The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with retained counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole in 2006. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), respondents' answer (Doc. 10), and petitioner's reply (Doc. 13). / / /
The state court recited the following underlying facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:*fn1
Defendant admitted to the police he was present when the victim, Felix Wusstig, was killed. However, he said another person had actually killed Wusstig. Witnesses had seen defendant and Eric Warner with Wusstig immediately before Wusstig disappeared. One witness testified at trial defendant had admitted shooting Wusstig.
Prior to trial defendant made an in limine motion to have certain hearsay statements by Warner admitted under the declaration-against-interest exception to the hearsay rule. Warner had made statements to several people, including police officers, indicating he had shot Wusstig.
Warner said he had acted in self-defense. Warner later said defendant had shot Wusstig.
The trial court denied petitioner's motion to admit Warner's prior hearsay statement that he shot the victim in self defense. Petitioner waived a jury trial and was ultimately convicted of second degree murder and sentenced on August 6, 1990, to 15 years to life in state prison. On direct appeal, the California Court of Appeal found no error in the trial court's denial of petitioner's motion regarding Warner's statement and affirmed the conviction and sentence.
On June 21, 2006, after having served the minimum term on his sentence, petitioner appeared before the California Board of Parole Hearings ("Board") for his fifth parole suitability hearing. The Board granted parole. In announcing the Board's decision, the presiding commissioner made the following statements, among others: "[Y]ou are . . . the most grounded inmate I've ever come across who has done the most self-reflection of anyone I've ever known" and "[y]ou seem to have just tremendous insight into behavior and what to do about it so I / / / / / / / / / / wanted to compliment you on that before we go . . . on here." The Board also commented on petitioner's commitment offense as follows:
. . . We considered the manner in which Mr. [Wusstig] was killed. We considered the manner in which his body was disposed and we considered the impact of this crime. And we also considered your prior unstable social history and your prior criminal record. We talked a lot about the crime as far as the details of it today. Needless to say, it was -- it was -- it was an awful crime and it did result in the death of your friend's brother and it was a terrible circumstance.
Regarding petitioner's history while in prison, the Board stated: . . .Certainly, while Mr. Bertagna's been in prison he has definitely enhanced his ability to function within the law upon release. He's participated in many things. He has upgraded educationally. He has his GED plus a high school diploma and he has done some work on some college courses. He's participated in a great deal of self-help, that includes things, but is not limited to things such as Breaking Barriers, Alternatives to Violence, both the basic and the advanced, Cage Your Rage, Anger Management, the Myth of Freedom. He's been participating in AA since '92 and NA in addition to AA since '05 and recently in Crim-Anon in '06. And once again, that's just a smattering of the work that he's done. That certainly isn't everything that he's done. . . . He completed vocational refrigeration and air conditioning. He was the sheet metal lead man for seven years and certainly has acquired skills in that area, as well as skills in lead removal. Commissioner Harmon noted while we were deliberating that when he's worked, he's usually worked his way up to being a lead man or a trainer. Certainly he's grown and matured.
The Board also outlined petitioner's plans upon release:
. . . He has very good parole plans, lots of support from his family. In fact, his family has built him a home. I think maybe this may be the first time I've seen that. He has job offers. He has offers for additional interviews. Once again, lots of family support. . . . He has a budget, so he has really thought about what he needs to have in order to be successful in parole.
Notably, the Board observed that petitioner "has had no 115 disciplinaries and no 128(a) counseling chronos through his incarceration."
On November 13, 2006, Governor Arnold Schwarzenegger reversed the Board's decision. The governor's reversal was primarily based on the unchanging facts of petitioner's conviction offense and criminal history, although the governor also referenced the Shasta County District Attorney's opposition to parole "based in part on the gravity of the murder he committed." As to petitioner's criminal history, the governor stated:
Mr. Bertagna was 25 years old when he perpetrated this life offense. He had a juvenile record consisting of adjudications for petty theft and willful disobedience, burglary on two occasions, and violating a court order. As an adult, Mr. Bertagna was convicted of petty theft, failure to appear, battery, violating probation, insufficient funds, driving under the influence on two occasions, and possessing a controlled substance. According to his rap sheet, he was also arrested, but not convicted, for battery on two occasions, inflicting corporal injury on a spouse/cohabitant, injuring a telephone line, robbery, possessing a weapon, and battery with serious bodily injury. According to the police report for the latter incident, which was submitted for inclusion in the record, Mr. Bertagna and four others entered a residence without permission and severely beat a man inside. Responding officers found the man with a broken nose and injured teeth, and observed blood on the man's clothing, and on the walls and a mattress.
Regarding the facts of petitioner's commitment offense, the governor stated as follows in his decision:
Despite the positive factors I have considered, the second-degree murder for which David Bertagna was convicted was especially grave, in part because the manner in which David and his partner killed Felix Wusstig -- assaulting him, shooting him twice, cutting his throat, and burning his body -- was exceptionally vicious and demonstrated an exceptionally callous disregard for Felix's suffering and life. David told the 2006 Board that he gave Eric Warner the gun and then "I started assaulting Felix." At that point, David told the panel, "Eric walks around to the front of the truck, he reaches up with the gun, and he shoots Felix once. Felix screamed momentarily, it was a yell, and then he shot him again." Then, as David told the panel, "Eric goes, he's still breathing. I said, there's no way, man, there's no way a man could still be breathing after that. And Eric goes, he's still breathing." David told the panel that Eric then reached in his pocket, pulled out his pocketknife and cut Felix's throat. David said he and Eric then dragged Felix's body behind a stump, disposed of the gun and the knife and drove away. They later returned to the scene with Felix's truck and drove Felix's body "to a remote location and that's when we took Felix out and put him in his truck and poured gasoline [and] ran a fuse and then lit it and then we took off. We didn't even see the truck go up. We just wanted to get out of there." David had numerous opportunities to stop the murder -- after giving Eric the gun, after assaulting Felix, after Eric shot Felix twice, and after Eric cut his throat -- yet he did not seek help and chose to continue.
* * * . . . The gravity of this senseless crime is alone sufficient for me to conclude presently that David's release from prison would pose an unreasonable public safety risk.
Regarding opposition from the Shasta County District Attorney, the Board recited the following from a June 7, 2006, letter:
The Shasta County District Attorney's office continues to strongly oppose the granting of a parole date for this inmate. . . . The inmate is unsuitable for release because less than 17 years ago he and his crime partner facilitated the brutal assault, shooting, and throat slashing of an ...