The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Hafed Thabet, a state prisoner appearing pro se, filed a petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Thabet is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Mule Creek State Prison, Ione. Respondent has answered. Thabet has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In July 1994 Thabet was convicted in the Amador County Superior Court of Murder in the Second Degree (Cal. Penal Code § 187(a)), with an enhancement for use of a firearm (Cal. Penal Code § 12022.5(a)). The trial court sentenced Thabet to an aggregate prison term of 20 years to life. Thabet does not challenge his conviction or sentence in this proceeding.
In October 2007 Thabet appeared at a parole-suitability hearing before the California Board of Parole Hearings ("Board"). After determining that Thabet would pose an unreasonable risk of danger to society or threat to public safety if released from prison, the Board found Thabet unsuitable for parole. Parole was denied for a period of two years. Thabet filed a timely petition for habeas relief in the Amador County Superior Court. The Amador County Superior Court denied relief in an unpublished, partially reasoned decision. Thabet's subsequent petition for habeas relief to the California Court of Appeal, Third Appellate District, was summarily denied without opinion or citation to authority. The California Supreme Court summarily denied Thabet's petition for habeas relief without opinion or citation to authority on March 11, 2009.
Thabet timely filed his Petition for relief in this Court on May 11, 2009.
The facts of Thabet's underlying conviction, as recited by the Board, are:
The offense occurred on May 19, 1993 at the Pine Grove Exxon Service Station in Pine Grove. According to witnesses, [Thabet] went into the service station office and purchased a pack of cigarettes. [Thabet] then walked to the service island where the victim was pumping gas into his vehicle. The victim had his back toward [Thabet]. [Thabet] was seen raising a handgun into the air as he was walking toward the victim. When [Thabet] got approximately three to five feet away from the victim, he began firing the weapon. After the first shot, the victim fell to the ground. [Thabet] walked toward him and continued firing. [Thabet] then ran to a waiting vehicle driven by Tamin, T-A-M-I-N, Hauter, H-AU-T-E-R (co-defendant). The vehicle left the area at a high rate of speed. After traveling approximately nine and a half miles, the co-defendant stopped the vehicle and surrendered to police officers. Defendants were arrested without incident.*fn1
II. GROUNDS RAISED/DEFENSES
Although set forth in three separate grounds, in his Petition Thabet raises a single subsatantive ground cognizable in a federal habeas proceeding: the determination that he posed an unreasonable risk of danger to society or threat to public safety if released from prison was unsupported by some evidence. Respondent does not assert any affirmative defense.*fn2
In denying Thabet parole, the Board held:
PRESIDING COMMISSIONER GARNER: [. . . .] Mr. Thabet, the Panel has reviewed all the information received from the public and relied on the following circumstances in concluding that you're not yet suitable for parole and you would pose an unreasonable risk of danger to society or threat to public safety if released from prison. We certainly considered the gravity of this offense, and we also considered the unique circumstances under which the offense was committed, and also that this was a fact to plea to Second Degree Murder. That being said, we considered many factors. We started with the commitment offense, and we noted that it was carried out in an especially cruel and callous manner and that the victim in this case, Mr. Ahmed Alharsami, A-L-H-A-R-S-A-M-I, on the 19th of May, 1993, was shot and died as a result of the wounds. The Panel notes the offense was carried out in a very dispassionate manner, and that the victim was at a gas station. There's different theories as to whether you had stalked the victim or just came upon him by circumstances. In either event, the victim fell to the ground, apparently from your indication was crying, he turned to leave and you chose at that point to turn around and fire the entire cylinder of weapons at the victim, and again, the victim died as a result of one of the wounds. The Panel did note that the motive for this crime is certainly anchored in the origins of the cultural issues, in the Islamic issues, as a result of the harm that was done to one of your family members. The conclusions were drawn from the statement of facts that were contained in the probation officer's report dated the 16th of August, 1994. It's been previously read into the record and at this point will be adopted by reference. So far as your previous record, the Panel noted that you did not have any record as a juvenile or as an adult, and so far as your institutional behavior, you've done well. You've only got one 128 and one 115, both being in the month of March, 1995. The psychological exam by Dr. Weber from January 2005 is not favorable to your interest, and the Doctor's conclusion does indicate a low to moderate risk for future violence. The Doctor's comments were considered. We also noted that the exam is a bit dated, and what we're gong [sic] to do is we're going to request that a new exam be prepared before your next hearing. I did in the request make a specific reference if they could by any means identify someone that's familiar with Islamic issues so that there could be a better understanding of the cultural issues and also the religious issues that may have had some bearing on this offense. We note so far as the parole plans, that you do have parole plans both in Yemen and the United States. The 3042 notices, we noted and considered the comments in opposition to the granting of parole by the District Attorney from Amador County. We also noted that we considered the comments from the victim's next of kin that were presented to us today. I certainly want to commend you for your programming and your vocations that you've achieved. However, in a separate decision the hearing Panel finds that you have been convicted of murder and it's not reasonable to expect that parole would be granted at a hearing during the next two years. The specific reason for this finding is as follows: Again, in a separate decision, that the offense was committed in an especially cruel manner, specifically the guilty plea to the May 19, 1993 killing of Mr. Ahmed Alharsami, who died as a result of the wounds that he received from the weapon that you were carrying, which was a .38 caliber weapon. The Panel noted that the offense was carried out in a manner that demonstrates an exceptional callous disregard for human suffering in that the victim's behavior indicated that he knew of his pending peril, as indicated by the victim falling to the ground on his knees and crying. What we're going to do is again we're going to deny you for two years. We're going to recommend that you remained [sic] disciplinary free, that you continue to program as you have been, to cooperate with the clinicians when it comes time for your next exam.*fn3
Thabet contends that the only arguable factor upon which the Board relied was the underlying commitment offense, and that the Board failed to recite the evidence upon which it relied in finding the other statutory factors cited in denying him parole. In rejecting Thabet's contention, the Amador County Superior Court held:
The petitioner bears the burden of stating a prima facie case entitling him to relief if true. (In re Bower (1985) 38 Ca1.3d 865.) When the petition fails to reveal facts sufficient to establish even a prima facie case for relief, summary ...