ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

ROGER T. BENITEZ, District Judge.

Petitioner, an inmate at Centinela State Prison, filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254 ("Petition"). On September 16, 2010, Magistrate Judge Barbara Major submitted a Report and Recommendation recommending that this Court enter an order: (1) granting the Petition; (2) releasing the Petitioner immediately; and (3) directing that Petitioner's parole term be reduced and Petitioner receive term credit. Respondent filed an objection to the Report and Recommendation, and Petitioner filed a reply. (Docket Nos. 17, 19.) The merits of the Petition are now before this Court.

For the reasons set forth below, the Court adopts in part the Report and Recommendation and DENIES the Petition.

BACKGROUND

In 1977, Petitioner was convicted by a jury of first-degree murder and other felonies and was sentenced to a prison term of seven years to life. This habeas petition does not challenge Petitioner's conviction, but rather challenges a decision by the Board of Parole Hearings ("Board") on November 24, 2008 that found Petitioner unsuitable for parole. (Tr. 1; Lodgment 7.) The 2008 hearing was Petitioner's fifteenth parole hearing and was conducted after the Governor of California reversed a prior grant of parole. Prior to filing the Petition, Petitioner sought habeas relief at all three state court levels, but without success. (Lodgment Nos. 2, 4, 6.) While Petitioner was pursuing his state collateral relief, the Board held another parole hearing. (Lodgment 8.) However, the Board again denied parole. Id.

I. COMMITMENT OFFENSE

The facts cited herein are largely undisputed and were obtained from the transcript of the 2008 parole hearing and the record in this case:

In May 1977, a 33-year old homeless man knocked on Petitioner's door and asked for a glass of water. Petitioner invited the man inside. Soon thereafter, Petitioner accused the man of pulling a knife on Petitioner's friend some months earlier. Over the next several hours, Petitioner and other individuals repeatedly beat and kicked the man, stripped him of his clothes, urinated into his open mouth, and forced him to drink urine from a bath. The participants also attempted to hang the man in the bathroom with a belt and smother him with a towel. On at least three separate occasions, the participants told the man they were going to kill him, pointed a gun at his face, and pulled the trigger. However, on each occasion, the gun was empty. These events occurred at various times throughout the evening, interspersed by breaks where the participants drank wine and beer and sniffed paint.

The participants then became concerned that the man would turn them into the police. At midnight, the participants carried the man to a vacant lot and placed him under a trailer, where they shot him first in the head, then in the neck, and then in the stomach. The participants returned to the apartment, disposed of the man's belongings, and cleaned up the blood. An autopsy showed that the victim had been severely beaten prior to his death and that his death was due to a bullet wound behind his left ear. Among other injuries, the victim had six fractured ribs on the left and two on the right, a fractured skull, two broken cheekbones, and a broken nose and jaw. There were also abrasions and lacerations.

On December 1, 1977, Petitioner was convicted by a jury of first-degree murder and other felonies. He was sentenced to an indeterminate prison term of seven years to life. At the time of the offense, Petitioner was twenty-three years old. (Lodgment 9.)

II. PREVIOUS CRIMINAL HISTORY

Petitioner's prior criminal history includes convictions in March 1974, July 1974, August 1975 and July 1976. (Pet., Ex. G; Lodgment 5, p. 5-6; Lodgment 7, p. 34-36.) In March 1974, Petitioner was convicted of being a minor in possession of alcohol. In July 1974, Petitioner was convicted of prowling. In August 1975, Petitioner was convicted of being under the influence of narcotics and resisting arrest. And, in July 1976, Petitioner was convicted of entering without consent. Each of these offenses resulted in a misdemeanor conviction and a prison sentence or probation. Id. Petitioner emphasizes that these convictions were for non-violent offenses. (Lodgment 5, p. 5-6.) The record shows Petitioner has also been arrested for several other offenses, including burglary, robbery, and theft. (Lodgment 7, p. 34-36, 111-12.)

III. PRISON RECORD

During the first thirteen years of Petitioner's prison term, Petitioner received three serious rule violations and several misconduct reports. (Lodgment 7, p. 49.) Since then, however, Petitioner's conduct has been "consist [sic] in positive institutional behavior." Id. Among other things, while incarcerated, Petitioner earned trade certifications for janitorial services, dry-cleaning, and mill and cabinetry work. (Lodgment 7, p. 50.) He also participated in self-help and therapy programs, including Alcoholics Anonymous, Narcotics Anonymous and Anger Management. Id. Petitioner has received multiple laudatory reports from various institutional staff as well as favorable psychological work and counselor evaluations. (Lodgment 7, 9.)

DISCUSSION

I. "SOME EVIDENCE" STANDARD

The Court may entertain a petition for writ of habeas corpus by a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Ninth Circuit has consistently recognized that a state prisoner possesses a federal liberty interest if parole is denied in the absence of "some evidence" that the prisoner is currently dangerous. Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir.2010); see also Pearson v. Muntz, 606 F.3d 606, 608-09 (9th Cir.2010). In reviewing a habeas petition, the Court must "decide whether the California judicial decision approving the [Board]'s decision rejecting parole was an `unreasonable application' of the California `some evidence' requirement, or was `based on an unreasonable determination of the facts in light of the evidence.'" Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(1)-(2)); Pearson, 606 F.3d at 608. Contrary to Respondent's Objection, and as concluded in the Report and Recommendation, this Court is not limited to merely evaluating the parole review procedures utilized by the state to ensure fairness. (Report, p. 6-11.) Id.

II. APPLICATION OF STANDARD

Where, as here, there is no reasoned decision from the state's highest court, the Court looks through to the last reasoned decision of the state court denying relief to the petitioner. Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). In this case, the last reasoned state court decision is the San Bernardino County Superior Court's order dated October 14, 2009, finding that "some evidence" supported the Board's parole denial. (Lodgment 2; compare with Lodgment 4, 6.) Although the court suggested that Petitioner's failure to fully accept responsibility for his crime, as well as the nature of Petitioner's offense and his pre- and post-incarceration history provided "some evidence" supporting the Board's decision, the court did not clearly explain which of the Board's findings supported the denial of parole. (Lodgment 2.) Instead, as the Report and Recommendation notes, the court appeared to largely defer to the Board's judgment. Id. Accordingly, just as the Magistrate Judge did, this Court examines the Board's reasons for denying parole in order to evaluate the reasonableness of the superior court's decision. Cooke v. Solis, 606 F.3d 1206, 1214 (9th Cir.2010). Having conducted a de novo review, the Court agrees with the Magistrate Judge's conclusion that Section 2254(d)(2) applies and rejects Respondent's arguments to the contrary. However, after reviewing the record, this Court concludes there is "some evidence" of current dangerousness such that habeas relief is not warranted.

State parole regulations apply in determining whether an inmate poses an unreasonable risk of danger to public safety. These regulations enumerate factors tending to show suitability for parole, as well as unsuitability for parole. Cal.Code Regs., tit. 15 § 2281(c)-(d). "While the regulatory factors are designed to guide the Board's decision, the ultimate question of parole suitability remains whether the inmate poses a threat to public safety. There must be some evidence of such a threat, and not merely evidence that supports one or more of the Board's subsidiary findings." Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1021 (9th Cir.2010) (quotation marks omitted) (citing Hayward, 603 F.3d at 562). After applying the parole factors, the Board denied parole on the following grounds: (1) Petitioner's bad attitude and failure to meaningfully participate in rehabilitation programs since 2003; (2) the heinous nature of the commitment offense; (3) Petitioner's failure to accept full responsibility for the crime or show full insight or remorse; (4) Petitioner's inadequate parole plans; (5) Petitioner's unstable social history and prior criminal history; and (6) the opposition to release. (Traverse, p. 6; Lodgment 7, p. 109-124.) Cal.Code Reg., tit. 15 § 2281(b).

First, the Board found that Petitioner exhibited a bad attitude and insistence on doing things his way, as evidenced in part by his failure to meaningfully participate in rehabilitation programs since 2003. (Lodgment 7, p. 115.) At the parole hearing, Petitioner stated he last attended the prison's rehabilitation programs, in particular Alcoholics Anonymous, in 2003. (Lodgment 7, p. 41-42, 57-61.) Petitioner explained that he no longer attends the therapy programs because he (1) has already completed them; (2) is busy with his prison job; and (3) is busy litigating the Governor's 2004 decision to reverse Petitioner's 2003 parole grant. Id. Petitioner further stated that, although he no longer attends the programs, he participates in them via self-study. Id. When requested by the Board, however, Petitioner was unable to produce a book report or other documentation evidencing his self-study.1 (Id., p. 41-43.)

The Board found Petitioner's diminished involvement in the programs troublesome and indicative of potential problems that Petitioner may have in developing relationships, dealing with people, and interacting with others outside of prison. (Lodgment 7, p. 59, 60-61, 115.) This finding is also supported by other evidence in the record. For example, Petitioner's 2008 psychological evaluation indicates that, based on events occurring prior to the commitment offense and incarceration, Petitioner exhibited a "blatant disregard" for others and Petitioner could have problems dealing with negative criticism if released on parole. (Lodgment 9, p. 11, 14.) Furthermore, Petitioner's participation in the commitment offense appeared to be based, in part, on peer pressure and the need to be accepted by the other participants. (Lodgment 9, p. 9.) The record further indicates that, while in prison, Petitioner received citations for unexcused absences and hiding during the count, which further show Petitioner may have difficulty dealing with authority and people outside of prison. (Lodgment 7, p. 40.) Indeed, it appears that Petitioner stopped attending the rehabilitation programs around the time the Governor reversed Petitioner's parole grant and Petitioner has made little if any attempt since then to remedy the concerns raised by the Governor. (Lodgment 7, p. 121-24.) These circumstances further evidence spitefulness and difficulty handling criticism and setbacks. (Lodgment 7, p. 121-24.) The Board noted these circumstances still existed in October 2009, when it again denied parole. (Lodgment 8, p. 6,10.)

One could argue, however, that merely a bad attitude and potential difficulty in dealing with others is not sufficient to show that Petitioner poses an unreasonable risk of danger to society. This is especially true where, as detailed in the Report and Recommendation, there is clearly evidence in the record showing that Petitioner may be suitable for parole. However, this Court's role is limited to assessing the reasonableness of the Board's parole determination in 2008, not deciding on its own whether Petitioner is entitled to parole. Powell v. Gomez, 33 F.3d 39, 42 (9th Cir.1994) ("This court cannot reweigh the evidence, but looks only to see if `some evidence' supports the [Board's] decision."); In re Lawrence, 44 Cal.4th 1181, 1191, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008) (noting the "some evidence" standard is extremely deferential and a federal habeas court may not substitute its own judgment for the Board's merely because it would weigh the evidence differently). In this regard, all factors must be weighed: "Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." Cal.Code Regs., tit. 15 § 2281(b). Keeping this in mind, the Court notes that Petitioner's prior criminal history includes arrests and, in some instances convictions, for robbery, burglary, drugs, trespassing, prowling, and receiving stolen property. (Lodgment 7, p. 34-36, 111-12.) In fact, Petitioner was on probation when he committed the commitment offense. Id. Although these offenses were non-violent, they were numerous and show that, despite receiving prison time and probation, Petitioner was not deterred from future criminal conduct. The record also shows that Petitioner had no justifying motivation for the commitment offense. (Lodgment 9, p. 9.) Cal.Code Regs., tit. 15 § 2281(d)(4). Petitioner was the eldest of the participants (most of whom were juveniles), Petitioner did not know the victim, and the victim did not pose an immediate threat to Petitioner or any other participants. (Lodgment 7, p. 53; Lodgment 9.)

In light of the above, the Court finds that the record provides "some evidence" of the Board's determination that Petitioner presented a current danger to society and, therefore, should not be granted parole. The "some evidence" standard is minimal and assures only that the record is not so devoid of evidence that the denial of parole was arbitrary. See Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1129 (9th Cir.2006), overruled in part on other grounds, Hayward, 603 F.3d at 555. The standard requires only a "modicum of evidence" of unsuitability for parole. In re Lazor, 172 Cal.App.4th 1185, 1198, 92 Cal.Rptr.3d 36 (2009) (quoting Lawrence, 44 Cal.4th at 1191, n. 2, 82 Cal.Rptr.3d 169, 190 P.3d 535). The Board cited other factors for denying parole, including the commitment offense, the lack of acceptance of responsibility or remorse inadequate parole plans, unstable social history and opposition to release. However, for the same reasons stated in the Report and Recommendation, which are incorporated herein by this reference, the Court finds the record void of "some evidence" supporting these other findings. Nonetheless, given the standard that applies here, the Court finds that Petitioner's attitude, lack of participation in rehabilitation programs, prior criminal history and lack of motivation in committing the commitment offense, when taken as a whole, evidenced current dangerousness to society. Accordingly, the Court finds the Superior Court's order dated October 14, 2009 was not an unreasonable application of the "some evidence" standard nor was it an unreasonable determination of the facts in light of the evidence.

CONCLUSION

In light of the above, the Court DENIES Petitioner's petition for writ of habeas corpus.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION FOR ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

BARBARA L. MAJOR, United States Magistrate Judge.

This Report and Recommendation is submitted to United States District Judge Roger T. Benitez pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California.

On February 2, 2010, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus. ECF No. 1. Petitioner challenges the November 24, 2008 decision by the Board of Parole Hearings ("Board") denying him parole. Id. On June 9, 2010, Respondent filed an answer requesting that the Petition be denied. ECF No. 12. Petitioner filed a traverse on July 9, 2010. ECF No. 13.

This Court has considered the above documents as well as the record as a whole. Based thereon, and for the reasons set forth below, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

The following factual summary is taken from the transcript of the November 24, 2008 parole hearing, which the Board indicated it was reading into the record from the probation officer's report1:

Lodgment 7 at 15-19.

Petitioner was convicted of first degree murder and committed to prison on December 1, 1977, for a term of seven years to life. Pet'r Mem.2 On October 8, 2003, at his fourteenth parole hearing, Petitioner was granted parole. Id. at 1-2. The Governor of California reversed Petitioner's parole grant on March 5, 2004. Id. at 2. On November 24, 2008, Petitioner went before the Board again and this time the Board found Petitioner unsuitable for parole. Id. It is this 2008 decision that Petitioner challenges in the instant Petition. Id.

Petitioner challenged the Board's decision in a habeas petition filed in the Superior Court of California, County of San Bernardino on June 2, 2009. Lodgment 1. The superior court denied his petition in a reasoned decision on October 14, 2009. Lodgment 2. Petitioner then raised the same arguments in a habeas petition before the California Court of Appeal, Fourth District, Division Two, which that court summarily denied. Lodgments 3 & 4. Finally, Petitioner challenged the Board's decision in the California Supreme Court. Lodgment 5. That court summarily denied his habeas petition without citation of authority on January 21, 2010. Lodgment 6.

While Petitioner was pursuing state collateral relief, he appeared before the Board for another hearing on October 22, 2009, and once again, was denied parole. Lodgment 8. It does not appear Petitioner is challenging the 2009 Board decision in the instant Petition and the Court, therefore, will not address it.

SCOPE OF REVIEW

Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

28 U.S.C. § 2254(a) (1996).

The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:

28 U.S.C. § 2254(d) (1996). Summary denials constitute adjudications on the merits. See Luna v. Cambra, 306 F.3d 954, 960 (9th Cir.2002) (citing Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.1992)) amended by 311 F.3d 928 (9th Cir.2002). Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

A state court's decision is "contrary to" clearly established federal law if the state court: (1) "applies a rule that contradicts the governing law set forth in [Supreme Court] cases"; or (2) "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

A state court's decision is an "unreasonable application" of clearly established federal law where the state court "`identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). "[A] federal habeas court may not issue [a] writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable." Id. at 75-76, 123 S.Ct. 1166 (emphasis added) (citations and internal quotation marks omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412, 120 S.Ct. 1495.

Finally, habeas relief also is available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2) (1996); Wood v. Allen, ___ U.S. ____, 130 S.Ct. 841, 845, 175 L.Ed.2d 738 (2010). A state court's decision will not be overturned on factual grounds unless this Court finds that the state court's factual determinations were objectively unreasonable in light of the evidence presented in state court. See Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see also Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (the fact that "[r]easonable minds reviewing the record might disagree" does not render a decision objectively unreasonable). This Court will presume that the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

DISCUSSION

Petitioner posits two claims for relief. First, Petitioner argues that the Board's parole denial was based on an unreasonable determination of the facts and the court decision affirming the denial was not supported by the requisite "some evidence." Petitioner asserts the denials violated his rights under the Fifth and Fourteenth Amendments of the United States. Pet'r Mem. at 3-12. Second, Petitioner argues that he must be released immediately because any state action causing a prisoner to serve prison time in excess of the term prescribed under the Indeterminate Sentencing Law guidelines violates the Ex Post Factor Clauses of the State and Federal constitutions. Id. at 3, 12-16. Respondent contends Petitioner is not entitled to relief. Mem. P. & A. Supp. Answer ("Resp't Mem.") at 3-11.

A. Respondent Repeats Legal Arguments Rejected by the Ninth Circuit

In his answer, Respondent correctly states that there is no federal constitutional requirement that there be "some evidence" supporting a parole board's decision to deny parole to an inmate. Resp't Mem. at 4. Because there is no independent, federal requirement and the courts must rely on the state requirement, Respondent argues that this Court is limited to reviewing "whether the state's parole review procedures are fundamentally unfair" and may not review the sufficiency of the "some evidence" determination made by the state court. Id. at 3-9. Respondent's argument misinterprets and misapplies the Ninth Circuit's recent decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir.2010) and ignores the Ninth Circuit's subsequent analysis and ruling in Pearson v. Muntz, 606 F.3d 606 (9th Cir.2010).

The Due Process Clause of the Fourteenth Amendment protects individuals from deprivations of life, liberty or property. It has long been established Supreme Court law that a liberty interest may arise from an expectation or right created by a state statute or regulation. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 556-58, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (holding that the Due Process Clause ensures that state-created liberty interests are not arbitrarily abrogated); see also Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (internal citations omitted) (reconfirming that "[a] liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word `liberty,' or it may arise from an expectation or interest created by state laws or policies"). As the Ninth Circuit recently recognized, "[i]t is beyond doubt that state statutes, and a fortiori, state constitutions, `may create liberty interests in parole release that are entitled to protection under the Due Process Clause.'" Pearson, 606 F.3d at 610-11 (quoting Bd. of Pardons v. Allen, 482 U.S. 369, 371, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987)). California has created just such a liberty interest.

Under California law, a prisoner sentenced to an indeterminate life term is sentenced to a life term, "subject only to the ameliorative power of the [parole authority] to set a lesser term." Hayward, 603 F.3d at 561 (quoting People v. Wingo, 14 Cal.3d 169, 182, 121 Cal.Rptr. 97, 534 P.2d 1001 (1975)). The governing statute requires the Board to consider specifically-enumerated factors in evaluating the prisoner's suitability for parole and to grant parole unless it determines that public safety requires a longer period of incarceration. In re Rosenkrantz, 29 Cal.4th 616, 654, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002) (citing Cal. Penal Code § 3041(b)). There are six factors tending to show unsuitability for parole and nine factors that the statutes direct the Board to deem indicative of parole suitability. Cal. Code Regs., tit. 15 §§ 2281(c)-(d) & 2402(c)-(d)3. However, while these factors must be weighed in evaluating the appropriateness of parole, "the paramount consideration for both the Board [of Prison Terms] and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety." Hayward, 603 F.3d at 562 (quoting In re Lawrence, 44 Cal.4th 1181, 1210, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008)). There must be "some evidence" of a current threat to public safety in order to deny parole and the commitment offense alone does not establish current dangerousness. Cooke v. Solis, 606 F.3d 1206, 1214 (9th Cir.2010) (citing Lawrence, 44 Cal.4th at 1213, 82 Cal.Rptr.3d 169, 190 P.3d 535 and Hayward, 603 F.3d at 562). The Board or Governor may consider the aggravated circumstances of the commitment offense, but the record also must establish "that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." Lawrence, 44 Cal.4th at 1214, 82 Cal.Rptr.3d 169, 190 P.3d 535; Cooke, 606 F.3d at 1214.

On federal habeas review of a prisoner's claim that the Board or the Governor denied parole in the absence of "some evidence" of current dangerousness, courts in this circuit "need only decide whether the California judicial decision approving the [Board or] governor's decision rejecting parole was an `unreasonable application' of the California `some evidence' requirement, or was `based on an unreasonable determination of the facts in light of the evidence.'" Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(1)-(2)); Pearson, 606 F.3d at 608 (including decisions of the parole board in the Hayward analysis); see also Boyd v. Newland, 467 F.3d 1139, 1152 (9th Cir.2006) ("[i]n general, Ninth Circuit precedent remains persuasive authority in determining what is clearly established federal law").

Respondent argues that under Hayward, this Court may not review how the state court applied the "some evidence" test because doing so would run afoul of AEDPA's limitation of habeas relief to misapplications of federal, as opposed to state, law. Resp't Mem. at 7. Rather, Respondent contends the Court is limited to the following two-step analysis: "(1) is the state court procedure at issue fundamentally adequate to vindicate the state interests afforded Medway; and (2) if so, did California in fact provide Medway the procedures required under state law." Id. at 8. Because Hayward did not find California's procedural "some evidence" requirement inadequate to vindicate the rights afforded under California's statutes and because California provided Medway with the required procedural review, Respondent contends Petitioner is not entitled to further review or relief from this Court. Id. at 8-9.

The Ninth Circuit addressed and rejected this precise argument in Pearson4, explaining:

Pearson, 606 F.3d at 609.5 Furthermore, this Court is not persuaded by Respondent's argument that interpreting Hayward as requiring an analysis of how the state court applied the "some evidence" test is contrary to well-established Supreme Court authority prohibiting federal habeas review of state court determinations on questions of state law. See Resp't Mem. at 7-8. Respondent cites to Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) and Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) for this proposition. Id. at 8. Both of those decisions do, in fact, make clear that "[a] federal court may not issue the writ on the basis of a perceived error of state law." Pulley, 465 U.S. at 41, 104 S.Ct. 871; see also Estelle, 502 U.S. at 67-68, 112 S.Ct. 475 ("we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). However, the Supreme Court repeatedly has explained that federal habeas courts are tasked with evaluating state courts' applications of state laws to the extent necessary to determine "whether the state court's finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation." Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); see also Pulley, 465 U.S. at 41, 104 S.Ct. 871 (acknowledging that "an error of state law could be sufficiently egregious to amount to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment"); Estelle, 502 U.S. at 68, 112 S.Ct. 475 (evaluating "the question whether the admission of the evidence [by the state court] violated McGuire's federal constitutional [Due Process] rights").

Respondent's summary of District Attorney's Office v. Osborne, ___ U.S. ____, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) in support of his position is equally misleading. See Resp't Mem. at 6. In Osborne, the Supreme Court considered whether the petitioner had "a right under the Due Process Clause to obtain postconviction access to the State's evidence for DNA testing." Osborne, 129 S.Ct. at 2316. As in prior cases of this nature, the Court determined that the state afforded the petitioner "a liberty interest in demonstrating his innocence with new evidence under state law." Id. at 2319 (emphasis added). Respondent incorrectly asserts that the Osborne Court "simply determined that the state's procedures were not fundamentally inadequate and then looked to see if the petitioner received those protections" and that, therefore, Osborne stands for the proposition that federal courts should not review how the state applies its procedures. See Resp't Mem. at 6. To the contrary, the Osborne Court expressly noted that it could not address whether the state's "newly developing procedures for obtaining postconviction access to DNA" worked "in practice" because the petitioner "ha[d] not tried to use the process provided to him by the State or attempted to vindicate the liberty interest that is now the centerpiece of his claim." Osborne, 129 S.Ct. at 2321. In other words, the Court did not say it would not address whether the state properly applied its procedures, it said that it could not under the facts of the case.

This Court also briefly addresses Respondent's argument that the "some evidence" standard established in Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) is not clearly established federal law for purposes of federal review of a state parole decision, and therefore, cannot be grounds for Petitioner to obtain habeas relief. Resp't Mem. at 9. Respondent is absolutely correct that the Hayward court held that Hill is not on point and that "[t]here is no general federal constitutional `some evidence' requirement for denial of parole." Hayward, 603 F.3d at 559. However, once again, this is not the whole story. The full quote from Hayward is "[t]here is no general federal constitutional `some evidence' requirement for denial of parole, in the absence of state law creating an enforceable right to parole." Id. (emphasis added). While the court found no federal constitutional "some evidence" standard, the Hayward court concluded that a state court finding of "some evidence" was part of the liberty interest in parole release created by California's system and that this liberty interest is "entitled to protection under the Due Process Clause." Id. at 561 (quoting Allen, 482 U.S. at 371, 107 S.Ct. 2415).

Accordingly, this Court finds no support for Respondent's argument that this Court's review is limited to evaluating the procedures utilized by the State.

B. The Board's Decision Denying Parole was an Unreasonable Application of California's "Some Evidence" Requirement and was Based on an Unreasonable Determination of the Facts in Light of the Evidence Presented

Having rejected Respondent's legal arguments, this Court now turns to the proper standard of review in this case, which is "whether the California judicial decision approving the [Board or] governor's decision rejecting parole was an `unreasonable application' of the California `some evidence' requirement, or was `based on an unreasonable determination of the facts in light of the evidence.'" Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(1)-(2)); Pearson, 606 F.3d at 608. Petitioner argues that Board's decision denying him parole was based on an unreasonable determination of the facts. Pet'r Mem. at 3-12. Respondent only made the legal arguments discussed above and did not address whether the state courts unreasonably applied California's "some evidence" requirement or based their decisions on an unreasonable determination of the facts.

In this case, the California Supreme Court and the California Court of Appeal summarily denied Petitioner's claim, so this Court must "look through" these silent denials to the superior court's reasoned decision. Ylst, 501 U.S. at 804, 111 S.Ct. 2590. The superior court explained:

Lodgment 2 at 3-5.

Here, the superior court's opinion does not clearly specify which of the Board's findings it believes supported the parole denial. Instead, the court largely deferred to the Board's judgment, concluding generally that "[a] review of the record discloses that the Board's observations were valid and consisted of `some evidence.'" Id. at 5. Under these circumstances, this reviewing court must examine each of the Board's reasons for denying parole in order to evaluate the reasonableness of the superior court's decision. See Cooke, 606 F.3d at 1214. In so doing, the Court is cognizant of the fact that the Board is charged with applying California parole regulations, which call for consideration of enumerated circumstances that "tend to indicate unsuitability for release" as well as those that "tend to show that the prisoner is suitable for release." Cal. Code Regs., tit. 15 § 2281(c)-(d). However, while these factors may guide the Board's decision, the ultimate question is whether there is "some evidence" of a current threat to public safety "and not merely evidence that supports one or more of the Board's subsidiary findings." Pirtle v. Cal. Board of Prison Terms, 611 F.3d 1015, 1021 (9th Cir.2010).

The decision of the 2008 Board panel is the only one being reviewed by this Court. The 2008 Board panel based its decision on the following factors:

Lodgment 7 at 109-124. The Court will address each of these considerations in turn.

1. The Commitment Offense

The Board first relied upon the commitment offense, which took place thirty-one years before the hearing. Specifically, the Board described the commitment offense as "a dispassionate and very horrible crime where the victim was abused, he was defiled, and it clearly demonstrated an exceptionally callous disregard for human suffering." Lodgment 7 at 110. The presiding commissioner went on to note that "[i]t appeared that the motive for this was strictly for fun or relaxation—not relaxation, fun, and I really can't see, really, a good motive for it." Id. at 110-11. He also found it troubling that "after the fact, after the crime, [ ] [Petitioner] instructed others to clean up everything so that it would appear that none of [them] were involved in this tragic event." Id. at 111. While the Board acknowledged awareness of the recent California Supreme Court decisions (In re Lawrence and In re Shaputis) barring use of the commitment offense alone as a basis for denying parole and requiring that some "nexus" be found that made the prisoner a continuing safety risk (id. at 109), it did not make clear which "nexus" it relied upon in this case.

In reviewing the facts of Petitioner's commitment offense, this Court experienced the same sense of horror and disgust that numerous Board panels and the Governor seem to have felt in the past. However, the law now is crystal clear that the commitment offense, no matter how gruesome, is not sufficient by itself to justify the denial of parole. Lawrence, 44 Cal.4th at 1214, 82 Cal.Rptr.3d 169, 190 P.3d 535; Cooke, 606 F.3d at 1214.

Because the law is clear that the commitment offense alone cannot establish current dangerousness, the Court looks to the other reasons cited by the Board in order to determine whether the record establishes "that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." Lawrence, 44 Cal.4th at 1214, 82 Cal.Rptr.3d 169, 190 P.3d 535; Cooke, 606 F.3d at 1214.

2. Petitioner's Record Prior to the Commitment Offense

One basis for the Board's denial was that Petitioner "clearly" failed to profit from society's previous attempts to correct his criminality. Lodgment 7 at 112. In support of this assertion, the Board noted that one of Petitioner's probationary periods occurred when he was a juvenile and another was imposed in Petitioner's adulthood. Id. While the record is somewhat unclear as to the dates and dispositions of Petitioner's prior convictions, it appears the first probationary period occurred in 1974 (at age 20) and resulted from a prowling conviction and the second, in 1976 (at age 22), stemmed from a conviction for entering without consent. Id. at 36; Pet'r Mem., Ex. H (record of prior convictions) & D (2003 mental health evaluation at 9-10). Assuming it is an accurate statement that a twenty year old was considered a juvenile in 1974, the Board fails to elaborate on how these two relatively minor, non-violent convictions over thirty years ago can reasonably be viewed as evidence that Petitioner posed an unreasonable risk to public safety in 2008.

In fact, none of the records of Petitioner's prior convictions are for violent crimes. See Lodgment 7 at 34-36; Pet'r Mem., Ex. H (record of prior convictions) & D (2003 mental health evaluation at 9-10); Traverse Mem. at 11. This is significant because under the California regulations established to guide Board decisions, the fact that "[t]he prisoner lacks any significant history of violent crime" is listed as a "circumstance tending to show suitability" for parole. Cal. Code Regs., tit. 15, § 2281(d)(6) (emphasis added). In a recent Ninth Circuit case, the Board based its parole denial on a finding that the petitioner "failed to profit from society's previous attempts to correct his criminality," and that the petitioner "cannot be counted on to avoid criminality." Pirtle, 611 F.3d at 1022-23. In rejecting this ground for denying parole, the court concluded that the petitioner's two short jail terms for non-violent, alcohol-related offenses did not serve as evidence that he "cannot be counted on to avoid criminality." Id. at 1023. As the court explained, "[t]o hold otherwise would be to create a per se rule that any inmate who previously spent time in jail for any crime, no matter how minor, `cannot be counted on to avoid criminality' and is therefore unsuitable for parole." Id.; see also Cooke, 606 F.3d at 1215 (rejecting the board's use of ten-year-old minor and non-violent disciplinary infractions as bases for denying parole). This reasoning applies with equal force to the instant case. In other words, Petitioner's supposed "fail[ure] to profit from society's previous attempts to correct [his] criminality" is just as immutable a reason as the commitment offense to deny parole.6 The Board provided no nexus between Petitioner's non-violent criminal history and a finding of current dangerousness and the Court finds no evidence that a rational connection between the two exists.

It also should be noted that Petitioner has an exemplary record in prison. His most recent disciplinary infraction of any kind was in 1990—twenty years ago—and it was an unexcused absence. Lodgment 7 at 40. In total, he has received only 4 "115s" (i.e. serious rules violations, the last being in 1987 for hiding during the inmate count) and 3 "128s" (administrative rules violations).7 Id. Thus, it appears that since his incarceration, Petitioner has profited from society's attempts to correct his criminality.

3. Unstable Social History

The Board also cited Petitioner's problematic and abusive relationship with his step-father, which resulted in Petitioner running away from home at age thirteen and living on the streets when he could not stay with friends. Lodgment 7 at 33, 112. One of the factors indicating unsuitability for parole is that "[t]he prisoner has a history of unstable or tumultuous relationships with others." Cal. Code Regs., tit. 15, § 2281(c)(3). However, while Petitioner's relationship with his step-father may have been indicative of some instability during Petitioner's youth, this isolated example does not provide evidence of current dangerousness. Petitioner does not plan to live with his step-father upon release and, in fact, it appears his mother divorced this individual soon after Petitioner's incarceration. See Pet'r Mem., Ex. D (2003 mental health evaluation at 7). The record reflects no other "unstable" relationships; to the contrary, it shows that he has had consistent contact with, and support from, his mother and sisters. See Lodgment 7 at 23-24, 28-29; Lodgment 9 (2008 psychological evaluation at 4-5) (noting that Petitioner "enjoys significant emotional support from family members and friends" and that Petitioner's prison file contains "numerous letters of support, written consistently from year to year"); Pet'r Mem., Ex. D (2003 mental health evaluation at 7) and (1995 psychological evaluation at 3). Additionally, the record before this Court indicates that Petitioner has interacted well both with other prisoners and with prison staff during his decades of incarceration. For instance, in the 2008 psychological evaluation, the forensic evaluator noted, "[t]here is no documented evidence of interpersonal conflict with staff or peers. To the contrary, he is viewed as an asset by custody officers and appears to get along well with his peers." Id. at 13. And, since 2004, he has maintained employment doing clerical work in the Program B office and earned several laudatory chronos for his performance. See Lodgment 9 at 5. As such, there is no credible evidence that Petitioner has had, or continues to have, "a history of unstable or tumultuous relationships" or that his interactions with his step-father over forty years ago have any bearing on his current dangerousness.

4. Petitioner's Lack of Insight and Failure to Take Responsibility

The Board also felt that Petitioner lacked "true insight" into his crime and failed to accept full responsibility. Lodgment 7 at 113-17. In elaborating on this point, the Board compared Petitioner's summary of the crime in the 2008 psychological evaluation to a summary he provided in an application for New House, a halfway house8,9. Id. Concluding that they were in "direct conflict," the Board explained "we just don't believe that you really and truly understand the magnitude and nature of the crime, because you keep saying you're sorry for what you did, but you initiated the whole thing and therefore you are just as guilty and the jury found you just as guilty as the person that pulled the trigger." Id. at 117.

As Petitioner points out, "lack of insight" is not expressly listed in the California regulations as a factor to be considered in determining suitability for parole. Traverse Mem. at 9 (citing Cal. Code Regs., tit. 15 §§ 2281, 2402). Nonetheless, it has become a common theme in parole denials, as the California Court of Appeals recently explained:

In re Calderon, 109 Cal.Rptr.3d 229, 242-43 (Cal.App. 1st Dist.2010) (finding "no basis at all in the record" for the Governor's perception that the petitioner lacked insight). It is noteworthy that even the Shaputis court acknowledged the subjective nature of this element of its analysis, when it explained that "expressions of insight and remorse will vary from prisoner to prisoner and that there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior." In re Shaputis, 44 Cal.4th 1241, 1260 n. 18, 82 Cal.Rptr.3d 213, 190 P.3d 573 (2008).

This Court's review of the record reveals that the Board's conclusion that Petitioner lacks insight into, and minimizes his involvement in, the crime is not supported by the evidence. As an initial matter, the Board's selective quotation of one part of the 2008 psychological evaluation without reference to other parts of the report is misleading. For instance, in discussing Petitioner's insight into his crime, the Board failed to consider the section of the report entitled "Insight/Self Assessment." There, Petitioner reports that at the time of the commitment offense, he was only concerned with getting high all the time and "didn't think of others," whereas now his "ability to think is not controlled by substances . . ." and he avoids conflict and makes good decisions. Lodgment 9 at 6-7. Additionally, in the same section from which the Board quotes, a section entitled "Inmate Understanding of Life Crime," Petitioner states that he deserved to be punished for what he did and that, if given the chance to speak with Mr. Foster, he would "apologize sincerely for the treatment and abuse of him that [he] participated in." Id. at 10. When asked about making amends to Mr. Foster's remaining sister, Petitioner said "I would not want to justify my actions in any way. I would let her know that I'm truly, truly sorry. I would let her know that I should have done something to prevent it. I let it happen. I was part of it." Id. Finally, the Board fails to acknowledge the extensive efforts Petitioner has made to understand what led him to commit this crime and the role substance abuse played in his life. In the 2008 psychological evaluation, Petitioner summarized what he learned about himself during five years of intensive mental health courses followed by four years of weekly therapy with a psychiatrist and the reviewing psychologist noted that Petitioner's treatment records corroborated Petitioner's statements. Id. at 6.

The Board also ignores the consistent professional assessments indicating that Petitioner has taken sincere and full responsibility for his crime, has demonstrated insight into the factors contributing to his life crime, and presents a low risk of recidivism.10 See Lodgment 9 at 9, 14-15; Pet'r Mem., Ex. D. As early as 1990, Petitioner admitted that he joined in the beating. Pet'r Mem., Ex. D (1990 diagnostic unit evaluation). The evaluator noted that Petitioner "seems to be sincerely and appropriately remorseful for his actions" and "sincere in his stated desire to develop greater insight into his past behavior." Id. Concluding that Petitioner's violence potential had greatly diminished, the evaluator opined that "[i]t is extremely unlikely that he could again fall to such depths of depravity, given his demonstrable gains in self-esteem and social skills." Id. In brief assessments in 1994 and 1995, the reviewers concluded that Petitioner's violence potential was less than average for the prison population and recommended life-long participation in Alcoholics Anonymous ("AA"). Id. (1994 and 1995 psychological evaluations). Petitioner acknowledged during the 1995 interview that he did not attempt to stop the beating and also stressed his efforts (while in prison) to correct his thought patterns from the past. Id. (1995 psychological evaluation). From 1998 to 2001, evaluators concluded that Petitioner had rehabilitated himself to the extent possible within the CDC. Id. (1998 psychiatric report), (1999 psychological evaluation), (2001 psychological evaluation). In the 1999 and 2001 opinions, the evaluators concluded that Petitioner did not present "any risk of unlawful or dangerous behavior either within the prison setting or in the free community." Id. (1999 and 2001 psychological evaluations). In 2001, the psychiatrists stated "[w]hile the twenty-four years of incarceration given back to the state cannot give life to Mr. Foster, it is our strong medical opinion that Mr. Medway has satisfied all the intent of incarceration and rehabilitation demanded by the state and is justly deserving of release at this time." Id. (2001 psychological evaluation). Though the psychologist who evaluated Petitioner in 2002 and 2003 was less glowing in her review, she too noted that Petitioner's "long-term good disciplinary history suggested both improved self control and more effective coping strategies with maturing and increased self knowledge" and that Petitioner presented a "low risk for future violence in the absence of substance abuse." Id. (2003 mental health evaluation) (emphasis in original). She also acknowledged that Petitioner understands that alcohol and drugs have been his downfall and that he has made parole plans that provide for support in these areas. Id. Finally, in 2008, the reviewing psychologist concluded that Petitioner "has taken sincere and full responsibility for his life crime" and opined that Petitioner represented a "low risk of recidivism if released into the free community." Lodgment 9 at 15 (emphasis in original). The psychologist further noted that Petitioner "displayed none of the five predictive factors for recidivism," one of which is "[l]ack of [i]nsight."11 Id. at 14. In light of these positive reviews spanning two decades, the Court finds the Board's conclusion to be arbitrary.

To the extent the Board based its decision on its belief that Petitioner still minimizes his role in the crime, the evidence does not support this conclusion. The Board stated "[y]ou accept responsibility for striking the individual, but not really being the cause of death, but you were the one that instigated all of this." Lodgment 7 at 115. As an initial matter, the regulations are clear that "[t]he board shall not require an admission of guilt to any crime for which the prisoner was committed." Cal. Code Regs., tit. 15 § 2236; In re Caswell, 92 Cal.App.4th 1017, 1033, 112 Cal.Rptr.2d 462 (1st Dist.2001). Moreover, Respondent has provided no legal authority for the proposition that a prisoner's minimization of his involvement in the crime is a sufficient basis for denying parole. It is true that Petitioner repeatedly stated that he was not the actual shooter, but this fact is not disputed.12 See e.g. Lodgment 7 at 19 (parole board reciting fact that Mr. Tomaio was the shooter). Petitioner has, however, consistently taken responsibility for beating Mr. Foster, being indifferent to his suffering, participating in the conduct, and failing to stop the conduct. Pet'r Mem., Ex. D (1990 diagnostic unit evaluation), (1995 psychological evaluation), (1998 psychiatric report), (2001 psychological evaluation), (2003 mental health evaluation). He also has acknowledged that his memory of that evening's events is hazy due to the extreme amount of alcohol and drugs he had consumed, and has taken responsibility for anything else the trial record shows that he did that he cannot remember. Lodgment 9 at 913. Particularly striking was an incident discussed in Petitioner's 1990 Diagnostic Unit Evaluation. When asked by another inmate during a group session why he did not take retribution against the individual who testified that Petitioner was present during the shooting (a fact Petitioner believes is untrue), Petitioner "indicated that he felt he did contribute to the crime and was appropriately being punished for this." Pet'r Mem., Ex. D (1990 diagnostic unit evaluation at 2). This evidentiary record does not support a finding that Petitioner minimizes his role in the murder or that any such minimization indicates his current dangerousness.

This case also is markedly distinguishable from Shaputis where the nexus between the prisoner's perceived lack of insight and his future dangerousness was readily apparent. In Shaputis, the California Supreme Court accepted the Governor's use of the prisoner's "lack of insight" into the murder of his wife and the preceding abuse of his wives and family as an indicator of future dangerousness. Shaputis, 44 Cal.4th at 1255, 82 Cal.Rptr.3d 213, 190 P.3d 573. The record reflected that over the course of thirty years, Shaputis regularly abused his family. Id. at 1246-47, 82 Cal.Rptr.3d 213, 190 P.3d 573. His daughter reported watching him jump on her mother's stomach until she miscarried. Id. at 1246, 82 Cal.Rptr.3d 213, 190 P.3d 573. During his second marriage, Shaputis beat his wife so severely that she required plastic surgery. Id. at 1247, 82 Cal.Rptr.3d 213, 190 P.3d 573. At one point, he also threatened to send his second wife "home in a box." Id. He was charged with raping one of his daughters and ultimately murdered the second wife. Id. at 1245, 1248, 82 Cal.Rptr.3d 213, 190 P.3d 573. And, though the evidence at trial strongly suggested that the murder was intentional, Shaputis continued to claim at his parole hearings that the shooting was an accident. Id. at 1259-60, 82 Cal.Rptr.3d 213, 190 P.3d 573. He also described himself as a mellow drinker, despite having a substantial drinking problem that contributed to his violence. Id. at 1248, 82 Cal.Rptr.3d 213, 190 P.3d 573. The psychological report prepared in advance of the parole hearing confirmed that Shaputis "had a `schizoid quality to interpersonal relationships,' and noted that [Shaputis] seemed to have `limited . . . insight' regarding his antisocial behavior and the circumstance that his history of alcohol abuse was closely associated with his history of domestic violence." Id. at 1251, 82 Cal.Rptr.3d 213, 190 P.3d 573. It further stated that Shaputis "found `inexplicable' his daughters' prior allegations of molestation and domestic violence, that he had a flat affect when discussing these allegations, and that this circumstance could be a sign of the schizoid tendencies noted in some previous evaluations." Id. at 1252, 82 Cal.Rptr.3d 213, 190 P.3d 573. The California Supreme Court cited these findings in concluding that there was "some evidence" supporting the Governor's finding that Shaputis lacked insight into his crimes and remained dangerous. Id. at 1260, 82 Cal.Rptr.3d 213, 190 P.3d 573.

By contrast, Petitioner had no "previous pattern of violent behavior," has acknowledged his contributions to Mr. Foster's death, has expressed remorse for his crime, has gained insight into his behavior and beliefs that contributed to the offense, and has fully acknowledged the role his substance abuse played in the commitment offense. Moreover, Petitioner has remained alcohol and drug free for over thirty years, has acknowledged that he can never be even a social drinker, and has made arrangements to establish a support network outside of prison to help him stay clean and sober.14 And, unlike Shaputis, all of his clinicians have found that he expressed true insight and remorse and benefitted from prison programming. In other words, nothing in the record before this Court suggests that any continuing lack of insight on Petitioner's part translates into a reasonable concern that he remains dangerous, even when considered in light of the heinous nature of the life crime. See In re Roderick, 154 Cal.App.4th 242, 272, 65 Cal.Rptr.3d 16 (1st Dist.2007) ("Ignoring the unanimous clinical evidence to the contrary presented by trained experts . . . the Panel's arbitrary pronouncement that [petitioner's] limited insight poses an unreasonable risk to public safety cannot be considered some evidence to support a denial of parole").

It would be easy for the Court to say that because this Court must afford deference to the Board's determination, and because assessments of insight and remorse are necessarily subjective, the Board's finding is supported by "some evidence." But to do so would essentially make any parole denials based on these vague factors de facto unreviewable. The Court finds that inappropriate. There is no evidence in the record that Petitioner lacks insight into his crime or that he has failed to express remorse and the Board has not shown that it's conclusions to the contrary are rationally indicative of Petitioner's current dangerousness. See Calderon, 184 Cal.App.4th at 690, 109 Cal.Rptr.3d 229. The ultimate question before this Court is whether the Board's decision is supported by "some evidence" of current dangerousness and, in this case, the Court finds that it is not.

5. Petitioner's Attitude and Lack of Participation in Self-Help

Here, the Board finds fault with Petitioner's sense of entitlement to parole, having been granted parole in 2003 prior to the Governor's reversal, and his insistence on doing self-help programs his own way. Specifically, the Board objected that Petitioner is doing self-study, instead of attending AA meetings, and not doing book reports to document his progress. Lodgment 7 at 110. They also felt he should have worked on the four specific issues the Governor raised in his reversal, noting in particular that he has not participated in any formal institutional programming since 2003. Id. at 116.

Again, the Court finds these to be disingenuous bases for denying parole that are unrelated to Petitioner's current dangerousness. The psychologist who conducted the 2008 evaluation did not note any evidence of an attitude problem, explaining to the contrary that:

Lodgment 9 at 15. This conclusion is supported by the Court's review of the actions Petitioner took in response to the Governor's comments. Aside from the callousness of the commitment offense, the Governor reversed the parole grant for four reasons: (1) Petitioner did not have a job offer and his history and psychological reports indicate his violence potential increases if he cannot find work, (2) Petitioner stopped attending AA/NA15 in 1999 because of his "work schedule" and if he is unable to balance work and a substance abuse program inside of prison, he will be hard-pressed to do so outside (and his violence potential increases with substance abuse), (3) Petitioner minimizes his conduct and leadership role and refuses to accept responsibility for Mr. Foster's murder, and (4) Petitioner has not made progress via additional self-help or therapy since 1999. Pet'r Mem., Ex. B.

In regard to the first reason, the Court finds that Petitioner's actions in response to the Governor's employment concerns16 erased any valid basis for denial. Prior to the 2008 parole hearing, Petitioner obtained a letter promising employment and presented it to the 2008 Board panel. Id. at 71-72 (Board acknowledging that it had before it a letter confirming that Petitioner had a guaranteed job offer). He also maintained his employment in the prison, thus adding additional years of clerical experience to the resume of marketable skills he could fall back on if for some reason he lost his job (Petitioner already had obtained marketable certifications in no less than four trades). Finally, he obtained a letter from him mother (also signed by other family members and friends) representing that "[t]here is nothing [they] wouldn't do for [Petitioner] in terms of any support he might need" including providing "transportation, [f]inancial assistance, and assisting him in obtaining gainful employment." Pet'r Mem., Ex. J (Letter of Support, February 2008). These actions more than addressed the Governor's concerns, which were based upon a sixteen year-old psychological report (see Pet'r Mem., Ex. B). Thus, the Governor's concern did not remain valid by the time of the 2008 parole hearing.

As to the Governor's suggestion that Petitioner could not balance a prison job and AA/NA, it appears the Governor misconstrued Petitioner's statement. Petitioner actually explained that "[t]here was a problem with my work schedule after that [early 1999]." Pet'r Mem., Ex. D (2003 mental health evaluation at 12). The psychologist who evaluated him in 2002 and 2003 also noted that Petitioner had not attended AA/NA meetings due to "work scheduling difficulties." Id. (2003 mental health evaluation at 28).17 This indicates that his work schedule and the meeting schedule directly conflicted, not that he simply could not balance them. Furthermore, Petitioner's presentation to the 2008 Board of a list of every AA meeting in the Inland Empire and a letter promising help finding a sponsor (see Lodgment 7 at 67) shows that he did take action in response to the Governor's critique.

Because the Court already has addressed the Governor's third basis for his denial (see infra Part B.4), the Court moves on to the Governor's final concern— that Petitioner failed to take advantage of institutional programming since 1999. This issue was addressed in the 2008 psychological evaluation, as follows:

Lodgment 9 at 6.18 Respondent has offered nothing refuting this evidence. Thus, to the extent the Board based its parole denial on Petitioner's failure to repeat self-help classes, the Court finds this to be a frivolous basis. The same is true of the Board's suggestion that doing book reports was necessary to demonstrate Petitioner's continued commitment to practicing the Twelve Steps of AA. See Lodgment 7 at 41-42, 117. Petitioner explained that, in lieu of repeating self-help courses, he engaged in self-study on a daily basis, and the Board acknowledged that self-study generally was an acceptable alternative. Id. at 41-42. However, the Board discounted as representing only Petitioner's "personal views" the written report Petitioner provided detailing his analysis of how each of the Twelve Steps related to his life and what he has learned over the years.19 Id. at 57, 61 & 117. If engaging in this sort of reflection and remaining sober for over thirty years20, despite having access to alcohol and drugs21, does not demonstrate a commitment to sobriety, the Court fails to see how book reports will. See Weir v. Curry, 719 F.Supp.2d 1088 (N.D.Cal.2010) (finding no support in the record for Board's finding that inmate failed to participate sufficiently in self-help based on inmate's failure to do book reports); Nicholson v. Salazar, 2010 WL 2757132, at *2, *13 (C.D.Cal. Apr. 15, 2010), report and recommendation adopted by, 2010 WL 2744267 (C.D.Cal. Jul. 7, 2010) (finding no evidence supporting Board's parole denial though inmate did not do book reports as a way to continue self-help work). And ultimately, neither the Governor nor the Board explained what further personal growth Petitioner needed to achieve through repeat, formal programming in order to lessen his dangerousness and the Court finds no evidence that Petitioner's failure to read self-help books or repeat programming over the last seven years makes him a current threat to the public.22

6. Unrealistic Parole Plans and Vague Job Offer

Petitioner's perceived lack of realistic parole plans was another ground upon which the Board based its parole denial. Petitioner informed the Board that his first choice was to stay at a halfway house so they can help him with the transition, since he has been imprisoned for so long. Lodgment 7 at 64-65. Though he had contacted a few halfway houses and provided the Board with letters demonstrating this, he was unable to secure a bed in one until he obtained a release date. Id. at 66-67. As a contingency plan, should Petitioner be released before any beds became available, Petitioner explained that his niece had offered to let him stay in her guest house. Id. at 63-67. In regard to employment, he provided the Board with a letter from a roofing company, which stated "[t]his letter is to confirm that a `Guaranteed Job Position' will be immediately available to Samuel Lee Medway upon his release from the Custody of the California Department of Corrections and Rehabilitation." Pet'r Mem., Ex. M; Lodgment 7 at 71-72. Petitioner represented that his sister, Cathy, had spoken with the employer and learned that Petitioner would be paid between twelve and fifteen dollars per hour. Lodgment 7 at 73. Earlier in the hearing, the Board acknowledged that Petitioner earned his GED in 1982, had completed vocational certificates for dry-cleaning, mill and cabinet work, janitorial services, and carpentry, and had done clerical work in a prison office for at least the last five years. Lodgment 7 at 38-39; see also Lodgment 9 at 5 (confirming that Petitioner performed clerical work and received several laudatory chronos for his performance).

In finding these plans deficient, the Board noted that they had not received a letter from his niece supporting Petitioner's claim that he had an offer to stay with her upon release.23 Lodgment 7 at 118. The Board's concern was that psychological assessments indicated that Petitioner was at greater risk of returning to substance abuse if he did not have a place to live. Id. They also were concerned that Petitioner did not know if the niece had alcohol or guns in her house. Id. In regard to Petitioner's offer of employment, the Board expressed concern that the letter mentioned that Petitioner had expressed an interest in being employed on a trial basis. Id. at 119. Specifically, the Board said:

Id. They went on to explain that they wanted "everything documented before you go out there" because otherwise the Parole Division might investigate Petitioner's plans and find that they were not viable. Id. at 119-20.

By requiring Petitioner to have proof of a place to live and not just a written job offer, but a more detailed letter regarding the offer, as prerequisites to a parole grant, the Board held Petitioner to a higher burden than the California regulation requires. The applicable regulation lists as a factor indicating suitability for release that "[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release." Cal. Code Regs., tit. 15 § 2281(d)(8) (emphasis added). To qualify as "realistic" a plan need not be fool-proof or iron-clad. In re Andrade, 141 Cal.App.4th 807, 817, 46 Cal.Rptr.3d 317 (1st Dist.2006) abrogated on other grounds by Lawrence, 44 Cal.4th at 1221, 82 Cal.Rptr.3d 169, 190 P.3d 535. Indeed, the regulation requires only "realistic plans" or "marketable skills" and the Board acknowledged that Petitioner has four vocations. It would be unreasonable to require Petitioner, who already had been denied parole fifteen times before this hearing, to secure a firm, and meticulously spelled out, job offer and a confirmed bed in a halfway house when no employer or halfway house would have any reason to feel confident that he would be released.24 See Cerny v. Cal. Board of Prison Terms, 2010 WL 2640233, at *15 (C.D.Cal. Apr. 15, 2010), report and recommendation adopted by, 2010 WL 2640225, at *1 (C.D.Cal. Jun. 24, 2010) (rejecting board's assertion that parole plans were not definitive enough and concluding that, where recovery houses would not offer definite placement without a parole date, "[i]t would be absurd to require that petitioner obtain something that is impossible to obtain as a prerequisite to suitability for parole"); but see In re Cerny, 178 Cal.App.4th 1303, 1314, 101 Cal.Rptr.3d 200 (1st Dist.2009) (recognizing that board's requirement of acceptance into a residential treatment facility as prerequisite to parole, when acceptance without a parole date was impossible, placed inmate in "an untenable position," but nonetheless upholding board's denial on this basis, reasoning that it was the board's responsibility, not the court's, to strike the appropriate balance between protecting the public's safety and affording Cerny a realistic opportunity to secure parole). In fact, the 2003 Board panel acknowledged as much when it said that "it's awful difficult" to get a job until you receive a parole date (Pet'r Mem., Ex. A at 67) and the 2008 Board panel admitted the same in saying "we do tell you that you're not required to have a job" (Lodgment 7 at 46). Petitioner had "realistic plans for release" including a guaranteed job and two viable living arrangements. In additional, Petitioner easily satisfied the second prong, having "developed marketable skills that can be put to use upon release," by obtaining four vocation certificates and a solid work history. As such, Petitioner more than satisfied the regulation that indicates suitability for parole.

Furthermore, the determination that an inmate is suitable for parole is separate from the determination that a prisoner's parole plans are viable. Once a life term prisoner is given a parole date, a parole agent investigates the prisoner's intended living arrangements and employment. Cal. Dep't of Corr. & Rehab.: Adult Operations and Program Regulations, Dep't Operations Manual, Adult Parole Operations (hereinafter "Parole Manual"), ch. 8, art. I, § 81010.5.1; see also Lodgment 7 at 119-20 (Board acknowledging that "Parole Division is going to go out there and check this thing out to make sure that you are going to be hired doing the things that you say you're going to be doing and making the amount of money that you say you're going to be making, and if you don't have that, then that would be grounds for them to say that your parole plans are not viable"). If the parole plans are not satisfactory, the parole agent contacts the inmate requesting information about alternate living arrangements or employment and may also contact relatives for assistance or make arrangements with a halfway house if no resources are available. Parole Manual, ch. 8, art. I, § 81010.5.1. And, if there is no feasible way to adjust the prisoner's release plans, his release may be rescinded. Id. Thus, the Board's concerns address issues properly addressed after parole has been granted. The mere theoretical possibility that Petitioner will not find a bed in a halfway house, and then will be denied residence by his niece, and then will be fired from his job after a week, and then will be left out in the cold by his family25, and therefore, will become homeless and return to drinking and violent crime after over thirty years of sobriety and good behavior is too attenuated a possibility upon which to find him ineligible for parole. The Board's speculative fears do not constitute evidence that Petitioner represents a current danger to society and the Court would be abdicating its duties if it upheld such an arbitrary basis that is not hinged to any regulation or standard of review. See Lawrence, 44 Cal.4th at 1214, 82 Cal.Rptr.3d 169, 190 P.3d 535 (recognizing that "the fundamental purpose of judicial review is to permit courts to provide a remedy for arbitrary decisions").

7. District Attorney's Opposition

At the conclusion of its decision, the Board noted that both the District Attorney of San Bernardino County and the San Bernardino Police Department "indicate[d] an opposition to a finding of parole suitability." Lodgment 7 at 120-21. The Board did not elaborate as to whether this factored into its analysis and it's failure to do so suggests that the Board simply was complying with California Penal Code § 3046(c)'s mandate that the Board "shall" consider all statements and recommendations submitted by the trial judge, district attorney and/or sheriff and "shall enter on its order granting or denying parole to [life] prisoners, the fact that the statements and recommendations have been considered by it." Cal. Penal Code § 3046(c) (2001). To the extent the Board actually relied upon this information as a basis for denying Petitioner parole, such reliance would be improper. As courts in California as well as this Circuit have explained, "voiced opposition to parole is not an enumerated unsuitability factor . . . and such argument is not evidence of unsuitability." In re Viray, 75 Cal.Rptr.3d 190, 197 (4th Dist.2008)26 (citing People v. Breaux, 1 Cal.4th 281, 313, 3 Cal.Rptr.2d 81, 821 P.2d 585 (1991) ("it is axiomatic that argument is not evidence")); Saldate v. Adams, 573 F.Supp.2d 1303, 1310 (E.D.Cal.2008). Because the district attorney's argument on the record (see Lodgment 7 at 88-90), and presumably the letter from the sheriff the Board referenced but did not attach to its opinion, was just that, argument, it cannot be considered "some evidence" supporting a parole denial.

8. Conclusion: The Board did not Establish a Nexus to the Commitment Offense

As the Court noted at the outset of this analysis, the Board may consider the aggravated nature of the commitment offense, but only if it establishes some nexus between the commitment offense and a current finding of dangerousness. Here, none of the factors offered by the Board were supported by evidence in the record or indicative of current dangerousness. Thus, the superior court's deference to the Board's decision was not reasonable. See Cooke, 606 F.3d at 1214. This Court, therefore, concludes that the California court's decision approving the Board's parole denial was an unreasonable application of the California "some evidence" requirement and was based on an unreasonable determination of the facts in light of the evidence. See Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(1)-(2)); Pearson, 606 F.3d at 608. Because such arbitrary applications of state law violate the federal Due Process Clause, Lewis, 497 U.S. at 780, 110 S.Ct. 3092, this Court RECOMMENDS that the Petition be GRANTED.

C. Petitioner's Continued Imprisonment Does Not Violate the Ex Post Facto Clause

In his second claim for relief, Petitioner argues that the state's continued retention of him violates the Ex Post Facto Clause because the Board has increased his term of imprisonment beyond the term allowed by the law under which he was sentenced. Pet'r Mem. at 12-16. Petitioner explains that because he committed the crime in 1977, he was sentenced pursuant to the Indeterminate Sentencing Law ("ISL") instead of the Determinate Sentencing Law ("DSL") now in effect. Id. Under the ISL, Petitioner contends that the Board was directed to make every effort to establish a parole date the first time the prisoner appeared for a parole hearing and to focus primarily on the prisoner's progress towards rehabilitation. Id. at 13. The ISL also required the Board to calculate a proposed release date using a matrix that was created in order to encourage the setting of uniform and proportionate prison terms. Id. at 14. When the Board granted Petitioner parole in 2003, it used the matrix and concluded that his proposed release date was July 13, 1995. Id. at 14 and Ex. N. As this date has long since passed, Petitioner contends he is being held arbitrarily and must be released immediately. Id. at 14, 16.

Article I, Section 10 of the United States Constitution forbids the States from passing any "ex post facto Law." The Supreme Court has construed the Ex Post Facto Clause to mean that "[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). A law violates the Ex Post Facto Clause if it is: (1) retrospective and (2) disadvantages the defendant affected by it by increasing the punishment for the crime or altering the definition of the crime. Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (citing Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) and Collins, 497 U.S. at 50, 110 S.Ct. 2715).

Here, the Board has not increased Petitioner's punishment. Petitioner was sentenced to a term of seven years to life in prison. The sentence contemplates a potential life term in prison. A grant of parole is not mandatory, it is merely possible. While Petitioner may have expected to be released earlier and others convicted of the same crime may have been released sooner, the Board's decision to deny him parole has not enhanced his sentence. The fact that the July 13, 1995 release date has passed also does not make this an ex post facto violation because the California Supreme Court has made clear that considerations of public safety outweigh the legislative goal of setting uniform prison terms. See In re Dannenberg, 34 Cal.4th 1061, 1070-71, 1091, 1098, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005) (holding that the Board may find a prisoner unsuitable for parole on public safety grounds without considering when the prisoner will be paroled or setting a release date)27. Accordingly, Petitioner is not entitled to federal habeas relief with respect to this claim.

However, because the Court finds that the Petition should be granted for the reasons set forth above in relation to Petitioner's first claim for relief, it is relevant that the Board already has calculated Petitioner's release date under California law. Because the July 13, 1995 release date passed over fifteen years ago, Respondent should be directed to release Petitioner within thirty days of the date judgment is entered by the District Judge, subject to the parole restrictions set forth by the 2003 Board panel.28 See McQuillion v. Duncan, 342 F.3d 1012, 1015-1016 (9th Cir.2003) (affirming grant of habeas corpus relief on appeal after remand, and explaining that the proper relief is immediate release rather than remand for further parole proceedings where no evidence in the record supported the Board's determination that the petitioner was not suitable for parole); Murr v. Marshall, 673 F.Supp.2d 1028, 1057 (C.D.Cal.2009) (holding that the proper remedy was to order petitioner released on parole where date previously set by Board already had passed); Martin v. Marshall, 448 F.Supp.2d 1143, 1144-1145 (N.D.Cal.2006) (holding that where there was no evidence supporting the Governor's reversal of the Board's grant of parole, remand for a further parole hearing would be futile and the proper relief was immediate release on parole); Rosenkrantz, 444 F.Supp.2d at 1087 (where the petitioner's parole date has been determined under California law, and that date has passed, the proper relief is to order petitioner released on parole). Additionally, Petitioner's parole term should be reduced by the amount of time that has passed since November 24, 2008, the date of the 2008 Board's decision, and by including term credits to which he is entitled by law. McQuillion, 342 F.3d at 1015 (ordering prisoner's immediate release without parole where "three-year parole, which he would have been required to serve if he had been released on time [in 1994], has long since expired"); Mendoza v. Hernandez, 2008 WL 2018191, at *2 (S.D.Cal. May 7, 2008) ("directing that petitioner be paroled immediately; and directing that petitioner's parole term be reduced by the time that his incarceration has exceeded the Board's June 23, 2004 decision and by including term credits to which he is entitled by law").

CONCLUSION AND RECOMMENDATION

For the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Judge issue an order: (1) approving and adopting this Report and Recommendation, (2) directing that judgment be entered granting the petition, (3) requiring Petitioner to be released subject to all general parole conditions and the special parole conditions identified by the 2003 Board decision (see infra note 28) within thirty days of the date judgment is entered by the District Judge, and (4) directing that Petitioner's parole term be reduced by the amount of time that has passed since November 24, 2008, and by including all term credits to which he is entitled by law.

IT IS ORDERED that no later than October 8, 2010, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later that October 29, 2010. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.1998).

IT IS SO ORDERED.