The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner Remar Salango is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, (1) the Clerk of the Court shall assign this case to a United States District Judge in accordance with the Court's general assignment plan; (2) Petitioner's requests are denied; and (3) it is recommended that habeas relief be denied.
Petitioner is currently serving a sentence of eighteen years to life following his 1991 conviction for second degree murder in the Kern County Superior Court.*fn1 Resp't's Answer Ex. A, at 30, ECF No. 7.*fn2 Petitioner is not currently challenging his conviction; rather, the instant petition challenges the decision by the California Board of Parole Hearings (the "Board") denying Petitioner parole. Petitioner appeared before the Board on January 3, 2008.
On March 19, 2008, Petitioner filed a petition for writ of habeas corpus with the Kern County Superior Court challenging the Board's decision. See Resp't's Answer Ex. A. On May 20, 2008, the Superior Court issued a reasoned opinion denying the petition. See Resp't's Answer Ex. B. Petitioner sought relief in the California Court of Appeal, Fifth Appellate District, and the California Supreme Court; those petitions were likewise denied, but without written opinions. See Resp't's Answer Exs. C-F.
On January 6, 2009, Petitioner filed a federal petition for writ of habeas corpus. See Pet'r's Pet, ECF No. 1. On August 18, 2009, Respondent filed an answer to the petition. See Resp't's Answer. On September 3, 2009, Petitioner filed his original traverse. See Pet'r's Traverse, ECF No. 8. On December 8, 2009, Petitioner filed an amended traverse and a motion requesting nunc pro tunc acceptance of his traverse. See Pet'r's Am. Traverse, ECF No. 9; Pet'r's Mot. Requesting Nunc Pro Tunc Acceptance of Pet'r's Traverse, ECF No. 10. On January 28, 2010, the assigned United States Magistrate Judge at the time, the Honorable Kimberly J. Mueller, granted Petitioner's motion for acceptance of the amended traverse. See Order 1, Jan. 28, 2010, ECF No. 12.
On January 14, 2009, Petitioner consented, pursuant to 18 U.S.C. § 636(c)(1), to have a Magistrate Judge conduct all further proceedings, including the entry of final judgment. See Pet'r's Consent, ECF No. 3. Respondent, however, never responded to the "Consent Deadline set for 7/22/2009" issued by the previously assigned Magistrate Judge. See Order, Jan. 7, 2009, ECF No. 4. This case is submitted for decision but is currently unassigned to a United States District Judge. Since Respondent did not indicate his consent to jurisdiction by a United States Magistrate Judge, the Clerk of the Court shall assign this case to a United States District Judge in accordance with the Court's general assignment plan.
A. Commitment Offense*fn3
On July 12, 1990, [P]petitioner fatally shot David Velasquez in the back. Velasquez, sixteen years old[,] died in the hospital due to a pulmonary hemorrhage.
Petitioner admitted to being a member of the Manila Boys, a Filipino gang who had a rivalry with the SIG gang[,] another Filipino gang.
Petitioner related to the Detective that he was driving home from a prayer meeting, and someone informed him that there were SIG gang members in a pickup truck. Petitioner was accompanied by a John Bunnot among other passengers. Petitioner shot through the driver side door with a pistol hoping to scare the "gang members[.]" Instead, David Velasquez was mortally wounded. Petitioner was tried as an adult and sentenced to the above-mentioned term on April 11, 1991, after pleading guilty on November 9, 1990.
B. Petitioner's Background
Petitioner was seventeen years old and had no record when he committed the commitment offense. Resp't's Answer Ex. A, at 49. Petitioner "had a couple drinks one time" at a party, but otherwise had "no drug or alcohol use to speak of." Id. at 52-53. Petitioner felt he had no friends, and when the SIG gang tried to recruit him, he refused, so "that meant the Manila Boys thought [he] was their friend." Id. at 52.
Petitioner was born and raised in the Philippines. Id. at 49. "Traumas in childhood include his mother dying in a car accident and him witnessing the death when he was 13 or 14." Id. at 145. Petitioner, along with his father, two brothers, and one sister, moved to Delano, California, when he was sixteen years old. Id. at 49-50. His grandparents raised him, and his father went to work in Alaska. Id. at 51. At the time of the hearing, one brother was a welder in Delano, and the other brother worked in Alaska "for six to nine months and comes back to Delano." Id. at 54. Petitioner's sister was a nurse and also lived in Delano. Id. Petitioner's father remarried, and Petitioner also had two half siblings, twins, with whom he said he is close. Id. at 56. The twins were nine years old at the time of the hearing. Id. Petitioner still received visits from friends and family. Id. at 54-55. "All of his family are law abiding, productive people in the community." Id. at 119.
2. Education, Self-Help Programming, and Vocational Training Petitioner completed eleven years of school when he committed the commitment offense. Id. at 145. Petitioner "received his high school diploma in Youth Authority [in 1993] and he has 44 units of college programming." Id.; see id. at 62, 125. Petitioner was "around 20 units short of an AA." Id. at 125. Petitioner received an award for academic excellence, dated July 17, 2006. Id. at 65. Petitioner also received a certificate from the University of Pacific where he attended a few courses, including American Democracy and Introduction to Social Psychology. Id. at 66-67. At the time of the hearing, Petitioner was taking college courses out of Coastline Community College. Id. at 70.
Petitioner performed well in prison. See, e.g., id. at 62-66, 124-26. Petitioner completed numerous self-help programs, including Alcoholics Anonymous (AA) and Narcotics Anonymous (NA);*fn4 Men's Violence Prevention; Relationship Awareness; Parenting Classes;*fn5 a ninety day bible study course called Men of Purpose; a faith base group; Victim Awareness in 1995; eleven programs in Set Free Prison Ministries, with a grade of more than ninety percent, on April 6, 2005; Man Alive on May 31, 2005; Phases in March 2006; a Stress Management Program on June 22, 2006; and Forty Days Purpose in September 2006. See, e.g., id. at 63-66, 68-69, 117. Petitioner completed seventeen FEMA programs. Id. at 70.
Petitioner also received excellent work reports. Id. at 64. Petitioner received a Vocational Welding Certificate. Id. at 60. Petitioner "ha[d] Building Maintenance too," and was "in a vocation class" for Office Services and Related Training. Id. The Board acknowledged that "welding is one of the few vocations that the prison system ha[s] . . . that you can really go out and get a job at." Id. at 132. Ultimately, Petitioner wanted to pursue a degree in social science and become a counselor for kids through a "Christian based counseling course." Id. at 93.
3. Prior Criminal History
As stated earlier, Petitioner was "17 at the time of this commitment offense [and he] ha[d] no other record." Id. at 48.
4. Prison Disciplinary History
A 115 violation indicates a serious rules violation. CAL. CODE REGS. tit. 15, § 3312(a)(3) ("When misconduct is believed to be a violation of law or is not minor in nature, it shall be reported on a CDC Form 115 (Rev. 7/88), Rules Violation Report." (emphasis added)). Petitioner has no 115 violations. Resp't's Answer Ex. A, at 59.
Additionally, a 128 violation indicates minor misconduct. CAL. CODE REGS. tit. 15, § 3312(a)(2) ("When similar minor misconduct recurs after verbal counseling or if documentation of minor misconduct is needed, a description of the misconduct and counseling provided shall be documented on a CDC Form 128-A, Custodial Counseling Chrono." (emphasis added)). Petitioner received two 128 violations. Resp't's Answer Ex. A, at 59. "One was on November 29, 1999[,] for covering [his] windows[,] and the other one was November 8, 1999[,] for Delaying Count." Id. When rendering its decision, the Board commented that Petitioner's "institutional behavior is exemplary. That's a good thing." Id. at 124.
5. March 21, 2005, Psychological Report
At the hearing, the Board also reviewed Petitioner's most recent psychological report, dated March 21, 2005. Id. at 71. The Board addressed the discrepancy between Petitioner's psychological report alleging Petitioner abused alcohol, Petitioner's denial of it, and his participation in AA and NA. Compare id. at 73, 146-47 (psychological report alleging Petitioner "began drinking at the age of 16," was affected by "his substance abuse at the time," and had "[a]lcohol [a]buse, by history"), with id. at 53, 73 (Petitioner stated he had no drug or alcohol use and was sober during the commitment offense), and id. at 63, 67, 145 (Petitioner participated in NA and AA). The two previous Boards also raised concerns over this discrepancy, id. at 75, and Petitioner's attorney explained that parts of the psychological report appeared "cut and paste."
Id. at 77, see also id. at 117. Petitioner reiterated he does not have issues with alcohol, and "all lifers are required to take the self-help programs even if you don't have an alcohol or drug problem." Id. at 74. Petitioner also stated he learned that "the most single important [thing] about AA is don't drink. There are other ways that you can . . . solve the problem without resorting to alcohol or drugs." Id. at 68.
The Board acknowledged that "[t]he other part of the psychological evaluation . . . [that] is important for this hearing is the assessment of dangerousness." Id. at 73. The report stated Petitioner's "criminal history would not be an aggravating factor," and his "rating on the historical factors would be in the low range in terms of risk of dangerousness in comparison to inmates with similar crimes." Id.
C. January 3, 2008, Board Decision
The Board denied Petitioner parole for a period of one year. The Board explained, in relevant part:
Petitioner, this Panel's reviewed all the information received and we've relied on the following circumstances in concluding you are not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.
You presented very well today and we have many, many issues to commend you on. First of all, your disciplinary behavior is excellent. You have no 115s and you've only had a couple 128s and I will get into that.
We're giving you a one year denial. You had a two year denial last time. A one year this time and we're going to give you some suggestions to kind of help keep you going in the same direction you're going in First of all we do talk about the commitment offense. I took the statement of facts from the Board Report dated April 12th, 2007, page1.
Where we get hung up on with you[,] [Petitioner], is that the statement of facts doesn't match with what you say or match with a variety of things that you have said. But Commissioner Welch has some really good ideas for you in that arena so when we get to him momentarily I'll have him elaborate on that for you, all right? But, you know, that this statement of facts indicates that on July 12th, 1990[,] you were involved in a shooting. You indicate to us that you had gone to church with a friend who was driving a church van, Mr. Bun[n]ot, and gone to a church meeting, and you came out and there w[ere] four people waiting so there was six of you in the van.
Somebody had a gun but you're not quite sure who, and that's one of the issues you need to work on. But somehow you ended up with the gun and shooting a young man . . . . You thought you were shooting in retaliation to being harassed and victimized by the SIG gang members but in fact you shot at and through a team of baseball players and . . . [by] the grace of God only one person died because a lot more could have.
The offense was carried out in a manner which demonstrates disregard for human suffering. We're having a great deal of trouble here with you[,] [Petitioner], when it comes to your description of the commitment offense and why a young man like you, going to church or coming back from church[,] would even align yourself with those kinds of influences.
I think we have some understanding of that if you were harassed and . . . I would like to believe you were an innocent among those less innocent. I'm just not sure at this point. . . .
The motive for this crime as best as we can figure out through you and through what we read was that it was a retaliation of sorts because you had gotten tired of being intimidated. And you have absolutely no prior record. . . . .
Your institutional behavior was exemplary. That's a good thing. You have a classification score of 19. You have received absolutely no 115s. You have received two 128As, both of them back in 1999. That ...