(HC) Francisco v. Hartley, No. 1:2009cv00001 - Document 15 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that 1 Petition for Writ of Habeas Corpus be DENIED and Clerk of Court enter Judgement for Respondent, Signed by Magistrate Judge John M. Dixon, Jr on 6/30/2010. Referred to Judge Wanger. (Objections to F&R due by 8/4/2010)(Marrujo, C)
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(HC) Francisco v. Hartley Doc. 15 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 VICTOR FRANCISCO, ) ) Petitioner, ) ) v. ) ) ) J.D. HARTLEY, Warden, ) ) Respondent. ) ____________________________________) 1:09-cv-00001 OWW JMD (HC) FINDINGS AND RECOMMENDATIONS REGARDING PETITION FOR WRIT OF HABEAS CORPUS OBJECTIONS DUE WITHIN THIRTY (30) DAYS 14 Petitioner Victor Francisco (“Petitioner”) is a state prisoner proceeding pro se with a petition 15 for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 16 PROCEDURAL HISTORY 17 Petitioner is currently in the custody of the California Department of Corrections and 18 Rehabilitation pursuant to a 1992 conviction on one count of first degree murder and two counts of 19 attempted murder. The trial court sentenced Petitioner to a term of twenty-six years to life in prison. 20 Petitioner is not challenging his conviction in this instant action. Rather, Petitioner 21 challenges the denial of his parole by the California Board of Parole Hearings (the “Board”), which 22 he appeared before on December 20, 2006. Petitioner contends that the Board violated his 23 constitutional rights by denying him parole. 24 Petitioner filed a petition for writ of habeas corpus with the Los Angeles County Superior 25 Court challenging the Board’s decision. The court denied the petition on February 26, 2008. 26 Petitioner also filed a petition for writ of habeas corpus with the California Supreme Court, 27 which was summarily denied on September 10, 2008. 28 U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 Petitioner filed the instant petition for writ of habeas corpus on December 5, 2009. 2 Respondent filed an answer to the petition on September 1, 2009. 3 FACTUAL BACKGROUND 4 I. The Commitment Offense1 5 On July 28, 1990, Petitioner was at a house party when rival gang members fired rounds into 6 the party. Petitioner and another man got into his car to find members of that rival gang. Petitioner 7 was a member of the Block Crips street gang. 8 Gregory Bailey, a man named Phil, and another unnamed man, all members of the Eighth 9 Street Gang, were hanging out outside a liquor store. A Volvo driven by Petitioner drove up and the 10 passenger of the car started shooting at Bailey’s group. Six shots were fired at the group; Bailey and 11 the unnamed man were unharmed but Phil was fatally shot. 12 II. 13 14 Petitioner had been a member of the Block Crips for about four years prior to the commitment offense. 15 16 Pre-Conviction Facts2 Petitioner began drinking alcohol when he was thirteen years old and began smoking marijuana when he was fourteen years old. 17 Petitioner did not graduate from high school. 18 Petitioner has a prior conviction for possession of marijuana laced with cocaine when he was 19 a minor, for which he received probation. 20 Petitioner has a son with whom he is still in contact. 21 Petitioner’s father is an accountant and his mother is a customs broker. 22 23 III. Post-Conviction Facts3 Petitioner earned his GED in 1993 and was in the midst of participating in correspondence 24 25 26 1 The facts of the commitment offense are derived from the transcript of the Board of Parole Hearings’s December 20, 2006, hearing in consideration of Petitioner’s parole. (Answer, Ex. 3, Tr. Board of Parole Hr’gs (hereinafter Tr.), 13-16, Dec. 20, 2006.) 27 2 (Tr. 16-24.) 28 3 (Tr. 38-43.) U .S. D istrict C ourt E. D . C alifornia 2 1 courses to receive his paralegal certificate at the time of the hearing. 2 3 Petitioner did not complete any vocational training during his time in prison, even after the Board suggested it to him at his previous parole hearing. 4 5 Petitioner worked in the shipping department at the Prison Industry Authority laboratory for a year and a half. 6 Petitioner participated in a limited manner in self-help programs. In 2006 he participated in a 7 Biblical self-confrontation course and a Crimanon Way to Happiness course. Petitioner has not 8 participated in Alcoholics Anonymous or Narcotics Anonymous. 9 IV. 10 11 Post-Commitment Plans4 Petitioner would like to work as a paralegal if he is released from prison. However, he has no offers of employment in this field. 12 Petitioner has no official offers of employment. He assured the Board that he could work for 13 his father doing bookkeeping, although his father’s letter of support did not include an offer of 14 employment. 15 16 Petitioner’s sister, Melanie Francisco, wrote a letter of support on behalf of Petitioner offering to provide him with a home, financial support, and resources to seek employment. 17 Petitioner’s file also contains letters of support submitted by Janai Moses, the mother of 18 Petitioner’s son, Denise Moses, Janai’s mother, Juana Francisco, Petitioner’s sister, Corinthian 19 White, Petitioner’s old neighbor, and Petitioner’s parents. 20 V. 21 Psychological Evaluation5 Petitioner has been diagnosed with Anti-Social Personality Disorder. He received a Global 22 Assessment of Functioning score of 80, which the Board commented was on the low end of the 23 scale. The evaluation rated Petitioner’s financial vocational plans as “good,” his level of support as 24 “excellent,” his prior work history as “limited,” and his institutional adjustment as “fair.” 25 The psychological evaluation listed positive factors such as the level of support Petitioner 26 27 4 (Tr. 24-30.) 28 5 (Tr., Psychosocial Assessment, July 20, 2006.) U .S. D istrict C ourt E. D . C alifornia 3 1 receives from his family and the lack of a prior adult record. The evaluation further noted that 2 Petitioner “acknowledged he committed the offense. He fully acknowledged the wrongfulness of his 3 actions . . . [he] appears to take full responsibility for the offense and does not appear to rationalize 4 or minimize his role.” 5 As high risk factors, the psychological evaluation noted Petitioner’s juvenile record and the 6 fact that Petitioner has a record of aggression or violence in prison. The report also found risk in the 7 fact that Petitioner refuses to participate in drug or alcohol treatment programs when he has a history 8 of drug and alcohol abuse. Furthermore, the offense was premeditated and the victim was not an 9 immediate threat to Petitioner when Petitioner and his companion shot him. 10 The report found that “comparing [Petitioner] to an average citizen within the community, 11 [his] potential for violence would be . . . slightly higher due to his non-participation in Narcotics 12 Anonymous, Alcoholics Anonymous, vocations, and further self help courses.” 13 The evaluation recommended that Petitioner participate in Alcoholics Anonymous or 14 Narcotics Anonymous, anger management courses, and continue to focus on his job and vocational 15 training. 16 VI 17 The Board’s Decision6 The Board found Petitioner unsuitable for parole because he “would pose an unreasonable 18 risk of danger to society or a threat to public safety if released from prison.” The Board stated that 19 the primary reason for its determination was the commitment offense but it also relied on Petitioner’s 20 juvenile record, involvement in gang membership, history of unstable relationships with others, 21 limited participation in vocational training and self help, accrual of eight 128s7 and four 115s8, and 22 the psychiatric evaluation. 23 24 25 6 26 7 27 (Tr. 68-69.) A CDC 128 documents incidents of minor misconduct. See Cal.Code Regs., tit. 15, § 3312(a)(2); In re Gray, 151 Cal.App.4th 379, 389 (2007). 8 28 A CDC 115 documents misconduct believed to be a violation of law or otherwise not minor in nature. See Cal.Code Regs., tit. 15, § 3312(a)(3); In re Gray,151 Cal.App.4th at 389. U .S. D istrict C ourt E. D . C alifornia 4 1 2 DISCUSSION I. 3 Jurisdiction A person in custody pursuant to the judgment of a State court may petition a district court for 4 relief by way of a writ of habeas corpus if the custody is in violation of the Constitution, laws, or 5 treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 6 U.S. 362, 375 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by 7 the United States Constitution and Petitioner is currently incarcerated at Avenal State Prison, which 8 is located in Kings County. As Kings County falls within this judicial district, 28 U.S.C. § 84(b), the 9 Court has jurisdiction over Petitioner’s application for writ of habeas corpus. See 28 U.S.C. § 10 2241(d) (vesting concurrent jurisdiction over application for writ of habeas corpus to the district 11 court where the petitioner is currently in custody or the district court in which a State court convicted 12 and sentenced Petitioner if the State “contains two or more Federal judicial districts”). 13 II. 14 ADEPA Standard of Review On April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act of 15 1996 (“AEDPA”), which applies to all petitions for a writ of habeas corpus filed after the statute’s 16 enactment. Lindh v. Murphy, 521 U.S. 320, 326-327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 17 (9th Cir. 1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), overruled on other 18 grounds by Lindh, 521 U.S. 320 (holding AEDPA only applicable to cases filed after statute’s 19 enactment)). The instant petition was filed in 2008 and is consequently governed by the provisions 20 of the AEDPA. See Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Thus, the petition “may be 21 granted only if [Petitioner] demonstrates that the state court decision denying relief was ‘contrary to, 22 or involved an unreasonable application of, clearly established Federal law, as determined by the 23 Supreme Court of the United States.’” Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) (quoting 28 24 U.S.C. § 2254(d)(1)), overruled in part on other grounds, Hayward v. Marshall, 603 F.3d 546, 555 25 (9th Cir. 2010) (en banc); see Lockyer, 538 U.S. at 70-71. 26 Title 28 of the United States Code, section 2254 remains the exclusive vehicle for 27 Petitioner’s habeas petition as Petitioner is in custody of the California Department of Corrections 28 and Rehabilitation pursuant to a state court judgment. See Sass v. California Board of Prison Terms, U .S. D istrict C ourt E. D . C alifornia 5 1 461 F.3d 1123, 1126-1127 (9th Cir. 2006) overruled in part on other grounds, Hayward, 603 F.3d at 2 555. As a threshold matter, this Court must “first decide what constitutes ‘clearly established 3 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71 4 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this 5 Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of 6 the time of the relevant state-court decision.” Id. (quoting Williams, 592 U.S. at 412). “In other 7 words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or 8 principles set forth by the Supreme Court at the time the state court renders its decision.” Id. 9 Finally, this Court must consider whether the state court’s decision was “contrary to, or involved an 10 unreasonable application of, clearly established Federal law.” Lockyer, 538 U.S. at 72, (quoting 28 11 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if 12 the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 13 of law or if the state court decides a case differently than [the] Court has on a set of materially 14 indistinguishable facts.” Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. at 72. “Under the 15 ‘unreasonable application clause,’ a federal habeas court may grant the writ if the state court 16 identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies 17 that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. “[A] federal court may 18 not issue the writ simply because the court concludes in its independent judgment that the relevant 19 state court decision applied clearly established federal law erroneously or incorrectly. Rather, that 20 application must also be unreasonable.” Id. at 411. A federal habeas court making the “unreasonable 21 application” inquiry should ask whether the state court's application of clearly established federal law 22 was “objectively unreasonable.” Id. at 409. 23 Petitioner bears the burden of establishing that the state court’s decision is contrary to or 24 involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 25 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, 26 Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court 27 decision is objectively unreasonable. Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003) (“While 28 only the Supreme Court’s precedents are binding on the Arizona court, and only those precedents U .S. D istrict C ourt E. D . C alifornia 6 1 need be reasonably applied, we may look for guidance to circuit precedents”); Duhaime v. 2 Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999) (“because of the 1996 AEDPA amendments, it can 3 no longer reverse a state court decision merely because that decision conflicts with Ninth Circuit 4 precedent on a federal Constitutional issue . . . This does not mean that Ninth Circuit caselaw is 5 never relevant to a habeas case after AEDPA. Our cases may be persuasive authority for purposes of 6 determining whether a particular state court decision is an ‘unreasonable application’ of Supreme 7 Court law, and also may help us determine what law is ‘clearly established’”). Furthermore, the 8 AEDPA requires that the Court give considerable deference to state court decisions. The state 9 court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). A federal habeas court is 10 bound by a state's interpretation of its own laws. Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir. 11 2002). 12 The initial step in applying AEDPA’s standards is to “identify the state court decision that is 13 appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more 14 than one State court has adjudicated Petitioner’s claims, a federal habeas court analyzes the last 15 reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) for the presumption 16 that later unexplained orders, upholding a judgment or rejecting the same claim, rests upon the same 17 ground as the prior order). Thus, a federal habeas court looks through ambiguous or unexplained 18 state court decisions to the last reasoned decision to determine whether that decision was contrary to 19 or an unreasonable application of clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 20 1112-1113 (9th Cir. 2003). Here, the Los Angeles County Superior Court and the California 21 Supreme Court reached the merits of Petitioner’s claims. As the California Supreme Court 22 summarily denied Petitioner’s claims, the Court looks through that decision to the last reasoned 23 decision; namely, that of the Los Angeles Superior Court. See Ylst v. Nunnemaker, 501 U.S. at 804. 24 III. 25 26 Review of Petitioner’s Claims Petitioner claims that his due process rights were violated when the Board denied him parole based on a finding that Petitioner posed a current threat to public safety. 27 The Court analyzes a due process claim in two steps. ‘[T]he first asks whether there exists a 28 liberty or property interest which has been interfered with by the State; the second examines whether U .S. D istrict C ourt E. D . C alifornia 7 1 the procedures attendant upon that deprivation were constitutionally sufficient.’” Sass, 461 F.3d at 2 1127. The United States Constitution does not, by itself, create a protected liberty interest in a parole 3 date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). 4 Respondent argues that Petitioner does not have a federally protected liberty interest in 5 parole. The Ninth Circuit Court of Appeals has recognized that “[i]f there is any right to be release 6 on parole, or to release in the absence of some evidence of future dangerousness, it has to arise from 7 substantive state law creating a right to release.” Hayward, 603 F.3d at 555. The Ninth Circuit 8 further recognized that “[t]here is no general federal constitutional ‘some evidence’ requirement for 9 denial of parole, in the absence of state law creating an enforceable right to parole.” Id. at 559. The 10 Hayward court’s finding that there exists no free standing federal due process right to parole, or the 11 right to some evidence of current dangerousness, contained the consistent and continual caveat that 12 state law may in fact give rise to federal protection for those rights. As later noted by the Ninth 13 Circuit, “state created rights may give rise to liberty interests that may be enforced as a matter of 14 federal law.” Pearson v. Muntz, __ F.3d __, 2010 WL 2108964, *2 (9th Cir. 2010) (citing 15 Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). The Pearson court found that, “Hayward 16 necessarily held that compliance with state requirement is mandated by federal law, specifically the 17 Due Process Clause” as “[t]he principle that state law gives rise to liberty interests that may be 18 enforced as a matter of federal law is long-established. Id. 19 As noted by the Ninth Circuit in Hayward, the logical next question is whether California’s 20 parole scheme gives rise to a liberty interested enforced as a matter of federal law. The Ninth Circuit 21 has definitively concluded that “California has created a parole system that independently requires 22 the enforcement of certain procedural and substantive rights, including the right to parole absent 23 ‘some evidence’ of current dangerousness.” Pearson, __ F.3d __, 2010 WL 2108964, *4 (citing 24 Hayward, 603 F.3d at 562); see also Cooke v. Solis, 2010 WL 2267018, *6-7 (9th Cir. 2010) (noting 25 that “California’s ‘some evidence’ requirement is a component of the liberty interest created by the 26 parole system of that state”). 27 Consequently, the inquiry that a federal habeas court must undertake in determining whether 28 the denial of parole comports with the requirement of federal due process is “whether the California U .S. D istrict C ourt E. D . C alifornia 8 1 judicial decision approving the governor’s [or parole board’s] decision rejecting parole was an 2 ‘unreasonable application’ of the California ‘some evidence’ requirement, or was ‘based on an 3 unreasonable determination of the facts in light of the evidence.’” Hayward, 603 F.3d at 563 (quoting 4 28 U.S.C. § 2254(d)(1)-(2)) (footnotes omitted). As the Ninth Circuit recently observed in Cooke: 5 6 7 Under California law, “the paramount consideration for both the Board and the Governor” must be “whether the inmate currently poses a threat to public safety and thus may not be released on parole,”[citation], and “the facts relied upon by the Board or the Governor [must] support the ultimate decision that the inmate remains a threat to public safety. 8 Cooke, 2010 WL 2267018, *7 (quoting In re Lawrence, 44 Cal.4th 1181, 1210, 1213 (2008)); see 9 also Cal. Code Regs., tit. 15, § 2402(a) (“[I]f in the judgment of the panel the prisoner will pose an 10 unreasonable risk of danger to society if released from prison,” the prisoner must be found unsuitable 11 and denied parole). The California Supreme Court in Lawrence held that, “[t]he relevant 12 determination for the Board and the Governor is, and always has been, an individualized assessment 13 of the continuing danger and risk to public safety posed by the inmate.” Id. at 1227 (noting that 14 “mere recitation of the circumstances of the commitment offense, absent articulation of a rational 15 nexus between those facts and current dangerousness, fails to provide the required “modicum of 16 evidence” of unsuitability”). Thus, the dispositive inquiry now before this Court is “‘whether the 17 identified facts are probative to the central issue of current dangerousness when considered in light 18 of the full record before the Board or the Governor.’” Cooke, 2010 WL 22670108, *7 (quoting In re 19 Lawrence, 44 Cal.4th at 1221) (emphasis in original). 20 Here, the Superior Court of California, Los Angeles County, was the last State court to have 21 issued a reasoned opinion in Petitioner’s case. In that decision, the Superior Court found that there 22 was some evidence “to support the Board’s finding that the commitment offense was carried out in a 23 dispassionate and calculated manner.” (Answer, Ex. 2, Superior Ct. Decision.) The State court went 24 on to note that the Board also properly relied on Petitioner’s juvenile record and the fact that 25 Petitioner has received eight 128s and four 115s in prison, with the latest 115 occurring in 2003. 26 The Court finds that this decision is not an unreasonable application of the California “some 27 evidence” standard. As the Ninth Circuit noted, “courts in this circuit . . . need only decide whether 28 the California judicial decision approving the governor’s [or Board’s] decision rejecting parole was U .S. D istrict C ourt E. D . C alifornia 9 1 an ‘unreasonable application’ of the California ‘some evidence’ requirement, or was ‘based on an 2 unreasonable determination of the facts in light of the evidence.’” Hayward, 603 F.3d at 562-63. 3 While it appears the State court relied in large part on the commitment offense in upholding the 4 Board’s denial of parole, the State court also found further evidence of current dangerousness in 5 other factors, most notably Petitioner’s recent 115. 6 Petitioner received his most recent 115 on April 21, 2003, for failure to obey a direct order. 7 This occurred after Petitioner was urged by the Board to remain discipline free at a documentation 8 hearing on September 12, 2001. It was reasonable for the State court to find that Petitioner’s failure 9 to remain disciplinary free evidences current dangerousness because there is a reasonable likelihood 10 that an inmate who cannot adhere to the rules and laws inside of prison will not be able to adhere to 11 the laws outside of prison. 12 13 CONCLUSION The State court’s finding that the Board’s denial of parole was supported by “some evidence” 14 was not an unreasonable application of the California “some evidence” standard. Thus, Petitioner 15 cannot be granted habeas relief. 16 RECOMMENDATION 17 Accordingly, in accordance with the above, IT IS HEREBY RECOMMEND that: 18 1. The petition for writ of habeas corpus be DENIED and 19 2. The Clerk of Court be directed to enter judgement for Respondent. 20 This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United 21 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of 22 the Local Rules of Practice for the United States District Court, Eastern District of California. 23 Within thirty (30) days after being served with a copy, any party may file written objections with the 24 court and serve a copy on all parties. Such a document should be captioned “Objections to 25 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and 26 filed within ten (10) court days (plus three days if served by mail) after service of the objections. 27 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The 28 parties are advised that failure to file objections within the specified time may waive the right to U .S. D istrict C ourt E. D . C alifornia 10 1 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 2 IT IS SO ORDERED. 3 Dated: 0ce24h June 30, 2010 /s/ John M. Dixon UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 11
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