Opinion
Case No. EDCV 07-1202-AHM (JTL).
May 6, 2010
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The Court submits this Final Report and Recommendation to the Honorable A. Howard Matz, 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.
PROCEEDINGS
On September 20, 2007, Susan Atkins ("Petitioner"), a prisoner in state custody, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 ("Petition"). On January 11, 2008, Dawn Davison ("Respondent") filed an Answer to the Petition ("Answer"). Petitioner filed a Reply to the Answer ("Reply") on February 7, 2008.
On February 24, 2009, the Court issued a Report and Recommendation, recommending that the district court dismiss the Petition with prejudice. Thereafter, on March 12, 2009, Petitioner filed her Objections to the Report and Recommendation ("Objections").
BACKGROUND
I. THE COMMITMENT OFFENSE
Petitioner's conviction stems from her participation in the Manson family murders that occurred in 1969. On January 25, 1971, in Los Angeles County Superior Court case number A253156, a jury found Petitioner guilty of seven counts of first degree murder and one count of conspiracy to commit murder, and fixed the penalty at death. (See Respondent's Lodgment No. 2). On April 19, 1971, the trial court sentenced Petitioner to death. (Respondent's Lodgment No. 3). On May 27, 1971, Petitioner pleaded guilty to an additional charge of first degree murder, in Los Angeles County Superior Court case number A267861, and was sentenced to a term of life imprisonment with the possibility of parole. (Respondent's Lodgment No. 4; see Respondent's Lodgment Nos. 5, 6). Shortly thereafter, the California Supreme Court held that the death penalty was unconstitutional. People v. Anderson, 6 Cal. 3d 628 (1972), cert. denied, 406 U.S. 958 (1972). On December 13, 1972, the trial court vacated Petitioner's death sentence and re-sentenced Petitioner to seven concurrent terms of life with the possibility of parole. (Respondent's Lodgment No. 1).In this habeas action, Petitioner challenges the execution of her sentence, rather than her conviction. Specifically, she asserts that there were numerous constitutional errors in the June 1, 2005 Board of Prison Terms ("BPT" or "Board") finding that she was unsuitable for parole.
The Board of Prison Terms was abolished effective July 1, 2005, and replaced with the Board of Parole Hearings. Cal. Penal Code § 5075(a). Nevertheless, because Petitioner's parole consideration hearing occurred earlier, on June 1, 2005, the Court will refer to the Board of Prison Terms.
II. PAROLE PROCEEDINGS
On June 1, 2005, Petitioner appeared before a panel of the Board for her seventeenth parole suitability consideration hearing. (Respondent's Lodgment No. 7). The Board found that Petitioner was unsuitable for parole and that Petitioner posed an unreasonable risk of danger to society or threat to public safety if released from prison. The Board based its decision first and foremost on the nature of Petitioner's commitment offense. (See id. at 157-59).
In a separate decision, the Board denied Petitioner parole for an additional four years based on the nature of Petitioner's commitment offense, her unstable social history and prior criminal history, and the inconclusiveness of Petitioner's recent psychiatric report dated January 3, 2005, in which the staff psychiatrist wrote that, although Petitioner "offers what appears to be credible expressions of insight and remorse . . . [c]omplete assurance of her acceptance of responsibility, insight and remorse will probably always be clouded somewhat by the factual disputes that stem from her earlier versions of the crime." (Id. at 159-64). The Board noted several factors favorable to parole were present (e.g., Petitioner's realistic and acceptable parole plans, development of marketable skills and extensive participation in a variety of programs including substance abuse programs), but concluded that the positive aspects of Petitioner's behavior did not outweigh the factors of unsuitability and, thus, denied parole for four years. (See id. at 162-63). The Board also found that Petitioner needed "further therapy in order to develop insight into the commitment offense and the underlying cause of the offense." (Id. at 163).
III. STATE HABEAS PROCEEDINGS
On July 14, 2006, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, alleging that the Board's 2005 denial of parole violated her right to due process. (Respondent's Lodgment No. 8). In its April 10, 2007 decision denying the petition, the superior court determined that there was "some evidence" to support the Board's finding that Petitioner was unsuitable for parole:
Petitioner was received into custody on April 23, 1971, after being convicted of seven counts of first degree murder. Petitioner received a term of seven years to life with a minimum eligible parole date of September 1, 1976. The record reflects that, at the time of the commitment offenses, [P]etitioner was a member of Manson Family. On July 25, 1969, [P]etitioner and four crime partners went to their first victim's home to solicit money. He was kept prisoner in his home for a period of time during which his ear was cut off and he was repeatedly stabbed. Petitioner participated in suffocating the victim as he lay dying from a stab wound to the heart. On August 9, 1969, [P]etitioner and her co-defendants broke into the home of Sharon Tate Polanski, after shooting a neighbor's visitor outside the residence. Inside, they repeatedly stabbed the four occupants. One victim was killed by a gunshot wound to the back and multiple blunt force traumas to the head. The other three were repeatedly stabbed to death. The blood of one victim was used to paint the word "PIG" on the walls. The following day, [P]etitioner accompanied other members of the Manson Family to the home of Leno and Rosemary LaBianca, whom they also murdered by stabbing. These murders were all committed for the purpose of inciting a race war.
. . .
The Court finds that there is some evidence to support the Board's finding that [Petitioner] is unsuitable for parole based on the commitment offense. Although the parole authority is prohibited from adopting a blanket rule that automatically excludes parole for individuals who have been convicted of a particular type of offense, the authority properly may weigh[] heavily the degree of violence used and the amount of viciousness shown by a defendant. (In re Rosenkrantz (2002) 29 Cal.4th 616, 683). There is some evidence to support the Board's finding that multiple victims were killed in the same and separate incidents. (Cal. Code Regs., tit. 15 § 2402, subd. (c)(1)(A).) Petitioner personally participated in the deaths of six victims and was involved in the deaths of another two victims. The Court also finds that there is some evidence to support the [B]oard's finding that the offense was carried out in [a] manner that demonstrates an exceptionally callous disregard for human suffering. (Cal. Code Regs., tit. 15, § 2402(c)(1)(D).) An "exceptionally callous disregard for human suffering" means the offense in question must have been committed in a more aggravated or violent manner than that ordinarily shown in the commission of that offense. (In re Scott (2004) 119 Cal. App.4th 871, at 891). The [B]oard found that these murders were committed in [a] manner showing an "extremely high level of violence and savagery." [Respondent's Lodgment No. 7 at 158]. The victims were stabbed repeatedly over an extended period of time.
(Respondent's Lodgment No. 9 at 1-2).
Petitioner subsequently filed a petition for writ of habeas corpus in the California Court of Appeal. (Respondent's Lodgment No. 10). The court of appeal summarily denied the habeas petition on July 3, 2007. (Respondent's Lodgment No. 11). Petitioner then filed a petition for review of the court of appeal's denial in the California Supreme Court. (Respondent's Lodgment No. 12). On August 29, 2007, the California Supreme Court summarily denied the petition for review. (Respondent's Lodgment No. 13).
Petitioner filed the instant Petition on September 20, 2007.
After Petitioner filed her Reply in this case, Petitioner submitted a request for "compassionate release" for approval by the Board of Parole Hearings. Pursuant to California Penal Code section 1170(e), the Board of Parole Hearings may recommend to the court with specified discretion that a prisoner's sentence be recalled. See Cal. Penal Code § 1170(e)(1). The court has discretion to resentence or recall if "[t]he prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department" and "[t]he conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety." Cal. Penal Code § 1170(e)(2)(A)-(B). Alternatively, the court may resentence or recall if "[t]he conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety" and "[t]he prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing." Cal. Penal Code § 1170(e)(2)(B)-(C). On July 15, 2008, the Board of Parole Hearings held a closed session hearing on Petitioner's request and denied "compassionate release," declining to refer the matter to the Los Angeles County Superior Court for consideration of recalling her sentence. See Board of Parole Hearings En Banc Decisions, Tuesday, July 15, 2008, www.cdcr.ca.gov/Divisions_Boards/BOPH/docs/enbanc07-15-08.pdf,
PETITIONER'S CONTENTIONS
1. Petitioner's parole process was arbitrary because the Board intentionally violated the law, falsified information, and used Petitioner's thirty-six year-old conviction.2. The Board's actions violated substantive due process by intentionally subverting the parole process.
3. Petitioner was not given access to the materials used against her.
4. The Board's reliance on Petitioner's commitment offense in its decision did not satisfy the "some evidence" standard because the Board did not address Petitioner's present risk of danger to society.
5. The Board's decision and the District Attorney's office have violated Petitioner's plea agreement, thereby invalidating the plea agreement.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the Court's consideration of Petitioner's cognizable federal claims. 28 U.S.C. Section 2254(d), as amended by AEDPA, states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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.
In Williams v. Taylor, 529 U.S. 362, 405-06 (2000), the United States Supreme Court held that a state court's decision can be contrary to federal law either 1) if it fails to apply the correct controlling authority, or 2) if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. A state court's decision can involve an unreasonable application of federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Williams, 529 U.S. at 407-08. The Supreme Court has admonished courts against equating the term "unreasonable application" with "clear error": "These two standards . . . are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Instead, in this context, habeas relief may issue only if the state court unreasonably applied firmly established federal law. Id.
Here, Petitioner raised her current claims for relief in the state courts on habeas review. (See Respondent's Lodgment Nos. 8, 10, 12). The Los Angeles County Superior Court addressed Claim Four in a reasoned decision explaining why it denied Petitioner's claim. (Respondent's Lodgment No. 9). The California Court of Appeal and the California Supreme Court denied Petitioner's claims summarily. (Respondent's Lodgment Nos. 11, 13). The United States Supreme Court has held that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding the judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Thus, with respect to Claim Four, the Court "looks through" the California Supreme Court's "silent denial" to the Los Angeles County Superior Court's reasoned decision, and reviews that decision under the AEDPA standards. Id.; see Gill v. Ayers, 342 F.3d 911, 917 n. 5 (9th Cir. 2003) (the court "`look[s] through' the unexplained California Supreme Court decisions to the last reasoned decision, the state appellate court's decision, as the basis for the state court's judgment");Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (same). Where a state court has issued a reasoned decision explaining why it denied a petitioner's claims for relief, the reviewing court must accord substantial deference to that decision and decide only whether it was contrary to, or resulted in an unreasonable application of, firmly established law. See Andrade, 538 U.S. at 75; Anderson v. Terhune, 467 F.3d 1208, 1212 (9th Cir. 2006).
In contrast, no California court has issued a reasoned decision addressing the merits of Claims One, Two, Three and Five. The Los Angeles County Superior Court did not explicitly address Petitioner's claims, and the California Court of Appeal and California Supreme Court denied the claims summarily, without comment or citation to authority. Thus, the Court must independently review the record to determine whether the state courts' denials of these claims were contrary to, or resulted in an unreasonable application of, firmly established law. Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000) (stating that courts give less deference where state court issues silent denial and requiring federal court to conduct independent review); see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); see also Pinholster v. Ayers, 525 F.3d 742, 756 n. 11 (9th Cir. 2008).
Petitioner erroneously argues that she is "only constrained by the AEDPA" with respect to Claim Four because it is the only claim that was "adjudicated on the merits in State Court." (See Reply at 6, 22). The state courts' denials of Petitioner's state habeas petitions without comment or citation constitute a decision on the merits of the federal claims. See Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992); Pinholster, 525 F.3d at 756 n. 11.
DISCUSSION
I. PETITIONER'S CLAIM BASED UPON AN ALLEGED VIOLATION OF THE PLEA AGREEMENT DOES NOT WARRANT FEDERAL HABEAS RELIEF
In Claim Five, Petitioner argues that the Board and the District Attorney's office violated, and thereby invalidated, Petitioner's plea agreement. Petitioner argues that the "the State has reneged on the agreement" it made with Petitioner, and both the District Attorney and the Board have reviewed Petitioner's plea agreement and know she was not charged with, and did not plead guilty to, conspiracy, robbery or a mutilation crime with respect to the Hinman murder. Nonetheless, they continue to use these crimes as justification for denying her release from prison. (See Petition at 6; Reply at 5, 20-22). As set forth below, Petitioner's claim lacks merit."[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."Santobello v. New York, 404 U.S. 257, 262 (1971); accord Marbry v. Johnson, 467 U.S. 504, 509 (1984) ("[W]hen the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand."). Plea agreements are contractual in nature and subject to contract law standards of interpretation.See Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir. 2003) (quotingUnited States v. De La Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993)); see also In re Ellis, 356 F.3d 1198, 1207 (9th Cir. 2004); United States v. Kamer, 781 F.2d 1380, 1387 (9th Cir. 1986); United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979). The party asserting breach bears the burden of proving the underlying facts establishing a breach. See United States v. Laday, 56 F.3d 24, 26 (5th Cir. 1995); United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988). In determining whether a plea agreement has been breached, courts consider what was "reasonably understood" by a defendant when he "entered his plea of guilty." Gunn v. Ignacio, 263 F.3d 965, 970 (9th Cir. 2001); see De La Fuente, 8 F.3d at 1337 ("In construing [a plea] agreement, the court must determine what the defendant reasonably understood to be the terms of the agreement when he pleaded guilty."); see also United States v. Clark, 218 F.3d 1092, 1095 (9th Cir.), cert. denied, 531 U.S. 1057 (2000) ("If . . . a term of a plea agreement is not clear on its face, we look to the facts of the case to determine what the parties reasonably understood to be the terms of the agreement."). "[A] party's contention regarding his subjective understanding is not dispositive; rather, any dispute over the terms of the agreement must be determined by objective standards." Wheeler v. Yarbrough, 352 F. Supp. 2d 1085, 1094 (C.D. Cal. 2005); see Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006), cert. denied sub nom. Tilton v. Buckley, 127 S. Ct. 2094 (2007) ("Courts look to the `objective manifestations of the parties intent[.]'" (citation omitted)).
In California, a negotiated plea agreement is a form of a contract to be construed and interpreted in accordance with state contract law. 441 F.3d at 695. To this end, a court must look first to the plain meaning of the agreement's language. Id. If the language is ambiguous, the court must look to the "objectively reasonable" expectation of the promisee. Id. If the ambiguity remains, the language of the agreement should be interpreted most strongly against the party who caused the uncertainty to exist. Id. at 695-96.
In this case, the plain language of Petitioner's plea agreement, as reflected in the plea transcript shows that, as to the murder of Gary Hinman in Los Angeles County Superior Court case number A267861, Petitioner was charged with one count of willful, unlawful and felonious murder with malice aforethought (Cal. Penal Code § 187; Count 1) on July 27, 1969, and one count of conspiracy to commit robbery and murder (Cal. Penal Code § 182.1; Count 2) between the dates of July 25 and July 28, 1969. (See Respondent's Lodgment No. 4 at 2). Petitioner pleaded guilty to first degree murder in exchange for the prosecution's recommendation that she receive a sentence of life imprisonment, rather than death. (See id. at 6, 10, 12-13). During the plea colloquy, Petitioner admitted that she went to Hinman's home on July 25, 1969, and stayed there on and off until July 27, 1969. (See id. at 6-7). When asked whether she was aware that a robbery was taking place in connection with Hinman's property, Petitioner responded that she "was aware that there was a transaction going on," but was not aware that a robbery was taking place. (See Respondent's Lodgment No. 4 at 7-8). Petitioner admitted to knowingly participating in the killing of Hinman, with knowledge and an intention that her acts would result in his death. (See id. at 8, 9, 11). Specifically, Petitioner confirmed that she used a pillow to muffle or cut off Hinman's breath. (See id. at 12). Petitioner also admitted to wiping Hinman's house down for fingerprints after he died and removing garbage and bandages used to bandage the injured Hinman between July 25 and July 27, 1969. (See Respondent's Lodgment No. 4 at 8-9). The prosecution explained that it would recommend a sentence of life imprisonment because the evidence showed that Petitioner "did not wield the death weapon, but rather is guilty of first degree murder on an aiding and abetting theory, and on a conspiracy theory to commit murder and robbery of Gary Alan Hinman" and, given that Petitioner had been convicted of seven counts of first degree murder and received seven, possibly eight, death sentences in Los Angeles County Superior Court case number A253156, the interests of justice favored a life imprisonment sentence. (See id. at 13). Petitioner then pleaded guilty to first degree murder as to Count 1, in that she "wilfully, unlawfully and feloniously and with malice aforethought" murdered Hinman. (See id.). The trial court approved and entered the plea and sentenced Petitioner to life in prison. (See id. at 13, 14-15).
The Court notes that the plea transcript is unclear as to whether the charge of conspiracy to commit robbery and murder in Count 2 was dropped during the course of plea bargaining. After the prosecution described the crimes with which Petitioner was charged — willful, unlawful, felonious murder with malice aforethought in Count 1 and conspiracy to commit robbery and murder in Count 2 — the prosecution stated, and Petitioner confirmed, that she wished to withdraw her plea of not guilty to Count 1 and plead guilty to murder in the first degree. (See Respondent's Lodgment No. 4 at 2-3). The prosecution subsequently explained to Petitioner:
[M]urder is the unlawful killing of a human being with malice aforethought.
Murder is classified into two degrees, first and second degree. Murder — all murder which is perpetrated by any kind of wilfull [sic], deliberate and premeditated killing with malice aforethought is murder of the first degree.
Also, under the felony murder doctrine, the unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission of or intent to commit the crime of robbery, and where there was, in the mind of the perpetrator, the specific intent to commit such crime, i.e., the robbery, that is murder in the first degree.
(Respondent's Lodgment No. 4 at 5). In connection with the charge of murder in Count 1, the prosecution proceeded to question Petitioner regarding the factual circumstances of the offense, at which point Petitioner indicated that she knew a "transaction" was taking place, but was not aware that any robbery was taking place. (See Respondent's Lodgment No. 4 at 6-8). The trial court interjected and asked Petitioner if she understood that "a murder, a homicide that's committed in the course of a robbery . . . is a murder of the first degree[.]" (Id. at 7). The prosecution subsequently explained that its recommendation of a life sentence was, in part, based on the evidence showing that Petitioner was "guilty of first degree murder on an aiding and abetting theory, and on a conspiracy theory to commit murder and robbery of Gary Alan Hinman." (See id. at 13). Ultimately, the trial court approved and entered Petitioner's plea of guilty to first degree murder in Count 1, in that she "wilfully, unlawfully and feloniously and with malice aforethought murder[ed] [] Hinman." (Id.).
Even construing the ambiguity as to whether the conspiracy to commit robbery and murder charged in Count 2 was dropped in favor of Petitioner, see De La Fuente, 8 F.3d at 1337 n. 7, the record is clear that Petitioner received the benefit of her plea bargain — in exchange for pleading guilty to first degree murder, the prosecution recommended that she be sentenced to life in prison rather than death. The trial court accepted the prosecution's recommendation and sentenced Petitioner accordingly. According to the plea transcript, a life imprisonment sentence was the only benefit Petitioner would receive under the plea agreement. (See Respondent's Lodgment No. 4 at 6, 10). Petitioner has not alleged, and the record does not indicate, that the prosecution specifically promised that, as a condition of the plea agreement, the offense would be characterized or described in a particular manner in future parole hearings. Thus, Petitioner's guilty plea did not "rest[] in any significant degree on [such] a promise or agreement of the prosecutor so that it can be said to be part of the inducement or consideration" of the plea agreement. See Santobello, 404 U.S. at 262; see also In re Honesto, 130 Cal. App. 4th 81, 93 (2005) (rejecting superior court's conclusion that the Board violated the petitioner's plea agreement by denying him parole based on the facts of his offense where the petitioner failed to establish that "any express or implied term of his plea agreement precluded the Board from exercising its statutorily authorized discretion to consider the facts of the offense in determining his suitability for parole"); In re DeLuna, 126 Cal. App. 4th 585, 599 (2004) (finding that nothing in the record indicated that the petitioner's plea agreement included a promise by the prosecutor that the petitioner would be released on parole at any specific time or that the prosecutor would cease arguing on a given date that the commitment offense was especially callous and concluding that, absent such evidence, the petitioner "cannot establish that his continued incarceration is a breach of his bargain"); cf. Buckley, 441 F.3d at 699 (a federal habeas court may grant specific performance of a plea agreement in the face of evidence that the state has breached the terms of such an agreement); Brown, 337 F.3d at 1159-62 (ordering specific performance of plea agreement where prosecutor made express promise that petitioner would serve only half of minimum term if she remained discipline free, and petitioner fulfilled her side of the bargain).
Moreover, the Board was not a party to the plea agreement. In fact, it was reasonable to expect that the Board would have reviewed and considered the underlying facts of Hinman's death. As discussed infra, the Board is entitled to consider the nature of Petitioner's commitment offense in determining Petitioner's suitability for parole. See Cal. Code Regs., tit. 15, § 2281(b), (c)(1) (in considering the prisoner's commitment offense as a circumstance tending to indicate unsuitability, the Board may consider whether "[t]he offense was carried out in a dispassionate and calculated manner, such as an execution-style murder," "[t]he victim was abused, defiled or mutilated during or after the offense," "[t]he offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering," and "[t]he motive for the crime is inexplicable or very trivial in relation to the offense"). Thus, Petitioner's expectations of what the Board should consider in parole hearings are unrelated to the guilty plea. See Wheeler, 352 F. Supp. 2d at 1094; Buckley, 441 F.3d at 695.
The Court cannot conclude that the California courts' denials of Petitioner's plea violation claim were contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or were based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). Claim Five, therefore, does not warrant federal habeas relief.
II. THE BOARD'S 2005 DENIAL OF PAROLE DID NOT VIOLATE PETITIONER'S RIGHT TO DUE PROCESS
Petitioner raises several due process claims in the instant Petition. In Claim One, Petitioner contends that her parole process was arbitrary because the Board intentionally violated the law, falsified information, and used Petitioner's thirty-six year-old conviction. (See Petition at 5, "Additional Page"; Reply at 8-16, 22). In Claim Two, Petitioner contends that the Board's actions violated substantive due process by intentionally subverting the parole process. (See Petition at 5; Reply at 17, 23). In Claim Three, Petitioner contends that she was not given access to the materials used against her. (See Petition at 6; Reply at 4, 18). In Claim Four, Petitioner contends that the use of Petitioner's commitment offense thirty-six years later without explaining how it was relevant to Petitioner's present risk of danger to society did not satisfy the "some evidence" standard. (See Petition at 6; Reply at 7, 18-20, 23). For the reasons set forth below, Petitioner's claims do not warrant federal habeas relief.
A. Petitioner Has A Liberty Interest In Parole
While there is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence," Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 7 (1979), a state's statutory parole scheme, if it uses mandatory language, may create a presumption that parole release will be granted when or unless certain designated findings are made, and thereby give rise to a constitutionally protected liberty interest. See Bd. of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (Montana parole statute providing that board "shall" release prisoner, subject to certain restrictions, creates due process liberty interest in release on parole); Greenholtz, 442 U.S. at 11-12 (Nebraska parole statute providing that board "shall" release prisoner, subject to certain restrictions, creates due process liberty interest in release on parole). In such a case, a prisoner gains a legitimate expectation in parole that cannot be denied without adequate procedural due process protections. See Allen, 482 U.S. at 373-81; Greenholtz, 442 U.S. at 11-16.
The Ninth Circuit has held that as a matter of "clearly established" United States Supreme Court law, California's parole scheme, which uses mandatory language and is "largely parallel" to the schemes found in Greenholtz and Allen, gives rise to a cognizable liberty interest in release on parole. McQuillion v. Duncan, 306 F.3d 895, 901-02 (9th Cir. 2002). In California, "[t]he panel or board . . . shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offenses or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." Cal. Penal Code § 3041(b). The scheme creates a presumption that parole release will be granted unless the statutorily defined determinations are made. McQuillion, 306 F.3d at 902. The Ninth Circuit has found that section 3041 of the California Penal Code vests all California prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process clause. Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) (as amended), reh'g denied, 506 F.3d 951 (2007); see also Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006) (petitioner has a constitutionally protected liberty interest in a parole date);Biggs v. Terhune, 334 F.3d 910, 914-15 (9th Cir. 2003) (affirming that an inmate has a constitutionally protected liberty interest in release on parole).
B. Scope of Due Process Protection
Because parole-related decisions are not considered part of a criminal prosecution, the "full panoply of rights" due a defendant in a criminal proceeding is not constitutionally mandated in a parole proceeding, even when a protected liberty interest exists. Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987), cert. denied, 484 U.S. 1017 (1988). In general, due process is satisfied in the context of a hearing to set a parole date where the prisoner is provided with notice of the hearing, an opportunity to be heard, and, if parole is denied, a statement of the reasons for the denial. See Jancsek, 833 F.2d at 1390 (citing Greenholtz, 442 U.S. at 16). Violation of state mandated procedures constitutes a federal due process violation only if the violation causes a fundamentally unfair result. See Estelle v. McGuire, 502 U.S. 62, 75 (1991).
In addition to these procedural protections at the parole hearing, there must be an evidentiary basis for the parole board's decision to deny parole. In Superintendent v. Hill, 472 U.S. 445 (1985), the United States Supreme Court held that due process requires that a disciplinary board's decision to revoke a prisoner's good time credits must be supported by "some evidence." Id. at 455-56. Reasoning that a parole decision, like the accumulation of good time credits, directly affects the duration of the prison term, the Ninth Circuit has held that the "some evidence" standard set forth in Hill applies in the parole context. Jancsek, 833 F.2d at 1390-91; see Irons, 505 F.3d at 851; Sass, 461 F.3d at 1128-29; Biggs, 334 F.3d at 915;McQuillion, 306 F.3d at 904.
To meet the "some evidence" standard, the evidence relied upon must bear "some indicia of reliability." Biggs, 334 F.3d at 915 (quoting Jancsek, 833 F.2d at 1390). Determining whether the "some evidence" standard was met does not require examination of the entire record, independent assessment of the credibility of the witnesses, or the weighing of evidence. Hill, 472 U.S. at 455; Sass, 461 F.3d at 1128. The "some evidence" standard is "minimally stringent," and is met "if there is any evidence in the record that could support the conclusion reached by the . . . board." Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994) (emphasis in original and internal quotation marks omitted); see Sass, 461 F.3d at 1128-29 (parole denial justified if "there is any evidence in the record that could support the conclusion reached by the [] board"). The "some evidence" standard "assures that `the record is not so devoid of evidence that the findings of the [] board were without support or otherwise arbitrary.'" Sass, 461 F.3d at 1129 (quoting Hill, 472 U.S. at 457)).
C. California's Parole Scheme
Under California law, eligible prisoners are considered for parole at a suitability hearing before a panel of the Board. Cal. Penal Code § 3041.5(a). Prisoners are entitled to be present at the hearing, to ask questions, and to speak on their own behalf. Cal. Penal Code § 3041.5(a)(2). Prisoners serving a life sentence are entitled to be represented by counsel. Cal. Penal Code § 3041.7. The Board must determine "whether the life prisoner is suitable for release on parole." Cal. Code Regs., tit. 15, § 2281(a). If the Board finds the prisoner suitable for parole, it sets a parole date. A parole release date must be set unless the panel determines that the "gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration[.]" Cal. Penal Code § 3041(b).
In considering whether a prisoner is suitable for parole, the Board must consider "[a]ll relevant, reliable information." Cal. Code Regs., tit. 15, § 2281(b). Such information includes the prisoner's social and criminal history, her mental state, and her commitment offense and attitude towards the offense. Id. Circumstances indicating unsuitability include: the commitment offense was committed in an especially heinous, atrocious, or cruel manner; a previous record of violence; an unstable social history; sadistic sexual offenses; psychological factors; and serious misconduct in prison. Cal. Code Regs., tit. 15, § 2281(c). Circumstances indicating suitability include: no juvenile record; a stable social history; signs of remorse; motivation for the crime; lack of criminal history; the prisoner's age and plans for the future; and the prisoner's conduct in prison. Cal. Code Regs., tit. 15, § 2281(d). Regardless of the length of time served, a life prisoner must be found unsuitable and denied parole if, in the judgment of the panel, he or she will pose an unreasonable risk of danger to society if released. Cal. Code Regs., tit. 15, § 2402(a).
D. The Board's June 1, 2005 Decision Denying Parole
The Board found that Petitioner was unsuitable for parole due to the nature of her commitment offenses. (See Respondent's Lodgment No. 7 at 157). Specifically, the Board stated:
[T]he panel reviewed all information received from the public and relied on the following circumstances in concluding that you are not suitable for parole and . . . would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The first and foremost issue that we took into consideration is the gravity of the offense. A review of the record indicates that the offense was carried out in an especially cruel and callous manner, in that the victims in this case were shot and/or stabbed multiple times, to include the stabbing death of a pregnant Sharon Tate. Multiple victims, specifically eight, were attacked and killed in three separate incidents. The offense was carried out in a dispassionate and calculated manner in that all the facts in this case suggest premeditation to an extent. Some of the victims in this case were abused and mutilated in that one of the victims had his ear cut off and numerous other victims were stabbed to death over a period of time. The murder of the first victim, Mr. Hinman, on July 25, 1969, did not deter you from later committing additional offenses. It should be noted that Mr. Hinman was stabbed repeatedly over a period of time. One of his ears was cut off and he subsequently died as a result of a stab wound from — a stab wound to the heart after a lengthy period of time. The motive for that particular crime was trivial in that it appears that it was committed for the purpose of robbery. These conclusions are drawn from the Statement of Facts, wherein according to the record, you and your co-defendants, known as The Manson Family, on or about July 25th, 1969, caused the deaths — death of Mr, Hinman by repeated stabbings. On August 9th, 1969, members of The Manson Family, to include yourself. . . . went to the home of Sharon Tate and proceeded to murder the victims. Specifically, Ms. Folger, Mr. Frykowski, Mr. Parent, Ms. Polanski and Mr. Sebring. The victims were killed via gunshot and/or multiple stab wounds demonstrating an extremely high level of violence and savagery in the commission of these crimes. During or after the murder, the words "PIG" were written on the wall or door utilizing blood of one of the victims in an apparent effort to incite a race war.
(Respondent's Lodgment No. 7 at 157-58).
The Board also denied Petitioner parole for an additional four years in a separate decision, stating:
[T]he reasons for the four year denial, the main reason is the gravity of the offense. According to the record, the offense was carried out in an especially cruel and callous manner in that the victims in this case were shot and/or stabbed multiple times to include the stabbing death of an eight and a half month pregnant Sharon Tate. Multiple victims, specifically eight were attacked and killed in three separate incidents in the sanctity of their homes. The offense was carried out in a dispassionate and calculated manner in that the facts of this case suggest premeditation. The victims were abused and mutilated during and/or after the offense in that one victims had his ear cut off and numerous other victims were shot and/or stabbed to death over a period of time. The motive for the crime, the first crime, the death of Mr. Hinman was very trivial in relationship to the offense in that he was murdered for the purpose of money. The murder of the first victim, Mr. Hinman, did not deter the prisoner from later committing other offenses. Mr. Hinman's death it is noted resulted from multiple stab wounds over a period of time and his death subsequently occurred as a result of a stab wound to the heart after having had his ear cut off. These conclusions are drawn from the Statement of Facts[.] . . . A review of the record indicates that you have an unstable social history and prior criminal arrests, which includes arrests. You have one conviction for possession of marijuana and you have arrests for receiving stolen property, possession of a concealed weapon, reproducing [a] driver's license, possession of dangerous drugs, use by a minor, and grand theft. You also have extensive use — a history of extensive use of narcotics to include LSD, marijuana, hashish and methamphetamine. It's important to note that the psychiatric report dated January 3rd of 2005, written by Staff Psychologist Robert Smith is somewhat inconclusive. And the reason I state that is because if you look at page six of the most recent report, Dr. Smith writes, these crimes are horrific and are well beyond what is common in our community. Inmate Atkins does admit responsibility and she offers what appears to be credible expressions of insight and remorse. Complete assurance of her acceptance of responsibility, insight and remorse will probably always be clouded somewhat by the factual disputes that stem from her earlier versions of the crime. We do note for the record, ma'am that you do appear to have realistic parole plans with your husband[.] And it does appear that you do have acceptable employment plans; again, as a paralegal in the business of your husband. In addition, you also have marketable skills that you would be able to utilize upon your release to parole. You have a paralegal certification that you would be able to put to use. You have completed word processing courses and you have worked for an extended period of time as a clerk within the institutions and as a receptionist that would appear to provide you with the skills necessary to obtain that type of employment on the outside. The Hearing Panel notes that responses to Penal Code Section 3042 indicate an opposition to a finding of suitability by the District Attorney of Los Angeles County, the Los Angeles County Sheriff's Department, the Los Angeles Police Department and numerous or a number of victims' next of kin. The Panel makes the following findings: And that is that you need further therapy in order to develop insight into the commitment offense and the underlying cause of the offense. Nevertheless, we would like to take this opportunity to commend you for a variety of things. First of all, we'd like to commend you for your completion of your AA and for being very close to completing your BS. We do encourage you to complete that. We'd also like to commend you for your extensive participation in AA, NA, Breaking Barriers, CODA [], Bible Study Fellowship, Sharing Our Stitches, Mexican American Resource Association, the African American Women Prisoners Association and a variety of other programs that you have participated during your length incarceration within the California Department of Corrections. However, these positive aspects of your behavior do not outweigh the factors of unsuitability. And as a result, we will deny you at this point for four years.
(Respondent's Lodgment No. 7 at 159-64). The Board requested that the Department of Corrections conduct another psychological evaluation for Petitioner's next parole hearing, and, in particular, asked for an evaluation of Petitioner's violence potential in the community, her insight into the crime, and the extent to which Petitioner had come to terms with the underlying cause of the commitment offense, the significance of drugs in the commitment offense, and an estimate of her ability to refrain from using substances in the future. (Respondent's Lodgment No. 7 at 164). Finally, the Board told Petitioner to "continue doing exactly what you've been doing recently" by remaining disciplinary free, taking advantage of available self-help, therapy and vocational programs, and continuing to maintain a positive attitude. (Id.).
E. " Some Evidence" Supports The Board's Decision
In denying parole for Petitioner, the Board found that Petitioner would pose an unreasonable risk of danger to society or threat to public safety if she were released from prison. The "first and foremost issue" that the Board took into consideration was the "gravity of the offense." (See Respondent's Lodgment No. 7 at 157-59). Under California law, the nature of a prisoner's offense alone can constitute a sufficient basis for denying parole. See In re Rosenkrantz, 29 Cal. 4th 616, 682-83 (2002) ("Although the parole authority is prohibited from adopting a blanket rule that automatically excludes parole for individuals who have been convicted of a particular type of offense, the authority properly may weigh heavily the degree of violence used and the amount of viciousness shown by a defendant."); see also Sass, 461 F.3d at 1129 (unchanging factors, such as the gravity of the commitment offense and conduct prior to imprisonment, may serve as "some evidence" for a denial of parole). Under the applicable California parole regulations, factors that support a finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner, and thus is unsuitable for parole, include: (1) that multiple victims were attacked, injured or killed in the same or separate incidents; (2) that the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (3) that the victim was abused, defiled or mutilated during or after the offense; (4) that the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (5) that the motive for the crime was inexplicable or trivial in relation to the offense. See Rosenkrantz, 29 Cal. 4th at 654 n. 11; Cal. Code Regs., tit. 15, §§ 2402(c)(1)(A)-(E), 2281(c)(1)(A)-(E). The commitment offense may provide some evidence that a prisoner is presently too dangerous to be found suitable for parole where the Board "can point to factors beyond the minimum elements of the crime" that demonstrate the inmate poses a present danger to society if released. See Irons, 505 F.3d at 851-52; In re Dannenberg, 34 Cal. 4th 1061, 1095 n. 16 (2005); see also Cal. Penal Code § 3041(b) (the Board may deny a parole release date if it determines that "the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual"). "Factors beyond the minimum elements of the crime include, inter alia, that `[t]he offense was carried out in a dispassionate and calculated manner,' that `[t]he offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering,' and that `[t]he motive for the crime is inexplicable or very trivial in relation to the offense.'" Irons, 505 F.3d at 852 (quoting Cal. Code Regs., tit. 15 § 2402(c)(1)(B), (D)-(E)).
The Ninth Circuit's holding in Biggs provides additional guidance on this point. After Biggs's employer was charged with grand theft arising out of the company's trafficking in stolen computer parts, a witness planning to testify against the employer was bludgeoned to death. Biggs did not personally kill the victim, but he helped lure the victim to his death, was present during the killing, paid money to the conspirators, and helped conceal the body. Biggs, 334 F.3d at 912. The Ninth Circuit affirmed the district court's conclusion that there was no evidence in the record to support the Board's findings that Biggs had an escalating pattern of criminal conduct, he was not remorseful for his actions, he failed to profit from previous attempts to correct his criminality, and his gains were "recent."Id. at 915-16. Nonetheless, the Ninth Circuit held that the circumstances of the murder exhibited a "callous disregard for life," and constituted "some evidence" supporting the Board's decision that Biggs was unsuitable for parole. Id. at 916.
In this case, unlike in Biggs, Petitioner personally participated in the killing of multiple victims. There is evidence that Petitioner and other members of the Manson Family went to Gary Hinman's home on July 25, 1969, and Petitioner knowingly participated in his killing. (See Respondent's Lodgment No. 4 at 6-7, 8, 9, 11; Respondent's Lodgment No. 5). Hinman was cut and stabbed repeatedly over the course of several days and suffered a stab wound to the heart. (See Respondent's Lodgment No. 5; Respondent's Lodgment No. 6 at 2, 4). Hinman's ear was cut off with a sword and a gaping wound was inflicted on the side of his face. (See Respondent's Lodgment No. 6 at 4). Petitioner admitted to using a pillow to muffle or cut off Hinman's breath, wiping his house down for fingerprints after he died, and removing garbage and bandages used to bandage him. (See Respondent's Lodgment No. 4 at 8-9, 12). On August 9, 1969, Petitioner personally participated in the deaths of five additional victims at the Tate residence, wherein each victim was shot and/or stabbed multiple times and Petitioner soaked a towel in a victim's blood and wrote words on the wall. (See Respondent's Lodgment No. 2 at 7; Respondent's Lodgment No. 6 at 2-3, 4-5). In light of the foregoing, the Los Angeles Superior Court reasonably concluded that "some evidence" supports the Board's finding that Petitioner was unsuitable for parole based on its findings that Petitioner's commitment offense was carried out in an "especially cruel and callous manner" and multiple victims were killed in the same and separate incidents. (See Respondent's Lodgment No. 7 at 157; Respondent's Lodgment No. 9 at 1-2). Further, the superior court reasonably concluded that there was "some evidence" to support the Board's parole suitability determination based on its finding that the murders were committed with an "extremely high level of violence and savagery" and, thus, in a manner demonstrating an "exceptionally callous disregard for human suffering" in that they were committed in a "more aggravated or violent manner than that ordinarily shown in the commission of that offense." (See Respondent's Lodgment No. 7 at 158; Respondent's Lodgment No. 9 at 2). As the Ninth Circuit has observed, "Hill's some evidence standard is minimal," Sass, 461 F.3d at 1129; see Hill, 472 U.S. at 457 (even "meager" evidence satisfies the "some evidence" standard such that the "the record is not so devoid of evidence that the findings of the [] board were without support or otherwise arbitrary"), and is met "if there is any evidence in the record that could support the conclusion reached by the . . . board." Powell, 33 F.3d at 40 (emphasis in original).
Petitioner, however, claims that the Board's use of her commitment offense thirty-six years afterward, without explanation as to how it was relevant to her present risk to society, did not satisfy the "some evidence" standard. (See Petition at 6; Reply at 7, 18-20). Specifically, Petitioner argues that "the mere re-statement of a commitment offense does not satisfy the Constitutional requirement for `some evidence' that parole would present an unreasonable risk to society at the present time." (Reply at 19).
In Biggs, the Ninth Circuit indicated that the value of the criminal offense fades over time as a predictor of parole suitability, and "continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." 334 F.3d at 916-17 (citation omitted). The Ninth Circuit ultimately found that Biggs' commitment offense constituted "some evidence" supporting the denial of parole at his first suitability hearing, but cautioned that, "[o]ver time . . . should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of Biggs' offense and prior conduct would raise serious questions involving his liberty interest in parole." Biggs, 334 F.3d at 916.
Subsequently, in Sass, the Ninth Circuit held that due process was not violated when the inmate was found unsuitable for parole based on his commitment offense and prior offenses. Sass, 461 F.3d at 1125-26, 1129. The Ninth Circuit acknowledged the Biggs language regarding continued reliance on unchanging factors, but declared: "Under AEDPA it is not our function to speculate about how future parole hearings could proceed." Id. at 1129. In Irons, the Ninth Circuit reversed the district court's Biggs-based grant of habeas relief and held that, despite the "substantial evidence in the record demonstrating rehabilitation," the facts of Irons's conviction offense constituted "some evidence" sufficient to support the parole board's decision finding him unsuitable for parole. Irons, 505 F.3d at 849, 853-54. Observing that Irons, like Biggs and Sass, had not yet served the minimum term of his sentence at the time of his parole hearing, the Ninth Circuit declared: "All we held in those cases and all we hold today, therefore, is that, given the particular circumstances of the offenses in these cases, due process was not violated when these prisoners were deemed unsuitable for parole prior to the expiration of their minimum terms." Id. at 853-54. The Ninth Circuit expressed a hope that "the Board will come to recognize that in some cases, indefinite detention based solely on an inmate's commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process." Irons, 505 F.3d at 854.
The dicta in Biggs is not clearly established law as set forth by the United States Supreme Court. Thus, the state court's refusal to adopt Biggs is not a decision that is contrary to, or an unreasonable application of, clearly established federal law as set forth by the Supreme Court. See 28 U.S.C. § 2254(d); Cass v. Woodford, 432 F. Supp. 2d 1061, 1064-66 (S.D. Cal. 2006); see Lucero v. Mendoza-Powers, 2008 U.S. Dist. LEXIS 84585, at *34-38 (C.D. Cal. Oct. 21, 2008); Fernandez v. Kane, 2006 U.S. Dist. LEXIS 81068, at *6-8 (N.D. Cal. Oct. 24, 2006); Boatman v. Brown, 2005 U.S. Dist. LEXIS 9891, at *29-30 (N.D. Cal. May 18, 2005);Siller v. Brown. 2005 U.S. Dist. LEXIS 9370, at *29-30 (N.D. Cal. May 6, 2005); see also Perez v. Curry, 2008 U.S. Dist. LEXIS 101578, at *15 (N.D. Cal. Dec. 8, 2008) ("In any event, even assuming for purposes of this discussion that Biggs and Irons recognized an abstract due process right not to have parole repeatedly denied on the basis of the facts of one's crime and one's criminal history, and in the face of extensive evidence of rehabilitation, and also assuming arguendo that the right was violated in petitioner's case, petitioner still cannot obtain relief on this theory, because as there is no clearly-established United States Supreme Court authority recognizing a `Biggs claim.' The state courts' rulings therefore could not be contrary to, or an unreasonable application of, clearly-established Supreme Court authority within the meaning of 28 U.S.C. § 2254(d)(1)."). Indeed, the Ninth Circuit has recognized that "[t]here is no `clearly established' federal law as determined by the Supreme Court of the United States that limits the number of times a parole board may deny parole to a murderer based on the brutality and viciousness of the commitment offense," and that "[t]he dicta in Ninth Circuit cases like Biggs v. Terhune, 334 F.3d 910, 916-17 (9th Cir. 2003), are not holdings of the Supreme Court, as required by Carey v. Musladin, 549 U.S. [70, 73-77] (2006), and Schriro v. Landrigan, [ 550 U.S. 465, 127 S. Ct. 1933, 1941-43 (2007)]." Culverson v. Davison, 237 Fed. Appx. 174, 175 n. 5 (9th Cir. 2007), cert. denied, 128 S. Ct. 2475 (2008).
Moreover, the little guidance that has come from the Supreme Court suggests that the "some evidence" standard is extremely deferential to the original decision-maker. See Hill, 472 U.S. at 454-55 (examination of the entire record is not required, nor is an independent assessment of the credibility of witnesses or weighing of the evidence; the relevant question is whether there is any evidence in the record that could support the conclusion reached by the decision-maker). The Supreme Court's comments also suggest that the judiciary should be quite mindful of the subjective and predictive nature of a parole board's decision.See Greenholtz, 442 U.S. at 13. Prediction "requires the Board to assess whether, in light of the nature of the crime, the inmate's release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice." Id. at 8. To the extent that here, Petitioner would argue that her commitment offense, committed thirty-six years prior to the Board's decision denying parole, "no longer has any bearing on the predictive decision the [Board] must make[,] . . . criminal conduct is not some arbitrary factor like eye color that has nothing to do with present dangerousness. Recidivism concerns are genuine." Siller, 2005 U.S. Dist. LEXIS 9370, at *31 (citing Ewing v. California, 538 U.S. 11, 26 (2003) (O'Connor, J.)); see Boatman, 2005 U.S. Dist. LEXIS 9891, at *30 (same). "California's parole scheme does not offend due process by allowing the [Board] to predict that an inmate presents a present danger based on a murder" she committed decades ago. See Siller, 2005 U.S. Dist. LEXIS 9370, at *31; see also Thor v. Sisto, 2008 U.S. Dist. LEXIS 64928, at *19 (E.D. Cal. July 25, 2008) ("Under binding Ninth Circuit precedent, a commitment offense is some evidence that an inmate is unsuitable for parole, no matter how much time has passed since the offense occurred.").
In support of her claim, Petitioner relies in part on the Ninth Circuit's decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008). (See Reply at 7). In Hayward, the Ninth Circuit panel concluded that the gravity of the commitment offense had no predictive value regarding the petitioner's suitability for parole, and held that the Governor's reversal of parole was not supported by "some evidence" and resulted in a due process violation. 512 F.3d at 546-47. The Court also held that the Hill "some evidence" standard requires evidence that an inmate's release would unreasonably endanger public safety. Id. at 543-44. Thereafter, the Ninth Circuit granted en banc review and ordered that "the three-judge panel opinion [in Hayward] shall not be cited as precedent by or to any court of the Ninth Circuit." See Hayward v. Marshall, 527 F.3d 797 (9th Cir. 2008). On August 21, 2008, the California Supreme Court issued In re Lawrence, 44 Cal. 4th 1181 (2008), and its companion case, In re Shaputis, 44 Cal. 4th 1241 (2008). InLawrence, the California Supreme Court held that "the relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board." 44 Cal. 4th at 1221 (emphasis in original). Similarly, in Shaputis, the California Supreme Court stated that, in determining whether an inmate poses a current danger, "the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense." 44 Cal. 4th at 1254-55 (citations omitted).
In both these cases, however, the state supreme court decided issues of state court review of parole decisions as a matter of state law. Those decisions are not binding on this court, and the Ninth Circuit has not yet issued an en banc decision in Hayward. See Savignano v. Curry, 2008 WL 4279548, at *6 (N.D. Cal. Sept. 11, 2008) ("Unless or until the en banc court overrules holdings of the earlier Ninth Circuit panel decisions in Biggs, Sass and Irons, these cases hold that California's parole scheme creates a federally protected liberty interest in parole and therefore a right to due process which is satisfied if some evidence supports the Board's parole suitability decision."); Chavez v. Martel, 2009 WL 33427, at *1 n. 6 (E.D. Cal. Jan. 5, 2009) ("[I]n deciding Lawrence, the California Supreme Court was relying upon the California constitution and statutes. It does not appear from the opinion or the authorities cited that it was based upon Federal law as determined by the United States Supreme Court."); Woo v. Powers, 2008 WL 4361246, at *1 n. 1 (C.D. Cal. Sept. 15, 2008). Accordingly, this Court is not bound by the state supreme court's decisions in eitherLawrence or Shaputis. Because the Board's decision was supported by "some evidence," the Los Angeles County Superior Court's rejection of Petitioner's claim was not contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts presented. See 28 U.S.C. § 2254(d). Claim Four, therefore, does not warrant federal habeas relief.
F. Access to Materials
In Claim Three, Petitioner argues that she was not given access to the materials used against her at her June 1, 2005 parole hearing. Specifically, Petitioner argues that the Board allowed the District Attorney to present evidence that was not in Petitioner's central file during his closing statements, despite Petitioner's objections. (See Petition at 6; Reply at 4, 18).
Petitioner cites to Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1398 (9th Cir. 1987), in support of her claim. (See Reply at 18). In Pedro, the Ninth Circuit concluded that the petitioner had received all the process due under Greenholtz when the Board assigned to her a more serious subcategory of her crime severity rating. 825 F.2d at 1398, 1399. In reaching this conclusion, the Ninth Circuit stated:
In Greenholtz, the Court noted that it is axiomatic that due process is flexible and calls for the procedural protections that particular situations demand. 442 U.S. at 12. In the context of a statute which, while creating a protected liberty interest, was "necessarily subjective in part," vesting "very broad discretion in the Board," id. at 13, the Court held that due process did not require that every adverse parole decision include a statement of evidence relied on by the Board. [Greenholtz, 442 U.S.] at 15. The Court explained that "to require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board's parole release determination with a guilt determination." Id. at 15-16. The Court rejected this approach, noting: "The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more." Id. at 16.
Thus, since the setting of a minimum term is not part of a criminal prosecution, the full panoply of rights due a defendant in such a proceeding is not constitutionally mandated, even when a protected liberty interest exists. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The petitioner in the instant case had a hearing with written advance notice of the date and time, she had an opportunity to be heard, she was represented by a paralegal, she had access to all materials considered by the Board, and she submitted materials for the Board's consideration. The Board did not violate petitioner's expectation that, under the rules, a release date would be set within statutory guidelines and ranges; in this case, one of the two subcategories of severity category 7. Under Greenholtz, therefore, we conclude that the petitioner received all the process due. Her claim that due process requires the Board to articulate a standard definition of the term "significant planning and preparation" must therefore fail.Pedro, 825 F.2d at 1398-99 (emphasis added); see Jancsek, 833 F.2d at 1390.
Here, Petitioner was afforded the procedural protections noted in Pedro and Jancsek. Petitioner does not dispute that she had advance notice of her June 1, 2005 hearing, she had an opportunity to be heard, was represented by counsel, and submitted materials for consideration by the Board. Rather, Petitioner argues that the Board allowed the Deputy District Attorney to present information during his closing statements that was not included in her central file. For example, he stated that when Petitioner was arrested in 1966, she was in the company of two companions who were driving a stolen car, she had a handgun, and she told the state trooper who arrested her, "I should have killed you." (Respondent's Lodgment No. 7 at 87). With respect to the murder of Gary Hinman, the Deputy District Attorney discussed the fact that Manson and the Family believed Hinman had come into an inheritance, they wanted to invite Hinman to join the Family, Hinman would have had to turn over all his worldly possessions to the Family, and Petitioner and two companions went to Hinman's house and tried to convince him to join the Family but he refused. The Deputy District Attorney then stated that Hinman was held captive and tortured for two or three days. (Id). Furthermore, the Deputy District Attorney stated that Manson and Tex Watson went to Hinman's house, Watson held a gun to Hinman's head and demanded money and property from Hinman, Manson sliced off Hinman's ear and then Petitioner, or another Family member, tried to sew Hinman's ear back on with dental floss. (Id. at 87-88). After Hinman was murdered, the Deputy District Attorney told the Board that Petitioner returned to the Family's ranch and bragged, saying with a smile, "we killed him," that Petitioner spent a lot of time at the ranch sharpening knives and talking about how it felt to stab someone, and, as Hinman lay dying after being stabbed, they forced Hinman to sign over the pink slip to two of his cars. (Id. at 88). The Deputy District Attorney then discussed the Tate murders and described how Petitioner and her crime partners went to the Tate residence carrying two sets of clothes and knives. (Id.). At the Tate residence, Voityck Frykowski struggled, tried to run and was involved in an altercation with Petitioner. The Deputy District Attorney told the Board that Petitioner stabbed Frykowski several times and he was ultimately killed, and that Petitioner later laughed when she told her cellmates in jail that Tate, who was eight-and-a-half months pregnant at the time of her murder, was the last one of the victims to die. The Deputy District Attorney told the Board that Tate was crying, begging and pleading that she not be killed so she could live and have her baby, but that Petitioner looked Tate in the eye and said, "[L]ook bitch, I don't care about you. I don't care that you're going to have a baby. You're going to die and you better be ready." Petitioner kept stabbing Tate until she stopped screaming. Petitioner was not the only one to stab Tate. (Respondent's Lodgment No. 7 at 89-90). The Board was told that Petitioner tasted Tate's blood after killing her and that the Tate murders were designed to start a race war. After the murders, Petitioner and her companions returned to the ranch and watched television accounts of the murders and decided to continue with another murder spree. (Id. at 90-91). The Deputy District Attorney said that Petitioner went to the LaBianca residence the next day, and although she did not participate in the actual killings, Petitioner was there as a willing participant, and the only reason she did not go inside the residence was that Manson did not ask her to do so. (Id. at 91). The Board was also told that the LaBianca killings were also intended to start a race war, Mr. LaBianca's wallet was taken from the residence and planted in a gas station in what was believed to be a "Black neighborhood" so the crimes would be blamed on a black individual, and at the conclusion of the race war, Manson and his Family, of which Petitioner was an integral part, would benefit because the blacks would kill the whites, the blacks would come into power but would be unable to rule, and Manson would be there to be their leader. (Id. at 91-92). Finally, the Deputy District Attorney told the Board that Petitioner's disciplinary violations fit "a theme of deception and a theme of manipulation." (Id. at 92). (See Reply at 4, 18).
Although Petitioner argues that she was not given access to this information because it was not included in her central file, she does not argue that the Board considered this information in finding her unsuitable for parole. See Pedro, 825 F.2d at 1399 (finding due process satisfied where petitioner was given "access to all materials considered by the Board" (emphasis added)). Before the Deputy District Attorney made his closing statements at the parole hearing, the Board noted for the record, "[D]uring our deliberations, this Panel will be considering only relevant information pursuant to the regulations and the law." (Respondent's Lodgment No. 7 at 84). During Petitioner's counsel's closing statements and objections to the information presented by the Deputy District Attorney, the Board reiterated that it would "only be taking into consideration relevant information." (Id. at 100). Petitioner does not argue or provide any evidence that the Board denied parole based upon its consideration of the Deputy District Attorney's statements rather than information already included in Petitioner's central file. (See Respondent's Lodgment No. 7 at 157-65; see, e.g., Respondent's Lodgment Nos. 2, 4-6). Moreover, as previously discussed, the Board's decision is sufficiently supported by "some evidence" in the record. See supra Section II.E.
The Court, therefore, concludes that the California courts' denials of Petitioner's claim were not contrary to or an unreasonable application of clearly established federal law, nor were they based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). Claim Three, therefore, does not warrant federal habeas relief.
G. Petitioner's Parole Process Was Not Arbitrary And Did Not Violate Substantive Due Process
"[A] parole board's decision deprives a prisoner of due process with respect to [his constitutionally protected liberty] interest if the board's decision is not supported by `some evidence in the record,' or is `otherwise arbitrary.'" Irons, 505 F.3d at 851 n. 2 (citations omitted); see Hill, 472 U.S. at 457; Sass, 461 F.3d at 1129. In Claim One, Petitioner contends that her parole process was arbitrary because the Board deliberately and knowingly violated state law by: (1) allowing the Deputy District Attorney to use information not contained in Petitioner's central file and, therefore, illegally presented; (2) mischaracterizing Petitioner's role in Gary Hinman's death as a conspiracy robbery; (3) promulgating and enforcing illegal rules in violation of the Administrative Procedure Act by preventing Petitioner from reading into the record a statement of remorse to the families of the victims, and, instead, requiring her to give the statement to the Deputy District Attorney who would hand it to the families; (4) falsely claiming that Petitioner's psychiatric evaluation did not support her release; (5) relying solely on Petitioner's commitment offense to find her unsuitable for release, without indicating a single flaw in the thirty-five years of her incarceration; (6) requiring that Petitioner participate in therapy which was not available as a condition of parole; and (7) claiming that Petitioner's commitment offense was a "mutilation" crime. (See Petition at 5, "Additional Page"; Reply at 8-16, 22). In Claim Two, Petitioner contends that these actions by the Board violated substantive due process by intentionally subverting the parole process. (See Petition at 5; Reply at 17, 23).
Under Greenholtz, due process at a parole suitability hearing requires no more than an opportunity to be heard and a statement of reasons for denying parole. See Greenholtz, 442 U.S. at 16 ("The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole[.] . . . The Constitution does not require more."); cf. Pedro, 825 F.2d at 1399 (stating that, because parole-related decisions are not part of a criminal prosecution, "the full panoply of rights due a defendant in such a proceeding is not constitutionally mandated" in a parole proceeding, even when a protected liberty interest exists);Jancsek, 833 F.2d at 1390 (same). These limited due process requirements were met at Petitioner's June 1, 2005 hearing. The record shows that Petitioner presented materials in support of parole suitability and addressed the Board on her own behalf and through her counsel, who argued extensively in support of suitability. (See Respondent's Lodgment No. 7). The Board read its decision setting forth its reasons for finding Petitioner unsuitable for parole and denying parole for an additional four years, and indicated that it would provide Petitioner a copy of its written tentative decision. (See id. at 8, 14, 157-65).
Petitioner's hearing also complied with the additional due process requirements as set forth in Pedro and Jancsek. See Jancsek, 833 F.2d at 1390; Pedro, 826 F.2d at 1399 ("The petitioner in the instant case had a hearing with written advance notice of the date and time, she had an opportunity to be heard, she was represented by a paralegal, she had access to all materials considered by the Board, and she submitted materials for the Board's consideration. . . . Under Greenholtz, therefore, we conclude that the petitioner received all the process due."). As discussed supra Section II.F, Petitioner does not dispute that she had advance notice of her June 1, 2005 hearing, that she had an opportunity to be heard, and that she was represented by counsel and submitted materials for consideration by the Board. Nor does Petitioner argue or provide any evidence that the Board denied parole based on its consideration of the Deputy District Attorney's statements, to which she claims she had no access and were not part of her central file, as opposed to information already included in her central file.
Additionally, as discussed supra Section II.E, the nature and gravity of Petitioner's commitment offense provided "some evidence" with "some indicia of reliability" to support the Board's decision to deny Petitioner parole. See Sass, 461 F.3d at 1129 (relevant inquiry is whether "there is any evidence in the record that could support the conclusion reached by the [] board"); Powell, 33 F.3d at 40 ("some evidence" standard is "minimally stringent," and is met "if there is any evidence in the record that could support the conclusion reached by the . . . board" (emphasis in original and internal quotation marks omitted)).
Even if the Board made findings that were unsupported, the Court must deny habeas relief because there still exists "some evidence" that supports the Board's finding of unsuitability, including the finding that the offense was committed in an especially cruel manner. (See Respondent's Lodgment No. 7 at 157-58; see also, e.g., Respondent's Lodgment Nos. 2, 4-6). Cal. Code Regs., tit. 15, § 2281(c); see Biggs, 334 F.3d at 916 (concluding that "the district court was correct in finding that in spite of the fact that several of the Board's findings were unsupported, there was some evidence supporting the Board's decision," including the Board's reliance on the gravity of the commitment offense). The Court cannot reweigh the evidence before the Board. Powell, 33 F.3d at 42 ("This court cannot reweigh the evidence, but looks only to see if `some evidence' supports the [Board's] decision."). Thus, Petitioner's contentions that the Board relied on evidence that was illegally presented or false evidence, or inaccurate or improper characterizations, do not warrant federal habeas relief.
Petitioner's claims also fail to the extent they allege a violation of substantive due process. "A parole determination procedure satisfies substantive due process when `some evidence supports the decision' of the parole board and `the evidence underlying the board's decision [has] some indicia of reliability.'" Abraham v. Marshall, 2008 WL 2397588, at *6 (C.D. Cal. June 12, 2008) (citations omitted). Further, the United States Supreme Court has recognized that "the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them." Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)) (internal quotation marks omitted). The Supreme Court has also stressed that when the challenge is to an executive act, only the most egregious official conduct will be considered "arbitrary" for the purposes of a substantive due process analysis. See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). "[T]he threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Id. at 847 n. 8.
Petitioner's allegations regarding her parole proceedings do not rise to this level. For example, there is no indication that the Board denied parole based upon the statements that the Deputy District Attorney made, which Petitioner claims were illegally submitted. See supra Section II.F n. 18. Furthermore, although Petitioner argues that the Board improperly characterized the circumstances surrounding Hinman's death as a conspiracy to commit robbery, the Court notes that such a characterization had evidentiary support. Indeed, the Board relied on the Probation Officer's Report in Los Angeles County Superior Court case number A267861, which described the attempt to solicit money from Hinman as part of the circumstances surrounding Hinman's death. (See Respondent's Lodgment No. 5; Respondent's Lodgment No. 7 at 31-32). Both the decision from Petitioner's initial parole consideration hearing on July 6, 1969, and the letter that Officer Peavey, Captain of the Los Angeles Sheriff's Department Homicide Bureau, submitted in opposition to parole for Petitioner, described the fact that Hinman had been robbed. (See Respondent's Lodgment No. 6 at 2; Respondent's Lodgment No. 7 at 47-48). Although the Board did not allow Petitioner to read into the record a statement of remorse to the victims' families, the Board did allow Petitioner during her closing statement to "indicate that [she was] sorry for what [she had] done to the family as well as the victims." (See Respondent's Lodgment No. 7 at 126-29). The record reflects that Petitioner made such statements before the family members present at the parole hearing. (Id. at 130-32, 140).
Petitioner also contends that the Board falsely claimed that Dr. Smith's January 3, 2005 psychiatric evaluation was not fully supportive of her release, because it concluded with the sentence, "I am full[y] supportive of a release in accordance with these conclusions." (See Respondent's Lodgment No. 7 at 77-78). The Board, however, noted in its separate decision denying parole for four years that the evaluation was "somewhat inconclusive" because it also stated that "these crimes are horrific and are well beyond what is common in our community. [Petitioner] does admit responsibility and she offers what appears to be credible expressions of insight and remorse," but "[c]omplete assurance of her acceptance of responsibility, insight and remorse will probably always be clouded somewhat by the factual disputes that stem from her earlier versions of the crime." (Id. at 162; see id. at 76). In assessing Petitioner's dangerousness, Dr. Smith's evaluation also noted a risk factor possibly present for lack of insight and noted that Petitioner had a favorable risk profile for release "if she remains alcohol and substance free." (See id. at 77). Petitioner argues that the Board acted arbitrarily in demanding, as a condition of her release, that she undergo "further therapy in order to develop insight into the commitment offense and the underlying cause of the offense," even though, as Petitioner asserts, therapy for life inmates was eliminated in 1998. (See id. at 163). It does not appear, however, that the Board conditioned parole on Petitioner's receipt of additional therapy. Indeed, Petitioner stresses that the only reason that the Board provided for denying parole was the nature of her commitment offense. (See, e.g., Reply at 2, 15, 19).
In sum, the Court cannot say that Petitioner's allegations regarding the Board's actions at the June 1, 2005 hearing "shock the contemporary conscience." County of Sacramento, 523 U.S. at 847 n. 8. Accordingly, the Court concludes that the California courts' denials of Claims One and Two were not contrary to or an unreasonable application of clearly established federal law, nor were they based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). Claims One and Two, therefore, do not warrant federal habeas relief.
RECOMMENDATION
The Court, therefore, recommends that the District Court issue an Order: (1) approving and adopting this Final Report and Recommendation and (2) directing that Judgment be entered denying the Petition for Writ of Habeas Corpus and dismissing this action with prejudice.
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition for Writ of Habeas Corpus, all the records and files herein, and the Final Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed herein. Having made a de novo determination of those portions of the Report and Recommendation to which objection has been made, the Court concurs with and adopts the findings, conclusions and recommendations set forth in the Final Report and Recommendation of the Magistrate Judge.IT IS ORDERED that judgment be entered dismissing the Petition for Writ of Habeas Corpus with prejudice.
JUDGMENT
In accordance with the Final Report and Recommendation of the United States Magistrate Judge filed concurrently herewith,IT IS HEREBY ADJUDGED that the Petition for Writ of Habeas Corpus is denied and this action is dismissed with prejudice.
www.cdcr.ca.gov/Divisions_Boards/BOPH/docs/JulyMeetingAgenda2008.pdfPetitioner erroneously argues that she is "only constrained by the AEDPA" with respect to Claim Four because it is the only claim that was "adjudicated on the merits in State Court." (See Reply at 6, 22). The state courts' denials of Petitioner's state habeas petitions without comment or citation constitute a decision on the merits of the federal claims. See Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992); Pinholster, 525 F.3d at 756 n. 11.