Ferguson v. Kane, No. 3:2006cv05540 - Document 13 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge William Alsup on 9/11/09. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 9/11/2009)
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Ferguson v. Kane Doc. 13 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 For the Northern District of California United States District Court 9 10 TODD M. FERGUSON, 11 Petitioner, 12 13 No. C 06-5540 WHA (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. A.P. KANE, Warden, 14 Respondent. / 15 16 17 This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. 2254. The petition is directed to denial of parole. 18 The court ordered respondent to show cause why the writ should not be granted. 19 Respondent has filed an answer and a memorandum of points and authorities in support of it, 20 and has lodged exhibits with the court. Petitioner has responded with a traverse, and has also 21 submitted a brief with supplemental authorities. For the reasons set forth below, the petition is 22 DENIED. STATEMENT 23 In 1983, petitioner pled guilty to charges of second degree murder, attempted murder 24 25 and conspiracy to commit robbery (Exh. 1).1 He was sentenced to a term of 15 years to life in 26 state prison for the murder charge, and a ten-year concurrent term on the other charges (ibid). 27 Petitioner’s two co-defendants, against whom petitioner testified pursuant to his plea 28 1 Unless otherwise noted, the cited exhibits are those attached to respondent’s answer. Dockets.Justia.com 1 agreement, were sentenced to life without the possibility of parole (Exh. 2 at 58). At his eighth 2 parole hearing in 2004, the California Board of Parole Hearings (the “Board”) found him 3 unsuitable for parole (Id. at 80). Petitioner challenged this decision in habeas petitions filed in 4 all three levels of the California courts, which petitions were denied (Exhs. 6-11). 5 6 DISCUSSION A. For the Northern District of California United States District Court 7 STANDARD OF REVIEW A district court may not grant a petition challenging a state conviction or sentence on the 8 basis of a claim that was reviewed on the merits in state court unless the state court's 9 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an 10 unreasonable application of, clearly established Federal law, as determined by the Supreme 11 Court of the United States; or (2) resulted in a decision that was based on an unreasonable 12 determination of the facts in light of the evidence presented in the State court proceeding." 28 13 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of 14 law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong 15 applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 16 (2003). 17 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 18 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 19 reached by [the Supreme] Court on a question of law or if the state court decides a case 20 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 21 Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application of” 22 Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies 23 the governing legal principle from the Supreme Court’s decisions but “unreasonably applies 24 that principle to the facts of the prisoner’s case.” Id. at 413. The federal court on habeas 25 review may not issue the writ “simply because that court concludes in its independent judgment 26 that the relevant state-court decision applied clearly established federal law erroneously or 27 incorrectly.” Id. at 411. Rather, the application must be “objectively unreasonable” to support 28 2 1 granting the writ. See id. at 409. 2 “Factual determinations by state courts are presumed correct absent clear and 3 convincing evidence to the contrary.” Miller-El, 537 U.S. at 340. This presumption is not 4 altered by the fact that the finding was made by a state court of appeals, rather than by a state 5 trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, 6 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and 7 convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory 8 assertions will not do. Id. For the Northern District of California United States District Court 9 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination 10 will not be overturned on factual grounds unless objectively unreasonable in light of the 11 evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; see also Torres 12 v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). 13 When there is no reasoned opinion from the highest state court to consider the 14 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 501 15 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.2000). 16 B. ISSUES PRESENTED 17 1. 18 In order to preserve the issues for appeal respondent argues that California prisoners RESPONDENT’S ISSUES 19 have no liberty interest in parole, and that if they do, the only due process protections available 20 are a right to be heard and a right to be informed of the basis for the denial – that is, respondent 21 contends there is no due process right to have the result supported by sufficient evidence. 22 Because these contentions are contrary to Ninth Circuit law, they are without merit. See Irons 23 v. Carey, 479 F.3d 658, 662 (9th Cir. 2007) (applying "some evidence" standard used for 24 disciplinary hearings as outlined in Superintendent v. Hill, 472 U.S. 445-455 (1985)); Sass v. 25 California Bd. of Prison Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006) (the some evidence 26 standard identified in Hill is clearly established federal law in the parole context for purposes of 27 § 2254(d)); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (“California’s parole 28 3 1 2 For the Northern District of California United States District Court 3 scheme gives rise to a cognizable liberty interest in release on parole.”). 2. PETITIONER’S CLAIMS a. “Biggs Claim” 4 In a line of relatively recent cases the Ninth Circuit has discussed the constitutionality of 5 denying parole when the only basis for denial is the circumstances of the offense. See Hayward 6 v. Marshall, 512 F.3d 536, (9th Cir. 2008); Irons v. Carey, 505 F.3d 846, 852-54 (9th Cir. 7 2007); Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1129 (9th Cir. 2006); Biggs v. 8 Terhune, 334 F.3d 910, 915-17 (9th Cir. 2003). 9 In Biggs the court stated that due process might be violated if the Board were to 10 continue to deny parole to a prisoner based only on the immutable facts of his or her offense in 11 the face of evidence of rehabilitation. 334 F.3d at 916-17. It was unclear whether the court was 12 suggesting that the continued denial of parole would be a new sort of due process violation or 13 whether it was simply expressing the thought that with the passage of time the nature of the 14 offense could cease to be “some evidence” that the prisoner would be a danger if paroled. This 15 ambiguity was helpfully cleared up in Irons, in which the court clearly treated a “some 16 evidence” claim as different from a “Biggs claim.” Irons, 505 F.3d at 853-54. It appears, 17 putting together the brief discussions in Biggs and Irons, that the court meant that at some point 18 denial of parole based on long-ago and unchangeable factors, when overwhelmed with positive 19 evidence of rehabilitation, would be fundamentally unfair and violate due process. 20 Here, petitioner argues that simply using the circumstances of his offense as grounds for 21 denial of parole violates due process, separate from his “some evidence” claim, which is 22 discussed, below. Petitioner’s parole was not denied solely because of the circumstances of his 23 offense, however, but also because of his prior criminal history, his unstable social history, his 24 failure to adequately participate in self-help programs in prison, his lack of insight into what 25 caused him to commit the crime, his denial of his poly-substance abuse and dependence as 26 diagnosed by a psychologist, and the opposition of the prosecutor to his release (Exh. 2 at 80- 27 83). Strictly speaking, therefore, the parole denial in this case is not subject to a so-called 28 4 1 “Biggs” claim. In any event, assuming for purposes of this discussion that Biggs and Irons 2 recognized an abstract due process right not to have parole repeatedly denied on the basis of the 3 facts of one’s crime and in the face of extensive evidence of rehabilitation, petitioner still 4 cannot obtain relief on this theory because as there is no clearly-established United States 5 Supreme Court authority recognizing such a claim. The state courts’ rulings therefore could not 6 be contrary to, or an unreasonable application of, clearly-established Supreme Court authority. 7 8 9 For the Northern District of California United States District Court 10 b. “Some Evidence” Petitioner contends that denial of parole was not supported by sufficient reliable evidence, and thus violated his due process rights. As described above, due process requires that a denial of parole be supported by at least 11 “some evidence,” as that term was defined in Hill. Sass, 461 F.3d at1128-29. Ascertaining 12 whether the some evidence standard is met "does not require examination of the entire record, 13 independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, 14 the relevant question is whether there is any evidence in the record that could support the 15 conclusion reached by the disciplinary board." Hill, 472 U.S. at 455; Sass, 461 F.3d at 1128. 16 The some evidence standard is minimal, and assures that "the record is not so devoid of 17 evidence that the findings of the disciplinary board were without support or otherwise 18 arbitrary." Sass, 461 F.3d at 1129 (quoting Hill, 472 U.S. at 457). 19 It is now established under California law that the task of the Board is to determine 20 whether the prisoner would be a danger to society if he or she were paroled. See In. re 21 Lawrence, 44 Cal. 4th 1181 (2008). The constitutional “some evidence” requirement therefore 22 is that there be some evidence that the prisoner would be such a danger, not that there be some 23 evidence of one or more of the factors that the regulations list as factors to be considered in 24 deciding whether to grant parole. Id. at 1205-06. 25 26 27 The superior court, in denying petitioner’s habeas petition, summarized the facts of the commitment offenses as follows: After the first attempt to rob the liquor store failed, Petitioner returned approximately a month later to make a second attempt at robbing the liquor 28 5 1 2 3 4 store. Petitioner armed his co-defendants with guns, ammunition, information about the layout of the store, and a new plan to rob the store before it closed so as not to activate the alarm. While Petitioner waited outside in the getaway car, his co-defendants ordered the clerks into the cold storage area of the store, ordered them to surrender their wallets, ordered them to kneel and pull their coats over their heads. They shot Mr. Philbert six times, killing him. After shooting Mr. Clark eleven times, they asked him if he was going to remember anything and despite responding “no,” they shot Mr. Clark two more times. 5 (Exh. 7 at 2.) 6 In addition to the commitment offenses, which were brutal and callous, the Board’s 7 decision was supported by evidence that petitioner had not adequately addressed all of the 8 factors that caused him to commit the offenses insofar as he denied having a substance abuse 9 problem at the time of the offense despite his history of drug and alcohol use and a 10 Board’s decision was also supported by the opposition to parole by the prosecutor (id. at 55-64, For the Northern District of California United States District Court psychologist’s diagnosis that he had such a problem in remission (Exh. 2 at 82-83). The 11 12 83). This constituted "some evidence" that petitioner would be a danger to society if paroled. 13 The rejections of this claim by the state courts were not contrary to, or an unreasonable 14 application of, clearly-established United States Supreme Court authority. 15 c. Individualized Consideration 16 Petitioner contends that his due process rights were violated by the Board’s failure to 17 afford him “individualized consideration” in finding him unsuitable for parole. The record, 18 however, shows that the Board reviewed the evidence extensively of petitioner’s particular 19 criminal history, the facts of his offenses, his behavior since commitment, his parole plans, and 20 other circumstances particular to his case, and discussed these facts with petitioner and his 21 attorney (Exh. 2 at 7-79). The Board’s decision sets out the facts specific to petitioner that it 22 relied upon in finding him not suitable for parole (id. at 80-84). Under these circumstances, 23 petitioner’s claim that he did not receive individualized consideration fails. The state courts’ 24 rejection of this claim was not contrary to, nor an unreasonable application of, clearly25 established Supreme Court authority. 26 d. Breach of Plea Bargain 27 Petitioner contends that by denying him parole the Board has breached his plea bargain 28 6 For the Northern District of California United States District Court 1 because it is in effect treating him as if he had been convicted of first-degree murder. The plea 2 agreement provided that two counts would be dismissed, that petitioner would be convicted of 3 second-degree murder, attempted murder, and attempted robbery, that he would possibly serve 4 a life term, and that he would receive concurrent sentences (Exh. 12 at 3). This is precisely 5 what he happened, and he was accordingly sentenced to a term of fifteen years to life and a ten- 6 year concurrent sentence. First-degree murder is punishable by death, life without parole, or a 7 term of twenty-five years to life. Cal. Penal Code 190(a). Although plaintiff contends he is 8 being punished as if he had pleaded to first-degree murder, he in fact has been receiving the 9 parole considerations to which his fifteen-to-life sentence entitles him. Moreover, as petitioner 10 concedes, there was no express promise in the plea bargain as to when petitioner would be 11 released (Pet. 27; Exh. 12 at 3). 12 13 The state courts’ rejection of petitioner’s argument was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.2 14 CONCLUSION 15 16 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file and terminate any pending motions. 17 18 IT IS SO ORDERED. Dated: September 11, 2009 19 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 20 21 22 G:\PRO-SE\WHA\HC.06\FERGUSON540.RUL.wpd 23 24 25 26 27 28 2 In light of this conclusion, respondent’s alternative argument that petitioner’s third claim is untimely need not be addressed. 7
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