FINDINGS AND RECOMMENDATIONS
Petitioner Hall is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Petitioner is currently serving an indeterminate sentence of 16 years to life following his 1989 conviction in Los Angeles County for second degree murder with use of a deadly weapon. This petition challenges the execution of petitioner's sentence, and specifically, the November 16, 2006 decision of the state parole authority that he was not suitable to be released on parole.
According to a summary of facts read into the record at petitioner's parole suitability hearing, his offense arose out of a verbal altercation with his friend. On March 9, 1988, from approximately 8:15 to 9:30 p.m., petitioner, age 17, and the victim, Dennis Jobe, were in the parking lot of a Target retail store. A witness saw the two young men fighting for about 20 minutes, lost sight of them, and then saw them fighting for another five to ten minutes. They were yelling and shoving each other. According to the witness, Jobe appeared to be defending himself. When the witness left, both young men were inside a gold van parked in the lot. At about 9:45 to 9:50 p.m., Target's manager patrolled the parking lot for security purposes. He noticed a gold van in the lot but no one near it. After making a circle of the entire area, he noticed the van was gone. He also discovered Jobe's body in the road near an exit from the parking lot. The autopsy revealed the cause of death to be multiple stab wounds to the chest, ribcage, and back from a four to six-inch knife. Officers interviewed petitioner at his home later that night and subsequently transported him to headquarters where he was arrested.
According to petitioner's version of the offense, he got off work at 6:00 p.m. and had been drinking since that time. Petitioner had been severely depressed for about two weeks about problems with his girlfriend and his biological father. Petitioner and Jobe were in the Target parking lot eating food purchased from Jack in the Box across the street. While they were eating, Jobe wiped food on the dash of the van and an argument ensued. Petitioner told Jobe to get out, but Jobe responded, "Hell no, you are going to take me home." Petitioner went across the street for more beer. Jobe walked over to a nearby phone booth. Petitioner went back to his van and turned the key. According to petitioner Jobe came flying through the window opening, pulled petitioner out, removed his shirt, and challenged petitioner to fight. It was then that petitioner grabbed his knife, which was under the driver's seat. After that, the events are a blur to petitioner. He felt as if he were not in control of his body. Petitioner does not remember how many times he stabbed Jobe. (See Transcript of Subsequent Parole Consideration Hearing, State of California, Board of Parole Hearings, November 16, 2006 ("Transcript"), at 12-13.)
Petitioner was convicted of second degree murder with use of a deadly weapon and sentenced to a term of 16 years to life. He was received in state prison on December 13, 1989. On November 16, 2006, a panel of the Board of Parole hearings ("Board") conducted a hearing to determine whether petitioner was suitable for parole. After considering various positive and negative suitability factors, the panel concluded that petitioner would pose an unreasonable risk of danger to society if released, and thus that he was not suitable for parole.
Petitioner sought habeas corpus relief in the California state courts. On October 29, 2007, the Los Angeles County Superior Court issued a decision concluding that the Board's decision was supported by some evidence in the record. The California Court of Appeal and the California Supreme Court likewise denied petitioner's claims for relief on state habeas corpus.
The petition sets forth three grounds for relief. In ground one, petitioner claims that the Board's decision to deny parole was unsupported by "real" evidence in the record that he posed an unreasonable risk of danger or threat to public safety. Petitioner contends specifically that the Board made findings that were not supported by the record and improperly relied on unchanging factors such as the commitment offense and his conduct prior to his incarceration. In ground two, petitioner claims that the Board cited various relevant and reliable information such as mental health reports, counselor reports, conduct in prison, and rehabilitation, but failed to actually consider this positive evidence in relation to his parole suitability. Finally, in ground three, petitioner contends that the "some evidence" standard of review infringes upon his liberty interest and that a preponderance of the evidence standard, or a "substantive evidence" standard, should apply instead.
For purposes of this opinion, each of petitioner's three grounds for relief will be addressed in a single discussion on federal due process of law in the state parole context.
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).
V. FEDERAL DUE PROCESS IN THE STATE PAROLE CONTEXT The Due Process Clause of the Fourteenth Amendment to the United States
Constitution prohibits state action that deprives a person of life, liberty, or property without due process of law. In general, 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 ...