Christian v. Curry, No. 3:2007cv01082 - Document 10 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Maxine M. Chesney on December 28, 2009. (mmcsec, COURT STAFF) (Filed on 12/28/2009)
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Christian v. Curry Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 DEAN CHRISTIAN, 11 Petitioner, 12 13 vs. BEN CURRY, Warden, Respondent. 14 No. C 07-1082 MMC (PR) ) ) ) ) ) ) ) ) ) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 15 16 INTRODUCTION 17 On February 22, 2007, petitioner Dean Christian, a California state prisoner 18 proceeding pro se, filed, pursuant to 28 U.S.C. § 2254, the above-titled petition for a writ 19 of habeas corpus. For the reasons stated herein, the petition is hereby DENIED. 20 BACKGROUND 21 In 1985, petitioner and an accomplice, in the course of three separate incidents, 22 kidnapped and robbed four victims. A jury convicted petitioner of multiple counts of 23 robbery and kidnapping for the purpose of robbery, and the trial court sentenced 24 petitioner to a term of life in prison.1 (Ans. Ex. 5 at 1.) In May 2005, the Board found 25 26 1 27 28 The trial court stayed sentencing on seven of the eight counts. (Ans. Ex. 5 at 1.) Thereafter, the state appellate court reversed the conviction on two of the stayed counts, with directions to the trial court that said counts be dismissed. (Id. Ex. 3 at 9, 12.) 1 Dockets.Justia.com 1 petitioner unsuitable for parole, on grounds that he “would pose an unreasonable risk of 2 danger to society or a threat to public safety if released from prison.” (Ans. Ex. 2 at 61.) 3 In reaching its decision, the Board accepted the following facts, which, the Board 4 noted, were taken from the state appellate court’s opinion on petitioner’s direct appeal: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 On February 22nd, 1985. . .[a]t approximately 7:15 p.m., Elias [ ] Alfaro. . . was in a phone booth near a convenience market when [petitioner] approached and asked for Alfaro’s ID card. [Petitioner] flashed an identification card and told Alfaro he was from Immigration. When Alfaro told him he did not have a card, [petitioner] forced him into a nearby truck and handcuffed him. [Marvin] Eddings [petitioner’s accomplice]. . .came out of the market and got into the truck on the passenger side and [petitioner] drove. Both men struck Alfaro. They stopped at a car wash less than a mile away and stole Alfaro’s cash, which was 30 dollars, his watch, a ring and his car keys. He was uncuffed and released. Alfaro called a friend, who took him back to the market, but his car was gone. When he found the car several blocks away the next day, he noticed a new pair of Vans shoes were missing. At approximately 9:30 that same night, Margarito Garcia was walking home when [petitioner] and Eddings drove up, said they were from Immigration and asked if he had a green card. When Garcia said no, the two men handcuffed him and put him into the truck. While getting in, Garcia saw a rifle behind the driver’s seat. Again, [petitioner] was driving and Eddings sat on the passenger side waving a pistol. Garcia, sitting in the middle, was hit several times as he was driven to a less populated location about three blocks away. [Petitioner] and Eddings robbed Garcia of approximately 120 dollars before uncuffing and releasing him. Shortly thereafter, [petitioner] and Eddings were stopped and arrested. Officers seized two toy pistols, a loaded shotgun and a set of toy handcuffs from the truck. An inventory search later led to the discovery of Alfaro’s missing shoes in the truck. 19 20 21 22 23 24 25 26 27 28 A month earlier, on January 25th, 1985, Marco Lanfray [ ] and Concepcion [ ] Lopez were robbed in a very similar fashion. While both [petitioner] and Eddings were charged in that incident, only [petitioner] was convicted. Eddings was acquitted. [Petitioner] used the same modus operandi. He and a companion called out to the two victims and asked if they had green cards. After responding they did not, the victims were informed they were [“]under arrest[“], handcuffed and put into the truck. They were driven to a residential area several blocks away and robbed. Lopez lost approximately 400 dollars in cash. Lanfray lost approximately 250 dollars and a watch. [Petitioner] was convicted of four robberies and four kidnappings for the purpose of robbery. Eddings was convicted of two robberies and two kidnappings for the purpose of robbery. The jury also found armed allegations true, as to both men involved in the kidnapping and robbery of Garcia. (Id. Ex. 2 at 14–16.) At the parole hearing, the Board reviewed petitioner’s record, including the 2 1 circumstances of his commitment offense, his criminal history, and his behavior in 2 prison.2 With respect to the commitment offense, the Board found the offenses “were 3 carried out in a very deceitful manner and quite callous, with the inmate pretending to be 4 an INS agent” (id. Ex. 2 at 61), and, further, putting the victims in fear of taking action 5 “because of their immigration status” (id. Ex. 2 at 62). The Board was also concerned 6 that the acts against these unsuspecting victims were “carried out with a great amount of 7 dispassion” and that they were “calculated.” (Id. Ex. 2 at 61.) The Board took serious 8 note that the motivation for the crimes “was extremely trivial, in that the whole reason to 9 do these robberies was to pay off some gambling debts that the prisoner owed.” (Id. Ex. 2 10 11 at 62.) The Board also examined petitioner’s criminal history. Although petitioner has no 12 record of juvenile criminal activity, petitioner’s adult criminal history includes 13 convictions for assault with a deadly weapon, assault and battery, grand theft auto, and 14 rape, as well as driving under the influence. (Id. Ex. 2 at 17–18.) . 15 Additionally, the Board examined petitioner’s institutional record, which, along 16 with ten minor violations, included eight serious disciplinary citations, the most recent of 17 the latter having occurred in 1992 and none involving violence or possession of a 18 weapon, but at least one involving possession of marijuana. (Id. Ex. 2 at 30-31, 34.) 19 The Board’s review of petitioner’s institutional record also included an 20 examination of his psychological evaluation. According to that report, petitioner’s 21 potential for violence if released was “estimated to be slightly higher than the average 22 citizen in the community.” (Id. Ex. 2 at 39.) Further, the report expressed the following 23 concern: “Should this inmate abuse alcohol or illicit drugs again, his violence potential 24 would be considered much higher than the average citizen in the community.” (Id.) 25 26 27 28 2 In the course of the hearing, the Board erroneously described petitioner’s sentence as a term of “seven years to life” (id. Ex. 2 at 1) rather than a “life” term. There is no indication in the record, however, that such distinction was in any manner significant to the Board’s determination to deny parole. 3 The Board commended petitioner for his skills training, and his participation in 1 2 self-help programming. In particular, with respect to the former, the Board acknowledged 3 petitioner’s extensive and varied work history, which included experience in textiles, food 4 services, carpentry, furniture-making, and diesel mechanics, and, with respect to the 5 latter, acknowledged petitioner’s participation in AA, NA, anger management, and a 6 number of other self-help programs. (Id. at 68–69.) After a full hearing, during which all of the above evidence was considered, the 7 8 Board found petitioner unsuitable for parole. (Id. at 61.) In response to the Board’s 9 decision, petitioner filed state habeas petitions, later denied, in the Orange County 10 Superior Court, California Court of Appeal, and California Supreme Court. (Id. Exs. 11 11–13.) 12 In 2007, petitioner filed the instant federal habeas petition, alleging that the 13 Board’s decision violated his right to due process because the decision (1) was not 14 supported by sufficient evidence and because it rests upon the unchanging facts of his 15 commitment offense,3 and (2) was inconsistent with the California Department of 16 Corrections and Rehabilitation’s (“CDCR”) decision to house him in a facility for 17 “non-violent” inmates. (Pet. at 6h, 6n.) DISCUSSION 18 19 20 A. Standard of Review This Court may entertain a petition for a writ of habeas corpus “in behalf of a 21 person in custody pursuant to the judgment of a State court only on the ground that he is 22 in custody in violation of the Constitution or laws or treaties of the United States.” 28 23 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). 24 A district court may not grant a petition challenging a state conviction or sentence 25 on the basis of a claim that was reviewed on the merits in state court unless the state 26 court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or 27 28 3 This claim represents a consolidation of two claims presented in the petition. 4 1 involved an unreasonable application of, clearly established Federal law, as determined 2 by the Supreme Court of the United States; or (2) resulted in a decision that was based on 3 an unreasonable determination of the facts in light of the evidence presented in the State 4 court proceeding.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412–13 5 (2000). A federal court must presume the correctness of the state court’s factual findings. 6 28 U.S.C. § 2254 (e)(1). Habeas relief is warranted only if the constitutional error at 7 issue had a “substantial and injurious effect or influence in determining the jury’s 8 verdict.” Penry v. Johnson, 532 U.S. 782, 795 (2001) (internal quotation and citation 9 omitted). The state court decision implicated by 2254(d) is the “last reasoned decision” of 10 11 the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991); Barker v. 12 Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2005). Where there is no reasoned opinion 13 from the highest state court to have considered the petitioner’s claims, the district court 14 looks to the last reasoned state court opinion, which, in this instance, is the opinion issued 15 November 1, 2005 by the Orange County Superior Court. (Ans. Ex. 11 ); see 16 Nunnemaker, 501 U.S. at 801–06; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th 17 Cir. 2000). 18 B. Petitioner’s Claims 19 1. First Claim 20 Petitioner claims the Board’s decision violates his right to due process because it is 21 not supported by sufficient evidence and because the Board continues to rely on the 22 circumstances of the commitment offense. (Pet. at 6h.) The superior court rejected these 23 claims, finding that the Board’s decision was based on sufficient evidence, and that the 24 Board relied on factors other than and in addition to the circumstances of the commitment 25 offense. (Ans. Ex. 11 at 3, 5–6.) 26 A denial of parole complies with due process provided there is “some evidence” to 27 support the parole board’s decision. A parole board’s decision deprives a prisoner of due 28 process if such decision is not supported by “some evidence in the record,” or is 5 1 otherwise “arbitrary.” See Superintendent v. Hill, 472 U.S. 445, 454–55 (1985); Sass v. 2 California Bd. of Prison Terms, 461 F.3d 1123, 1129 (9th Cir. 2006). Further, the 3 evidence underlying the parole board’s decision must have “some indicia of reliability.” 4 See McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002). Accordingly, if a parole 5 board’s determination with respect to parole suitability is to satisfy due process, such 6 determination must be supported by some evidence having some indicia of reliability. 7 Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005). 8 Additionally, in assessing whether there is “some evidence” to support the Board’s 9 denial of parole, this Court must consider the regulations that guide the Board in making 10 its parole suitability determinations. Pursuant to such regulations, “[t]he panel shall first 11 determine whether the life prisoner is suitable for release on parole[;] [r]egardless of the 12 length of time served, a life prisoner shall be found unsuitable for and denied parole if in 13 the judgment of the panel the prisoner will pose an unreasonable risk of danger to society 14 if released from prison.” 15 Cal. Code Regs. § 2402(a). The regulations enumerate 15 various circumstances tending to indicate whether or not an inmate is suitable for parole. 16 Id., § 2402(c)–(d).4 One circumstance tending to show an inmate’s unsuitability is that 17 the crime was committed in an “especially heinous, atrocious or cruel manner.” Id., 18 § 2402(c). Two factors that the parole authority may consider in determining whether 19 such a circumstance exists are whether “[t]he offense was carried out in a manner that 20 demonstrates an exceptionally callous disregard for human suffering,” and whether “[t]he 21 22 23 24 25 26 27 28 4 The circumstances tending to show an inmate’s unsuitability are: (1) the commitment offense was committed in an “especially heinous, atrocious or cruel manner;” (2) previous record of violence; (3) unstable social history; (4) sadistic sexual offenses; (5) psychological factors such as a “lengthy history of severe mental problems related to the offense;” and (6) prison misconduct. 15 Cal. Code Regs. § 2402(c). The circumstances tending to show suitability are: (1) no juvenile record; (2) stable social history; (3) signs of remorse; (4) commitment offense was committed as a result of stress which built up over time; (5) Battered Woman Syndrome; (6) lack of criminal history; (7) age is such that it reduces the possibility of recidivism; (8) plans for future including development of marketable skills; and (9) institutional activities that indicate ability to function within the law. Id. § 2402(d). 6 1 motive for the crime is inexplicable or very trivial in relation to the offense.” Id., 2 § 2402(c)(1)(D) & (E). In addition to these factors, the Board is to consider “all relevant, 3 reliable information available.” Id., § 2402(b). 4 It is now established under California law that the task of the Board is to determine 5 whether the prisoner would be a danger to society if he or she were paroled. See In re 6 Lawrence, 44 Cal. 4th 1181 (2008). Consequently, the constitutional “some evidence” 7 requirement is that there exists some evidence that the prisoner constitutes such a danger, 8 not simply that there exists some evidence of one or more of the factors listed in the 9 regulations as considerations appropriate to the parole determination. Id. at 1205–06. 10 In that regard, however, a parole authority’s continued reliance on the 11 circumstances of the commitment offense as the sole basis for denying parole can, over 12 time, raise due process concerns. See Biggs v. Terhune, 334 F.3d 910, 916 (9th Cir. 13 2003). “[I]n some cases, indefinite detention based solely on an inmate’s commitment 14 offense, regardless of the extent of his rehabilitation, will at some point violate due 15 process, given the liberty interest in parole that flows from the relevant California 16 statutes.” Irons v. Carey, 505 F.3d 846, 854 (9th Cir. 2007). 17 Here, the Court cannot find the state court was unreasonable in concluding there is 18 some evidence to support the Board’s decision that petitioner would pose a danger to 19 society if released. In particular, the record contains some evidence to support the 20 Board’s finding to that effect, including the circumstances of the commitment offense, 21 petitioner’s criminal history, and his behavior in prison. 22 First, some evidence exists to support the Board’s determination that the 23 circumstances of the commitment offense indicated petitioner presented a risk of danger 24 to society if released. The record contains evidence that the commitment offense was 25 committed in an “especially heinous, atrocious or cruel manner,” a circumstance tending 26 to show parole unsuitability, see 15 Cal. Code Regs. § 2402(c), in that the offense was, as 27 the Board put it, both “callous” and carried out “with a great amount of dispassion as to 28 what people were feeling.” (Ans. Ex. 2 at 61.) Significantly, petitioner’s victims, 7 1 because of their immigration status, were particularly vulnerable and essentially at the 2 mercy of persons they believed to be INS officers. Further, at least two of the victims, 3 after they were handcuffed, were subjected to gratuitous assault. Additionally, there was 4 evidence to support the Board’s finding that “[t]he motive for the crime is inexplicable or 5 very trivial in relation to the offense.” (Id.) In particular, petitioner and his accomplice 6 kidnapped and forcibly robbed their victims in order to pay off gambling debts. Given 7 such circumstances, the Board’s characterization of the offenses as callous and 8 dispassionate and the motive for their commission as trivial in relation to those offenses is 9 not unreasonable. While at some point, the circumstances of the commitment offense 10 may cease to have probative value, they constitute at present some evidence of 11 petitioner’s dangerousness. 12 Petitioner’s criminal history and institutional behavior constitute further evidence 13 of petitioner’s unsuitability for parole. Petitioner has a serious criminal history, and one 14 that reflects a pattern of increasing dangerousness. (See id. Ex. 2 at 17-18 (listing prior 15 arrests and convictions in chronological order).) Also, while in prison, petitioner 16 committed at least eight serious disciplinary infractions. Because the Board relied on 17 such evidence, petitioner’s claim that the Board’s decision violated his right to due 18 process by relying solely on the unchanging factors of the commitment offense is without 19 merit. 20 Accordingly, petitioner is not entitled to habeas relief on this claim. 21 22 2. Second Claim 23 Petitioner claims the Board’s denial of parole violates his right to due process 24 because it is inconsistent with the decision by the CDCR to house him in a facility for 25 “non-violent” inmates. 26 Petitioner has not shown that he is entitled to habeas relief on this claim. 27 Specifically, petitioner has pointed to no legal precedent holding it is a violation of his 28 federal constitutional rights for the CDCR to house him in a facility for non-violent 8 1 inmates and for the Board at the same time to find him unsuitable for parole. Moreover, 2 one such determination does not necessarily imply the other. The CDCR’s placement of 3 an inmate in any particular housing unit reflects an assessment of such inmate’s potential 4 for violence in the context of the prison population, whereas the Board’s determination is 5 based on an assessment of the risk of danger posed by the inmate to society outside of the 6 prison context. Accordingly, petitioner is not entitled to habeas relief on this claim. 7 CONCLUSION 8 Because the record contains, at a minimum, some evidence to support the Board’s 9 10 determination that petitioner would present an unreasonable risk of danger to society if 11 released, and because petitioner has made an insufficient showing as to his entitlement to 12 relief on his other claim, the Court finds the state court’s determination was neither 13 contrary to nor an unreasonable application of clearly established Supreme Court 14 precedent, nor can the Court say it was based on an unreasonable determination of the 15 facts. 16 Accordingly, the petition for a writ of habeas corpus is hereby DENIED. 17 The Clerk shall enter judgment in favor of respondent and close the file. 18 IT IS SO ORDERED. 19 DATED: December 28, 2009 MAXINE M. CHESNEY United States District Judge 20 21 22 23 24 25 26 27 28 9
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