Randall Cowans v. John Marshall, No. 2:2005cv06276 - Document 66 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Judge Ronald S.W. Lew: (see document image for full details). Based on the foregoing, the Court denies (1) Respondents Request to Stay the Courts November 10, 2009, Order prohibiting parole supervision of Petitioner; and (2) Respondents request for a stay pending appeal of that portion of the November 10, 2009, Order prohibiting parole supervision of Petitioner. IT IS SO ORDERED. (ad)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RANDALL COWANS, 12 Petitioner, 13 v. 14 JOHN MARSHALL, Warden, 15 Respondent. 16 I. 17 18 19 20 21 22 23 24 25 26 27 ) Case No. CV 05-6276-RSWL (OP) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) PROCEEDINGS On August 26, 2005, Randall Cowans ( Petitioner ), filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ( Petition ). Petitioner challenged the Board of Prison Terms 1 ( Board or BPT ) December 3, 2001, and January 30, 2003, decisions ( 2001 Decision and 2003 Decision ; collectively Decisions ) finding him unsuitable for release on parole. On November 14, 2006, the Board found Petitioner suitable for parole and calculated his term at 348 months (twenty-nine years) for the base offense, plus 1 The Board of Prison Terms now is part of the California Board of Parole 28 Hearings. 1 1 twelve months for the weapon, for a total of 360 months (thirty years) ( 2006 2 Decision ). The panel credited Petitioner with four months credit for every 3 discipline-free year, for a total of eighty-four months (seven years), for a total 4 period of confinement of 276 months (twenty-three years). (Pet r s Mot for 5 Release at 2, Appx. 1 at 105.) On April 9, 2007, the Governor reversed that 6 decision. (Id. Appx. 2.) 7 On June 24, 2009, the Board held a further parole consideration hearing and 8 again found Petitioner suitable for parole.2 (Resp t s Mot. for Stay at 2.) That 9 decision was expected to become final on October 24, 2009. (Resp t s Opp n to 10 Mot. for Release at 2.) 11 On June 29, 2009, this Court issued a Report and Recommendation of 12 United States Magistrate Judge ( Report and Recommendation ), granting 13 Petitioner s writ of habeas corpus. (Dkt. No. 46.) At the time, the Court was 14 unaware of the Board s June 24,2009, suitability finding and grant of parole. The 15 basis for the recommendation was the Court s finding with regard to both the 2001 16 and 2003 Decisions that: (a) the Board s decisions resulted in an arbitrary 17 deprivation of Petitioner s liberty interest in parole and violated due process; and 18 (b) the State courts determinations to the contrary was based on an unreasonable 19 determination of the facts in light of the evidence presented and involved an 20 unreasonable application of the some evidence standard (which the Court found 21 to be clearly established federal law as determined by the United States Supreme 22 Court). 23 Meanwhile, on August 31, 2009, over Respondent s objections, the Court 24 issued an Order approving and adopting the Report and Recommendation. On the 25 same date, Judgment was entered granting the writ of habeas corpus as follows: 26 27 2 In between the 2006 and 2009 Board hearings, another parole hearing was 28 held. The Board again denied release. (Reply to Opp n to Mot. for Release at 4.) 2 1 The Board shall find Petitioner suitable for parole at a hearing to be held 2 within 30 days of the finality of this decision, unless new, relevant and 3 reliable evidence of his conduct in prison or change in mental status 4 subsequent to the January 30, 2003, parole consideration hearing is 5 introduced that is sufficient to support a finding that Petitioner currently 6 poses an unreasonable risk of danger to society if released on parole; and 7 in the absence of any such new relevant and reliable evidence showing 8 Petitioner s unsuitability for parole, the Board shall calculate a prison 9 term and release date for Petitioner in accordance with California law.[3] 10 Further, if the release date already has lapsed, Respondent shall, 11 within ten days of the Board s hearing, either release Petitioner forthwith 12 if his release date lapsed more than three years earlier, or release 13 Petitioner on parole for that period of his three year parole term that 14 remains if the release date lapsed less than three years earlier. 15 (Dkt. Nos. 54, 55.) 16 Respondent did not timely appeal the Court s August 31, 2009, grant of the 17 writ of habeas corpus.4 18 On October 1, 2009, Petitioner filed a Motion for an Immediate Release 19 Order ( Motion for Release ). (Dkt. No. 56.) On October 22, 2009, Respondent 20 filed an Opposition to the Motion for Immediate Release. (Dkt. No. 57.) On 21 October 24, 2009, the Governor declined to review the Board s June 2009 parole 22 grant, allowing it to stand. (Resp t Mot. for Stay at 2.) On November 4, 2009, 23 Petitioner filed a Reply to the Opposition to the Motion for Release. (Dkt. No. 58.) 24 3 At the time it issued the Report and Recommendation, the Court was unaware of any of the Board decisions subsequent to the 2003 Decision or that the 26 Board had calculated a release date in 2006. 27 4 The Federal Rules of Appellate Procedure require a notice of appeal be 28 filed within thirty days of the judgment. Fed. R. Civ. P. 4(a)(1)(A). 25 3 1 On November 10, 2009, the Court granted Petitioner s Motion for Immediate 2 Release ( Order ) and ordered Respondent to immediately release Petitioner from 3 all custody by the State, without any accompanying period of parole. (Dkt. No. 4 59.) 5 On November 24, 2009, Respondent filed a Motion for a Stay of the Court s 6 November 10, 2009, Order ( Motion for Stay ). (Dkt. No. 61.) Respondent does 7 not seek a stay of the Order to immediately release Petitioner. Instead, Respondent 8 seeks a stay pending appeal of that portion of the Order granting release without 9 any accompanying period of parole. On December 2, 2009, Petitioner filed an 10 Opposition to the Motion for Stay ( Opposition ). (Dkt. No. 64.) 11 For the reasons set forth below, the Court denies Respondent s Motion for 12 Stay. 13 II. 14 DISCUSSION 15 A. Background. 16 Respondent states that on June 24, 2009, when the Board found Petitioner 17 suitable for parole, it imposed special parole conditions regarding gangs and 18 substance abuse that were specific to Petitioner s history and the issues underlying 19 the offense conduct. (Resp t s Mot. for Stay at 4.) Respondent contends these 20 special parole conditions are proper, as there has been no finding by a court or 21 the Board that Petitioner may safely be released not only with no conditions of 22 parole but with no supervision whatsoever. (Id. (citing Cal. Code Regs. tit. 15, § 23 2402(b)).) 24 This contention is not only disingenuous but misstates the record. The 25 Court s August 31, 2009, Order adopting the Report and Recommendation 26 specifically provided that since 2001 the State had not shown that Petitioner was a 27 danger to society, and that if Petitioner s release date had lapsed more than three 28 years earlier, then Petitioner should be released forthwith, and only if it had not 4 1 lapsed was parole appropriate for that period of the three-year parole term 2 remaining. (Dkt. Nos. 54, 55.) By clear implication, therefore, no parole or 3 supervision was warranted if the release date had lapsed more than three years 4 earlier. As Petitioner s release date calculated by the Board in its 2006 Decision 5 fell into this category, any additional imposition of various parole or supervision 6 terms were effectively mooted by this Court s Judgment on the Report and 7 Recommendation and subsequent Order. 8 Despite this, Petitioner contends that on November 24, 2009, he was called 9 into the counselor s office and advised that he had to sign a lengthy list of parole 10 conditions or he would be denied release. (Opp n at 5, 13.) 11 B. Analysis. 12 Preliminarily, the Court agrees with Respondent that the Court has broad 13 discretion in deciding whether to stay proceedings in its own court. (See Resp t s 14 Mot. for Stay at 3.) The Court also agrees with Respondent that the standard to be 15 applied is set forth in Hilton v. Braunskill, 481 U.S. 770, 107 S. Ct. 2113, 95 L. Ed. 16 2d 724 (1987). (Id.) 17 In Hilton, the Supreme Court held that the presumption of Rule 23(c) of the 18 Federal Rules of Appellate Procedure in favor of the release from custody of a 19 successful habeas petitioner pending appeal5 may be overcome if the following 20 traditional stay factors tip the balance against release: (1) whether the stay 21 applicant has made a strong showing that he is likely to succeed on the merits; (2) 22 whether the stay applicant will be irreparably injured absent a stay; (3) whether 23 24 25 26 27 28 5 Federal Rule of Appellate Procedure 23(c) provides that, during the appeal of the grant of a habeas corpus petition, the prisoner must-unless the court or judge ordering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise-be released on personal recognizance, with or without surety. The United States Supreme Court held that Rule 23(c) undoubtedly creates a presumption of release from custody in such cases. Hilton, 481 U.S. at 776. 5 1 issuance of the stay will substantially injure the other parties interested in the 2 proceeding; and (4) where the public interest lies. Id. at 776-77. The Hilton court 3 further observed that in determining whether to release a petitioner from custody 4 pending appeal a court could also take into consideration the possibility of flight, 5 whether the State has established there is a risk that the prisoner will pose a 6 danger to the public if released, and the State s interest in continuing custody 7 and rehabilitation pending a final determination of the case on appeal. Id. at 777. 8 The Hilton court also noted: 9 Where the State establishes that it has a strong likelihood of success on 10 appeal, or where, failing that, it can nonetheless demonstrate a 11 substantial case on the merits, continued custody is permissible if the 12 second and fourth factors in the traditional stay analysis militate against 13 release. 14 Id. at 778. 15 The Court notes, however, that this enhanced analysis under Hilton is 16 typically based on the issue of whether a successful habeas petitioner should be 17 released from custody pending appeal. Petitioner s case is in somewhat of a 18 different posture, as there is no dispute about whether he should be released from 19 custody, only whether he should be on parole pending appeal. Thus, while the 20 Court believes the four traditional Hilton factors themselves are nevertheless 21 applicable in determining whether to stay the disputed portion of the Order, the 22 additional factors of flight risk, risk of danger, and the State s interest in continuing 23 rehabilitation, are arguably not even relevant to this issue. However, as the balance 24 tips in favor of Petitioner even considering these enhanced factors, the Court will 25 consider them to the extent they relate to continued parole supervision after 26 release. 27 28 1. Respondent Fails to Establish a Strong Likelihood of Success on the Merits. 6 1 The Court finds that Respondent has failed to establish a strong likelihood 2 of success on appeal with respect to the sole contention that this Court improperly 3 provided for credit against Petitioner s mandatory three-year parole period. 4 In examining the available remedies for habeas relief, the Court notes that 5 federal habeas courts have broad discretion in conditioning a judgment granting 6 habeas relief and in dipos[ing] of habeas corpus matters as law and justice 7 require. Milot v. Haws, 628 F. Supp. 2d 1152, 1156 (C.D. Cal. 2009) (quoting 8 Hilton, 481 U.S. at 775); see also Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 9 2005) (stating that federal courts have a fair amount of flexibility in fashioning 10 specific habeas relief ); Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994) 11 (noting that federal habeas court is vested with the largest power to control and 12 direct the form of judgment to be entered). 13 The district court observed in Milot that recent decisions by the California 14 courts suggest that California law permits for remedies beyond a new hearing, 15 including immediate release, without restrictions on the Board s or Governor s 16 consideration. Milot, 628 F. Supp. 2d at 1156 (citing Adams v. Schwartz, No. CIV 17 S-05-2237 JAM JFM P, 2008 WL 4224561, at *16 (E.D. Cal. Sept. 12, 2008)), 18 Report and Recommendation adopted at 2008 WL 4601088 (Oct. 14, 2008);6 19 Opalec v. Curry, 556 F. Supp. 2d 1036, 1045 (N.D. Cal. 2008) (district court 20 ordered Board to calculate a term and set a release date within sixty days of order); 21 Masoner v. State, No. CV 03-1261-ER, 2004 WL 1080177, at *2 (C.D. Cal. Jan. 22 23, 2004) (district court ordered Board to grant inmate a parole date within thirty 23 days unless legitimate post-conviction evidence [could] be found to suggest that 24 25 26 6 The Ninth Circuit docket on this case reflects that the Ninth Circuit denied Respondent s motion for stay of the district court order and ordered Adams 28 immediate release pending Respondent s appeal (which itself was stayed). 27 7 1 his release would pose a danger to public safety ).7 2 As for Respondent s contention that this Court has no authority to credit 3 Petitioner for time spent on parole, the Ninth Circuit has held otherwise. Milot, 4 628 F. Supp. 2d at 1157-58 (citing McQuillion v. Duncan, 342 F.3d 1012, 1015 5 (9th Cir. 2003) (if inmate not immediately released, his sentence would have been 6 lengthened by ordering him to serve a parole term where he had already served 7 more time in prison than his lawful period of imprisonment and parole combined); 8 see also Tripp v. Cate, No. C 07-05748 CW, 2009 WL 248368, at *12 (N.D. Cal. 9 Feb. 2, 2009) (ordering Department of Corrections to calculate parole term based 10 on 2004 suitability finding notwithstanding the fact that inmate was released in 11 2008); Yu v. Marshall, No. CV 08-5852-GHK (RNB), 2009 WL 711959 (C.D. 12 Cal. Mar. 17, 2009). 13 In support of this argument, Respondent cites to In re Bush, 161 Cal. App. 14 4th 133, 142-43 (2008), noting that under California law the base term calculated 15 by the Board does not reflect the date when Petitioner should have been released. 16 (Id.) Bush, however, does not support Respondent s request for stay. In fact, the 17 Bush court distinguished the petitioner s situation from that of the petitioner in 18 McQuillion, noting that the McQuillion court had determined that the petitioner 19 was not lawfully in custody during the nine years following his original parole date 20 because the rescission of that date was not supported by some evidence. In re 21 Bush, 161 Cal. App. 4th at 145. In contrast, the petitioner in Bush was lawfully in 22 custody pending a determination that he could be safely paroled. Id. Because this 23 Court determined that Petitioner had not been lawfully in custody since 2001 24 because some evidence did not support either the Board s 2001 or 2003 25 26 7 Respondent s request for a stay of the district court s order was denied. Masoner v. California, No. 03-1261-ER, 2004 WL 1080176 (C.D. Cal. Mar. 5, 28 2004). 27 8 1 Decisions, Petitioner s situation herein is equivalent to that of the petitioner in 2 McQuillion, and Bush simply is not applicable. See also Milot, 628 F. Supp. 2d at 3 1157-58 (crediting the petitioner for time spent on parole) (citing McQuillion, 342 4 F.3d at 1015; Tripp, 2009 WL 248368, at *12). 5 Accordingly, Respondent has failed to demonstrate a strong likelihood of 6 success on the merits on appeal.8 7 2. 8 9 Enforcement of the Judgment Will Not Result in Irreparable Injury to Respondent. Respondent does not appear to present any significant argument that he or 10 the State will be irreparably injured absent a stay of that part of the Court s 11 Judgment relating to parole supervision. Respondent merely notes that Petitioner 12 could freely leave the state or country if released without parole supervision which 13 would leave Respondent with no information as to Cowans[ ] whereabouts, and 14 frustrate the purpose of Respondent s appeal (which apparently is to ensure that 15 Petitioner serve a period of parole when released). (Resp t s Mot. for Stay at 7.) 16 Petitioner states that upon discharge he plans to reunite with his family, and has 17 fought for his freedom, not the mobility to commit new crimes. (Opp n to Mot. 18 for Stay at 12.) 19 In any event, the Court finds no evidence of potential irreparable injury to 20 Respondent if the stay is not granted. In granting habeas relief, this Court already 21 has found that the Board and/or Governor exercised their legislatively and 22 constitutionally mandated functions in an unconstitutionally arbitrary manner and 23 24 25 26 27 28 8 Respondent contends that this Court s Order granting Petitioner s Motion for Immediate Release granted relief in part based on Cowans s assertion that the Governor would repeatedly reverse his parole grants despite court orders. (Mot. for Stay at 5.) That discussion, however, had no bearing on the Court s decision to release Petitioner with no period of parole. Instead, it related to whether the Court would give the Governor an opportunity to review this Court s determination that Petitioner should be released. 9 1 that the California courts conclusion to the contrary involved an unreasonable 2 application of clearly established Supreme Court law. Moreover, while the 3 Supreme Court did indicate in Hilton that the risk of flight is an appropriate 4 consideration in determining whether a stay of release should be granted, 5 Respondent provides no evidence, let alone credible evidence, that Petitioner, an 6 exemplary prisoner, now age fifty-one, with strong family ties and viable parole 7 plans, is a significant flight risk if released without supervision pending 8 Respondent s appeal to the Ninth Circuit. See, e.g., Franklin v. Duncan, 891 F. 9 Supp. 516, 521 (N.D. Cal. 1995) (rejecting State s argument that release of 10 successful habeas petitioner from custody pending appeal would pose a risk of 11 flight, where the State presented no evidence that [the petitioner] poses a 12 particularized flight risk ). 13 Nor does the Court believe that the issue on appeal, constituting a dispute as 14 to whether Petitioner should be subject to parole conditions upon release (see 15 Opp n at 12), provides any legitimate incentive for Petitioner to flee the state or 16 country while that appeal is pending. 17 3. 18 The Court also finds unpersuasive Respondent s contention that a stay is A Stay Is Not in the Public Interest. 19 necessary because Petitioner s release and discharge from parole thwarts the 20 legislative intent for parole and because Petitioner falls among that group of 21 prisoners, incarcerated for a long time due to their public safety risk, who are 22 most in need of supervision and assistance. (Resp t s Mot. for Stay at 6.) 23 Preliminarily, the Court notes that its rationale for finding that Petitioner s 24 constitutional rights were violated was that there was no reliable evidence before 25 the Board supporting its conclusion that Petitioner s release posed an unreasonable 26 risk of danger to society or a threat to public safety. In fact, the evidence before 27 the Board and the Governor was all to the contrary. Moreover, while the Court 28 agrees in theory that, as with any prisoner who has served many years in prison, 10 1 Petitioner may experience some degree of difficulty readjusting to civilian life 2 without State resources to ease this transition, the State may determine that the 3 public interest is furthered by offering Petitioner assistance such as lodging, 4 employment, medical care, counseling, vocational training and other services 5 during the pendency of the appeal. The Judgment does not preclude the State from 6 offering such services or Petitioner from voluntarily accepting those services. 7 Nor, in the Court s view, has Respondent established that Petitioner s 8 release without parole conditions significantly infringes on California s interest in 9 the administration of criminal justice. (Resp t s Mot. for Stay at 7 (citing Chioino 10 v. Kernan, 581 F.3d 1182 (9th Cir. 2009).) As the district court observed in Milot, 11 recent decisions by the California courts suggest that California law permits for 12 remedies beyond a new hearing, including immediate release, without restrictions 13 on the Board s or Governor s consideration. Milot, 628 F. Supp. 2d at 1156. For 14 this reason, Respondent s reliance on Chioino is unavailing. In Chioino, the 15 district court granted a petition for writ of habeas corpus, determining that there 16 had been sentencing error under Cunningham v. California, 549 U.S. 270, 127 S. 17 Ct. 856, 166 L. Ed. 2d 856 (2007). Chioino, 581 F.3d at 1183-84. The district 18 court then ordered the upper-term sentence reduced to a middle-term sentence, 19 which violated California s reformed sentencing system. That reformed system 20 had eliminated the presumption for a middle-term sentence and gave the trial court 21 discretion to impose the upper term on Cunningham remand without a jury trial on 22 the factual findings. The Ninth Circuit reversed, holding that the remedy for Sixth 23 Amendment error under Cunningham was remand to the state trial court of 24 resentencing. Id. at 1186. In contrast, as discussed by the court in Milot, the 25 remedies available in the parole context for parole decisions that violate due 26 process, under both California and Ninth Circuit case law are wide-ranging and not 27 so limited. See Milot, 628 F. Supp. 2d at 1156. 28 The Supreme Court has noted that [t]he State s interest in continuing 11 1 custody and rehabilitation pending a final determination of the case on appeal . . . 2 will be strongest where the remaining portion of the sentence to be served is long, 3 and weakest where there is little of the sentence remaining to be served. Hilton, 4 481 U.S. at 777. Here, Petitioner s prison and parole terms have effectively been 5 completed long ago. While imprisoned, Petitioner obtained his GED, took 6 advantage of numerous rehabilitation and enrichment programs, and received 7 favorable behavior and work reports. To continue to encourage these proactive 8 behaviors, and without evidence that Petitioner poses a danger to the public, 9 Petitioner s commitment to rehabilitation while incarcerated suggests the public 10 interest in this case weighs more heavily toward the immediate unsupervised 11 release of someone who has been incarcerated in violation of the Constitution. 12 In short, as evidenced by this Court s finding that Petitioner does not 13 presently constitute a danger to society, as well as the two subsequent identical 14 findings by the Board and, by implication, the Governor who declined to review 15 the Board s recent grant, it appears that the California Department of Corrections 16 and Rehabilitation has done its job well and successfully rehabilitated Petitioner. 17 Accordingly, the Court finds that the public interest in this case does not 18 weigh in favor of keeping Petitioner imprisoned. 19 4. 20 Finally, the Court rejects Respondent s contention that a stay pending appeal Petitioner Will Be Substantially Injured If a Stay Is Granted. 21 will not substantially injure Petitioner (i.e., the third Hilton factor) because he 22 would still be released from prison, and would be subject to the conditions of 23 parole imposed by the Board and receive the state resources available to parolees. 24 (Resp t s Mot. for Stay at 7-8.) 25 Respondent s concern for Petitioner s receipt of state resources upon 26 release has been addressed in the Court s discussion regarding to the public interest 27 factor. (See Discussion supra Part II.B.3.) As set forth by the parties, the 28 restrictions to be imposed include, among other things, the following: 12 1 ¢ Petitioner s job must be approved; 2 ¢ any job changes must be approved; 3 ¢ a restriction on travel outside a fifty-mile radius for at least ninety 4 days; 5 ¢ a restriction on visiting family outside that radius during that time; 6 ¢ a restriction on visiting family at all if they live outside of California; 7 ¢ a condition that a parole officer may come to his home and place of 8 9 10 employment; and ¢ a condition that a GPS tracking monitor may be placed on him for years to come, and so on and so forth. 11 (See Pet r s Opp n to Mot. for Stay at 13.) Respondent also notes that the Board 12 imposed special parole conditions regarding gangs and substance abuse (Resp t s 13 Mot. for Stay at 4), and stated that Petitioner would be subject to testing and 14 treatment which would protect public safety and aid [Petitioner] in his transition 15 from prison life (id. at 7). 16 Again, the Court (and two Board panels and the Governor) have all 17 determined that Petitioner does not pose a risk of danger to the public. Based on 18 the above, the Court finds that Petitioner faces significant harm if a stay of the 19 Court s Order prohibiting parole supervision is granted. 20 21 22 III. 23 CONCLUSION 24 Based on the foregoing, the Court denies (1) Respondent s Request to Stay 25 the Court s November 10, 2009, Order prohibiting parole supervision of Petitioner; 26 and (2) Respondent s request for a stay pending appeal of that portion of the 27 November 10, 2009, Order prohibiting parole supervision of Petitioner. 28 13 1 IT IS SO ORDERED. 2 3 DATED: December 10, 2009 4 5 6 /S/ RONALD S.W. LEW HONORABLE RONALD S.W. LEW Senior United States District Judge Presented by: 7 8 HONORABLE OSWALD PARADA United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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