The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, convicted of first degree murder and sentenced to a term of seven years to life in San Mateo County Superior Court in 1999, challenges the 2009 decision by the California Board of Parole Hearings (BPH), finding him unsuitable for parole.*fn1 Petition (docket # 4), p. 2; Parole Hearing Transcript (docket # 17-1), p. 4; (docket # 17-2), pp. 37-44. By order filed on September 14, 2011, for reasons set forth therein, the court dismissed five of the six grounds petitioner raised, allowing him to proceed only as to ground two (2),*fn2 wherein petitioner contended that BPH in 2009 violated an agreement with the BPH legal department to allow petitioner to present all the facts after delaying the hearing for a year, violating petitioner's due process rights. Petition, pp. 4, 11, 27-28.*fn3
As to petitioner's second ground for relief, however, he contends that the BPH had agreed through its legal department in 2008 to delay his hearing for a year in order to allow petitioner to present all the post-conviction exculpatory information with regard to the commitment offense, i.e, in support of his claim of innocence. Petition, pp. 5, 27-28. However, the BPH panel, according to the petitioner, stopped petitioner before he was able to make his full presentation to which both he and his counsel objected on the record. Id. Because no copy of the hearing transcript is provided, the court is unable to determine whether this ground implicates the question of whether petitioner "received adequate process" on the basis that he was not "allowed an opportunity to be heard." Swarthout v. Cooke, at 862.
Order, filed on Sept. 14, 2011, pp. 7-8.
Pending before the court is respondent's motion to dismiss, filed on November 7, 2011 (docket # 17), to which petitioner filed his opposition on December 12, 2011 (docket # 19). Motion to Dismiss
Petitioner contends in his remaining ground that at the 2008 BPH hearing, the commissioner "in the interest of justice" and "at the behest of the deputy district attorney" advised a delay of that hearing so that the legal department would be able "to review the new exculpatory facts in preparation for the next hearing." Petition, p. 27.*fn4 Petitioner maintains that notwithstanding the commissioner's having "specifically guaranteed" him "the right to make a full and complete presentation," the commissioner at the 2009 BPH parole hearing "stopped petitioner from completing his presentation." Id. As a result based on the agreement in 2008, petitioner argues, his right to due process was violated at the 2009 BPH hearing. Id.
With the motion to dismiss, respondent submits the transcript of the 2009 BPH hearing. MTD, Exhibit (Ex.) 1. Respondent contends that petitioner fails to state a cognizable federal habeas claim inasmuch as the 2009 BPH panel did receive and consider the documents submitted by petitioner as evidence of his innocence and allowed him to discuss the allegedly exculpatory evidence at length. MTD, p. 2, citing Ex. 1 at 7-18, 25-31. Respondent maintains that the panel only stopped petitioner's testimony re: the alleged evidence because his discussion involved information irrelevant to a determination of his parole suitability. Id. According to respondent, notwithstanding the BPH panel's having stopped the lengthy presentation by petitioner because the hearing was becoming a re-trial of the original case, which was beyond the panel's role as correctly noted by the panel, the panel members nevertheless permitted petitioner to submit his documents for their consideration. Id., citing Ex. 1 at 32-35. Thus, according to respondent, petitioner was provided an opportunity to be heard, which, as well as a statement of reasons for their decision which was provided, satisfies due process under Swarthout. Id.
In opposition, petitioner maintains that he was denied his due process rights because the 2009 BPH panel did not honor the commitment, at least as petitioner understood it, that was the basis for the delay of the 2008 hearing, wherein the deputy district attorney objected to facts petitioner was presenting on the basis of a lack of authentication. Opposition (Opp.), p.
2. At the 2009 hearing, petitioner read the following from what the presiding commissioner (Bryson) at the 2008 hearing had apparently stated:
All right, the court would appear to be [sic] appropriate venue, sir, however in deference to Title 15, 2236, in which written materials submitted by the prisoner under Section 2249 relating to personal culpability shall be considered, the Panel recognizes that you have put an informational document together today which we believe is incomplete and we are willing to postpone this hearing - - we are willing to postpone this hearing - - for one year to give you the opportunity to put that material together and submit it to the Board, give the Board time to, and give the Board time to review it. I have consulted with our legal division and they're willing to look that material over upon receipt of that material.
Respondent's Ex. I, p. 34.*fn5
When, however, petitioner then asked the 2009 presiding commissioner (Arbaugh) if the legal department had reviewed the material, the response was "I don't know." Opp., p. 3, citing id. Petitioner's counsel objected to such material as the probation report, district attorney's statement and judge's report at the hearing, and petitioner wanted to present the information he had submitted and additional information that emerged post-trial. Opp., at 3. Petitioner contends that as the information, including post-trial information, he had submitted had not yet been read by the commissioner, he sought to present the information at the hearing. Id. Petitioner argues that the criminal trial witnesses against him testifying under grants of immunity, on whose testimony the parole commissioner had relied in the probation report and district attorney's statement, among others, had recanted in later civil trial transcripts. Id., at 4. Petitioner does not dispute respondent's assertion that he was permitted to submit the documentation after his statement was stopped, but contends that he provided the panel with about three inches of documentation which he believes would have been "virtually impossible" for the panel to "read and absorb" in the approximately 70-minute span of time in the hearing's break. Id. It is petitioner's position that the 2009 panel was supposed to review the information he had presented prior to the hearing, which included recantation of the criminal trial witnesses in later civil proceedings which supported his own criminal trial testimony of innocence, in accordance with the advice of BPH's ...