Opinion
No. CIV S-09-3356 MCE DAD P.
January 21, 2011
ORDER
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 decision by the California Board of Parole Hearings (Board) finding him unsuitable for parole. He also claims that two prison disciplinary convictions upon which the Board relied to find him unsuitable violated his federal constitutional rights.
On October 29, 2010, petitioner filed a request that this court take judicial notice of a declaration signed on August 3, 2009 by Barbara P. Stark, a private licensed psychologist who performs casework services for the California Department of Corrections and Rehabilitation (CDCR), including psychological risk assessments of prison inmates. In that declaration Dr. Stark opines, among other things, that the Board and the CDCR do not provide adequate training to their psychological evaluators on assessing the future risk of dangerousness of a life term inmate, and that clinical assessments of future violence and recidivism among California life term inmates are "meaningless." The declaration does not indicate the purpose for which it was drafted. Petitioner asserts that Dr. Stark's declaration is relevant to his claim in the pending habeas petition that the Board's 2008 decision finding him unsuitable for parole was improperly based on his most recent psychological evaluation and not on prior evaluations.
Respondent opposes petitioner's request for judicial notice on the grounds that Dr. Stark's declaration is not a proper subject for judicial notice. Moreover, respondent disputes Dr. Stark's conclusions stated in her declaration.
Federal Rule of Evidence 201(b) provides that "a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." The declaration of Dr. Stark submitted by petitioner does not fall within the type of documents described in this rule. The opinion of Dr. Stark regarding the general reliability of psychological assessments of life inmates is not based on generally known facts, nor is it capable of accurate determination. Further, the contents of Dr. Stark's declaration are in dispute. Accordingly, petitioner's request for judicial notice will be denied.
For the foregoing reasons, IT IS HEREBY ORDERED that petitioner's October 29, 2010 request for judicial notice (Doc. No. 18) is denied.
DATED: January 20, 2011.