The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Armando Feliz, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Feliz is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent ("State") has answered the Petition. Feliz has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On May 24, 1984, Feliz was convicted upon a guilty plea in the Los Angeles County Superior Court of one count of Murder in the Second Degree (Cal. Penal Code § 187). The trial court sentenced Feliz to an indeterminate term of 15 years to life. Feliz does not challenge his conviction or sentence in this proceeding.
In August 2006 Feliz made his ninth or tenth appearance before the California Board of Parole Hearings, which denied him parole. Feliz timely filed a petition for habeas corpus relief in the Los Angeles Superior Court, which denied his petition in an unreported, reasoned decision.
The California Court of Appeal summarily denied Feliz's subsequent petition for habeas corpus relief in that court without opinion or citation to authority. The California Supreme Court summarily denied Feliz's petition for habeas relief in that court without opinion or citation to authority on April 30, 2008. Feliz timely filed his Petition for relief in this Court on May 27, 2008.
After briefing was completed, the United States Court of Appeals for the Ninth Circuit, sitting en banc, decided Hayward v. Marshall.*fn1 At Docket No. 21 this Court entered an Order directing the parties to file supplemental briefs addressing the Hayward decision, in particular that "[t]he prisoner's aggravated offense does not establish current dangerousness 'unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state' supports the inference of dangerousness."*fn2 The Court also directed the parties to consider two Ninth Circuit decisions applying Hayward.*fn3 Both parties have submitted supplemental briefing.
The facts underlying the crime, as recited by the Los Angeles Superior Court, are:
[. . . .] The record reflects that petitioner had been involved in an abusive intimate relationship with the victim, who had physically assaulted petitioner in the past. They had previously lived together. On the night of the murder, petitioner met the victim at a bar. They returned to the victim's residence. Petitioner convinced the victim to disrobe. The victim then allowed petitioner to tie him to a chair. Once the victim was naked and tied up, petitioner stabbed him multiple times. He died as a result of the stabbing.*fn4
III. GROUNDS RAISED/DEFENSES
In his Petition Feliz contends the Board erred in denying him parole, making four contentions: (1) he has a liberty interest protected by the Due Process Clause; (2) the evidence is insufficient to support a finding of unsuitability for parole; (3) a lack of nexus between the evidence and the denial of parole; and (4) he has met all the factors demonstrating suitability for parole. The State does not assert any affirmative defenses.*fn5
In rejecting Feliz's arguments, the Los Angeles Superior Court held:
The Board found petitioner unsuitable for parole after a parole consideration hearing held on August 8, 2006. 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 his commitment offense.
The record reflects that there is some evidence that, "the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering." (Cal. Code Regs., tit. 15, §2402, subd. (c)(I)(D).) This means that "the offense in question must have been committed in a more aggravated or violent manner than that ordinarily shown in the commission of that offense." (In re Scott (2004) 119 Cal.AppAth 871, 891.) An offense is more aggravated or violent when it involves severe trauma, "as where death resulted from severe trauma inflicted with deadly intensity; e.g., beating, clubbing, stabbing, strangulation, suffocation, burning, multiple wounds inflicted with a weapon, not resulting in immediate death or actions calculated to induce terror in the victim." (Id at 892.) Here, petitioner inflicted multiple wounds with a knife, which did not result in immediate death. He was naked and tied to a chair when the attack started to induce terror in the victim. Because this crime involved severe trauma to the victim, it shows an exceptionally callous disregard for human suffering.
The Board was also concerned that petitioner lacks understanding into the nature and magnitude of his actions. (Cal. Code Regs., tit. 15, §2402, subd. (d)(3).) Petitioner has changed his version of the commitment offense for different parole suitability hearings. At previous hearings, petitioner claimed that the victim was threatening him and he felt scared, despite the fact that the victim was tied to a chair at the time. Petitioner pled guilty to murder. Where guilt is uncontested, a prisoner's version of the events may be some evidence he lacks remorse and understanding of the nature and magnitude of the offense. (In re McClendon (2004) 113 Cal.App.4th 315,322.). This supports the Board's denial.*fn6
"When habeas courts review the 'some evidence' requirement in California parole cases, both the subsidiary findings and the ultimate finding of some evidence constitute factual findings."*fn7 In its Order requesting supplemental briefing, this Court directed the State to "specifically identify those characteristics, other than the underlying commitment offense, that support a finding that release of the Petitioner to parole status poses a current threat to public safety, and point to the specific evidence in the record that supports that determination."*fn8 In its response, the State argues that, because Hayward was wrongly decided and represents circuit law, not the law as established by the Supreme Court, this Court need not follow Hayward or the Ninth Circuit cases applying Hayward. The State, asserting that the order requiring that the evidence supporting the finding that the release of Feliz to parole status poses a current threat to public safety be identified is an improper question, declined to provide the required information.*fn9
This Court disagrees. This Court, a district court, is bound by the published decisions of the Ninth Circuit until those decisions are overruled or undermined by higher authority, e.g., an en banc decision of the Ninth Circuit, a Supreme Court decision, or subsequent legislation.*fn10 This has not occurred. This Court notes that if, as the State contends, Hayward were incorrectly decided, the appropriate remedy is to file a petition for a writ of certiorari in the Supreme Court within 90 days of the date the petition for rehearing in Hayward was denied.*fn11 The 90-day period began to run June 2, 2010, when the Ninth Circuit denied Hayward's petition for a rehearing.*fn12
As the time for filing a petition for certiorari had not yet expired, if the State contemplated seeking certiorari, the State could have requested this Court to grant additional time to comply with the Order. Alternatively, the State could have preserved its arguments that Hayward was erroneously decided for further appellate review, and still complied with the express terms of the Order. What the State could not do is what it did do in this case-ignore the clearly articulated requirements of Hayward and decline to obey this Court's specific order.*fn13 In so doing, even if the Order was "improper," the State did so at its own peril.*fn14
This Court treats the State's failure to point to the evidence in the record supporting the factors, other than the commitment offense, cited by the Board's finding that Feliz poses a present threat of danger to society as conceding that no such evidence exists.*fn15
In its Order directing Respondent to answer, this Court, citing Rule 5 of the Rules Governing § 2254 Cases, directed Respondent to provide the transcript of the August 8, 2006, hearing, and any documents, reports or letters considered by the panel. In a footnote to that Order the Court also provided an alternative-that if the State agreed that the transcript attached as an exhibit to the petition is complete and correct, a second copy need not be provided.*fn16 In its Answer, the State declined to provide the requested documents, contending that those documents were not required under Rule 5. The State has disregarded two Orders entered by this Court. In the case of the Order directing that a transcript of the Board hearing be provided, ...