Opinion
Case No. 05CV1037-IEG (NLS).
February 28, 2006
Presently before the Court is Thuan Hunyh's ("petitioner") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the Court hereby adopts the Magistrate Judge's report and recommendation and denies the petition for writ of habeas corpus with prejudice.
BACKGROUND
In October 1990, petitioner and two other men robbed an elderly woman and her daughter in their home. [Lodgment D at 166-68.] A state court summarized the facts underlying petitioner's offense as follows:
Petitioner and his crime partners conspired to rob a 75-year-old woman and her daughter at their home. Petitioner was armed with a gun and his codefendant used a knife in the commission of the crimes. The elderly victim was grabbed while working in her yard. She was blindfolded, dragged into her house and bound with duct tape. When the daughter returned home, she found her mother lying with a stab wound in her leg. The daughter was also attacked, blindfolded, bound with duct tape and beaten when she told her attackers there was no money or gold in the house. Her clothes were cut off her while she was being beaten.
[Lodgment A at 4-5.] After taking some jewelry and cash, the two men left the house, a third man served as the getaway driver. The three men were subsequently arrested and charged with kidnapping to commit robbery and related offenses. The younger victim claimed that she was sexually assaulted by the men, including petitioner, during the robbery. [Lodgment D. at 182-9, 425-6.] Petitioner pleaded guilty to one count of kidnapping to commit robbery in exchange for dismissal of the other charges. Petitioner received a sentence for an indeterminate term of life in prison with the possibility of parole. [Lodgment A at 3.]
Petitioner first became eligible for parole in 1997 and was denied parole for the fourth time in January 2002, the decision that is the subject of this petition. [See Lodgment D at 160-203.] At the January 2002 parole consideration hearing, the Board commended petitioner for his positive institutional behavior, but ultimately determined that he was not suited for parole, basing its decision on the callous nature of petitioner's offense, his lack of concrete parole plans and his need for participation in further self-help programs. [Lodgment D at 199-202.]
Petitioner filed a habeas petition with the San Diego County Superior Court alleging that the Board's decision lacked evidentiary support. [Lodgments A, B.] The court denied the petition, finding "some evidence" to support the Board's conclusion that petitioner presented a danger to the community if released on parole. [Lodgment A at 4-7.] Petitioner then filed a habeas petition with the California Court of Appeal, challenging the sufficiency of the evidence underlying the Board's decision. The Court of Appeal denied the petition, finding sufficient evidence to support the Board's determination. [Lodgment C.] Petitioner then filed a habeas petition with the California Supreme Court, which that Court summarily denied.
In April 2005, petitioner filed this pro se petition raising four grounds for relief: (1) denying parole "five and six times on unchanged factors" violates due process; (2) the Board improperly required written confirmation of his parole plans; (3) the Board improperly relied on his past substance abuse as a factor "when there is no evidence that the prisoner is still using"; and (4) there is no evidence in the record of an "escalating pattern of criminal conduct." (Petition at 5-6.) Respondent makes two arguments in opposition to the petition. First, respondent argues that petitioner is not entitled to due process protections because he does not have a constitutionally protected liberty interest in parole. Alternatively, respondent argues that petitioner has failed to establish that his due process rights were violated by the Board's decision. (Resp. Points Authorities at 4.)
As the Magistrate Judge convincingly details, this argument lacks merit. The Ninth Circuit has held that mandatory language contained in California's Parole statute creates a protected liberty interest in parole for California prisoners. See McQuillion v. Duncan, 306 F.3d 896, 900 (9th Cir. 2002). Although somewhat muddled, California case law is in accord with the Ninth Circuit's ruling. See In re Rosenkrantz, 29 Cal.4th 616, 654 (Cal. 2003) (holding that the state's parole statute uses mandatory language that creates a liberty interest in parole).
On December 8, 2005, the Magistrate Judge filed a report and recommendation. [Doc. No. 21] The Magistrate Judge recommended denying the petition because petitioner has not shown that his due process rights were violated.
On January 25, 2006, petitioner filed objections to the report and recommendation challenging the Magistrate Judge's conclusions as to three of petitioner's four grounds for relief. [Doc. No. 24]
DISCUSSION
A. Legal Standard for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
The Magistrate Judge's Report correctly sets forth the scope of review for disposition of the instant petition. The Court may grant petitioner's section 2254 petition only if the Court determines that the California Court of Appeal decided petitioner's appeal in a manner that was either "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or "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); Williams v. Taylor, 529 U.S. 362, 403, 412-13 (2000). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews de novo those portions of the Report to which petitioner objects.
Because the California Supreme Court rejected petitioner's petition for review without any analysis the Court looks to the decision of the California Court of Appeal to determine whether the final "reasoned state judgment" is contrary to, or unreasonably applies U.S. Supreme Court law. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
In this case, the California Court of Appeal found that the Board's decision was adequately supported by "some evidence in the record." [Lodgement C at 88-91] Since this is the correct standard for a procedural due process claim in the parole context, Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir. 2003), this Court must inquire as to whether the California Court of Appeal's application was objectively unreasonable.
B. Denial of Parole Based on "Unchanging Factors"
Petitioner's first claim is that the Board improperly denied him parole based on unchanging factors.
The Ninth Circuit has stated that "over time," if a prisoner continues to "demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature" of his "offense and prior conduct would raise serious questions involving his liberty interest in parole." Id. at 916. The Biggs Court went on to say that "A 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." Id. at 917.
In this case, the Board relied, inter alia, on several changing factors in making its decision. Specifically, the Board relied on petitioner's lack of adequate plans and his need for additional self-help therapy. Some evidence on the record supports both of these factors. Regarding the adequacy of his plans, the record shows that petitioner obtained housing and means to support himself in Iowa, where several of his family members live. [Lodgment D at 381-83] However, because he was convicted in San Diego, petitioner would have to serve his parole term in the San Diego area unless granted a transfer by the California Department of Corrections. Nothing before the Board indicated that petitioner had applied for a transfer or that he would qualify for a transfer. [Lodgment C at 90]. In San Diego, petitioner had an offer of housing from his brother, but had not arranged a means of employment. [Lodgment D at 189-90, 378-9] Additionally, petitioner is a citizen of Vietnam subject to deportation upon his release from prison and nothing before the Board indicated that petitioner had any plans in the event that he is deported to Vietnam. [Lodgment D. at 180-1]
Regarding petitioner's need for additional self-help therapy, the Parole Board's determination is supported by a psychological report in the record, which noted inconsistencies in petitioner's version of the facts regarding his culpability in the offense. [Lodgment D at 421-27] Although petitioner's most recent psychological evaluation was overall favorable, the evaluation also referred to an earlier report which recommended that petitioner "participate in therapy to take responsibility for his involvement in the offense and continue to explore the possibility that he was indeed involved in raping the younger woman." [Lodgment D at 424; Lodgment A at 6.] Petitioner criticizes the Board's determination that he needed additional therapy as "conlusionary." (Obj. at 6) However, expert psychological evaluation is clearly "some evidence" in the record that supports the conclusion that petitioner needed additional therapy.
Since the Board's decision relied on two changing factors supported by some evidence in the record, it does not trigger the due process concerns raised by the Ninth Circuit in Biggs.
C. Requiring Written Confirmation of Parole Plans
Petitioner's second claim is that the Board improperly required written confirmation of his parole plans. The record does not support petitioner's contention. Rather, the record shows that two of the Board members advised petitioner it would be helpful to his case to obtain documentation regarding his housing options and means of support should he be released. [See Lodgment D at 181] ("I might suggest to you, whether you get a day or not, that you get a letter from your father that says that you can live with him upon parole if, in fact, you're sent back to Vietnam and anything that would be helpful relative to employment.")
Moreover, even had the Board required written confirmation, petitioner has not cited to any authority indicating that such conduct violates the federal Constitution. As the Court has discussed above, the Board complied with the Biggs requirement that there be some evidence in the record supporting its decision.
D. Relying on Past Substance Abuse
Petitioner's third claim is that the Board improperly relied on his past substance abuse as a factor "when there is no evidence that the prisoner is still using." (Petition at 6.) This claim lack merit. First of all, as noted above, the Board had sufficient reasons to deny parole. Second, as the case petitioner cites clearly states, a parole board may consider past substance abuse: "A person's disability that leads one to a propensity to commit crime may certainly be relevant in assessing whether that individual is qualified for parole. In addition, the parole board might show that legitimate penological interests justify consideration of an inmate's disability status beyond that appropriate in other settings. See Gates v. Rowland, 39 F.3d 1439, 1447 (9th Cir. 1994). The parole board claims to have and undeniably does have legitimate penological interests in considering the plaintiffs' substance abuse backgrounds during the individualized inquiry for parole suitability." Thompson v. Davis, 295 F.3d 890, 898 n. 4 (9th Cir. 2002)
E. No Evidence of an Escalating Pattern of Criminal Conduct
Petitioner's final claim is that there is "no evidence in the record of an escalating pattern of criminal conduct." (Petition at 6.) The Magistrate Judge found that nothing in the record supported petitioner's contention that the Board relied on an escalating pattern of criminal conduct. (Report and Recommendation at 9.) As discussed above, the Board relied on the callous nature of petitioner's offense, his lack of definite parole plans and his need for additional self-help therapy. [See Lodgment D at 199-202.] These reasons are sufficient to satisfy due process as defined by Biggs. 334 F.3d at 916. Moreover, petitioner did not object to the Magistrate Judge's recommendation on this point.
CONCLUSION
For the reasons stated above, the Court hereby ADOPTS the Magistrate Judge's Report and Recommendation, and DENIES WITH PREJUDICE petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Additionally, the Court declines to issue a certificate of appealability, as petitioner has not made a substantial showing that he has been denied a constitutional right. See 28 U.S.C. § 2253(c) (providing that a certificate shall issue "only if the applicant has made a substantial showing of a denial of a constitutional right").