The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On February 8, 2012, Petitioner filed a "Petition Under 28 USC § 2254 for Writ of Habeas Corpus By a Person in State Custody" in the United States District Court for the Eastern District of California. On February 16, 2012, the United States District Court for the Eastern District of California transferred the case to this Court.
On August 14, 2012, Respondent filed an Answer, asserting:
(1) the Petition is untimely; (2) Grounds Six and Seven of the Petition are unexhausted; and (3) Grounds One, Three, Four, Six and Seven of the Petition are not cognizable on federal habeas review. On September 27, 2012, Petitioner filed a Reply.
Because Petitioner had not yet verified the Petition, on October 2, 2012, the Court issued a Minute Order requiring Petitioner to file a verification.
On March 21, 1991, Petitioner pled guilty to first degree murder pursuant to a plea agreement (Reporter's Transcript ["R.T."] 9-11; Clerk's Transcript ["C.T."] 1909). Petitioner waived his right to a probation report and a continuance of sentencing (R.T. 9). The court imposed a sentence of thirty-three years to life (R.T. 10-11; C.T. 1909). The court also ordered the preparation of a probation report (R.T. 11). The probation report bears a dictation/transcription date of May 16, 1991, although the date of the report's filing in state court is unclear (see "Petitioner's Confidential Probation Report," filed under seal on August 16, 2012). Attached to the probation report is a letter to the probation officer from the prosecuting deputy district attorney, Patrick J. McKinley. This letter, also dated May 16, 1991, describes McKinley's views of the crime and expresses the hope that the letter would be made part of the probation report so that any future parole authority would be aware of Petitioner's allegedly false testimony at the trial of a co-perpetrator.
The Court of Appeal affirmed the judgment on April 2, 1992 (Respondent's Lodgment 6). Petitioner did not file a petition for review.
Petitioner became eligible for an initial parole suitability hearing in 2010. On September 9, 2010, a panel of the California Board of Prison Terms ("Board") convened for an initial parole suitability hearing (see Respondent's Lodgment 33, Ex. "A-1"). Petitioner chose not to attend the hearing, although his attorney was present (id., pp. 104-05). The Board continued the proceeding because documents were missing from Petitioner's "packet" and Petitioner had not received the Board report within ten days prior to the hearing (see Respondent's Lodgment 33, Ex. "A-1," pp. 104-05).*fn1 The Board allowed a deputy district attorney, Michael Carrozzo, to submit a 26-page document consisting of pages from a book entitled "A Death in Santa Barbara," purportedly describing two interviews Petitioner allegedly gave concerning the crime (id., p. 107). The Presiding Commissioner said the Board would incorporate the documents into Petitioner's central file (id.).
On October 29, 2010, Petitioner appeared before the Board for the continued initial parole suitability hearing (see Respondent's Lodgment 33, Ex. "B"). The Board denied parole for seven years (id., pp. 231-46).
Thereafter, Petitioner filed various habeas corpus petitions in the Santa Barbara Superior Court, the Kings County Superior Court, the California Court of Appeal, and the California Supreme Court, all of which were denied (Respondent's Lodgments 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 24, 25, 26, 27, 33, 34, 35, 36, 37).
1. The Santa Barbara Superior Court allegedly abused its discretion and judicial powers by rejecting Petitioner's claim that the trial court allowed Petitioner to enter into a plea agreement "which was prior to sentencing in default as revealed by the conditional statement made ...