FINDINGS AND RECOMMENDATIONS
Petitioner, Clarence Edward Young, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn2 Petitioner is currently serving an indeterminate sentence of twenty-two years to life following his 1987 conviction in Fresno County Superior Court for second degree murder with two penalty enhancements. Here, Petitioner does not challenge the constitutionality of that conviction, but rather, the execution of his sentence, and specifically, the August 23, 2007 decision by the Board of Parole Hearings finding him unsuitable for parole.
Petitioner alleges five grounds for relief in his pending petition. Specifically, Petitioner's claims are as follows:
(1) Petitioner's commitment offense does not constitute "some evidence" to support the Board's August 23, 2007 denial of parole.
(2) Denial of parole based an immutable factors, specifically Petitioner's commitment offense, violated Petitioner's right to due process of law.
(3) The Board failed to consider all relevant and reliable information in making its determination that Petitioner was unsuitable for Parole.
(4) Section 2402(c)(1) of the California Code of Regulations is unconstitutionally vague, and therefore void.
(5) The Board violated the Separation of Powers Doctrine by appropriating to itself absolute power over parole matters.
Since the allegations in Petitioner's first three claims all assert due process violations in relation to the sufficiency of the evidence, they will be addressed together herein as a single issue in section (V)(A), below. Petitioner's claims four and five are considered separately in sections
(V)(B)(1) and (V)(B)(2), respectively. After careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.
The basic facts of Petitioner's life crime were summarized by the Presiding Commissioner at Petitioner's parole hearing as follows:
On July 31, 1986 at approximately 4:49 p.m. Fresno County police officers were dispatched to 1425 [North] Ninth Street . . . Upon arrival officers observed a large group of people standing around an orange Dodge two-door coup parked in the northeast corner of the apartment complex. A serious disturbance had occurred between white and black men armed with guns and baseball bats. People began yelling that a man had been shot in the face and needed a doctor. Located within the vehicle was witness Rosemary Richmond, who was sitting in the front passenger seat holding a male subject on her lap. The victim was later identified as Vernon Lawrence Witcher . . . The police observed that the victim was unconscious and bleeding badly from the face. The paramedics were called and responded to the scene. They administered first aid and transported the victim to the Fresno Valley Medical Center, where he subsequently died. Dr. C.P. Nelson, pathologist, stated that the cause of death was a bullet hole in the head. The driver of the vehicle that drove into the apartment complex where the incident took place was identified as Clarence Young. The investigation revealed that Young took one step back, then raised his hand directly in the face of victim Vernon Witcher, and fired one shot into his face. The death of Vernon Witcher was a culmination of a racial frackus between a group of white and black persons who had been drinking alcohol in the apartment. Young was said to have been drinking beer and brandy that day by witness Ronny Lewis. Young also was seen leaving the apartment holding a dark blue steel .25 automatic handgun. . . . .
Young stated that he did not murder Vernon Witcher. Young stated, "It was Ronny Lewis that had shot the victim. Although I deny committing the murder, I do admit to being responsible for the death of the victim." A white male and white female were walking on the street in Fresno, who made disparaging remarks to Young and his friends. Young stopped his vehicle and a physical confrontation occurred with one of his friends and the white male. They drove off and later discovered each other out at an apartment complex. Young stated the white men came in and started beating on the door and challenged Young and his friends to fight. Young stated one of the white men was armed with a bat. He observed the other persons in his group to have guns. He stated the whites would not leave and continued to harass the blacks. Young heard a shot, saw the victim fall, and then ran. (Parole Hr'g Tr. 11:19-14:12, Aug. 23, 2007, Pet. Ex. A)
Following a jury trial, Petitioner was convicted of second degree murder with penalty enhancements for using a firearm and for a prior felony conviction. He was sentenced to twenty-two years to life in prison. Petitioner's minimum eligible parole date passed on December 21, 2000. On August 23, 2007, Petitioner appeared before the Board of Parole Hearings (the "Board") for his fourth subsequent parole hearing. After considering various positive and negative suitability factors, including the nature of the commitment offense, the panel concluded that Petitioner would pose an unreasonable risk of danger to society if released, and concluded that he was not suitable for parole. Petitioner sought habeas corpus relief in the Fresno County Superior Court. On September 15, 2008, the court denied his petition, finding that the Board's determination that Petitioner was unsuitable for parole was supported by some evidence. The California Court of Appeal, Fifth District, and the California Supreme Court denied relief without comment. Petitioner filed this federal petition for writ of habeas corpus on October 27, 2009. Respondent filed an answer on January 15, 2010, and Petitioner filed his traverse on February 9, 2010
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114
F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief 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, 531 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).
A. Due Process: Sufficiency of Evidence (Claims One, Two and Three)
Petitioner alleges in three related claims that the Board's 2007 decision violated his federal right to due process of law. First, Petitioner claims that his commitment offense alone does not constitute "some evidence" that he remains a current risk to public safety. Petitioner's second claim is the Board impermissibly relied upon his commitment offense, an immutable factor, in finding him unsuitable for parole. Third, Petitioner claims that the Board did not consider all available relevant and reliable information in making its parole suitability determination, thus failing to afford Petitioner individualized consideration of the specific facts and circumstances surrounding Petitioner's commitment offense and post-conviction history. Because the allegations in Petitioner's claims all 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.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits state action that "deprive[s] a person of life, liberty or property without due process of law." U.S. CONST. AMEND. XIV, § 2. 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. Ky. Dep't. Of Corrs. v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002). A protected liberty interest may arise from either the Due Process Clause itself or from state laws. Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). In the context of parole, the United States Constitution does not, in and of itself, create a protected liberty interest in the receipt of a parole date, even one that has already been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). If a state's statutory parole scheme uses mandatory language, however, it "'creates a presumption that parole release will be granted' when or unless certain designated findings are made, thereby giving rise to a constitutional liberty interest." McQuillan, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 12 (1979)).
California state prisoners serving indeterminate prison sentences "may serve up to life in prison, but they become eligible for parole consideration after serving minimum years of confinement." In re Dannenberg, 34 Cal.4th 1061, 1078 (2005). California's statutory scheme governing parole eligibility for indeterminately sentenced prisoners provides, generally, that a release date will be granted unless the Board determines that "the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offense, is such that consideration of the public safety requires a more lengthy period of incarceration." CAL. PENAL
CODE § 3041(b). California state prisoners whose sentences carry the possibility of parole, therefore, have a clearly established, constitutionally protected liberty interest in the receipt of a parole release date. Allen, 482 U.S. at 377-78 (quoting Greenholtz v Inmates of Neb. Penal, 442 U.S. 1, 12 (1979)). See also Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007) (citing Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006)); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); McQuillion, 306 F.3d at 903.
Despite the existence of this liberty interest, it is well established that inmates are not guaranteed the "full panoply of rights" during a parole suitability hearing as are normally afforded to criminal defendants under the Due Process Clause. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). Nonetheless, inmates are afforded limited procedural protections. The Supreme Court has held that a parole board, at minimum, must give an inmate an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. Hayward v. Marshall, 603 F.3d 546, 560 (9th Cir. 2010) (citing Greenholtz, 442 U.S. at 16). In addition, as a matter of state constitutional law, denial of parole to California inmates must be supported by "some evidence" demonstrating that the inmate poses an unreasonable risk of danger to society. Hayward v. Marshall, 603 F.3d 546, at 562 (citing In re Rosenkrantz, 29 Cal.4th 616 (2002)). See also In re 6 Lawrence, 44 Cal.4th at 1191 (recognizing the denial of parole must be supported by "some evidence" that an inmate "poses a current risk to public safety"); In re Shaputis, 44 Cal.4th 1241, 1254 (2008) (same). "California's 'some ...