(HC) Baez v. Sisto, et al, No. 2:2006cv01667 - Document 16 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION and ORDER signed by Circuit Judge Richard C. Tallman on 10/7/10 ORDERING that Petitioner's 1 Habeas Corpus Petition is DENIED. Case dismissed with prejudice. CASE CLOSED. (Owen, K)
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(HC) Baez v. Sisto, et al Doc. 16 1 2 3 4 5 6 7 8 9 10 11 12 13 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ANTHONY BAEZ, No. 2:06-cv-01667-RCT Petitioner, vs. GARY SWARTHOUT1, et al., Respondents. 14 MEMORANDUM DECISION AND ORDER 15 16 17 This matter comes before the court on Petitioner Anthony Baez’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 18 INTRODUCTION 19 Petitioner Baez is a state prisoner currently incarcerated at the California State Prison at 20 Solano, in Vacaville, California. He filed this petition for a writ of habeas corpus to challenge a 21 2004 decision of the California Board of Prison Terms ("Board") denying him parole. A review 22 of the record demonstrates that the 2005 decision of the Los Angeles County Superior Court 23 rejecting Baez's habeas claims was neither contrary to nor an unreasonable application of United 24 States Supreme Court precedent. 28 U.S.C. § 2254(d). Accordingly, the petition is DENIED 1 Gary Swarthout is substituted for his predecessor, D.K. Sisto, as the warden where the petitioner is incarcerated, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 1 Dockets.Justia.com 1 and the case is DISMISSED with prejudice. 2 PROCEDURAL AND FACTUAL HISTORY 3 4 Baez is currently serving a sentence of fifteen years to life for second degree murder and 5 felony assault. Baez's conviction was the result of a confrontation that took place on June 26, 6 1986, in the parking lot of a fast food restaurant in Pomona, California. After one of three men 7 either whistled at or patted the buttocks of Baez's girlfriend, Baez approached them in their 8 pickup truck and exchanged words with passenger Nick Affatati. Affatati got out of the truck 9 and pushed Baez, who then pushed Affatati, pulled out a gun, and told Affatati to "back off" and 10 that he was a "police officer." Affatati got back in the truck, but his friend, Bruce Massey, exited 11 the truck and hurried after Baez, who had begun to walk away. According to Baez, Massey 12 punched him, and Affatati, who had exited the truck and smashed the windshield of Baez's car, 13 also advanced toward Baez. Baez drew his gun and fired two shots, fatally striking Massey in 14 the temple and in the leg. (Pet. for Writ of Habeas Corpus Exhibit A (#6) at 3-6.) 15 Baez was convicted of second degree murder and felony assault on June 1, 1987, after a 16 jury trial. (Id. at 3). His conviction was affirmed by the California Court of Appeal on February 17 20, 1991. (Id. at 1). Baez began his sentence on September 15, 1987, with a minimum eligible 18 parole release date of December 17, 1997. (Pet. for Writ of Habeas Corpus (#1) at 2.) He was 19 denied parole at his initial parole hearing on January 29, 1997, his first subsequent parole 20 hearing on June 15, 2000, and his second subsequent parole hearing on February 17, 2004. (Id. 21 at 2-3). 22 On November 1, 2004, Baez filed a petition for writ of habeas corpus in the Los Angeles 23 County Superior Court, alleging that the Board 's decision to deny him parole was invalid 24 because it was based on insufficient evidence and because his parole hearing was held eight 25 months late. (Pet. for Writ of Habeas Corpus Exhibit Q (#6) at 1-3.) On January 20, 2005, the 2 1 Superior Court denied the petition, finding that the Board's parole denial was supported by 2 "some evidence" as required by California law, and that Baez's claim as to the lateness of the 3 hearing was "disingenuous and without merit." (Id.) The California Court of Appeal denied 4 Baez's petition on March 24, 2005, by citing to In re Dannenberg, 104 P.3d 783 (Cal. 2005), and 5 In re Rosenkrantz, 59 P.3d 174 (Cal. 2002). (Pet. for Writ of Habeas Corpus Exhibit R (#6).) 6 The California Supreme Court denied Baez's petition on May 10, 2006, without comment or 7 citation to authority. (Pet. for Writ of Habeas Corpus Exhibit S (#6).) 8 On July 31, 2006, Baez filed this federal petition for writ of habeas corpus. 9 CLAIMS 10 11 12 13 Baez's petition raises the following three claims with regard to the Board's 2004 denial of his parole:2 1. 14 15 Baez's federal due process rights were violated when the Board held his parole hearing eight months late; 2. Baez's federal due process rights were violated because the Board's decision was 16 based on the minimum circumstances necessary in order to convict him of his 17 commitment offense; and 18 3. Baez's federal due process rights were violated because the Board's decision was 19 not supported by "some evidence" that his release would pose an unreasonable 20 threat to public safety.3 2 Baez concedes that this habeas petition challenges the Board's 2004 decision only. (Pet. for Writ of Habeas Corpus (#1) at 38.) 3 To the extent that Baez's petition may be construed to raise a separate challenge to the overall fairness of California's "some evidence" standard, there is no indication that Baez presented this claim to the state courts on habeas review. (See Pet. for Writ of Habeas Corpus (#1) at 33-37, Exhibit Q (#6) at 1-3.) Therefore, the putative fourth claim is unexhausted, and 3 1 2 Respondents concede that Baez has exhausted his state judicial remedies for the three claims listed above. 3 4 LEGAL STANDARD 5 In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 6 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which established that a 7 federal habeas corpus petition shall not be granted with respect to any claim adjudicated on the 8 merits in the state courts unless the adjudication either: (1) resulted in a decision that was 9 contrary to, or involved an unreasonable application of, clearly established federal law, as 10 determined by the United States Supreme Court; or (2) resulted in a decision that was based on 11 an unreasonable determination of the facts in light of the evidence presented to the state courts. 12 28 U.S.C. § 2254(d). Under the "contrary to" clause, a federal court may grant the writ "if the 13 state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question 14 of law or if the state court decides a case differently than [the Supreme Court] has on a set of 15 materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412–13 (2000). Under the 16 "unreasonable application" clause, "a federal court may grant the writ if the state court identifies 17 the correct governing legal principle from [the Supreme Court]'s decisions but unreasonably 18 applies that principle to the facts of the prisoner's case." Id. at 413. 19 Under AEDPA, federal courts review the "last reasoned decision" of the state courts. Ylst 20 v. Nunnemaker, 501 U.S. 797, 804 (1991). Because the California Supreme Court denied Baez's 21 petition for review without comment or citation to authority, and the California Court of Appeal 22 merely cited two California cases, the Court will here review the written decision of the Los 23 Angeles County Superior Court. we do not consider it here. See 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275 (1971). 4 1 2 3 DISCUSSION 1. Parole Hearing Held Late Baez argues that the Board violated California Penal Code § 3041.5(b) when it held his 4 second subsequent parole hearing on February 17, 2004, despite the fact that at his previous 5 hearing on June 15, 2000, the Board had denied him parole "for a period of three years." (Pet. 6 for Writ of Habeas Corpus (#2) at 18-19). According to the California Penal Code, the Board 7 "shall schedule the next hearing" for either three, five, seven, ten, or fifteen years "after any 8 hearing at which parole is denied" depending on considerations of "the public and victim's 9 safety." Cal. Pen. Code § 3041.5(b). 10 Claims that a state law or regulation has been violated or improperly applied are not 11 generally cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) 12 ("[F]ederal habeas corpus relief does not lie for errors of state law. ") (internal citation omitted). 13 "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state 14 law questions." Id. at 68. The purpose of federal habeas review, rather, is to determine whether 15 the federal constitution or laws have been violated. Id. Only egregious state law errors rise to 16 the level of federal constitutional due process violations. See id. at 72. 17 Regardless of whether or not the purported eight-month delay in Baez's parole hearing 18 violated state law,4 it does not rise to level of a federal constitutional violation. Not every 19 prison-related regulation using mandatory language such as "shall" creates a liberty interest such 20 that, should the regulation not be followed, an inmate's federal due process rights are implicated. 4 The Superior Court found Baez's claim "disingenuous" because a hearing originally scheduled for September 16, 2003 was delayed at Baez's request. (Pet. for Writ of Habeas Corpus Exhibit E (#6) at 22 ; Exhibit Q (#6) at 3). Thus, even if we had authority to consider this state-law claim on federal habeas review, it would fail on the merits as "invited error." See United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir. 1992) ("The doctrine of invited error prevents a defendant from complaining of an error that was his own fault."). 5 1 See Sandin v. Connor, 515 U.S. 472, 483 (1995) ("[T]he search for a negative implication from 2 mandatory language in prisoner regulations has strayed from the real concerns undergirding the 3 liberty protected by the Due Process Clause."); McQuillion v. Duncan, 306 F.3d 895, 900 (9th 4 Cir. 2002) (noting that a deprivation of a constitutionally protected liberty interest must be 5 shown in order to establish a federal due process violation). Rather, liberty interests "will 6 generally be limited to freedom from restraint which . . . imposes an atypical and significant 7 hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. The 8 several-month delay in Baez's parole hearing "does not present a dramatic departure from the 9 basic conditions" of Baez's indeterminate sentence of fifteen years to life sufficient to trigger 10 11 federal due process guarantees. Id. at 485. Since Baez's claim regarding the lateness of his parole hearing involves the interpretation 12 of state law and implicates no federal right, it is not cognizable on federal habeas review. This 13 claim is therefore dismissed. 14 2. Evidentiary Basis for Parole Denial 15 Baez's two remaining habeas claims will be considered together because they are related. 16 One claim is that the Board's decision to deny him parole improperly relied on the minimum 17 circumstances necessary to convict him, rather than making a required finding that his 18 commitment was based on a crime committed in an especially egregious manner. The other 19 claim is that the Board's decision was not based on "some evidence" that Baez's release would 20 pose an unreasonable risk to public safety as required by state law. Both of these claims 21 essentially allege that the Board's parole denial decision violated Baez's federal due process 22 rights because it lacked sufficient evidentiary basis. 23 In general, to establish a federal due process violation, a party must show "two distinct 24 elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a 25 denial of adequate procedural protections." McQuillion, 306 F.3d at 900. Baez alleges that he 6 1 was deprived of his liberty interest in parole release without an adequate evidentiary showing. 2 The Court examines this claim under two alternate theories: (1) whether, even assuming Baez 3 had a liberty interest in parole release, he received constitutionally deficient process according to 4 clearly established Supreme Court precedent; and (2) whether, following Hayward v. Marshall, 5 603 F.3d 546 (9th Cir. 2010) (en banc), any liberty interest was improperly denied under 6 California law. Because the answer to both questions is "no," we need not determine which 7 method is proper under Ninth Circuit precedent. 8 9 a. Liberty Interest Assumed The Supreme Court has held that "despite the necessarily subjective and predictive nature 10 of the parole-release decision, state statutes may create liberty interests in parole release that are 11 entitled to protection under the Due Process Clause."5 Bd. of Pardons v. Allen, 482 U.S. 369, 12 371 (1987) (internal citation omitted); see Greenholtz v. Inmates of Neb. Penal & Corr. 13 Complex, 442 U.S. 1, 12 (1979) (holding that mandatory "shall" language in and structure of a 14 Nebraska statute created a liberty interest in parole release). California Penal Code section 3041 15 states that the Board of Parole Hearings 16 17 18 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 5 The Ninth Circuit's recent en banc decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), clarified that there is no federal constitutional right to "release on parole, or to release in the absence of some evidence of future dangerousness" arising directly from the Due Process Clause of the federal constitution; instead, any such right "has to arise from substantive state law creating a right to release." Id. at 555. Hayward thus overruled Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003), Sass v. California Board of Prison Terms, 461 F.3d 1123 (9th Cir. 2006), and Irons v. Carey, 505 F.3d 846 (9th Cir.2007), to the extent they "might be read to imply that there is a federal constitutional right regardless of whether state law entitles the prisoner to release." Id. 7 1 2 3 requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting. 4 Cal. Penal Code § 3041(b). In addition, "a life prisoner shall be found unsuitable for and denied 5 parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to 6 society if released from prison." Cal. Code Regs. tit. 15, § 2402(a). For the purpose of this case, 7 we assume that the mandatory "shall" language in the California Penal Code creates a liberty 8 interest protected by the federal Due Process Clause. 9 Next we consider whether Baez received constitutionally deficient process when he was 10 deprived of his liberty interest in parole release. Under clearly established United States 11 Supreme Court precedent, when a state statute creates a liberty interest in parole release, the state 12 must provide an inmate with an opportunity to be heard and an explanation of why parole is 13 being denied. Greenholtz, 442 U.S. at 16. "The Constitution does not require more." Id. 14 Because the Superior Court did not make explicit findings as to whether Baez received this 15 process, we "perform an independent review of the record to ascertain whether the state court 16 decision was objectively unreasonable" under AEDPA. Pham v. Terhune, 400 F.3d 740, 742 17 (9th Cir. 2005) (internal citation omitted). 18 The record in this case indicates that Baez received an in-person hearing in front of the 19 Board on February 17, 2004, at which he was represented by counsel and offered an opportunity 20 to present documents, answer questions, and speak on his own behalf. (Pet. for Writ of Habeas 21 Corpus Exhibit E (#6)). At the conclusion of the hearing, the Board rendered its decision and 22 explained to Baez why parole was being denied. (Id.) Thus, Baez was afforded all the process 23 that was due to him according to the leading Supreme Court precedent. See Greenholtz, 442 24 U.S. at 14–16. Therefore, the Los Angeles County Superior Court's decision denying Baez's 25 habeas claim was not contrary to clearly established federal law, and his federal habeas claim 26 must be denied. See 28 U.S.C. § 2254(d). 8 1 2 b. Analysis Under the Ninth Circuit's Hayward v. Marshall Decision In Hayward v. Marshall, a habeas case involving a California inmate's federal due 3 process challenge to the evidentiary basis of his parole denial, the Ninth Circuit instructed that 4 "courts in this circuit facing the same issue in the future[] need only decide whether the 5 California judicial decision approving . . . [the denial of] parole was an unreasonable application 6 of the California 'some evidence' requirement, or was based on an unreasonable determination of 7 the facts in light of the evidence." 603 F.3d at 562–63 (internal citation omitted). In other 8 words, if Baez is not entitled to parole under California law, he cannot have been deprived of 9 any state-created liberty interest, and no federal due process claim can go forward. 10 Under California law, "the paramount consideration . . . under the governing [parole] 11 statutes is whether the inmate currently poses a threat to public safety." Id. at 562 (quoting In re 12 Lawrence, 190 P.3d 535, 552 (Cal. 2008)). State courts therefore "review . . . the record for 13 'some evidence' that an inmate poses a current threat to public safety." Id. at 551 (citing In re 14 Shaputis, 190 P.3d 573, 580 (Cal. 2008)).6 15 In Baez's case, the Superior Court concluded that "the record contains 'some evidence' to 16 support the Board's finding that [Baez] is unsuitable for parole." (Pet. for Writ of Habeas Corpus 17 Exhibit Q (#6) at 1.) First, the Superior Court found that the record contained evidence that the 18 commitment offense was especially cruel "because the motive was inexplicable or very trivial in 19 relation to the offense." (Id. at 2). While, under California law, the aggravated nature of the 6 This Court notes that, under California law, Baez's claim that his parole denial was improperly based on the minimum circumstances necessary to sustain his underlying conviction is necessarily subsumed within his claim that his parole denial was not supported by "some evidence" that his release would pose an unreasonable threat to public safety. This is because the California Supreme Court has held that "the aggravated nature of the [commitment offense] does not in and of itself provide some evidence of current dangerousness to the public" absent something else in the record that supports an inference of dangerousness. See Lawrence, 190 P.3d at 555. 9 1 commitment offense does not "in and of itself" provide sufficient evidence to support a parole 2 denial, Lawrence, 190 P.3d at 555, "the offense of conviction may be considered" in determining 3 whether the inmate's release may present a threat to public safety, Hayward, 603 F.3d at 562. 4 Furthermore, the Superior Court found that there was also evidence in the record that Baez was 5 not suitable for release based on his prison psychological evaluation. (Pet. for Writ of Habeas 6 Corpus Exhibit Q (#6) at 3.) That evaluation, conducted in October 2003, concluded that, while 7 Baez "would appear to pose less of a threat than when first incarcerated," he had a "fascination 8 with guns" which was "impossible to evaluate, because he cannot be observed with access to 9 guns in prison," and he posed a "moderate" risk of violence. (Pet. for Writ of Habeas Corpus 10 11 Exhibit K (#6) at 4.) Because the Superior Court pointed to evidence in the record tending to show that Baez's 12 release could present a threat to public safety, we cannot say that its application of California's 13 "some evidence" requirement was objectively unreasonable. See Hayward, 603 F.3d at 562–63. 14 Nor was its decision based on an unreasonable determination of the facts in light of the evidence 15 in the record. See id. It was not unreasonable for the Superior Court to credit the conclusions of 16 a recent psychological report, which was prepared by a licensed psychologist, as an accurate 17 assessment of Baez's current dangerousness. Nor was it unreasonable for the Superior Court to 18 conclude that Baez's motive for the killing was inexplicable or trivial, given undisputed evidence 19 in the record that Baez shot an unarmed man in an altercation that began when someone whistled 20 at or briefly touched his girlfriend. (See Pet. for Writ of Habeas Corpus Exhibit A (#6) at 3-6.) 21 Under the Ninth Circuit's holding in Hayward v. Marshall, because the California 22 Superior Court made a reasonable determination that Baez was not entitled to parole under 23 California law, he was not deprived of a state-created liberty interest. His federal due process 24 claim must, therefore, fail, and his federal habeas petition is denied. 25 10 1 Therefore, it is hereby 2 ORDERED that Petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 3 4 5 6 2254 is DENIED and the case is DISMISSED with prejudice. The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address. DATED this 7th day of October, 2010, at Seattle, Washington. 7 8 9 10 11 11
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