The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Carlton Van Scott, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Scott is currently in the custody of the California Department of Corrections, incarcerated at the California State Prison, Solano. Respondent has answered. Scott has not replied. Scott also requests that counsel be appointed.
I. BACKGROUND/PRIOR PROCEEDINGS
In September 1987, following a trial by jury, Scott was convicted in the Los Angeles Superior Court of Murder in the Second Degree (Cal. Penal Code § 187(a)), with use of a firearm enhancement (Cal. Penal Code § 12022(B)). The trial court sentenced Scott to an aggregate, indeterminate prison term of 16 years to life. Scott does not challenge his conviction or sentence in this proceeding.*fn1
In April 2006 Scott made his third parole-suitability appearance before the California Board of Parole Hearings ("Board"). After determining that Scott posed an unreasonable risk of danger to society or a threat to public safety, the Board found Scott unsuitable for parole. Parole was denied for a period of five years. Scott timely filed a petition for habeas relief in the Los Angeles Superior Court, which denied him relief in an unpublished, reasoned decision. Scott's subsequent petition for habeas relief to the California Court of Appeal, Second Appellate District, was summarily denied without opinion or citation to authority. The California Supreme Court similarly denied Scott's petition for habeas relief without opinion or citation to authority on March 19, 2008. Scott timely filed his Petition for relief in the United States District Court for the Central District of California on April 7, 2008. The Central District transferred the case to this Court.
The factual basis underlying Scott's conviction was summarized by the California Court of Appeal on direct appeal as follows:
Linda Prescott's son had been killed by a drunk driver approximately one year before the events precipitating the matter at bar. Another person injured in the accident had received a settlement check from the insurance company so Prescott was expecting to receive shortly a $60,000 settlement for the death of her son. On the day of her own death, Prescott was in a good mood and planning to use the settlement funds to buy a car and a house and put a tombstone on her son's grave. She was still sad about the death of her son but her attitude was generally upbeat. Around 12:30 or 1:00 p.m. Prescott, who had a history of seizures, and a friend, Jacqueline Gibson, freebased cocaine at Prescott's home. Prescott appeared to get high.
[Scott] appeared on the scene about 2:30 or 3:00 p.m. He was on crutches because of an injured leg. Prescott's roommate was sent to the store to buy [Scott] beer. After a short time, Prescott and Gibson accompanied [Scott] to his residence down the street. There Prescott and [Scott] got into a boisterous argument over money, [Scott] having given Prescott money to get his stereo out of hock and she having spent it on drugs. The argument raged for 15 or 20 minutes before Gibson departed leaving Prescott and [Scott] alone. When Gibson left, [Scott's] residence was "normal".
Approximately 40 minutes later, Gibson heard an ambulance and returned to [Scott's] residence. He was in handcuffs and paramedics were on the scene. The paramedics had arrived to find [Scott] dazed and incoherent. Prescott had suffered nearly three dozen blows and stab wounds with the fatal injury a stab wound in the heart. She had also suffered a stab wound to the eye. The residence was in complete disarray and there was blood on the floor and kitchen cabinets. A bent butcher knife with [Scott's] thumbprint on the blade was found at the scene. One of [Scott's] crutches was bent and had a reddish-brown substance on it. Prescott's blood alcohol level was .15 percent. Her body also contained cocaine and a prescription antidepressant drug.
The autopsy surgeon testified the stab wound to the eye had gone into the orbital tissues, cutting the eyelid and penetrating about an inch into the eye socket doing damage to bone surrounding the eye socket. Admitting "anything is possible", he said he had "not ever seen a suicide case where someone has stabbed themself in the eye." He testified he would not be able to predict the behavior of a person under the combined influence of alcohol and cocaine but, "in my opinion, the pattern of injuries and the number of injuries and the location of the injuries on this decedent does not in any way resemble anything I have ever seen with a suicide."
[Scott] did not testify. A tape recording of his statement to police was introduced into evidence. He denied stabbing or striking Prescott except for an elbow to her mouth while trying to fend her off. His version of the incident was that Prescott attacked him during their argument and tried to stab him and hit him with his crutch. During the struggle they fell against an aquarium which broke, cutting Prescott. He took the knife away from her and got her in a bear hug. She got away from him, took the knife and went into the kitchen. She then went into a frenzy, stabbing and hitting herself and banging her head on various objects. He tried to stop her but could not. He went outside and asked someone to call the police. When he returned. Prescott was on the floor bleeding. Her wounds were self-inflicted.*fn2
The Board's summary provides additional detail:
PRESIDING COMMISSIONER FARMER: Ok thank you. Now as I indicated I will start by reciting into the record a recitation of the offense. And I will indicate that I have reviewed the appellate transcript and that description of the offense. But for recitation into the record I will refer to the offense as it is described in the board report dated September 1996. Which summarizes the events as follows. Scott and the victim were in Scott's residence an argument issued, Scott repeatedly stabbed the victim with a knife with such force that it bent the knife. Scott also hit the victim with his aluminum crutch with such force that it bent and broke the crutch. The neighbors called the police. When the police and paramedics arrived the victim was dead. The victim incurred 20 stab wounds, dying of a stab wound, which perforated her heart and left lung. (indiscernible) she was stabbed in the left eye. She suffered multiple superficial stab wounds, she suffered multiple blunt force lacerations, contusions and abrasions to her neck and face. The victim was ten weeks pregnant. Her blood alcohol was .15 percent, cocaine was found in her blood. Scott claimed that she had killed herself. Scott was placed under arrest. In that report it indicates that Carlton Scott denied killing the victim, stating quote it was a frame up closed [sic] quote. And then further indicates Mr. Scott was interviewed for this report on June 17, 1996 and Scott denied killing the victim stating I couldn't have done that. And there have been varying recitations of Mr. Scott's version of what occurred, one of the latest one appeared in the psychologist report of September 7, 2004. In which he stated under background information, as follows: Mr. Scott presented a long confusing and confounding story with a great deal of tangentially in regards to the circumstances of the commitment offense: However he never admitted culpability. He stated quite simply he felt he was set up. He stated that he knew the victim because he was a friend of a friend of hers. And that he tried to look out for her. He stated that he took her food and felt like he as [sic] friends with her. He stated he recalled the police asking him questions about the victim but it was quote all blur for me. I don't recall stabbing her. I don't know what happened close quote. And he stated he does not believe that he did it. He stated that he had been taking a medication and that, and had been drinking alcohol. He stated the combination of the medication and alcohol caused him to suffer this amnesia clog. At any rate he intended to state he did not believe he had committed the offense.*fn3
II. GROUNDS RAISED/DEFENSES
In his Petition, Scott contends the Board denied him his
constitutional rights to a hearing and jury trial under Cal. Penal Code §§ 2962 and 2966;*fn4
and erred by finding that he failed to "own up to his crime," i.e. accept responsibility; and that the
gravity and nature of the crime did not qualify him for release. Scott further contends he was denied
effective assistance of counsel.
Respondent does not assert any affirmative defense.*fn5
A. Appointment of Counsel
There is no constitutional right to counsel in federal habeas proceedings.*fn6 Appointment of counsel is not required in a habeas corpus proceeding in the absence of an order granting discovery or an evidentiary hearing.*fn7 This Court may appoint counsel under the Criminal Justice Act in this case if the Court determines that the interests of justice so require.*fn8 The Court does not so determine. Scott's request for the appointment of counsel is, therefore, DENIED.
In denying Scott parole, the Board held:
PRESIDING COMMISSIONER FARMER: Ok we are here for a decision in the matter of Carlton Scott, D-67202. Mr. Scott the panel has considered all the information received today at your hearing, contained in your file, your responses to the questions that you were asked, the arguments of counsel we considered all of the above. We relied upon all of the above information. And the specific factors which I will state in concluding that you are not suitable for parole. That you oppose [sic] and unreasonable risk of danger to society or a threat to public safety if released. Our analysis starts with an examination of your commitment offense, which was aggravated by the especially callous nature or the aggravated aggressive manner in its commission. The offense was carried out in a manner, which demonstrates an exceptionally callous disregard for human suffering. This was obviously a very violent death, which took place over a period of time. The motive is unclear to us, what is most disturbing is your inability or unwillingness to come to an understanding of your role in what happened. There are varying stores [sic] being told and your denial of responsibility and it obviously the jury found you otherwise. And looking at your juvenile history, your prior history what is notable about that is the documented one juvenile case for theft and an adult conviction for robbery, strong-armed. But similarly what is most disturbing about those offenses is your denial of responsibility for those manners [sic]. Given the commitment offense and that background and your institutional behavior first looking at the disciplinaries and you have had some difficulties and some successes. Some successes and some difficulties in the institution in the area of disciplinaries, we total 11 115's in total. Four of which, the last four were since your last hearing. So you seem to have some difficulty abiding by the rules of the institution, calculating less serious 128's and the last one of those was in 2005. We have fully considered the psychological report of Doctor Rouse dated August 24, 2004. Which documents your psychiatric problems and his recommendation is that you be in a facility ...