The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge
REPORT AND RECOMMENDATION TO TERMINATE STAY AND TO DENY HABEAS CORPUS PETITION
THIS MATTER comes before the Court on Petition For Writ of Habeas Corpus pursuant to 28 U.S.C. -§ 2254 (Ct. Rec. 1, 7). Petitioner Leonard Halfin is proceeding pro se. Respondent is represented by Robert C. Cross, a Deputy Attorney General for the State of California.
Halfin is a state prisoner currently in the California Department of Corrections and Rehabilitation, incarcerated in Vacaville, CA.
After entering a negotiated guilty plea *fn1
Halfin was found guilty of second degree murder and
sentenced on December 10, 1990, in Alameda County Superior Court to
fifteen years to life (Ex. A). Halfin does not challenge his
conviction and sentence in these proceedings.
On October 28, 2004, Halfin attended a parole consideration hearing. The Board of Prison Terms (BPT) denied him parole (Ex. B at 57).
Halfin timely filed a petition for habeas corpus relief in the Alameda County Superior Court. The Superior Court denied Halfin's petition, finding that the record before the Board fully supported their findings and conclusions. The court cited In re Rosenkrantz, 29 Cal. 4 th 616, 652, 658, 682 (2002) in support of its decision. (Ex. D, Alameda Superior Ct. Order dated March 8, 2005).
After receiving the Superior Court's denial, Halfin filed a petition in the California Supreme Court. Citing In re Rosenkrantz , 29 Cal. 4 th 616 (2002), and In re Dannenberg , 34 Cal. 4th 1061 (2005), the petition was summarily denied. (Ex. E, Supreme Ct. Den. of Habeas Corpus Pet. dated February 8, 2006.)
Halfin timely filed this petition on May 18, 2006 (Ct. Rec. 10, amended on January 31, 2007 (Ct. Rec. 7). This matter was stayed by the Court pending the issuance of the mandate by the en banc panel of U.S. Court of Appeals for the Ninth Circuit in Hayward v. Marshall , 603 F.3d. 546 (9 th Cir. 2010)(Ct. Rec. 21). The Court of Appeals has rendered its decision in Hayward . The Court now recommends terminates the stay and deciding the case.
The transcript of the record made before the Board reflects that the facts underlying the commitment offense and admitted by Petitioner are: On August 10, 1990, Halfin and two other men went to a home to kill a witness, a fifteen year old girl. "Clinton Thomas wanted to rob a rival drug dealer who lived in the Brookfield Village area of Oakland, California. He wanted to take his money and drugs. Thomas persuaded [petitioner] Leonard Halfin and Derrick Williams to help him. Thomas told Derrick Williams that Natasha Delone would be at the residence and that she was a snitch. . . Natasha Delone had told the Oakland Police about a murder Derrick Williams had committed on March 31, 1988, in which he shot Bruce Barton to death. Derrick Williams wanted to kill her so she could not testify against him in court.
The three of them planned the crime as follows. Thomas was to break in through the front door and secure the [front] part of the residence with his weapon, a nine-millimeter automatic pistol. Halfin and Williams were to enter the residence to do a room to room search for Natasha Delone. If and when she was found, Halfin was to say, okay, J-Dove, handle your business. This was the signal for Derrick Williams to shoot Natasha Delone. The three disguised themselves by dressing in old clothing and masks and carried out their plan. Halfin was armed with an Uzi submachine gun and Williams with a .38 revolver. After . . . carefully and methodically executing their plan, shooting and killing Natasha Delone, the three of them left the residence. Derrick Williams later admitted that when he and Halfin found Natasha, she raised her hand in surrender and stated -- and started shaking. He then shot her once in the chest. At the time of the murder, Natasha Delone was 15 years old. Leonard Halfin was 18 years old. Clinton Thomas was 16 years old. Derrick Williams was 16 years old."
Presiding Commissioner Welch: "... Were you involved in this murder?"
Inmate Halfin: "Yes, Sir." "I was 17." (Ex. B, Hearing Transcript at 12-14). Halfin admitted at the time of the killing, he was a gang member who had been selling cocaine for two years (Ex. B, Hearing Transcript at 17-18)
Halfin challenges the Board's determination that he was unsuitable for parole. Halfin alleges three ...