I was running past the dining room area I see him coming around behind Mrs. Rodriguez, and so I just start pulling the trigger as fast I could, thinking if I could just get him to get away from me I could get out of the house. And at ·that point I hear this woman screaming in the kitchen, and I turn in the direction that I was going, and she's standing there with a knife. Now she's blocking my exit. How am I going to get out of here? And so as I was running toward her I turned the gun and fired in her direction so she would just get out of my way. And thankfully she backed up and crouched down, and basically I could run out the back door and get away. And at this point I started hearing gunshots from Mr. Salinas, and so I know, you know, I'm a dead man. I mean he's coming after me. I jump in my truck, and I get out of there as fast as I could. And I'm thinking, my gosh, he's chasing me. There's no way that I can outrun his car, because I just got an old truck. I mean it was nice, but it was still old. And I'm thinking I've got a four-wheel drive right in the Simi Valley area. I can get to the hills that are close by, and then I can go off road. And so I'm looking in my rearview mirror and I didn't see, so I'm thinking, okay, well, maybe he's not chasing me. So I keep looking and looking, and I don't see anybody. So I finally -- I said, okay, I've got to calm down. I've got to calm down, because I mean I can barely drive this thing. I pullover, and I keep looking. I don't see anybody. I say, okay, my gosh, he's not after me, but what if he just went straight back to the business thinking that that's the direction I went, or maybe he's going after Mark. I don't know. So I try my cell phone. I can't get any signals. I'm thinking, okay, what do I do? What do I do? So I think, okay, I've got to find a payphone. So I basically start driving around and I found a payphone, and I call Mark and I said, look, they're after us. I said -- He said, well, what's going on? And I explained they tried to kill me. He says, well, are you all right? I said, well, yeah, but they were shooting. And he says, well, is anybody shot? I said, well, I don't think so because he keeps shooting at me. So I mean you've got to get out of there. And so basically he told me to meet him at Chatsworth Park, and that's where we met that afternoon to discuss what to do. [Testimony concerning what occurred after Watson left the scene of the crime is omitted]
DEPUTY COMMISSIONER SMITH: I'm going to make one comment, and it is an advisory comment. I know Mr. Sanders represents other individuals at these consideration hearings, and that he realizes that, as well as this Panel does, that one of the important factors in an initial hearing, and the real need that everything that's said be truthful and accurate is that it sets the foundation should there be any subsequent hearing. And that if an individual makes statements at an initial hearing, and then recants those statements at a later hearing, it actually does them no good. Based on the statements you've made regarding the event, which we'll explore in some detail, the question I have is whether or not counsel wishes to take a short recess and discuss your version prior to us going forward?
ATTORNEY SANDERS: Commissioner, this is something we've already discussed, and my client and I talked about what happened at his trial and what's happening now, and this is what my client wants to do is tell the truth, and even though it may be contradictory to some of the things that has been said by the counselor, and some of the points the probation report. He assured me what he's saying is the truth and he wishes to continue.
DEPUTY COMMISSIONER SMITH: Okay. Then he'll do so. All right. [Additional testimony concerning Watson's actions after leaving the scene of the crime is omitted.]
PRESIDING COMMISSIONER MARTINEZ: Well, again, (inaudible) indicated that certainly there is quite a bit (inaudible) as to what you're presenting here today to this Panel in reference to what happened. Again, we have to look at the evidence before us (inaudible) read so far in the Appellate Opinion and on the probation officer's report, and it certainly does go into more detail in reference to witness statements and people that were there, testified in reference to this. Did you -- Were you convicted by a jury?
INMATE WATSON: Yes, I was.
PRESIDING COMMISSIONER MARTINEZ: And, again, there seems to be some discrepancies as to how well you knew these individuals it appears based on the statements that you're very familiar with them, that you actually felt very comfortable. That you had walked in at times and opened up the refrigerator, and help yourself and, again, that you seemed pretty comfortable. That you actually referred to Ms. Rodriguez as mom, again noting one particular time during this prior to the shooting that you leaned over and kissed her, and said something to the effects [sic] of it's going to be all right, mom, and then went (inaudible). And are you stating that did not occur?
PRESIDING COMMISSIONER MARTINEZ: Okay. And in reference to you coming back, and I guess it's still not very clear because there is no evidence to show us as to what exactly happened at that time, other than Mr. Salinas and the female victim in this case, Ms. Gonzales heard shots. And, again, the question that arises in my eyes is that Ms. Rodriguez was sitting in the chair with a gunshot to her head. Mr. Salinas also received gunshot wounds, again, to the chin, I believe, area, of the torso area. So certainly that's something that, even in your description here today, you somewhat have been very vague as to how that happened.
INMATE WATSON: I don't -- When I was moving from the front door, which was locked, past the dining room, I was shooting as fast as I could, trying to get away, and was not pointing directly at any person, but just in the general direction. And so that is how both -- That is how Mrs. Rodriguez was killed, and Mr. Salinas was severely injured.
PRESIDING COMMISSIONER MARTINEZ: Why is it that you had a gun in the first place?
INMATE WATSON: Whenever I was either depositing money from Sound Moves into the bank, or carrying money to Mrs. Rodriguez, I would carry a gun for protection.
PRESIDING COMMISSIONER MARTINEZ: Dealing in drugs, drug trafficking?
INMATE WATSON: Yes, sir. [Testimony concerning details of the drug dealing business omitted]
PRESIDING COMMISSIONER MARTINEZ: And in your trial, and even in when you met with the probation officer, you never did provide a statement, did you?
INMATE WATSON: No, sir. My attorney, Mr. Ash, and my subsequent --
PRESIDING COMMISSIONER MARTINEZ: This is pretty much our first opportunity here you providing a statement to your responsibility and your involvement in this case?
PRESIDING COMMISSIONER MARTINEZ: Well, again, that certainly does raise an issue in reference to your version as opposed to the victims that survived in the end, and talking again with Ms. Gonzales' statements about you pointing a gun at her, and then pointing at her child before leaving. Certainly at this point in time you're indicating that that's not true.
INMATE WATSON: I believe it was true because I would not contradict her in any way. What I was trying to say is that I have no intention to point the gun at any specific person. It was just as I was moving my arm that was holding the gun it probably pointed at these individuals, because the end result was that Mrs. Rodriguez was killed. That's absolutely my fault. Mr. Salinas was terribly injured. That is my doing. And scared Mrs. Gonzales out of her wits thinking that I would in any way harm her or her child. So I would not ever contradict her statement. I'm just trying to explain to you what my actions were in moving through the room. It was not intended to point specifically at a person, but it was simply to cause Mr. Salinas not to shoot at me, or to take me out back and try to kill me. So I will not refute her statements from what she saw, no.
PRESIDING COMMISSIONER MARTINEZ: Would you refute her statements about that she was the one that ...