FINDINGS AND RECOMMENDATIONS
Petitioner, Clarence Edward Young, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate sentence of twenty-two years to life following his 1987 conviction in Fresno County Superior Court for second degree murder with two penalty enhancements. Here, Petitioner does not challenge the constitutionality of that conviction, but rather, the execution of his sentence, and specifically, the August 23, 2007 decision by the Board of Parole Hearings finding him unsuitable for parole.
Petitioner alleges five grounds for relief in his pending petition. Specifically, Petitioner's claims are as follow:
(1) His commitment offense does not constitute "some evidence" to support the Board's August 23, 2007 denial of parole.
(2) Denial of parole based an immutable factors, specifically Petitioner's commitment offense, violated his right to due process of law.
(3) The Board failed to consider all relevant and reliable information in making its determination that he was unsuitable for Parole.
(4) Section 2402(c)(1) of the California Code of Regulations is unconstitutionally vague, and therefore void.
(5) The Board violated the Separation of Powers Doctrine by appropriating to itself absolute power over parole matters.
Since the allegations in Petitioner's first three claims all assert due process violations in relation to the sufficiency of the evidence supporting the Board's decision, they will be addressed together herein as a single issue in section (V)(A), below. Petitioner's claims four and five are considered separately in sections (V)(B)(1) and (V)(B)(2), respectively. After careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpusrelief be denied.
The basic facts of Petitioner's life crime were summarized by the Presiding Commissioner at Petitioner's parole hearing as follows:
On July 31, 1986 at approximately 4:49 p.m. Fresno County police officers were dispatched to 1425 [North] Ninth Street . . . Upon arrival officers observed a large group of people standing around an orange Dodge two-door coup parked in the northeast corner of the apartment complex. A serious disturbance had occurred between white and black men armed with guns and baseball bats. People began yelling that a man had been shot in the face and needed a doctor. Located within the vehicle was witness Rosemary Richmond, who was sitting in the front passenger seat holding a male subject on her lap. The victim was later identified as Vernon Lawrence Witcher . . . The police observed that the victim was unconscious and bleeding badly from the face. The paramedics were called and responded to the scene. They administered first aid and transported the victim to the Fresno Valley Medical Center, where he subsequently died. Dr. C.P. Nelson, pathologist, stated that the cause of death was a bullet hole in the head. The driver of the vehicle that drove into the apartment complex where the incident took place was identified as Clarence Young. The investigation revealed that Young took one step back, then raised his hand directly in the face of victim Vernon Witcher, and fired one shot into his face. The death of Vernon Witcher was a culmination of a racial frackus between a group of white and black persons who had been drinking alcohol in the apartment. Young was said to have been drinking beer and brandy that day by witness Ronny Lewis. Young also was seen leaving the apartment holding a dark blue steel .25 automatic handgun. . . . .
Young stated that he did not murder Vernon Witcher. Young stated, "It was Ronny Lewis that had shot the victim. Although I deny committing the murder, I do admit to being responsible for the death of the victim." A white male and white female were walking on the street in Fresno, who made disparaging remarks to Young and his friends. Young stopped his vehicle and a physical confrontation occurred with one of his friends and the white male. They drove off and later discovered each other out at an apartment complex. Young stated the white men came in and started beating on the door and challenged Young and his friends to fight. Young stated one of the white men was armed with a bat. He observed the other persons in his group to have guns. He stated the whites would not leave and continued to harass the blacks. Young heard a shot, saw the victim fall, and then ran. (Parole Hr'g Tr. 11:19-14:12, Aug. 23, 2007, Pet. Ex. A)
Following a jury trial, Petitioner was convicted of second degree murder with penalty enhancements for using a firearm and for a prior felony conviction. He was sentenced to twenty-two years to life in prison. Petitioner's minimum eligible parole date passed on December 21, 2000. On August 23, 2007, Petitioner appeared before the Board of Parole Hearings (the "Board") for his fourth subsequent parole hearing. After considering various positive and negative suitability factors, including the nature of the commitment offense, the panel concluded that Petitioner would pose an unreasonable risk ...