Case No. CV 05-04112-VAP (MLG).
November 11, 2005
ORDER ACCEPTING AND ADOPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the petition and all of the records and files herein and has conducted a de novo review of that portion to which objections were filed. The Court accepts and adopts the findings and recommendations of the United States Magistrate Judge in the Report and Recommendation attached hereto and orders that judgment be entered denying the petition with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Report and Recommendation, and the Judgment herein on all parties.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGEI. Factual and Procedural Background
In 1987, Petitioner was convicted in the Los Angeles County Superior Court of second degree murder in violation of California Penal Code § 187. (Pet. at 2). Petitioner was sentenced to an indeterminate term of 17 years to life, which included a two year enhancement for use of a firearm in the commission of the offense. (Lodgment, Ex. 1 at 5).
Petitioner's third parole hearing was held on August 18, 2004, before a panel of two commissioners from the California Board of Prison Terms ("the Board"). (Lodgment, Ex. 1 at 3). The Board found that Petitioner was not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. (Lodgment, Ex. 1 at 59). The Board recommended that Petitioner remain disciplinary free, continue to participate in educational and vocational programs, and to participate in self-help programs. (Lodgment, Ex. 1 at 63-64). The Board also noted that it planned to request a new psychological evaluation. (Lodgment, Ex. 1 at 64). Although the Board commended Petitioner for remaining disciplinary free, with the exception of one disciplinary violation in 1991, and noted his strong family support and educational achievements, it found that Petitioner's achievements did not outweigh the factors demonstrating unsuitability. (Lodgment, Ex. 1 at 63).
On October 21, 2004, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the Board's denial of parole. (Lodgment, Ex. 2 at 72). This petition was denied on December 30, 2004, in a written and reasoned decision. ( Id.). Petitions for writ of habeas corpus were denied by the California Court of Appeal on February 22, 2005, and by the California Supreme Court on May 11, 2005. (Lodgment, Ex. 4 and 6).
Petitioner filed this petition for writ of habeas corpus on June 7, 2005. Petitioner claims: 1) that the Board failed to set a release date as required by California Penal Code Section 3041(a) and thereby denied Petitioner his right to due process of law; and 2) that the 2004 denial of parole was not supported by any evidence. As part of the latter assertion, Petitioner claims that the Board did not give sufficient weight to a favorable psychological evaluation. (Pet. at 5.) Respondent filed an Answer on August 19, 2005. On September 12, 2005, Petitioner filed a Traverse. The matter is ready for decision.
II. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 (d) (1), a federal court may grant a writ of habeas corpus to a state prisoner with respect to a claim that was adjudicated on the merits in state court only if the state courts' decisions were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or if the ruling was "based on an unreasonable determination of the facts in light of the evidence presented" in the state courts.
A state court decision is "contrary to" clearly established federal law if the state court failed to apply the correct controlling authority from the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The Supreme Court explains that a state court decision is "contrary to" clearly established federal law if the state court "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams, 529 U.S. at 405-06). A state court need not cite or even be aware of Supreme Court precedents "so long as neither the reasoning nor the result of the state-court decision contradicts them." Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (citing Packer, 537 U.S. at 7).
A state court decision involves an "unreasonable application of" clearly established federal law if the state court identifies the correct governing legal principle from the decisions of the Supreme Court, but unreasonably applies that principle to the facts of the case. Williams, 529 U.S. at 407-08, 413. Under this standard, a habeas court may not issue the writ simply because that court concludes "in its independent judgment" that the state court decision is incorrect or erroneous. Williams, 529 U.S. at 410, 412; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). The reviewing court must find that the state court's application of clearly established law was objectively unreasonable. Williams, 529 U.S. at 409.
A state court decision is based on an unreasonable determination of the facts if "an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding[s] [are] supported by the record." See Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). Once a state court's fact-finding process survives an "unreasonable determination" challenge, the state court's findings of fact are presumed to be correct. Id.; 28 U.S.C. § 2254(e)(1). To overcome this presumption, a habeas petitioner must show by clear and convincing evidence that the state court's factual findings were in error. See 28 U.S.C. § 2254(e)(1); Taylor, 366 F.3d at 1000 ("State-court fact-finding may be overturned based on new evidence presented for the first time in federal court only if such new evidence amounts to clear and convincing proof that the state-court finding is in error").
The claims raised in the instant Petition were raised before the California Supreme Court, but that court did not issue a written opinion. (Lodgment, Exs. 5 6). Nevertheless, "[w]here there has been one reasoned state judgment rejecting a federal claim, [federal courts are to presume] later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). The Los Angeles County Superior Court rejected the claims raised in the Petition in a written decision. (Lodgment, Ex. 2). Thus, this Court will consider the reasoning of the Los Angeles County Superior Court to determine whether the California Supreme Court's decision is contrary to, or an unreasonable application of, federal law.
Petitioner challenges the Board's decision finding him unsuitable for parole as a violation of his right to due process. (Pet. at 5). Petitioner raises two claims attacking the decision to deny him parole. He first contends that the board violated his due process rights by failing to set a release date, as required by California Penal Code Section 3041. (Pet. at 5). Petitioner claims that the Board, for the third time, erroneously relied on the manner in which Petitioner carried out the commitment offense to conclude that Petitioner was unsuitable for parole. (Pet. at 5). Second, he claims that the denial of parole was not based on "any evidence" and therefore violated his due process rights.
A prison inmate has no inherent or constitutional right to be released from prison prior to the expiration of his sentence. Greenholtz v. Inmates of Nebraska Penal Corr. Complex, 442 U.S. 1, 7-11 (1979). A state may, however, through the use of mandatory language in its parole statutes, create such an expectation of parole that a prisoner gains a constitutionally recognized liberty interest in parole that cannot be denied without adequate procedural due process protections. Board of Pardons v. Allen, 482 U.S. 369, 373-81 (1987); Greenholtz, 442 U.S. at 11-16. Because California's parole scheme includes mandatory language pertaining to setting a prisoner's release date, it "gives rise to a cognizable liberty interest in release on parole." McQuillion v. Duncan, 306 F. 3d 895, 902 (9th Cir. 2002); Cal. Penal Code § 3041(b) (providing that the 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 offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for [the inmate], and that a parole date, therefore, cannot be fixed"); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003). "In the parole context, the requirements of due process are met if some evidence supports the decision" and the evidence underlying the Board's decision are supported by "some indicia of reliability." Biggs, 334 F.3d at 914 (internal quotations omitted); see also Caswell v. Calderon, 363 F.3d 832, 839 (9th Cir. 2004).
Since the Ninth Circuit's decision in McQuillion, the California Supreme Court has addressed the requirements of the California parole statute, Cal. Penal Code § 3041, in In re Dannenberg, 34 Cal.4th 1061 (2005). Dannenberg held that the California parole board is not required to make a comparison of similar crimes in their decision finding unsuitability. The Dannenberg court held that the Board need not engage in a "uniform term" analysis under subsection (a) of the statute if it determines that public safety concerns warrant a denial of parole under subsection (b). Id. at 1082-94. In so doing, the court determined that there was no protected liberty interest in a uniform parole release date. Id. at 1098, n. 18.
Pursuant to Dannenberg, Respondent argues that Petitioner has no liberty interest in parole. (Memorandum of Points and Authorities in Support of Answer to Petition for Writ of Habeas Corpus at 9-12). Although the Dannenberg decision places some doubt upon the continuing validity of the conclusion that the parole statute as a whole contains mandatory language, the California Supreme Court's holding is limited to the uniform term provision of subsection (a) of the statute. The Ninth Circuit, in reaching its determination that the California parole scheme created a liberty interest protected by the Due Process Clause, only considered the language of subsection (b). McQuillion, 306 F.3d at 902. As the California Supreme Court did not reinterpret subsection (b) and the reasoning in McQuillion is based solely on subsection (b), this Court need not resolve any alleged conflict between these two decisions. The Ninth Circuit's holding that the mandatory language of section 3041(b) creates a liberty interest in parole will be deemed to remain unchanged. See, e.g., Saif'ullah v. Carey, 2005 WL 1555389, at *8 (E.D. Cal. June 28, 2005) (finding liberty interest in parole in California post- Dannenberg) and Devries v. Schwarzenegger, 2005 WL 2175875 (E.D. Cal. Sept. 8, 2005) (same), but see Sass v. Cal. Bd. of Prison Terms, 2005 WL 1406100, at *7 (E.D. Cal. June 15, 2005) (holding that given the California Supreme Court's decision in Dannenberg, there is no liberty interest in parole in California).
A. Petitioner's Claim Relating to the Requirements of Section 3041 Is Not Cognizable on Federal Habeas Review.
Petitioner contends that the Board violated his due process rights by failing to set a parole date under Section 3041. This section states that the board "shall normally set a parole release date." Cal. Penal Code § 3041(a). However, subsection (b) provides that a date shall not be set if the board determines that "consideration of the public safety requires a more lengthy period of incarceration." Cal. Penal Code § 3041(b). The California Supreme Court in Dannenberg, determined that subsection (a) does not require a release date be set if subsection (b) applies. 34 Cal. 4th at 1082-94. However, even if this decision does not foreclose Petitioner's claim, the claim raises a matter of state law and is therefore not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
B. The Parole Denial Was Supported by "Some Evidence."
Petitioner contends that the Board failed to "present any evidence during the parole hearing that contains an indicia of reliability . . . to support the denial of a parole date." (Pet. at 5). As discussed above, California's parole scheme "gives rise to a cognizable liberty interest in release on parole." McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). Once a liberty interest in parole is established, a parole board's decision to deny parole satisfies the requirements of due process if there is "some evidence" to support the decision. Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir. 2003); McQuillion, 306 F.3d at 904; Morales v. Cal. Dep't of Corr., 16 F.3d 1001, 1005 (9th Cir. 1994), rev'd on other grounds, 514 U.S. 499 (1995); Jancsek v. Or. Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987). The "some evidence" standard is minimally stringent and is satisfied if there is "any evidence" that supports the conclusion to deny parole. Superintendent v. Hill, 472 U.S. 445, 455-56 (1985) ("Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact."). Additionally, the evidence underlying the board's decision must have some indicia of reliability. McQuillion, 306 F. 3d at 904; Jancsek, 833 F.2d at 1390. A relevant factor in this inquiry is whether the prisoner was afforded an opportunity to appear before, and present evidence to, the parole board. Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987). Due process also requires that the prisoner be informed of the reasons for his parole denial. Jancsek, 833 F.2d at 1390 (quoting Greenholtz, 442 U.S. at 16).
In this case, the Board's August 18, 2004, decision denying parole is supported by some evidence in the record and that evidence bears some indicia of reliability. See, e.g., Biggs, 334 F.3d at 916 (upholding initial denial of parole based solely on gravity of offense and conduct prior to imprisonment); Morales v. Cal. Dep't of Corr., 16 F. 3d 1001, 1005 (9th Cir. 1994), rev'd on other grounds, 514 U.S. 499 (1995) (affirming denial of parole based on criminal history, cruel nature of offense, and need for further psychiatric treatment).
In denying habeas relief, the Los Angeles County Superior Court found that the Board properly "found Petitioner unsuitable for parole because the commitment offense was especially cruel in that it `showed a disregard for another human being,' was carried out in a dispassionate manner (Cal. Code Regs., tit. 15, § 2402(c)(1)(B)), and that the motive was inexplicable and very trivial (Cal. Code Regs., tit. 15, § 2402 (c) (1) (E))." (Lodgment, Ex. 2); see Cal. Code Regs., tit. 15 § 2402(c)(1) (listing the factor that the "prisoner committed the offense in an especially heinous, atrocious or cruel manner" in the list of factors of unsuitability for parole).
The record reveals that Petitioner and the victim engaged in a verbal disagreement over their respective positions in a line of customers at a taco stand. (Lodgment, Ex. 1 at 25-26). Petitioner told a friend to get him a gun from the car, which the friend apparently did. Petitioner then shot the victim once while facing him, then twice more as the victim turned and retreated. ( Id.). Given the callous nature of Petitioner's acts, the superior court concluded that there was some evidence supporting the Board's conclusion that Petitioner was unsuitable for parole. (Lodgment, Ex. 2).
Although the Ninth Circuit has recognized that the Board's continued reliance solely on the unchanging facts of an inmate's commitment offense to deny parole may violate due process, see Biggs, 334 F.3d at 916-17, the Board's unsuitability finding in this case is supported by other reliable evidence. The superior court further found that there was evidence supporting the Board's conclusion that Petitioner was unsuitable for parole because his parole plans were insufficient (Cal. Code Regs., tit. 15 § 2402 (d) (8)) and because he had not sufficiently upgraded educationally (Cal. Code Regs., tit. 15 § 2402(d)(9)). (Lodgment, Ex. 2). The Board recognized that Petitioner had no prior criminality nor was there any indication of an escalating pattern of criminal conduct, or unstable social history. Finding that Petitioner has programmed, but not fully upgraded educationally, the Board expressed concern about whether Petitioner is capable of obtaining a GED and directed Petitioner to obtain a letter from the education department noting that Petitioner has plateaued if this was the case. (Lodgment, Ex. 1 at 63). The Board acknowledged Petitioner's existing parole plans, but requested that Petitioner further develop employment and living plans, for both the United States and Mexico. (Lodgment, Ex. 1 at 61).
The Board also acknowledged a positive psychological evaluation prepared by Dr. M. Carswell, Ph.D., in 2000, which estimated Petitioner's violence potential below that of an average citizen in the community. (Lodgment, Ex. 1 at 60). To the extent that Petitioner complains that the Board abused its discretion and violated his due process rights in its interpretation of this psychological evaluation, his claim is without merit. (Pet. at 5). Although Dr. Carswell's evaluation concluded that Petitioner's violence potential was below that of an average citizen in the community and that there were no significant risk factors which could be deemed a precursor to violence, the Board, noting that the evaluation was conducted in 2000, declined to give it much weight and requested a new psychological exam. (Lodgment, Ex. 1 at 61). The age of the psychclogical evaluation would appear to support the Board's decision to limit its reliance upon it. Moreover, the Board gave some weight to the Los Angeles County District Attorney's comments concerning the findings in the report. (Lodgment, Ex. 1 at 62). In his closing statement, Deputy District Attorney Anthony J. Sousa argued that Dr. Carswell's evaluation was "based on flawed input" because the doctor concluded that Petitioner had a credible version of self-defense when the police reports and other facts pointed to no such version. (Lodgment, Ex. 1 at 51-54). Both the age of and questionable assumptions in the report warranted limited reliance upon it. Moreover, the other evidence relied upon by the Parole Board in its unsuitability determination outweighed evidence contained in discredited psychological report.
In addition, it is not this Court's function to review the weight the Board gives a specific item of evidence in the context of a parole hearing. This Court's function is to review the evidence as a whole and to decide whether there was "some evidence" supporting the decision. The Board satisfied the requirements of due process because it relied on "some evidence" which had an indicia of reliability. The evidence, comprised of multiple factors, included Petitioner's commitment offense, his educational record, his release plans, as well as the psychological evaluation. Thus, the record contains "some evidence" supporting the Board's decision to deny parole. See Biggs, 334 F.3d at 915. In sum, Petitioner has failed to demonstrate that the state court's rejection of his claim was an objectively unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d). Accordingly, habeas relief is not warranted.
For the reasons stated above, the petition for habeas corpus should be DENIED.