The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by David N. Sunada, Esq., of the California Office of the Attorney General.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his 1985 conviction in Santa Clara County Superior Court for second degree murder with use of a firearm. (Pet., Ex. B, ECF No. 1 at 66-67.) Petitioner was sentenced to an indeterminate term of seventeen years to life. (Id.)
Petitioner's minimum eligible release date was August 17, 1996. (Pet. at 10.) From 1994 to 2007, Petitioner has had six parole suitability hearings. He was found unsuitable for parole at each hearing. His first four parole determinations hearings were held in 1994, 1996, 1998, and 2000; in each of those hearings he received a two year denial. On March 27, 2002, he received a three year denial. Petitioner filed a state petition for habeas corpus with regard to the 2002 denial. The state trial court granted relief and the California Court of Appeal, Sixth Appellate District affirmed the state court opinion in a reasoned decision. In re DeLuna, 126 Cal.App.4th 585 (2005)*fn2 . Petitioner was ordered to have another hearing, which occurred on April 27, 2005. Petitioner received a one year denial. Nevertheless, Petitioner did not receive his sixth parole determination hearing until May 30, 2007, two years later. Petitioner was again denied parole at the May 30, 2007 hearing.
In the instant petition, Petitioner does not challenge the validity of his conviction but presents two other claims. First, he challenges the Board of Parole Hearings' (Board) May 30, 2007 decision finding him unsuitable for release on parole. He claims that his due process rights were violated because that decision was not supported by some evidence. Second, Petitioner claims that the actions of the Board serve to nullify and violate the terms of his plea agreement.
On January 2, 2008, Petitioner filed a state petition for writ of habeas corpus in the Santa Clara County Superior Court challenging the Board's 2007 decision. (Answer, Ex. 1, ECF No. 12-1.) On March 17, 2008, the Superior Court denied the petition. (Id. at Ex. 2, ECF No. 12-4.) On April 9, 2008, Petitioner filed a state petition with the California Court of Appeals, Second Appellate District. (Id. at Ex. 3, ECF No. 12-5.) The petition was denied on October 10, 2008. (Id. at Ex. 5, ECF No. 12-10.) Finally, Petitioner also filed a petition with the Supreme Court of California on November 13, 2008, which was denied on May 18, 2009. (Id. at Exs. 4, 6, ECF No. 12-8, 12-11.)
Petitioner filed the instant petition for writ of habeas corpus on June 22, 2009. Respondent filed an answer to the petition on July 2, 2010, and Petitioner filed a traverse on August 5, 2010.
II. STATEMENT OF FACTS*fn3
On July 7, 1985, defendant, then age 30, and his friends argued with the victim and his friends in a restaurant bar in Morgan Hill. Defendant said he was challenged to fight, so he went outside, where the victim, Fernando Renteria, then age 41, hit defendant in the face once or twice without provocation. They all went back inside the bar and continued drinking. Defendant and his friends left.
Defendant retrieved a .22-caliber rifle and drove back to the bar. As Renteria was about to enter his own car, defendant drove up and both defendant and his passenger began shooting at Renteria. Renteria was shot in the right elbow. He fell down, got up, and challenged them to kill him. Renteria was shot in the face. Renteria walked through the parking lot, spitting blood and tooth fragments. Defendant followed him and fired a shot that struck a nearby gas pump. Renteria called for his brother and walked among wooden boxes in the parking lot. He was killed by a shot in the back that perforated his thoracic aorta and left lung. After this shot, Renteria ran up to the restaurant door and collapsed. Defendant drove off and was taken into custody later the same night. Defendant attributed the shooting to his intoxication...
On August 29, 1985, defendant pleaded guilty to second degree murder and admitted that he personally used a firearm. On October 11, 1985, pursuant to the plea agreement, defendant was committed to prison for the indeterminate term of 17 years (15 plus two for the firearm use) to life. Defendant's minimum eligible parole date was August 17, 1996.
A. Standard of Habeas ...