FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for one year at his third subsequent parole consideration hearing held on July 9, 2008. Petitioner claims that the Board's decision violated both state law and his federal constitutional right to due process. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be granted.
Petitioner is confined pursuant to a judgment of conviction entered in the San Diego County Superior Court in 1992. (Pet. (Doc. No. 1) at 35.) At that time petitioner was found guilty of second degree murder, in violation of California Penal Code § 187(a), and of shooting into an inhabited dwelling, in violation of California Penal Code § 246. (Id.) On August 10, 1992, petitioner was sentenced to state prison for a term of fifteen years to life with the possibility of parole. (Id.) Petitioner's third subsequent parole consideration hearing, which is placed at issue by the instant habeas petition, was held on July 9, 2008. (Id. at 39.)*fn1 On that date, a panel of the Board of Parole Hearings (hereinafter "Board") found petitioner not suitable for release and denied parole for one year. (Id. at 101.)
Thereafter, petitioner filed a petition for a writ of habeas corpus in the San Diego County Superior Court, claiming that the Board's failure to find him suitable for parole at his third subsequent suitability hearing violated his federal constitutional rights. (Answer, Ex. 1, Part 1 (Doc. No. 10-1.)) On March, 19, 2009, the Superior Court rejected petitioner's claims in a reasoned decision on the merits. (Answer, Ex. 2 (Doc. No. 10-3.))
Petitioner thereafter filed a habeas petition in the California Court of Appeal for the First Appellate District. (Answer, Ex. 3, Part 1 (Doc. No. 10-4.)) The California Court of Appeal summarily denied that petition on June 3, 2009. (Answer, Ex. 4 (Doc. No. 10-6.)) Petitioner next filed a habeas petition in the California Supreme Court. (Answer, Ex. 5 (Doc. No. 10-6.)) That petition was summarily denied on August 26, 2009. (Answer, Ex. 6 (Doc. No. 10-6.))
On September 22, 2009, petitioner filed the federal habeas petition now before this court. (Doc. No. 1.) Respondent filed an answer on January 7, 2010. (Doc. No. 10.) Petitioner filed a traverse on January 19, 2010. (Doc. No. 13.)
At the outset of the July 9, 2008 hearing the Board incorporated by reference the facts of petitioner's commitment offense as set forth in the November 2, 1993 decision of the California Court of Appeals affirming his judgment of conviction (Pet. (Doc. No. 1) at 44), which recites the facts of petitioner's commitment offense as follows:
On the afternoon of September 19, 1991, Rudolfo Andrade, Alexander Maycott and appellant wished to purchase $40 worth of methamphetamine. To that end, appellant, his girlfriend Kimberly Geldon and Maycott drove in appellant's orange Camaro to an apartment at 5675 Albemarle in the City of San Diego.
On arriving, appellant attempted to contact Christina Almenar in her upstairs apartment. Unable to do so, appellant started to walk back to his car when he was stopped by Michael Echaves who lived in the apartment below Christina's with Martha Almenar and her two children, 13-year-old Diane and 5-year-old Louie. As appellant walked to and from Christina's apartment, Michael, Diane and Louie were cleaning the yard.
Echaves asked appellant who he was looking for. Appellant asked Echaves if he had seen Christina. When he said he had not, appellant asked Echaves if he could get some methamphetamine. After making a telephone call, Echaves told appellant he could. Appellant stated he would attempt to buy the drug elsewhere but if unsuccessful he would return. Appellant and his friends departed but returned about 20 minutes later. Appellant asked Echaves if he could still get the methamphetamine. He stated he could, got into appellant's car and drove with appellant, Maycott and Geldon to another location.
Appellant gave Echaves two $20 bills and told Echaves he would wait while Echaves got the methamphetamine. Echaves got out of the car and walked away.
When Echaves did not return, appellant and his friends went back to Echaves's apartment on Albemarle. Appellant went to the door and knocked. Diane and Louie were home alone and did not answer the door.
After waiting for a time, appellant, Maycott and Geldon decided to return to where Andrade, who had put up part of the money for the drug purchase, was waiting. On the way they stopped at the home of Danny Gomez and acquired a handgun.
The three returned to where Andrade was waiting. Geldon got out of the car and Andrade got in. The men decided they would return to the apartment on Albemarle to find Echaves and to either get their money or beat him up. At about 7:30 p.m., appellant drove his car down Albemarle with the lights out, maneuvered nearer the house and fired the gun repeatedly at the dwelling. Diane was struck in the head by one of the shots and later died from her wound.
Based on information from witnesses, the police were able to trace the car from which the shots were fired to appellant. At approximately 3 a.m. on September 20, officers contacted appellant at his motel in San Ysidro. A search of the car's trunk revealed a 9mm semi-automatic pistol and an empty ammunition clip for the weapon. No fingerprints were found on the gun but tests indicated shell casings found at the scene were ejected from the gun and bullets collected at the apartment were fired by the weapon.
Appellant agreed to talk with the officers and admitted firing the gun at the apartment. Appellant refused to give the names of the other persons who were with him.
Appellant later gave an officer the names of the other two persons in the car. Appellant also told the officer he and the other two men in the car wanted to do the shooting but appellant fired the gun because he was in the best position.
Appellant testified in his own defense and stated that on the day of the shooting he consumed a considerable quantity of alcohol and did a "line" of methamphetamine. Appellant testified he had been involved in motorcycle accidents in the past in which he had been seriously injured and had lost consciousness. Appellant stated when he first drove back to the apartment on Albemarle, he saw a light on and believed Echaves was inside. After knocking, however, and getting no response, appellant concluded Echaves was not at home.
Appellant testified Maycott had the gun as the men returned to the apartment. Appellant took the gun from him when he pointed it at a boy on the street. Appellant denied any recollection of firing the gun but did remember hearing shots. Appellant stated he had doubts he fired the gun. Appellant stated that much of what he told the officers after the shooting was untrue and that he told them he fired the gun because he felt responsible and because he did not wish to be a "snitch." Appellant stated he had no intention to kill anyone. Appellant denied making any subsequent statements to the police concerning the shooting. Appellant specifically denied telling officers all three of the men wanted to do the shooting but appellant fired the gun since he was in the best position to do so.
A neurologist and a psychologist testified appellant suffered from a mild prefrontal lobe injury that, especially in conjunction with the use of alcohol, could result in sudden, unplanned and impulsive actions.
A toxicologist testified that based on appellant's report of the amount of alcohol he had consumed the evening of the shooting and given the reported time of that ingestion, appellant would have had a 0.20 to 0.30 blood alcohol level at the time of the shooting. The expert testified an "alcohol blackout" occurs when after the use of alcohol the individual is conscious and goes about normal activities but is later unable to remember what happened during that period of time. (Answer, Ex. 1, Part 2 (Doc. No. 10-2) at 61-63).
The Board then questioned petitioner regarding the commitment offense as follows:
PRESIDING COMMISSIONER BRYSON: Tell us what led up to this crime.
INMATE HANSEN: On that particular night?
PRESIDING COMMISSIONER BRYSON: Yes.
INMATE HANSEN: I had just gotten off of work and gotten paid and was drinking some alcohol with some friends. Went to a buddy's house of mine and the guy there wanted to purchase some methamphetamine. And I had told (sic) that I knew of a couple places where I could receive it. And so, we went looking for it. The place that I'd thought I could receive it - - get it, she didn't have none. So I went back, went to another place where I thought I could receive some, and she wasn't home. And as I was leaving, there was this guy that was in the - - in the front house - - front of the house who told me - - asked me who I was looking for. And I told him that I was looking for Christina. And he told me that she wasn't home and that he can - - asked me what I was looking for. So I told him I was looking to buy some methamphetamine. And so he went and made a - - made a phone call and told me that his connection wasn't home. And so I left, went back to the other place; the first place I went to and see if she'd gotten any methamphetamine yet.
PRESIDING COMMISSIONER BRYSON: Now the first place you went to was to?
INMATE HANSEN: Barbara Gomez.
PRESIDING COMMISSIONER BRYSON: Okay.
INMATE HANSEN: And she hadn't received any yet, so I went back to Mike Eschevez' (sp) place, picked him up and went to - -went to where he thought he could get us some methamphetamine. And he took the money and went in and never returned. So, we went back to the place where we had dropped him off, and went in - - went around looking to see if we could find where he was at, and we couldn't. So we went back to where we picked him up from on Abermal (sp) Street, and knocked on the doors, went around the house looking, and nobody would answer. So, went and picked up - - went and picked up a gun and - -
PRESIDING COMMISSIONER BRYSON: Who went and picked up the gun?
INMATE HANSEN: Me, Alex and Kimberly. And we - - then we went from - - After we picked up the gun, we went back to where Rudy was at, dropped off Androtti (sp) or dropped off Galvan, Kimberly and picked up Rudy Androtti and went back down to the complex. And when we went down there, it's Alex Maycock (sic) pulled the gun out from behind the back of the seat and pointed it at this guy on - - this boy on the street, who was Jeff Landry. You know, in doing so, I took the gun from him and shot into the house on the way by.
PRESIDING COMMISSIONER BRYSON: Why did you do that? INMATE HANSEN: There's no rational reason for why I did what I did, other than poor choices and decisions. I mean it was - - it was either I was thinking that it was, you know, either we weren't going to get our money back or it was going to be the equivalent of the money that we'd lost or - -PRESIDING COMMISSIONER BRYSON: What was going to be the equivalent for the money he had - -INMATE HANSEN: The damage to the house. And, also, we were - - the - - and - - we were intending on using the gun as a tool of intimidation. And not being fearful - - being scared of not knowing what could have possibly happened if we would have confronted him, I thought that shooting into the house would end it and it would be over with.
PRESIDING COMMISSIONER BRYSON: I'm not - - It's very difficult to follow that sort of reasoning.
PRESIDING COMMISSIONER BRYSON: Yeah, that logic. INMATE HANSEN: I know. That's why - - That's why - - That's what I'm saying. There is no clear understanding or rational reason for what I did other - - I mean I can't blame it on the alcohol, because if was my poor decision that ended it, and the result of the death of Diane Rosales.
PRESIDING COMMISSIONER BRYSON: You emptied the entire clip into the - - that residence. Correct?
INMATE HANSEN: From my understanding, the entire clip was emptied, but only three bullets entered the house.
PRESIDING COMMISSIONER BRYSON: How many times ...