The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner Paul E. Hyde is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that habeas relief be denied.
Petitioner is currently serving a sentence of seven years to life. Pet'r's Pet. 1, ECF No. 1;*fn1 see also Hyde v. Moore, No. CIV S-08-1365-FCD-TJB, 2010 WL 4321606, at *1 (E.D. Cal. Oct. 26, 2010). "In 1973, at age 19, in the Los Angeles County Superior Court [C]ase No. A068239, [Petitioner] was convicted of first degree murder (§ 187; count 5), four counts of robbery of the first degree (§ 211; counts 1, 2, 6 & 7), assault with a deadly weapon with the intent to commit murder (former § 217; count 3), and assault by means of force likely to produce great bodily injury and with a deadly weapon (§ 245, subd. (a)(1); count 4), each with the personal use of a firearm (§ 12022.5)." Hyde, 2010 WL 4321606, at *1 (quoting In re Hyde, 154 Cal. App. 4th 1200, 1202, 65 Cal. Rptr. 3d 162 (2007)) (internal quotation marks omitted). In the instant action, Petitioner challenges the decision by the California Board of Parole Hearings (the "Board") denying Petitioner parole. Petitioner appeared before the Board on April 19, 2007.
Dated August 16, 2007, Petitioner's petition for writ of habeas corpus was filed in the Los Angeles County Superior Court challenging the Board's decision.*fn2 See Resp't's Answer Ex. 1, ECF No. 10. In a decision dated October 29, 2007, the Superior Court issued a reasoned decision denying parole. See Resp't's Answer Ex. 2.
On April 8, 2008, Petitioner sought relief in the California Court of Appeal, Second Appellate District. See Resp't's Answer Ex. 3. On May 8, 2008, the California Court of Appeal denied the petition without comment or citation. See Resp't's Answer Ex. 4.
On June 9, 2008, Petitioner sought relief in the California Supreme Court. See Resp't's Answer Ex. 5. On December 17, 2008, the California Supreme Court denied the petition with only a citation to People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 2d 259, 886 P.2d 1252 (1995). See Resp't's Ex. 6.
On November 20, 2009, Petitioner filed the instant federal petition for writ of habeas corpus. See Pet'r's Pet. Respondent filed an answer to the petition on October 22, 2010, see Resp't's Answer, to which Petitioner filed a traverse on November 2, 2010. See Pet'r's Traverse, ECF No. 11.
A. Commitment Offense*fn3
The record reflects that on December 7, 1972, . . . Petitioner robbed William and Maureen Wilson at gunpoint at their bicycle shop. After taking the money from Mr. Wilson's wallet, . . . Petitioner directed both victims into the bathroom and told them that if they did not wait five minutes before coming out, he would kill them. On December 9, 1972, . . . Petitioner robbed Leandra Lack, an attendant at a service station. . . . Petitioner ordered Ms. Lack to open a cash box and took the money from it. He then directed Ms. Lack to face the wall. As Ms. Lack tried to comply with . . . Petitioner's orders, he shot her twice, hitting her once in her back and once in her leg. On January 8, 1973, . . . Petitioner shot and killed Rueben Holtzkener in a suspected armed robbery at Mr. Holtzkener's shoe repair store. Mr. Holtzkener was shot once in the chest and once in the abdomen and it appeared that money was missing from the opened cash drawer. On January 9, 1973, . . . Petitioner and an accomplice robbed Juan Nieves and Jenny Charr at gunpoint at a fast food restaurant. He stole money from the cash register and fled. Finally, on January 10, 1973, . . . Petitioner robbed Larry Mendez at gunpoint at an ice cream shop and stole money from that cash register. Subsequent ballistics tests matched the bullets found in Ms. Lack and Mr. Holtzkener to a gun found in . . . Petitioner's apartment and witnesses identified . . . Petitioner as the person who committed the other robberies. Resp't's Answer Ex. 2, at 3.
B. April 19, 2007, Parole Hearing
On April 19, 2007, the Board held Petitioner's "21st subsequent parole hearing." Pet'r's Pet. Ex. K, pt. 2, at 6. For at least the past twenty years, Petitioner had the same attorney representing him at parole hearings. Id. However, at the April 19, 2007, parole hearing, Petitioner had a new attorney because the previous one was "deceased," having been "murdered in his driveway [on] January 29th, [2007,] . . . ." Id. Petitioner was "nervous" because previous counsel "knew how [he] got to the place [he is] at now," and if Petitioner "missed something," previous counsel "knew how to fill it in." Id. at 7.
During the hearing, the Board added that "just for clarification," it "incorporate[d] by reference" the January 3, 2007, Superior Court decision by the Honorable Steven R. Van Sicklen, which granted Petitioner habeas relief. Id. at 121; see Pet'r's Pet. Ex. A, pt. 1, at 27-28; see also Hyde, 2010 WL 4321606, at *1. In the January 3, 2007, decision, the Superior Court "remand[ed] the order to the Board to reconsider its decision and to conduct a new hearing within 45 days of service of this order to reconsider [Petitioner's] suitability for parole . . . ." Pet'r's Pet. Ex. A, pt. 1, at 28. At the April 19, 2007, hearing, the Board stated "a writ of habeas corpus is the reason that brings us all here today." Pet'r's Pet. Ex. K, pt. 1, at 121.
At the hearing, the Board discussed Petitioner's background. Id. at 91. Petitioner is the "third of six children." Id. at 110. Petitioner was "born in Los Angeles, raised by both parents," and is "the only person in [his family] to have been arrested." Id. Petitioner "complete[d] the 12th grade, but did not receive a diploma because [he] w[as] a few units short for graduation . . . ." Id. For the last five months of high school, Petitioner "lived with [his] maternal grandmother in Los Angeles." Id. Petitioner's mother stated "she sent [Petitioner] there for [his] own safety" because Petitioner claimed he witnessed an arrest and "purported beating by police officers by a youngster who later hung himself in jail." Id. Petitioner also alleged "he was picked up by police, beaten and threatened to keep his mouth shut," but a "polygraph . . . showed deception." Id. Petitioner "worked part-time and full-time during the summer," and did "various odds and ends sorts of jobs." Id. Petitioner "notes his family has always been close and supportive. He continues to receive frequent family visits, phone calls or letters. He reports none of his immediate family have substance abuse problems, major mental health problems or a criminal record." Pet'r's Pet. Ex. G, pt. 1, at 48. Petitioner also has no history of drug or alcohol abuse, Pet'r's Pet. Ex. K, pt. 1, at 112-13, and no history of juvenile convictions. Pet'r's Pet. Ex. G, pt. 1, at 50.
At the time of the commitment offense, Petitioner was unmarried. Petitioner has been married twice since his incarceration. Pet'r's Pet. Ex. K, pt. 1, at 112. "The first marriage was in 1977 and divorced in 1982," with "[n]o children from that marriage." Id. Petitioner was married again in 1983, and had one child from that marriage, who was twenty-eight years old at the time of the hearing. Id.
Petitioner performed well in prison. See, e.g., Pet'r's Pet. Ex. G, pt. 1, at 48-50; see also, e.g., Pet'r's Pet. Ex. K, pt. 1, at 127-31. Petitioner "has a lengthy documented history of participation in educational and self-improvement activities." Pet'r's Pet. Ex. G, pt. 1, at 49; see Pet'r's Pet. Ex. K, pt. 1, at 129-30. In 1974, Petitioner received his high school diploma while incarcerated, and "[s]ince then, he has taken many college courses." Pet'r's Pet. Ex. G, pt. 1, at 48. Petitioner had "exceptional work skills," Pet'r's Pet. Ex. K, pt. 1, at 134, and "consistently received above average to exceptional job ratings by his supervisors." Pet'r's Pet. Ex. G, pt. 1, at 50. Petitioner was "confident" he could "obtain employment in the computer field, and that [he] possess[ed] [p]lumbing, [e]lectronics, [g]lazing, [and] [p]ainting skills." Pet'r's Pet. Ex. K, pt. 1, at 133. At the time of the hearing, Petitioner "had several offers [of employment] last year, which still remain[ed] available." Id.
After the Deputy District Attorney presented his closing arguments, the Board denied Petitioner parole for a period of one year. The Board explained:
PRESIDING COMMISSIONER DAVIS: Okay. Without question, [Petitioner], the [Board] . . . takes nothing away from the work that you've done since 1991, that clearly you have amassed many, many positive things. However, these positive aspects of behavior do not outweigh the factors for unsuitability. This is a one-year denial. The [Board] will recommend that you remain disciplinary free, that . . . you continue to participate in self-help, that you participate in independent reading, which you clearly are doing already, and we would [re]commend to you that . . . the [Board] will accept short reports, two or three paragraphs indicating an understanding of what you have read, what effect it has on you in terms of your particular situation. For example, in your case, maybe a greater understanding of what the specific triggers were that led to this situation, and that you can review the record itself and perhaps, if for no one else other than yourself, come to an understanding of what occurred and more . . . importantly[,] why it occurred. And the [Board] will be requesting a new psychological evaluation to be prepared under our new format prior to the next hearing. And Commissioner, you had some things you wanted to add.
DEPUTY COMMISSIONER WEAVER: Yes. I would suggest to you, [Petitioner], that when you have a chance for an Olsen review, that you look through all the documents in your files even though they're voluminous[.] . . . I believe there are four files, and that you take the time to ensure that the documents that are in there are correct and accurate. I also think in preparation for the next hearing -- and I know you're capable of keeping good records by evidence of the folders that you have presented, I would also recommend and the [Board] would recommend that you look at the psych reports and the Board reports and make a record of discrepancies and things that you wish to have clarified once and for all so that the [Boards] have a better understanding when and if you told less than the truth and when you did tell the truth so that there's an accurate record of what occurred or what you believe occurred. That's all I have.
PRESIDING COMMISSIONER DAVIS: All right. Thank you. All right. [Petitioner], we do wish you the best of luck. And we are adjourned. Pet'r's Pet. Ex. K, pt. 2, at 52-54 (emphasis added).
On October 29, 2007, the Superior Court found that some evidence supported the Board's decision and denied Petitioner's habeas petition, stating, in relevant part:
Petitioner challenges the Board's April 19, 2007 decision denying parole. . . . Petitioner was denied parole for one year. The Board concluded that . . . Petitioner was unsuitable for parole and would pose an unreasonable risk of danger to society and a threat to public safety. The Board based its decision on several factors, including his commitment offenses and his early institutional behavior.
The Court finds that there is some evidence to support the Board's finding that there were multiple victims who were attacked, injured, or killed during the offense. Cal. Code Regs., tit. 15, § 2281, subd. (c)(1)(A). Seven total victims were attacked and made to fear for their lives, as . . . Petitioner robbed them at gunpoint.
Ms. Lack was seriously injured when . . . Petitioner shot her twice, hitting her in the back and leg. Additionally, . . . Petitioner shot Mr. Holtzkener to death, with one fatal shot to the chest and one shot to the abdomen.
The Court also finds that there is some evidence to support the Board's findings that the commitment offenses were carried out in a dispassionate and calculated manner and that the Petitioner's motive was very trivial in relation to the offenses. Cal. Code Regs., tit. 15, § 2281, subds. (c)(1)(D)*fn4 and (c)(1)(E). . . . Petitioner armed himself with a gun and went to each place of business with the predetermined intent of robbing the clerks or attendants at gunpoint. In each instance, he stole money from either the victim's wallet, or from the cash drawer or register at the store. Even after the shooting of Ms. Lack and the tragic death of Mr. Hotzkener, . . . Petitioner planned and committed an additional two robberies. These actions were planned, deliberate, dispassionate and calculated. Additionally, . . . Petitioner's motive of obtaining the amount of rent his pay would not cover is extremely trivial in relation to robbing seven individuals at gunpoint, shooting and seriously injuring one victim, and shooting another victim to death. Additionally, the Court finds that there is some evidence to support the Board's finding that . . . Petitioner's institutional behavior supports a finding of unsuitability. Cal. Code. Regs., tit. 15, § 2281, subd. (c)(6). Although . . . Petitioner has commendably avoided any serious discipline for 16 years, he had several serious 115 violations early in his incarceration. . . . Petitioner received a total of 14 serious 115s including one for inciting violence, one for fighting, and on[e] for possessing an inmate manufactured weapon, for which he also received a conviction.
The Board also considered the 2005 psychological report's assessment that . . . Petitioner struggles to acknowledge his faults. While this factor may not justify a finding of unsuitability, the Board may properly consider it as a relevant determination of whether . . . Petitioner is suitable for parole. Cal. Code. Regs., tit. 15, § 2281(b). Additionally, the Board considered the opposition from the District Attorney. Although the District Attorney's opposition to Petitioner's release is not a factor on which the Board may rely to deny parole, the Board is required to consider such opposition. Cal. Penal Code § 3402. The Board's consideration of the District Attorney's concerns was not improper and was not the basis for denying parole.
The Board also considered . . . Petitioner's post-conviction gains, including his ability to remain discipline-free for 16 years; his participation in many self-help programs; the programs that he initiated while incarcerated, such as the victim awareness program, conflict resolution, and a walk-a-thon for breast-cancer; the high school diploma and college credits he earned; his exceptional work reports and many vocational skills he learned; as well as the many positive chronos he earned. However, they still concluded that . . . Petitioner would pose an unreasonable threat to public safety. Penal Code § 3041(b).
In light of the recent Court of Appeal decisions, the Court finds that there is some evidence to support the Board's determination that because of the nature of his commitment offense and the behavioral problems early in his incarceration. While the commitment offense occurred over 34 years ago and the serious disciplines all occurred over 16 years ago, these factors constitute the "modicum of evidence" necessary to support a Board's decision to deny parole. As indicated in [In re] Rosenkrantz, . . . [(2002)] 29 Cal.4th [616,] 677, [128 Cal. Rptr. 2d 104, 59 P.3d 174,] it is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence that demonstrates unsuitability for parole, as long as there is some evidence to support the finding of unsuitability. See, In re Jacobson (2007) 154 Cal.App.4th 849, 860[,] [65 Cal. Rptr. 3d 222]; and [In re] Hyde, [(2007)] 154 Cal.App.4th [1200,] 1213[,] [65 Cal. Rptr. 3d 162]. . . . Petitioner's remaining arguments that the Board failed to comply with the Court's January 3, 2007 order are without merit. The Board conducted a full hearing in compliance with the order and, as discussed above, the Board's decision is supported by some evidence.
Resp't's Answer Ex. 2, at 3-5.
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, 362 (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, ...