Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2007 decision of the Board of Parole Hearings denying him parole.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a 1987 conviction for kidnap for ransom with use of a firearm. (Pet. at 2.) The trial court sentenced petitioner to a prison term of life plus two years. (Id.) On May 16, 2007, the California Board of Parole Hearings ("the Board") conducted a hearing and denied petitioner parole. (Pet., Ex. A.) On December 31, 2007, the Sacramento County Superior Court denied petitioner's state habeas petition. (Answer, Ex. B.) The California Court of Appeal and the California Supreme Court issued summary denials of petitioner's claims. (Id., Exs. D and F.)
On June 4, 2008, petitioner filed the instant federal petition for writ for habeas corpus challenging the Board's denial of parole. Petitioner claims the Board violated his due process rights because there was not "some evidence" in the record to show that he is currently dangerous. On October 6, 2008, respondent filed an answer. Petitioner did not file a traverse.
The Board began the parole hearing on May 16, 2007 by summarizing the facts underlying petitioner's commitment offense*fn1
On May 11th, 1989, Carlos Ramos Soto borrowed Anna Placentia's black Firebird so that he could see his girlfriend. Anna was the girlfriend of his brother, Javier. Both Carlos and Anna lived with their parents on 15th Street in downtown Sacramento. Javier also stayed there sometimes. Accompanying Carlos in the car were Anna's brother, Caesar Ramirez Placentia, and Ramon Aldendondo. Carlos had difficulty with the car's gears, and it would not go very fast. He noticed he was being followed by a black Mustang.
When he stopped after a few blocks, the Mustang also stopped and three men got out. Caesar and Ramon were ordered to leave, and Carlos was forced into the back seat of the Firebird. Tape was placed over his eyes, and then sunglasses to hide the tape. He was told his brother would have to pay 23 thousand dollars. He was not told why.
He was driven to a house at 1708 Santa Ynez Way, where the tape was replaced with white bandage or towel. He was held there blindfolded but not bound until the next day. Ramon told Anna that Carlos had been kidnapped. The police were called at about six o'clock. Officer Baraza was dispatched to investigate. While Carlos was being held, he heard the kidnappers make five telephone calls in an attempt to reach the brother and demand the money. The first call was made to Yolanda Long. The second was answered by Anna's mother, Monica.
The police were contacted about the ransom demands and Officer Omolit placed a recorder on the phone at the Placentias' residence on May 12th and instructed Anna to keep the kidnappers on the phone as long as possible. Three phone calls from the kidnappers which Anna answered were taped. Calls were traced to the Santa Ynez house and a police SWAT team surrounded the house.
Carlos heard voices speaking in English, which he later learned were police officers. He then heard kidnappers running. (Indiscernible) said to get rid of something and Carlos heard water and toilet flush, and the toilet flush twice. Perez took the blindfold off. Carlos left the house to meet with police.
Defendants were arrested and charged with kidnapping for gain. It was alleged each personally used a firearm in the offense. (Pet., Ex. A at 19-21.)
The Board then read into the record a Counselor's Report dated January 26, 2007: On May 11th, 1989, at approximately 1730 hours an adult male victim was with friends when [petitioner] and two other Hispanic males accosted him. The victim was put into a car, leaving his friends behind. Sacramento Police Department received a call from the victim's brother's girlfriend with information the victim had been kidnapped and was being held for 30,000 dollars ransom.
After placing a phone trap on the victim's phone, the police were able to detect that the ransom calls were being made from 1708 Santa Ynez Way. Parole division of the city police department set up a command post and a SWAT team responded. The content of the monitored call was that the victim's brother sold [petitioner] drugs and therefore they wanted some monetary compensation.
A request to talk to the victim to verify his location was made and the victim did speak on the phone in Spanish. [¶]
[Petitioner] was interviewed after being advised of his rights. [Petitioner] said that he was from south San Francisco and that he did not know his way around Sacramento. He stated that on the previous day he had been riding around with the defendants Perez and Rios. They saw the victim and followed him until his car stalled.
[Petitioner] stated the defendant Rios made contact with the victim. Rios told the victim he had to go with them because the brother of the victim owed some money and they did not know how to contact him. They wanted the victim to call his brother and ask him to pay the money he owed. (Pet., Ex. A at 21-23, 40.)
Next, the Board mentioned petitioner's pre-conviction offenses for giving false information to a police officer, possession of a controlled substance, and disorderly conduct (petitioner was drunk in public). (Pet., Ex. A at 27-28.) Petitioner denied having ever used drugs prior to his commitment, but did admit to drinking regularly. (Id. at 32-33.)
The Board then discussed petitioner's conduct since his most recent parole board hearing in 2006. (Id. at 34.) There, petitioner was denied parole and advised to remain disciplinary free, participate in self-help and therapy, and obtain his GED. (Id.) Since that hearing, petitioner received two disciplinary violations, the first for lewd conduct and the second for possession of contraband. (Id. at 38-39.) The Board also addressed petitioner's disciplinary violations prior to the 2006 parole hearing, which concerned the Board because they related to "the right and respect of others, obscenity, two for fighting, a failure to report, being out of bounds, grooming standards, and unauthorized phone calls." (Id.)
Although the Board acknowledged petitioner's participation in self-help programs, including attendance at meetings for Alcoholics Anonymous ("AA") and a Relationship Awareness Workshop, it found that petitioner was not readily familiar with the steps in the AA program. (See Pet., Ex. A at 36, 40, 57, 69.) Lastly, the Board considered laudatory chronos and positive work reports written about petitioner, as well as petitioner's supportive family, positive work history, and his post-parole plan to return to Mexico for work. (Id. at 40, 51, 56, 62 and 64. The Board did not rely on a psychologist's 2005 report because of conflicting findings contained therein concerning the assessment of dangerousness.*fn2 (See id. at 45, 70.)
Upon consideration of petitioner's pre-conviction record, the nature of his commitment offense, his post-conviction behavior and his post-parole plans, the Board denied parole after finding that petitioner posed an unreasonable risk to public safety based on the following: (1) the commitment offense was carried out in an especially "cruel" and "dispassionate" manner "demonstrat[ing] exceptional callous disregard for human suffering"; (2) petitioner's reprogramming was considered "limited"; (3) petitioner failed to develop marketable skills; (4) petitioner received multiple chronos, including two since the 2006 parole board hearing; and (5) the District Attorney and the Police Department of Sacramento County opposed parole. (Pet., Ex. A at 67-72.)
I. Standards for a Writ of Habeas Corpus
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 ...