The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Darrell T. Sharp, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Sharp is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered, and Sharp has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In January 1978, following a trial by jury, Sharp was convicted in the Alameda County Superior Court of Murder in the First Degree (Cal. Penal Code § 187). The jury also found true that Sharp had used a firearm in committing the offense (Cal. Penal Code § 12022.5). The trial court sentenced Sharp to life in prison with the possibility of parole.*fn1 Sharp appealed his conviction and sentence to the California Court of Appeal, First District, which affirmed his conviction and sentence. The California Supreme Court summarily denied review. Sharp does not challenge his conviction and sentence in this proceeding.
In June 2006 Sharp made his eleventh parole-suitability appearance before the Board of Prison Terms ("Board"). The Board determined that Sharp posed an unreasonable risk of danger to society or a threat to public safety and found Sharp unsuitable for parole. The Board denied Sharp parole for a period of one year. Sharp filed a petition for habeas relief in the Alameda County Superior Court, which denied his petition in an unpublished, reasoned decision. Sharp's subsequent habeas petition to the California Court of Appeal, First Appellate District, was summarily denied. Sharp's habeas petition to the California Supreme Court was also summarily denied on October 12, 2007. Sharp timely filed his Petition for relief in the United States District Court for the Northern District of California on December 10, 2007. Sharp's Petition was transferred to this Court.
As summarized by the Board, the facts underlying Sharp's conviction were:
On February 6th, 1977, Robert C. Bell left home to visit his grandfather. Bell was last seen walking eastbound on the tracks at 54th Avenue with Darrell Sharp and Junior Johnson. Three days later, on February 9th, 1977, Bell was found dead. Subsequent autopsy determined that two .22 caliber bullets and bullet fragments, along with hair taken from the vicinity of the wounds, suggested an execution style killing. The facts surrounding Bell's death began on January 28th, 1977, when Junior Johnson approached James Lewis, manager of Victoria Station restaurant, robbed him of his restaurant receipts, shot Lewis's dog, and shot Mr. Lewis through the heart. Mr. Lewis survived. Over four thousand in cash and checks were taken. Around the same time, Robert Bell, a friend of Junior - Junior Johnson and Sharp, began to give Officer Conner, C-O-N-N-E-R, information about the Victoria Station robbery. This information was later turned over to Sergeant Rothacher, R-O-T-H-A-C-H-E-R. On February 3rd, 1977, Bell and Sergeant Rothacher met. Bell told Sergeant Rothacher that Sharp had been the getaway driver of the Victoria Station robbery shooting, and that, quote, "Terry Smith," close quote, had been the gunman. Sergeant Rothacher determined that Terry Smith was in fact Junior Johnson. On February 5th, 1977, Sharp attempted to rob Willie Brown's Liquors. Later that afternoon, Robert Bell told Officer Conner that Sharp was the person who had tried to rob Willie Brown's Liquors. On February 6th, 1977, Sharp and Johnson, in the presence of Melia Potes - and that's spelled P-O-T-E-S - who was Johnson's girlfriend, met and talked about Bell. Johnson and Sharp - Johnson told Sharp that Bell had talked too much to Officer Conner. Sharp agreed, and stated that he himself would kill Bell. Later that day, with Glenn Harrison, H-A-R-R-I-S-O-N, who was Bell's best friend, present, they told Harrison that they were going to kill Bell because he had talked to the cops. Sharp raised his coat, revealing the .22 caliber revolver. The victim, Bell, arrived at the house, and subsequently left on foot with Johnson and Sharp. Later they were seen walking eastbound on the tracks at 54th Avenue. On February 8th, 1977, Sharp admitted to his brother, Stanley Sharp, and Glenn Harrison, that he had in fact killed Robert Bell by shooting him, quote, "in the head two times." Sharp was arrested later that evening and taken into custody.*fn2
II. GROUNDS RAISED/DEFENSES
In his Petition, Sharp advances several arguments. Distilled to their essence, those arguments present but a single issue cognizable in this Court in a federal habeas proceeding: the finding that Sharp posed an unreasonable risk of danger to society or a threat to public safety is unsupported by some evidence. Respondent does not assert any affirmative defense.*fn3
In denying Sharp parole, the Board held:
PRESIDING COMMISSIONER FARMER: Okay. Mr. Sharp, we have a decision in your case. We have reviewed all the matters presented at your hearing contained in your file, the questions that we asked an [sic] answered, the written documents submitted, the arguments of counsel and statements that you have made. We review all the information and rely upon the following circumstances to conclude that we believe that you remain unsuitable for parole and would continue to pose an unreasonable risk of danger to society or a threat to public safety if released. You know, this is a work in progress, and you've got a lot of negatives that you've got to deal with. You're making - you know, when I -when I deny you a date, I don't want to do so without telling you I think that you've come a long way and that you're close, closer. There still are some concerns that we have. This analysis will always start with your commitment offense. Inmates say, "I can't change that commitment offense." The response to that is, I can't change it either. You know, in this case you were convicted of first-degree murder, and it was a - a fairly egregious first-degree murder, you know, these descriptions that were put in here, that it was carried out in as [sic] especially cruel or callous manner, in a calculated manner, which was an execution-style murder, carried out in an exceptionally - a manner which demonstrates an exceptionally callous disregard for human suffering. The motive for the crime was trivial in relation to the offense. These conclusions come from the facts in which you have a person who was cooperating with the police and talking to them about the criminal activities of you and your crime partner, and you volunteered, and then did carry out a plan to shoot him. Lured him from his home, took him to a remote location, and shot him. I understand that - now you have told various versions of what occurred. You've talked about - when I talk with people about the offense and - and the [sic] indicate, as you've done, that they accept full responsibility for their actions, my the first question is always, "Well, what are you taking responsibility for?" Everything I've read about you, when you say that you take responsibility now for (indiscernible) and the crime that you committed, I find a lot of truth in that. I - in talking with you, you do speak candidly, I don't think you're trying to evade responsibility, and so it's not like you are, as you did initially, denying that you were there. I got to tell you, people have listened and the psychologists have listened to what you have said about the motivation for the crime, or what you were doing at the time and the period you have, it doesn't ring real true to me. I haven't gone through your jury transcript and listened to what all the witnesses had to say, but when I look at the jury's verdict and when I read what I understand they had - what they had to say, I believe it happened just as was earlier described and you just don't want to talk about it. Now that's your right, and I don't want to say that we're denying you solely based upon that what I think is kind of a lack of desire to talk about it. You're not the first person that wants to say, "Yeah, I shot this guy because he was snitching us off, and that was my mindset at the time. You've got a lot of other things that - that are favorable, the insight, the complete insight into what occurred, is - is though not totally negative, it's not totally positive (indiscernible) talk about, and, you know, it wouldn't hurt to do that, because you are - it's not like you're saying that I'm not there, you are saying, "Yeah, I do accept responsibility for his killing and I'm sorry that this happened," and I believe those things are true. I don't think you fully want to come to - to grips with the totality of what you did. Obviously your history prior to this crime you were a work in progress, up to this conviction to get you here, working your way up from minor to serious, going starting as a juvenile at nine year-old, before the judge to be sent to the boys' camp, getting sent to CYA, but doing satisfactory on parole from CYA, and you - you took all the steps to get here, and then, you know, you started out in the institution with that mindset continued, as reflected most immediately by your disciplinary history, your ten 115s, the last one in '97, and then we had - I didn't get the 128 totals- DEPUTY COMMISSIONER SMITH: There were six.
PRESIDING COMMISSIONER FARMER: There were six, this last one this last year. That's - that's not - this last one's not a - the most serious thing that happened, but it - it also is not favorable. You understand their need to - that you been totally disciplinary free, so it was discussed, okay, how serious was that? Well, obviously it's not as serious as a 115, it's just one of the minor negatives that will exist. Your vocational programming has been excellent. We give great credit for that. You do a good job in your job, you work with the PIA, you're taking classes. You have developed marketable skills, and that's a real important plus on your side, okay, and, you know, we want to acknowledge that, and - and from the standpoint of your ability to succeed on the outside, having marketable skills is pretty much a base level. You know, educationally, you could - you know, you recognize the need to improve there, and that's the first step. You -can do more in that area. There are opportunities available. Continue to - to look at those. Self-help, I think that's an area that you could have done a lot more. I think you've gained a lot of insight into yourself. You've done it all - a lot of it on your own. Maybe some of these classes have - have helped you think about things, but, you know, you have been down for a long time, you have thought a lot about what got you here. You might have been able to get there faster had you more actively participated in some of these groups. You know, we talked a lot at your hearing about, okay, where does your strength come from. A lot of your strength comes from yourself. Well, it sometimes helps to have some friends around you to help you along the way. People are still - you're going to move back to your same neighborhood, people are still committing murders out there, and who are you going to rely upon when maybe the job doesn't come through, or things don't happened that you - the way you want to? Who are you going to fall back on, okay? Some people do it through things like NA/AA, some people do it by church, some people have lots of family members around they can rely upon. There's a lot of different resources. You - you would get there faster and you would - you would get some support if you - if you look for other people to help you out along the way, if you understand what I'm saying. We've also considered - we've considered the psychological reports, and they always characterize their prognosis for you in terms of, "The inmate looks good, providing he, you know, doesn't get in trouble with drugs or - or, you know, he makes good decisions, or has a stable job and family," meaning you're going to be - do - do--fine if the gains that you've made here translate on the outside. Well, sure, you know, (indiscernible) live forever. You need to develop those resources on the outside. You know, in your parole plans you talked about the fact that you have marketable skills. What you've not been able to do is translate those more to tangible places that you're going to work. You still have a place to live with your family, but in terms of work and support, that's kind of the big thing that needs to be filled in in [sic] your presentation, okay. There are resources here that will not only give you the skills but also help you to send that resume out to people. Maybe you'll get -you'll get lots of "fine, you look good, talk to us when you get out." You - you know, it's doubtful that you're going to get firm commitments, but at least you demonstrate that you know where to look and you know where to send that resume, but by just sending to somebody, you can then later go, "You remember me? I sent you a resume four or five times," and somebody'll [sic] go, "Oh, yeah, you're the guy who's in prison, right? You do look pretty good. Do you got [sic] any other letters of recommendation" You start to lay the foundation, okay, so that somebody is going to hire you. You don't have to start cold. Right now you pretty much have to start cold. If you're looking at the union, Longshoreman's Union, you think like you really wanted to go there, but if that is a possibility, get a letter from them. Make some connections on the outside. Start thinking of yourself as somebody who can and at some point will get out, and then take that mindset and put it to work, utilizing skills on the outside, okay. You don't have to be religious, but if you are religious, find a church and find a sponsor on the outside. If AA is something that you're going to work with, or some other support group, you know, find a sponsor out there. Halfway house a great vehicle to help you transition to the outside. There's [sic] good ones in your area. Talk to some of the chaplains here, or talk to somebody here, identify who they are. You recognize the need that because you've been down for a long time that that transition is not going to be easy, but make some connections with people who can make it easier for you. Like I say, start viewing yourself as somebody who can and will get out of here if you apply yourself, you know? Don't think of yourself as a - a life inmate here, think of yourself as an outside person, but then demonstrate not just for the Board - because we're not going to have to work out there, you - we already have jobs, you're the one that's going to have to do it -some concrete plans as to what you're going to do as an outside person on the outside person, okay. We considered the input from the District Attorney's Office. Our denial is for one year. We frankly talked about that too, because we're certainly not - have not the ability to guarantee that you will get out in a year, about maybe a year and a half, because there's some things we want to see you work on right here. I don't know what next time the Board is going to do, but the bottom line is, you did favorably impress as somebody not just who's been down for a long time, you have been down for a long time, you know, you're a life inmate and so, you know, there's no guarantee of getting out, but you have been down for a long time and done some positive things, wow [sic] got to dot the I's and cross the T's, make that transition into a person that's suitable on the outside. Let me turn it over to my colleague for any additional comments that he has.
DEPUTY COMMISSIONER SMITH: A couple of 12 the - the concerns that I had was, you know, you've had a number of parole hearings, you know, this is your eleventh, and as we discussed, you know, you've been - and you confirmed you've been told about the necessity of having firm parole plans.
The fact that you haven't put firm parole plans together, you know, makes me wonder a little bit how much you're - you're paying attention to the recommendations that have been made to you by prior Boards. The - INMATE SHARP: Well, one thing -DEPUTY ...