The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge
REPORT AND RECOMMENDATION RE:
PETITION FOR WRIT OF HABEAS
On January 14, 1979, Barbara Romero, Lilia Vasquez, Olivia de la Rosa and Alice de la Rosa were with five other women at Vasquez's home. Pet. Ex. 4 14:8-13. The group heard dogs barking at about 10:00 p.m., and exited the house to find Petitioner standing near Vasquez's van, with the driver's door ajar. Pet. Ex. 4 14:14-22. Vasquez looked in the vehicle to see if anything was missing and asked Petitioner what he was doing. Pet. Ex. 4 14:24-26. She then shut the vehicle's door and returned inside the house. Pet. Ex. 4 14:27-15:2.
Alice de la Rosa arrived at the home several minutes later, and saw Petitioner loitering in the area. Pet. Ex. 4 15:2-5. The four women went outside to confront Petitioner; two held his shoulders while a third checked his pockets, and found an item they believed to be from Romero's vehicle. Pet. Ex. 4 15:6-13. At this time, the women lifted Petitioner's shirt, and discovered a knife in the waistband of his pants. Pet. Ex. 4 15:14-17. One of the women yelled for someone to call the police. Pet. Ex. 4 15:20-21. Petitioner then used the knife to stab all four women, in the chest, abdomen, and arms, killing Romero and injuring the other three. Pet. Ex. 4 15:26-16:18. When police located Petitioner that evening at around 11:30, they recovered a 13-inch buck knife, as well as blood-stained clothing previously reported as being worn by Petitioner. Pet. Ex. 4 16:24-17:16.
Petitioner pled guilty on October 15, 1980 to second degree murder and three counts of assault with intent to commit murder. Pet. 1:22-23. He was sentenced to 15-years-to-life in prison for the murder count, with concurrent determinate sentences of seven years to run for each of the assault counts. Pet. 1:24-25. An additional one-year sentence was imposed but stayed, pursuant to California Penal Code Section 12022(b), because Petitioner used "a deadly or dangerous weapon in the commission of a felony." Pet. 1:25-2:1.
Petitioner was eligible for parole after serving ten years of his sentence. Pet. 2:7-8. His first parole suitability hearing took place in May 1989, and parole was denied. Pet. 2:8-10. The California Board of Prison Terms ("the Board") continued to deny Petitioner parole at every subsequent hearing, the last of which took place on February 17, 2005, and denied parole for three years. Pet. 2:10-2:11; Pet. Ex. 4 79:8-9. The Board concluded in its 2005 decision that Petitioner was unsuitable for parole because he "would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." Pet. Ex. 4 76:8-11. The Board announced its decision was based on the "especially cruel and callous manner" in which the crimes were committed, the "inexplicable" motive for the crimes and their "very trivial" relationship to the offense, the lack of any "major" criminal history for Petitioner, and his "unstable social history" of using drugs and alcohol. Pet. Ex. 4 76:11-12, 76:18-20, 77:7-8, 77:9-11.
Petitioner filed a habeas petition with the California Supreme Court on June 14, 2006, which was summarily denied on January 24, 2007. Pet. 2:12-13; Pet. 2:15-16. Both sides admit Petitioner has exhausted his available state court remedies, and that this petition was timely filed. Pet. 2:12-13; Ans. 4:20-21; Ans. 4:24. As of the filing to this court, Petitioner was in custody at California State Prison, Solano, in Vacaville, California. Pet. 1:20-21.
Petitioner claims he is being held unlawfully on the following grounds:
1. Petitioner's rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the Board determined that he was unsuitable for parole in the absence of evidentiary support in the record and a rational connection between its findings and conclusions;
2. Petitioner's rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the Board determined that he was unsuitable for parole based on his failure to meet conditions which the evidence before the Board demonstrated have already been met;
3. Petitioner's rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution were also violated when the Board, in finding petitioner unsuitable for parole, did not engage in individualized decision making, but merely implemented an unwritten policy of blanket denial of parole for virtually every prisoner who had been given an indeterminate life sentence for murder;
4. Petitioner's right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution was violated when the Board subjected him to a pro forma parole hearing in which he could not demonstrate his suitability for parole; and
5. Petitioner's right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and his rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the Board, in imposing an effective life sentence without parole upon Petitioner, took from him the benefit for which he had bargained ...