FINDINGS AND RECOMMENDATIONS
Petitioner Steven Prellwitz, a state prisoner proceeding without counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted of two counts of second degree murder in the Santa Clara County Superior Court. He challenges a December 13, 2005 decision by the Board of Parole Hearings (hereinafter Board) finding him unsuitable for parole.
II. PROCEDURAL BACKGROUND
Following a December 13, 2005 parole suitability hearing, the Board concluded that petitioner would pose an unreasonable risk of danger to society or a threat to public safety if released from prison and thus that he was unsuitable for parole. Dckt. No. 8, Attach. 3, at 75.*fn1
In support of its decision, the Board made findings that petitioner's crime was carried out in an especially cruel and callous manner, that he attacked, abused and mutilated multiple victims, that the offense demonstrated an exceptionally callous disregard for human suffering, and that the motive for the crime was inexplicable or very trivial. Id.
Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the Santa Clara Superior Court on May 2, 2006. Dckt. No. 8, Attach. 5, at 6. The Superior Court denied the petition on June 30, 2006, in the last reasoned state court decision applicable to these claims. Id. at 2-4. The Superior Court held:
The habeas corpus petition of STEVEN A. PRELLWITZ is hereby denied. While Petitioner is correct that the Board was not entirely thorough and accurate in its examination and consideration of his parole suitability, it appears that, on balance, sufficient evidence exists such that this Court is required to deny the petition. As stated by the Sixth District: "We will uphold the denial of parole when it appears that the Board would have reached the same conclusion based on the supported factors and those factors individually or collectively justify that conclusion." (In re DeLuna (2005) 126 Cal.App. 4th 585, 598.) The instant case presents such a situation.
The most glaring error by the Board is its finding that "the motive for the crime was inexplicable or very trivial in relation to the offense as it involved a real estate deal." This is a misconstruction of evidence. The "real estate deal" was not the motive for the crime but rather was the proverbial final straw which, added to the years of dysfunctional interactions with his family, caused Petitioner to finally snap. As noted by the Forensic Psychologist, "the origins of his life crime lie deep in the roots of this family's history" and "cumulative stress" was a central "causative factor" in this case. For the Board to overlook this uncontroverted evidence was error. As noted by the Court of Appeal in the matter of George Scott: "under the regulations, the undisputed evidence [Petitioner] committed his offense while under emotional stress should have been, but was not, considered in his favor." (In re Scott (2004) 119 Cal.App.4th 871, 890.) Petitioner's situation does not appear to be very distinguishable.
Another error of the Board's is its reliance on a subjective impression that Petitioner "need[ed] to do more time." Both Board members stated: "How much time is enough? We don't know." Pursuant to In re Dannenberg (2005) 34 Cal.4th 1061 the Board is not supposed to consider proportionality (i.e. how much time an inmate has served) and instead must examine each case and inmate individually to determine whether he is "presently unsuitable" and a "continuing danger." (Emphasis added.) However in this case the Board, to some extent, did not make its determination based on Petitioner's present dangerousness but instead based on an impression that Petitioner needed more punishment. This was error because the Judicial Branch sets the sentence, the Legislative Branch, through the statutory provisions for custody credits, essentially sets the MEPD, and the Executive Branch's duty thereafter is to determine, without regard to punishment, parole suitability based on the individual's current level of dangerousness. In the numerous habeas petitions this Court has seen the Attorney General consistently asserts that the amount of time/punishment is not a proper consideration under the controlling regulations. The Board should not have relied on this factor in the instant case.
Despite the above errors, the Board appears to have thoughtfully approached this difficult case and the Board's partial reliance on the prolonged nature of Petitioner's attacks along with the undeniable presence of unsuitability criteria § 2402, subd.(c) (1)(A) Cal. Code Regs. title 15, (multiple victims were attacked, injured, or killed in the same or separate incidents) satisfies Due Process.
Petitioner next challenged the Board's decision in a petition for writ of habeas corpus to the California Court of Appeal for the First Appellate District, which was denied without prejudice to refiling in the Sixth Appellate District. Dckt. 8, Attach. 6, at 70. The California Court of Appeal for the Sixth District summarily denied petitioners re-filed petition on August 22, 2006. Dckt. 8, Attach. 7, at 9. The California Supreme Court denied a petition for review. Dckt. No. 1 at 77.
On January 8, 2007, petitioner filed his federal petition for writ of habeas corpus. Dckt. No. 1. On March 3, 2009, the then-assigned magistrate judge issued findings and recommendations recommending that the petition be granted as to petitioner's due process claim and that the Board of Parole Hearings be ordered to conduct a hearing in compliance with the recommendations within 90 days of any order adopting the findings and recommendations. Dckt. No. 19. On May 21, 2009, the findings and recommendations were adopted and the Board was ordered to conduct a new parole suitability hearing complying with recommendations given therein within 90 days. Dckt. No. 22. On September 21, 2009, respondent filed a notice of compliance with the Court's May 21, 2009 order, indicating that on September 9, 2009, the Board held a new parole suitability hearing consistent with the court's order and found petitioner unsuitable for parole. Dckt. No. 28.
In the meantime, respondent filed an interlocutory appeal to the United States Court of Appeals for the Ninth Circuit. Dckt. No. 23. On September 22, 2011, the Ninth Circuit dismissed the appeal for lack of appellate jurisdiction because this Court's order did not dispose of the action as to all claims and therefore was not final. Dckt. No. 29. The judgment took effect on October 14, 2011. Dckt. No. 30. Thus, the petition remains pending in this court. For the ...