Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Petitioner has consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c). See Doc. No. 4.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
I. Petition for Writ of Habeas Corpus
In 2006, petitioner was convicted and sentenced in the Los Angeles County Superior Court for committing a lewd act upon a child under the age of fourteen in violation of California Penal Code § 288(a), with a sentencing enhancement for causing great bodily harm in violation of California Penal Code § 12022.8. The great bodily harm enhancement was based on a finding that the victim of the offense contracted genital herpes from petitioner.
In his pending application for federal habeas relief petitioner asserts that he is challenging the January 8, 2009 decision of the California Board of Parole Hearings (BPH) finding him unsuitable for parole. Petitioner presents the following two grounds for relief:
Ground 1: The state post conviction procedures was [sic] fundamentally inadequate/constitutionally insufficient to vindicate the denial of petitioner's substantive due process rights.
Ground 2: The state court decision approving the board decision rejecting parole is based on an unreasonable determination of the facts in light of the evidence (Doc. No. 1 at 12 & 22.) With respect to his first ground, petitioner argues that his due process rights were violated when the state courts and the BPH failed to address his claim that the prosecutor lied about his genital swab test and blood test results in order to wrongly convict petitioner. (Id. at 15.) Instead, according to petitioner, the Los Angeles County Superior Court and the California Court of Appeal merely found that there was "'some evidence'" to support the BPH's decision to deny parole. (Id.)*fn1
As to his second ground for relief, petitioner challenges the decision of the BPH denying him parole and the state courts' affirmance of that decision as unreasonable in light of "undisputed clear and convincing evidence" that the trial prosecutor in his case lied and that as a result petitioner was wrongly convicted. (Id. at 22.) Again, petitioner refers to his allegation that the and the prosecutor engaged in misconduct by misrepresenting the genital swab and blood test results. Petitioner also disputes the BPH's assessment of his commitment offense, as well as his lack of insight, criminal history and institutional conduct in denying him parole. (Id. at 23-25.)
Petitioner has attached excerpts of his parole hearing transcript to his habeas application before this court. Although incomplete, those hearing transcript excerpts reflect that at his 2009 parole suitability hearing petitioner made a lengthy statement in support of his release on parole in which he argued that "relevant, reliable information" showed that he did not test positive for genital herpes, that no written report exists for the genital swab test that was supposedly administered to him, that his blood tested negative for IGM antibody, and that the prosecutor lied about these test results. (Id. at 79-80.) Petitioner's statement to the BPH panel was interrupted by the presiding commissioner, who cautioned petitioner, "Sir, you've moved away from your suitability for parole. You're starting to make accusations and retry your own case." (Id. at 80.) However, the transcript reflects that petitioner failed to heed this advice and continued to advance his arguments, as follows:
I believe that it's way past time to erase this fantasy and false insight and to instead deal in the reality and truth that I do not have genital herpes, I did not test positive for genital herpes and they lied about my test results to wrongly convict me.
To not give me a date because I refuse to lie about these basic and fundamental truths about my case would serve only to perpetuate the corruption and lack of integrity in the criminal justice system and would be a discredit to the integrity of the Board of Parole Hearings itself. The fifth reason, last but not least, I should be found suitable for parole. I should be found suitable because doing so would be the right thing to do under the true facts of this case and doing so would comply with the statutory, that's Penal Code rule that parole is "normally to be granted at the Initial Suitability Hearing." Parole is the rule rather than the exception, and the Board's authority to make exceptions to this rule should not operate so as to swallow the rule that parole is normally to be granted. Even though I stand wrongly convicted, I have taken full responsibility for that which I stand convicted by staying alive and doing this time in peace.
Let the prosecutor keep her ill-earned conviction, but please do the right thing here and find me suitable and give me the earliest possible release date.