Sullivan v. Ayers, No. 3:2007cv04963 - Document 20 (N.D. Cal. 2009)
Court Description: AMENDED ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Chief Judge Vaughn R Walker on 11/4/2009. (cgk, COURT STAFF) (Filed on 11/4/2009)
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Sullivan v. Ayers Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 11 12 13 14 15 16 No C-07-4963 VRW (PR) JERRY L SULLIVAN, Petitioner, AMENDED ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS v ROBERT L AYERS, Warden Respondent. / 17 18 Petitioner Jerry L Sullivan, a state prisoner incarcerated 19 at San Quentin State Prison in San Quentin, California, seeks a writ 20 of habeas corpus under 28 USC § 2254 challenging the California 21 Board of Parole Hearings’ (“BPH”) July 21, 2006 decision to deny him 22 parole at his eleventh parole suitability hearing. 23 At the time he was denied parole in 2006, fifty-three- 24 year-old petitioner had served twenty-three years on his seven-to- 25 life sentence – over thirteen years past his minimum eligible parole 26 date – during which he had exhibited, in the words of BPH, “pretty 27 close to * * * exceptional” institutional behavior, Doc #9-2 at 95; 28 Doc #9-3 at 4; see also Doc #9-2 at 100 (petitioner’s “institutional Dockets.Justia.com 1 adjustment[] [has] been exceptional”; petitioner’s disciplinary 2 record has been “outstanding”; id at 56-57 (during the hearing BPH 3 “commend[ed] [petitioner]” for his “remarkable and outstanding 4 record” throughout the duration of his life term). 5 recognizing petitioner’s “unblemished disciplinary profile,” his 6 “positive programming” and “excellent rapport with both inmates and 7 staff,” the July 2006 “Life Prisoner Evaluation Report” concluded: 8 After Based on the absence of a prior criminal history (taking into account his commitment offense), his prison adjustment, the findings in his psychiatric reports, and his family support I believe [petitioner] will re-integrate into society without incident. I did not note any information that would indicate he would not be able to function as a law-abiding citizen should he be allowed parole at this time. 9 10 11 12 13 Doc #9-5 at 49. 14 report specifically for petitioner’s parole suitability hearing 15 concluded: 16 adjustment, and present clinical presentation there are no 17 psychological factors that would suggest an increased risk for 18 violent behavior, in either the community, or a controlled setting 19 at the present time.” 20 And, the doctor who prepared the psychological “[g]iven [petitioner’s] history, institutional Doc #9-3 at 31. Notwithstanding this evidence, BPH concluded petitioner 21 was not yet worthy of parole. 22 court finds there is no evidence to support BPH’s decision that 23 petitioner would pose an unreasonable risk of danger to society or a 24 threat to public safety if released from prison. 25 be granted. 26 // For the reasons that follow, the 27 28 2 The petition will 1 I 2 On April 20, 1983, petitioner was sentenced to an 3 indeterminate term of seven years to life in state prison following 4 his guilty pleas to two counts of kidnap for robbery with the use of 5 a firearm, two counts of robbery, one count of attempted murder and 6 one count of aggravated assault. 7 eligible parole date was June 1, 1993. 8 9 Doc #9-1 at 2 & 5. His minimum Doc #9-2 at 4. Petitioner had no history, either as a juvenile or an adult, of violent crime. Doc #9-2 at 55-56; Doc #9-3 at 5. Prior 10 to his sentence in 1983, petitioner’s only contact with the criminal 11 justice system was when he was arrested in 1981 for driving under 12 the influence, for which he spent a night in jail and paid a fine. 13 Doc #9-2 at 55-56. 14 On July 21, 2006, thirteen years after his minimum 15 eligible parole date, and after he had served twenty-three years for 16 his crimes, petitioner appeared before BPH for his eleventh parole 17 suitability hearing. 18 petitioner “was not suitable for parole and would pose an 19 unreasonable risk of danger to society or a threat to public safety 20 if released from prison.” 21 cited the “calculated” and “especially” cruel nature of the crime, 22 which showed a “callous disregard for human suffering” and also 23 expressed “concern” over petitioner’s parole plans. 24 Petitioner’s parole was deferred for one year.1 Doc #9-2 at 16. Id at 93-94. At that hearing, BPH found In denying parole, BPH Id at 94, 97. Id at 99. 25 26 1 27 On July 30, 2007, petitioner appeared before BPH for his twelfth parole suitability hearing, at which time he again was denied parole. Pending before this court is his petition for writ of habeas 28 3 1 Petitioner unsuccessfully challenged BPH’s decision in the 2 superior and state appellate courts. 3 2. 4 denied petitioner’s petition for review. 5 federal petition for a writ of habeas corpus followed. Doc #9-8 at 76-85; Doc #9-9 at On September 12, 2007, the California Supreme Court summarily 6 Doc #9-9 at 23. This Doc #1. Per order filed on January 17, 2008, the court found 7 petitioner’s claim that BPH violated his due process rights, when 8 liberally construed, colorable under § 2254, and ordered respondent 9 to show cause why a writ of habeas corpus should not be granted. 10 Doc #3. 11 traverse. Respondent has filed an answer and petitioner has filed a Doc ## 9 & 10. 12 13 II 14 The Antiterrorism and Effective Death Penalty Act of 1996 15 (“AEDPA”), codified under 28 USC § 2254, provides “the exclusive 16 vehicle for a habeas petition by a state prisoner in custody 17 pursuant to a state court judgment, even when the petitioner is not 18 challenging his underlying state court conviction.” 19 Lambert, 370 F3d 1002, 1009–10 (9th Cir 2004). 20 court may entertain a petition for habeas relief on behalf of a 21 California state inmate “only on the ground that he is in custody in 22 violation of the Constitution or laws or treaties of the United 23 States.” White v Under AEDPA, this 28 USC § 2254(a). 24 25 27 corpus challenging that denial of parole. See Case No 08-1837-VRW (PR). Because the court grants the instant petition, the petition in Case No 08-1837-VRW (PR) will be dismissed as moot in a separate order. 28 4 26 1 The writ may not be granted unless the state court’s 2 adjudication of any claim on the merits: 3 decision that was contrary to, or involved an unreasonable 4 application of, clearly established Federal law, as determined by 5 the Supreme Court of the United States; or (2) resulted in a 6 decision that was based on an unreasonable determination of the 7 facts in light of the evidence presented in the State court 8 proceeding.” 9 federal habeas relief will not be granted “simply because [this] 28 USC § 2254(d). “(1) resulted in a Under this deferential standard, 10 court concludes in its independent judgment that the relevant 11 state-court decision applied clearly established federal law 12 erroneously or incorrectly. 13 unreasonable.” 14 Rather, that application must also be Williams v Taylor, 529 US 362, 411 (2000). While circuit law may provide persuasive authority in 15 determining whether the state court made an unreasonable application 16 of Supreme Court precedent, the only definitive source of clearly 17 established federal law under 28 USC § 2254(d) rests in the holdings 18 (as opposed to the dicta) of the Supreme Court as of the time of the 19 state court decision. 20 F3d 1062, 1069 (9th Cir 2003). Williams, 529 US at 412; Clark v Murphy, 331 21 22 III 23 A 24 The Fifth and Fourteenth Amendments prohibit the 25 government from depriving an inmate of life, liberty or property 26 without due process of law. US Const Amends V & XIV. 27 28 5 It is now 1 settled that California’s parole scheme, codified in California 2 Penal Code section 3041, vests all “prisoners whose sentences 3 provide for the possibility of parole with a constitutionally 4 protected liberty interest in the receipt of a parole release date, 5 a liberty interest that is protected by the procedural safeguards of 6 the Due Process Clause.” 7 2007) (citing Sass v Calif Bd of Prison Terms, 461 F3d 1123, 1128 8 (9th Cir 2006); Biggs v Terhune, 334 F3d 910, 914 (9th Cir 2003); 9 McQuillon v Duncan, 306 F3d 895, 903 (9th Cir 2002)). Irons v Carey, 505 F3d 846, 850 (9th Cir It matters 10 not that a parole release date has not been set for the inmate 11 because “[t]he liberty interest is created, not upon the grant of a 12 parole date, but upon the incarceration of the inmate.” 13 F3d at 915. 14 premise its decision regarding a petitioner’s parole suitability on 15 “some evidence in the record” such that the decision is not 16 arbitrary. 17 472 US 445, 457 (1985)). 18 established federal law in the parole context for purposes of 19 § 2254(d). 20 Biggs, 334 Due process accordingly requires that a parole board Sass, 461 F3d at 1128-29 (quoting Superintendent v Hill, The “some evidence” standard is clearly Id at 1129. The Supreme Court set forth the “some evidence” standard 21 in Hill, which concerned the revocation of “good time” credits 22 towards parole resulting from inmate misconduct. 23 455. 24 foundation it laid in Wolff v McDonnell, 418 US 539, 563-67 (1974). 25 As the Court noted, Wolff required, among other things, that an 26 inmate receive “a written statement by the fact finder of the The Court rested its holding upon the procedural due process 27 28 Hill, 472 US at 6 1 evidence relied on and the reasons” for the deprivation of his good 2 time credits. 3 The Court then added to the foundation laid in Wolff: 4 of good time does not comport with ‘the minimum requirements of 5 procedural due process,’ unless the findings of the prison 6 disciplinary board are supported by some evidence in the record.” 7 Hill, 472 US at 455 (quoting Wolff, 418 US at 558). 8 9 Hill, 472 US at 454 (citing Wolff, 418 US at 565). “[R]evocation The “some evidence” standard does not permit the court to “reweigh the evidence.” Powell v Gomez, 33 F3d 39, 42 (9th Cir 10 1994). 11 the record that could support the conclusion reached by the 12 disciplinary board.” 13 stringent, it must at minimum protect an inmate’s “strong interest 14 in assuring that the loss of [parole] is not imposed arbitrarily.” 15 Id at 454. 16 Instead, the inquiry is “whether there is any evidence in Hill, 472 US at 455-56. While this test is Due process also requires that the evidence underlying the 17 parole board’s decision have some indicium of reliability. 18 334 F3d at 915; McQuillion, 306 F3d at 904. 19 inquiry is whether the prisoner was afforded an opportunity to 20 appear before, and present evidence to, the board. 21 Oregon Parole Bd, 825 F2d 1396, 1399 (9th Cir 1987). 22 determination of parole unsuitability is to satisfy due process, 23 there must be some reliable evidence to support the decision. 24 v Nielsen, 428 F3d 1229, 1232 (9th Cir 2005). 25 // 26 // 27 28 7 Biggs, Relevant to this See Pedro v If BPH’s Rosas 1 B 2 When assessing whether a state parole board’s suitability 3 determination was supported by “some evidence” the court’s analysis 4 is framed by the statutes and regulations governing parole 5 suitability determinations in the relevant state. 6 850. 7 sentences, like petitioner, become eligible for parole after serving 8 minimum terms of confinement required by statute. 9 34 Cal 4th 1061, 1069-70 (2005). Irons, 505 F3d at Under California law, prisoners serving indeterminate life In re Dannenberg, At that point, California’s parole 10 scheme provides that BPH “shall set a release date unless it 11 determines that the gravity of the current convicted offense or 12 offenses, or the timing and gravity of current or past convicted 13 offense or offenses, is such that consideration of the public safety 14 requires a more lengthy period of incarceration.” 15 § 3041(b). 16 prisoner shall be found unsuitable for and denied parole if in the 17 judgment of the panel the prisoner will pose an unreasonable risk of 18 danger to society if released from prison.” 19 § 2402(a). 20 factors, including the prisoner’s social history, past and present 21 mental state, past criminal history, the base and other commitment 22 offenses, including behavior before, during and after the crime, 23 past and present attitude toward the crime and any other information 24 that bears on the prisoner’s suitability for release. 25 Regs tit 15, § 2402(b)–(d). 26 Regardless of the length of the time served, “a life Cal Code Regs tit 15, In making this determination, BPH must consider various See Cal Code In considering the commitment offense, BPH must determine 27 28 Cal Penal Code 8 1 whether “the prisoner committed the offense in an especially 2 heinous, atrocious or cruel manner.” 3 2402(c)(1). 4 determination include: 5 or killed in the same or separate incidents; (B) The offense was 6 carried out in a dispassionate and calculated manner, such as an 7 execution-style murder; (C) The victim was abused, defiled or 8 mutilated during or after the offense; (D) The offense was carried 9 out in a manner which demonstrates an exceptionally callous Cal Code Regs tit 15, § The factors to be considered in making that “(A) Multiple victims were attacked, injured 10 disregard for human suffering; (E) The motive for the crime is 11 inexplicable or very trivial in relation to the offense.” 12 Id. Under California law, the “core determination” regarding a 13 prisoner’s threat to public safety “involves an assessment of an 14 inmate’s current dangerousness.” 15 1181, 1205 (2008) (emphasis in original) (citing In re Rosenkrantz, 16 29 Cal 4th 616 (2002) and In re Dannenberg, 34 Cal 4th 1061 (2005)). 17 According to the court: 18 See In re Lawrence, 44 Cal 4th to the extent our decisions in Rosenkrantz and Dannenberg have been read to imply that a particularly egregious commitment offense always will provide the requisite modicum of evidence supporting the Board’s or the Governor’s decision, this assumption is inconsistent with the statutory mandate that the Board and the Governor consider all relevant statutory factors when evaluating an inmate’s suitability for parole, and inconsistent with the inmate’s due process liberty interest in parole that we recognized in Rosenkrantz. 19 20 21 22 23 24 25 Lawrence, 44 Cal 4th at 1191 (emphasis in original). 26 continued: 27 28 9 The court 1 In some cases, such as this one, in which evidence of the inmate’s rehabilitation and suitability for parole under the governing statutes and regulations is overwhelming, the only evidence related to unsuitability is the gravity of the commitment offense, and that offense is both temporally remote and mitigated by circumstances indicating the conduct is unlikely to recur, the immutable circumstance that the commitment offense involved aggravated conduct does not provide “some evidence” inevitably supporting the ultimate decision that the inmate remains a threat to public safety. 2 3 4 5 6 7 8 Id. 9 10 11 C A critical issue in parole denial cases concerns BPH’s use 12 of evidence about the crime that led to the conviction. 13 Ninth Circuit cases guide the application of the Superintendent v 14 Hill “some evidence” standard in determining whether or not a 15 particular prisoner would pose an unreasonable risk of danger to 16 society or a threat to public safety if released from prison, taking 17 into account the circumstances of the commitment offense: 18 334 F3d 910, Sass, 461 F3d 1123 and Irons, 505 F3d 846. 19 case, Biggs, explained that the value of the criminal offense fades 20 over time as a predictor of parole suitability: 21 22 23 24 25 26 Biggs, The first The Parole Board’s decision is one of ‘equity’ and requires a careful balancing and assessment of the factors considered. * * * A continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation. Biggs, 334 F3d at 916-17. Although the court in Biggs upheld the 27 28 A trio of 10 1 initial denial of a parole date based solely on the nature of the 2 crime and the prisoner’s conduct before incarceration, it cautioned 3 that “[o]ver time * * *, should Biggs continue to demonstrate 4 exemplary behavior and evidence of rehabilitation, denying him a 5 parole date simply because of the nature of Biggs’ offense and prior 6 conduct would raise serious questions involving his liberty interest 7 in parole.” 8 9 Id at 916. Next came Sass, which criticized the court’s statements in Biggs as improper and beyond the scope of the dispute before the 10 court. 11 relying on unchanging factors such as the circumstances of the 12 commitment offense or the parole applicant’s pre-offense behavior in 13 determining parole suitability. 14 (commitment offenses in combination with prior offenses provided 15 some evidence to support denial of parole at subsequent parole 16 consideration hearing). Sass determined that the parole board is not precluded from See Sass, 461 F3d at 1129 17 The last of the three cases, Irons, determined that due 18 process was not violated by the use of the commitment offense and 19 pre-offense criminality to deny parole for a prisoner sixteen years 20 into his seventeen-to-life sentence. 21 that in all three cases (Irons, Sass and Biggs) in which the court 22 had “held that a parole board’s decision to deem a prisoner 23 unsuitable for parole solely on the basis of his commitment offense 24 comports with due process, the decision was made before the inmate 25 had served the minimum number of years required by his sentence.” 26 Irons, 505 F3d at 853. The court, citing Biggs, then expressed 27 28 Irons emphasized, however, 11 1 “hope that the Board will come to recognize that in some cases, 2 indefinite detention based solely on an inmate’s commitment offense, 3 regardless of the extent of his rehabilitation, will at some point 4 violate due process, given the liberty interest in parole that flows 5 from the relevant California statutes.” Id at 854. 6 7 IV 8 9 Petitioner seeks federal habeas corpus relief from BPH’s July 21, 2006 decision finding him unsuitable for parole and denying 10 him a subsequent hearing for one year on the ground that the 11 decision does not comport with due process. 12 petitioner argues that BPH “made an arbitrary and capricious 13 decision” in denying parole “because the record did not contain any 14 evidence that * * * [p]etitioner presently poses a danger to 15 society.” Specifically, Doc #1, Memorandum at 1. 16 17 18 A In rendering its decision to deny petitioner parole, BPH 19 “looked at the offense.” 20 circumstances of the crime, as described during petitioner’s parole 21 suitability hearing. 22 Doc #9-2 at 94. Below is a summary of the On July 2, 1982, pursuant to a prearranged plan, 23 petitioner met Mr and Mrs Reily, a couple selling real estate, who 24 showed petitioner and two other men a house that was for sale in 25 Tracy, California. 26 securing the house, petitioner showed the Reilys a gun he pulled After about twenty minutes, when the Reilys were 27 28 12 1 from his pants and directed them to drive to their home in Walnut 2 Creek. 3 holding the gun’s cylinder dislodged from the gun and remained stuck 4 in his pants, rendering the gun inoperative. 5 one of his two companions to leave, and the other man joined 6 petitioner in the drive to Walnut Creek. 7 Reilys’ home, petitioner played on a tape player the men brought 8 into the home with them a pre-recorded message made by one of 9 petitioner’s companions, which demanded $150,000 and threatened the 10 rape and murder of Mrs Reily and the subsequent murder of Mr Reily. 11 The Reilys stated they did not have $150,000, so eventually 12 petitioner and the other man drove the Reilys to their bank so they 13 could withdraw money. 14 #9-3 at 8. 15 When petitioner pulled the gun from his pants, the pin Petitioner directed Upon their arrival at the Doc #9-2 at 16-18, 31-32, 35-36 & 42-43; Doc While petitioner and the other man remained in the car 16 with Mr Reily, Mrs Reily entered the bank to withdraw money. 17 Reily alerted the bank teller as to what was happening, and the 18 police were summoned. 19 with Mr Reily, with police giving chase. 20 driving, lost control of the car and crashed into a fence. 21 told police that after the crash, petitioner stuck a gun he had been 22 carrying in his pants into Mr Reily’s ribs and pulled the trigger, 23 but the gun did not fire. 24 the car at gunpoint and attempted to escape but eventually was 25 apprehended and arrested. 26 he knew the gun would not fire because the pin holding the gun’s Petitioner and the other man fled in the car Petitioner, who was Mr Reily Petitioner then dragged Mr Reily out of After his arrest, petitioner told police 27 28 Mrs 13 1 cylinder had fallen out and remained in his pants. 2 police that while he and Mr Reily struggled over the gun, petitioner 3 placed his hand over the gun’s hammer so that it would not fire 4 accidentally. 5 He also told Doc #9-2 at 18-19, 33-34, 35-36 & 42-43. At the police station, petitioner was strip-searched. 6 During the search, “a small piece of metal, resembling a bent piece 7 of coat hanger, fell from” petitioner’s underwear. 8 The piece of metal later was determined to be the cylinder pin of 9 the gun. 10 According to the probation report prepared in connection with the offense: 11 Laboratory work was done on the gun. It was found that the cylinder pin was missing, the side plate screw was missing, the cylinder advance hand spring was not in the gun and the stud that the hammer pivots on was broken off but still in its location. The gun was found to be inoperable. 12 13 14 15 Id. Doc #9-3 at 13. Id. 16 17 18 B In explaining its reasons for finding petitioner not 19 suitable for parole, BPH relied on the circumstances of the 20 commitment offense, and expressed “concern” regarding petitioner’s 21 parole plans, noting that petitioner: 22 substance abuse treatment options, including a sponsor, that would 23 be available to him upon his release; (2) failed to provide BPH with 24 a dated letter demonstrating he had secured employment; and (3) had 25 insufficient letters of support. 26 Doc #9-2 at 97, 98, 99 & 100. Regarding the offense, BPH noted: 27 28 (1) failed to identify any 14 1 It was calculated. It was especially cruel and it did create human suffering * * * And a gun was used which created an especially [sic] disregard for human suffering. The gun was, in fact, pointed at [the victim’s] head which * * * would make [sic] an especially callous disregard for human suffering. Can you imagine the * * * trauma that you put these people through the fact that you put a gun to their head. The motive for this crime was very trivial in relation to the offense in that those people are traumatized now because you needed money, because you were living beyond your means. 2 3 4 5 6 7 8 Doc #9-2 at 94. 9 the gun, stating: 10 BPH later emphasized its concern over the use of you know, you got [sic] to look at it that it’s hard to believe that you would even try to use a gun like that that has lost a pin, because, I mean, I’m no gun expert, but I know that when you lose the pin that cylinder turns just a little bit and if the firing pin don’t [sic] hit directly on that bullet and it hits on the side that gun can explode. 11 12 13 14 * * * * 15 Which would create some problem not only for you, but problems for everybody else because that cylinder just don’t [sic] stay there. That’s what hold[s] it into place for the firing pin to go straight. 16 17 18 19 Doc #9-2 at 99. 20 BPH also “had some concern” about petitioner’s parole 21 plans. 22 a place to live (with his mother, a long time resident of Oakland), 23 a niece who had offered to help him upon his release, several 24 diverse, marketable job skills and a guaranteed, written (though 25 undated) job offer, BPH concluded the hearing by advising petitioner 26 as follows: Doc #9-2 at 97. Although acknowledging that petitioner had 27 28 15 1 2 3 4 5 6 what we don’t want to do is put you back out on the street with the possibility of you having a job and then you go and you find yourself in the same situation that you had prior to coming in * * * putting you back out there and you have no money and you look over and you want a doughnut or something and you don’t have the money to get it. * * * The parole plans are definitely something * * * that was lacking here. Id at 97-98. 7 8 9 C Most of BPH’s comments reflected in the eight and one-half 10 page decision, however, were laudatory, as was the evidence 11 submitted to assist BPH in determining petitioner’s parole 12 suitability. 13 BPH cited what it described as petitioner’s “pretty close to * * * 14 exceptional” institutional behavior, Doc #9-2 at 95, noting he had 15 received no Rules Violation Reports under California Department of 16 Corrections and Rehabilitation (“CDCR”) form 115A, and had received 17 only one Custodial Counseling Chrono pursuant to CDCR form 128A over 18 the course of his twenty-four years of incarceration. 19 95; see also id at 100 (petitioner’s “institutional adjustment[] 20 [has] been exceptional”; petitioner’s disciplinary record has been 21 “outstanding” & id at 56-57 (during the hearing BPH “commend[ed] 22 [petitioner]” for his “remarkable and outstanding record” throughout 23 the duration of his life term); see Cal. Code Regs. tit. 15, § 24 3312(a)(2)-(3). 25 26 Immediately prior to announcing its formal decision, BPH also noted petitioner had upgraded vocationally since the beginning of his life-term by completing vocational upholstery 27 28 Doc #9-2 at 16 1 and becoming a forklift operator, presently as the “lead man.” 2 #9-2 at 57-58; see also id at 59-60 (petitioner had been working for 3 Prison Industry Authority for four years, and had been a “lead man” 4 in both sewing and sanding). 5 of recommendation from I T Jenkins, the lock-stitch sewing machine 6 superintendent at San Quentin who noted petitioner 7 Doc BPH read from a March 8, 2006 letter is the current lead man in the pillow factory and has filled the position admirably for the past year. [Petitioner was] involved in the conception of a new department in [Prison Industry Authority] complex. And * * * before [petitioner was] transferred to the pillow factory [he] was employed as a lead man in the finishing department for a year. And * * * [petitioner] continually prove[s] [himself] to be a reliable, conscientious and hard-working individual. Definitely an asset to this department. Upon his release would prove * * * equity value to any company or business venture he might become associated with. 8 9 10 11 12 13 14 15 Doc #9-2 at 72-73. 16 BPH further recognized that since petitioner’s last parole 17 suitability hearing, he had “completed three different Impact 18 courses. 19 Relationships, and * * * another one called Module IV.” 20 58. 21 of self-help group participation,” which included thirty-two hours 22 of Nonviolent Communication self-help group participation, the 23 Hooked on Phonics program, a series of Alternatives to Violence 24 workshops, Self-Esteem Group workshops, Chiros [sic] [prison One in Successful Relationships, one on Specific BPH observed that petitioner had a “regular pattern since 1992 25 26 27 28 Doc #9-2 at 17 1 ministry] participation,“Toastmasters,”2 Gavel Club3 participation, 2 and “numerous other * * * violence prevention workshops.” 3 59. 4 participation in [his] self-help groups, which included weekly 5 participation in Alcoholics Anonymous (“AA”) from 1992 to the 6 present. Id at 58- BPH then “commend[ed]” petitioner for his “full and ongoing 7 Id. The following is a more comprehensive overview detailing 8 petitioner’s “Therapy & Self Help Activities” as set forth in his 9 July 2006 “Life Prisoner Evaluation Report,” to which BPH referred 10 during the hearing and in rendering its decision: 11 12 03/22/92 to present Alcoholics Anonymous 13 12/31/92 Completion of Vocational Upholstery Program 01/11/93 Completion of Upholstery class, Deuel Vocational Institute 09/16/93 Completion of sixteen-week Stage I Manalive class 12/31/93 Participation in three-day Alternatives to Violence Project workshop 14 15 16 17 18 19 20 21 22 23 24 25 2 According to its website, Toastmasters International, a nonprofit organization, began in 1924 at the YMCA in Santa Ana, and “has grown to become a world leader in helping people become more competent and comfortable in front of an audience” * * * “offering a proven – and enjoyable! – way to practice and hone communication and leadership skills.” See Toastmasters, Inc online at http://www.toastmasters.org/MainMenuCategories/WhatisToastmasters.aspx (visited Sept 28, 2009). 3 27 “Gavel Clubs are affiliates of Toastmasters International, the leading movement devoted to making effective oral communication a world-wide reality.” See Gavel Club, online at http://www.gavelclub.org/ (visited Sept 28, 2009). 28 18 26 1 02/24/94 Participation in three-day Advanced Alternatives to Violence Project workshop 04/21/94-10/31/00 Participation in the Hooked on Phonics program 06/15/95 Completion of Lifeskills program 05/01/96 Participation in the annual WalkA-Thon ‘96 for the prevention of child abuse 05/26/95-07/16/96 Narcotics Anonymous 08/08/96 Certificate of Completion, Toastmasters International, Competent Toastmaster Certificate 03/25/98 Donated sixteen magazines to the CTF-North Library 09/15/94-06/30/99 Member of the San Quentin Speak Easy Gavel Club 10/06/99 Self Esteem Enhancement Certificate 12/13/99 Completion of class [on] the cause, prevention, treatment, and management of Sexually Transmitted Diseases 10/09/00 Participated in the three-day Kairos Men’s Retreat 02/17/01 Participated in the three-day Kairos Men’s Retreat 05/20/02 Certificate of Achievement, Forklift Operator 03/04/03 Completion of fifteen-week Parenting course 10/09/03 Participation in Free to Succeed Literacy class 12/08/03 Participated in the Insight Meditation class 2 3 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 19 1 03/01/04 Completed Session One (sixteenweek) Violence Prevention workshop 03/29/04 Completed Session Two (sixteenweek) Violence Prevention workshop - “Time Outs” 05/10/04 Completed Session Three (sixteenweek) Violence Prevention workshop - “Body Signals” 06/21/04 Completed Session Four (sixteenweek) Violence Prevention workshop - “Self Talk” 07/26/04 Completed Session Five (sixteenweek) Violence Prevention workshop - “Conflict Resolution” 01/30/05 Participated in the “A Life for Peace, Action, and Service to Others” workshop 03/08/05 Completed a sixteen-week NonViolent Communication class 03/21/05 Certificate of Completion Module III, Addictions 04/17/05 Certificate for participating in a workshop/seminar on Working with Anger 05/23/05 Participated in Session One of Project IMPACT’S sixteen-week workshop on Relationships 06/07/05 Certificate of Proficiency, Rollor-Tape-Edge-Machine Operator 06/27/05 Participated in Session Two of Project IMPACT’S sixteen-week workshop, Relationship Dynamics 08/01/05 Participated in Session Three of Project IMPACT’S sixteen-week workshop, Cultivating Successful Relationships 2 3 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 20 1 09/26/05 Participated in Session Four of Project IMPACT’S sixteen-week workshop, Specific Relationships 10/03/05 Certificate of Completion, Project IMPACT, Module IV Relationships 02/28/06 Certificate of Completion, Nonviolent Communication selfhelp group - thirty-two hours of instruction 2 3 4 5 6 7 8 Doc #9-5 at 42 & 46-47. 9 section: 10 11 12 13 14 15 16 17 18 The same report noted, in its “Summary” [Petitioner] has continued his unblemished disciplinary profile since his last [] hearing. He has received numerous commendations for his positive programming and has maintained an excellent rapport with both inmates and staff. Based on the absence of a prior criminal history (taking into account his commitment offense), his prison adjustment, the findings in his psychiatric reports, and his family support I believe [petitioner] will re-integrate into society without incident. I did not note any information that would indicate he would not be able to function as a law-abiding citizen should he be allowed parole at this time. Doc #9-5 at 49. 19 Equally as positive was the information contained in the 20 psychological evaluation conducted at BPH’s request in preparation 21 for his 2006 parole suitability hearing: 22 23 24 25 26 27 28 When asked what his plans for parole were, [petitioner] stated that he planned to “stay out of trouble and help people.” When asked for specific details, [petitioner] stated that he plans to stay with his mother at her home. She has made it clear that he is welcome to stay with her for as long as he needs to. [Petitioner] believes that his mother is 70 or 71 years old. He describes his relationship with her as being very close. She visits him 21 1 2 3 4 5 6 7 every other weekend and has done so throughout his incarceration. He has tried to encourage her to stay at home and take care of herself, but has not been able to deter her from traveling around the state to visit him. He feels a deep sense of gratitude toward her for her unwavering support. Being able to help his mother is a primary factor in [petitioner’s] desire to be released to the community. [Petitioner] has extended family in many communities in the Bay Area. He has a 26-yearold daughter with whom he is contact. She visited him about a month ago. 8 9 10 11 12 13 14 [Petitioner] describes himself as a good worker, who would be willing to take any job in the community. He would be most likely to return to his previous employment as a roofer. [Petitioner] has done this type of work successfully in the past and believes that he would be hired again. He has also worked as a tree trimmer and parking lot attendant with positive evaluations from his previous employers. While incarcerated, he has gained additional skills and experience as an upholsterer, truck driver, and forklift operator. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [Petitioner] would continue his participation in [Alcoholics Anonymous (“AA”)] as he states that “AA is a part of my life everyday.” He would plan to attend meetings as soon as he leaves prison, and has gotten a list of AA meeting locations near his mother’s home. [Petitioner’s] mother is also active in her church and [petitioner] has promised her that he would regularly attend services with her. [Petitioner] has been married once and is divorced. He is not presently engaged in a relationship. He looks forward to develop[ing] a positive circle of friends, in the future, as he states “there are a lot of people out there who are doing good things. I know I made a bad decision and I see my life getting better. I know I got life left in me. I still enjoy working.” * * * * [Petitioner] has no current symptoms of a 22 1 2 3 4 5 recognized mental disorder. He is functioning well in most areas of his life in that he is programming well, has supportive family relationships, is positive about his life and his ability to make a contribution to society. He is aware of the needs of others and actively looks for ways to solve problems by constructive means. He is not receiving any mental health services at this time and does not have a need for therapeutic intervention. 6 * * * * 7 8 9 10 11 12 [Petitioner] has a good understanding of the factors that led to his commitment offense. He stated that he was raised with good values and did not get into trouble as an adolescent. He was employed at the time of the crime and living independently in the community. * * * [Petitioner] acknowledges the harm he did to the victims as individuals who did not deserve to be victimized by criminal actions. [Petitioner] takes direct responsibility for his actions in regard to the crime. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 While [petitioner’s] crime was one that placed his victims at direct risk of harm, everyone was fortunate in that there was no loss of life. [Petitioner] has received a very long sentence for his crimes and acknowledges that he did wrong and deserves punishment by the court. His criminal actions did not seem to be the result of an antisocial personality or criminal lifestyle. He also does not have a criminal record from a young age. These factors would suggest that [petitioner] would be an inmate who could benefit greatly from rehabilitation, in that he has a foundation of socially conforming behavior prior to incarceration. There is the question of the contribution of alcohol to [petitioner’s] crime. [Petitioner] admits to inappropriate use of alcohol around the time of his offense. He denies that he was intoxicated at the time of the offense and it would appear that alcohol did not play a direct role in the commission of the crime. It is more likely that [petitioner’s] abuse of alcohol contributed to an overall lack of judgement [sic] and an erosion of the values with which he was raised. He has clearly stated a commitment to lifelong participation in AA. 23 1 2 3 4 5 6 7 Given [petitioner’s] lack of an early or extensive history of criminal behavior, and active recovery from alcohol abuse, the greatest risk would be likely to come from any clinical factors associated with violent behavior. Any recognized factors such as lack of insight, negative attitudes, lack of empathy, impulsivity, symptoms of major mental illness, or failure at treatment would be considered as possible sources of increased risk. Based on review of [petitioner’s] present institutional record and the clinical interview conducted for this report, it would appear that none of these risk factors is currently present. 8 9 10 11 12 [Petitioner] also has a number of protective factors such as a feasible plan for parole and substantial social support. He also is clear about his remorse for his actions and his willingness to continue his participation in self-help and rehabilitation activities. He has reflected on his crime and is willing to do whatever would be appropriate to make amends to those who have been harmed by his actions. 13 14 Doc #9-3 at 28-31. 15 recommendations were are follows: 16 17 18 19 20 21 22 23 24 25 26 27 28 The psychologist’s conclusions and Other than continuing in AA, there would be no recommendation for necessary therapeutic interventions prior to parole. [Petitioner] is an individual whose crime was extreme in its complexity and recklessness. [Petitioner’s] sentence reflects this. There is not, in my opinion, a direct relationship between the extreme actions of the crime and [petitioner’s] criminality. He was not known to be a violent person before the crime, and has not engaged in violence subsequent to the crime. His criminal action seemed to reflect a dramatic, but failed attempt to solve his financial problems by criminal means. Given [petitioner’s] history, institutional adjustment, and present clinical presentation there are no psychological factors that would suggest an increased risk for violent behavior, in either the community, or a controlled setting at the present time. While it is not possible to accurately predict future violent behavior, 24 1 given [petitioner’s] age, commitment to ongoing substance abuse treatment, and limited criminal history, he would be expected to be able to continue to live a positive, non-violent life when released to the community. 2 3 4 Doc #9-3 at 31. 5 During the hearing, BPH often referred to the 6 psychological evaluation, initially stating, “[BPH], at the last 7 hearing, specifically requested a [] new psych report and asked [] 8 that the report address the prisoner’s violence potential in the 9 free community, the significance of alcohol or drugs relative to the 10 commitment offense, and any need for any further therapy.” 11 at 61-62. 12 addressed petitioner’s remorse for his involvement in the crime, and 13 asked petitioner regarding “making amends,” which petitioner 14 identified as the ninth step of AA’s “Twelve Steps.” 15 Petitioner explained “the best amends I can make to [the victims] is 16 to continue to participate in AA, because what I did I – I can’t 17 take it back and I’m truly sorry for it.” 18 90-92 (in petitioner’s concluding statement to BPH, he states he 19 accepts responsibility for his role in the crimes and reiterates his 20 deep feelings of remorse). 21 told the doctor conducting his psychological evaluation that he 22 would work for the victim for a year without pay to make amends and 23 to show his true remorse for what petitioner had done to the 24 victims. 25 he could demonstrate how sorry he was for what he had done. 26 BPH then quoted from the part of the report that Id at 63. Id at 62-63. Id at 63; see also id at Petitioner then confirmed that he had Petitioner explained he did not know how else Id. Earlier in the hearing, petitioner confirmed his feelings 27 28 Doc #9-2 25 1 of remorse for his participation in the crimes as he expressed to 2 the psychologist, telling BPH: 3 I feel really sick about it. * * * I take full responsibility for the part I played in this, because it was like a decision that I made – it was a bad one ‘cause I never made – I never did anything like this in my life and it was a bad decision I made that day. And I take full responsibility in the part I played ‘cause if it weren’t for me it wouldn’t never [sic] [have] happened. That’s – that’s the way I look at it. If it wasn’t for me it would’ve never happened ‘cause I wouldn’t have been there and it would’ve never happened to these people. 4 5 6 7 8 9 10 Doc #9-2 at 30-31. 11 Petitioner also reiterated his close family ties, noting 12 that his twenty-six year old daughter came to visit him “quite 13 often.” 14 stated that he planned to live with his mother, who by letter of 15 support “reaffirm[ed] [her] commitment to provide [petitioner] with 16 whatever [he] need[s] in the way of shelter, clothes, 17 transportation, and money.” Doc #9-2 at 51. Regarding his parole plans, petitioner Doc #9-2 at 67; see id at 69. 18 Regarding his prospects for employment, petitioner had an 19 undated letter from a Mr Mike Farrell who “will guarantee a job for 20 [petitioner]” in Sausalito in industrial roofing at $14 an hour with 21 a possible raise after three months. 22 also reaffirmed his commitment to continue his participation in AA 23 and stated that if he were given a parole date he would acquire an 24 AA sponsor. 25 // 26 // Id at 74. 27 28 26 Doc #9-2 at 67-68. Petitioner 1 D 2 Notwithstanding this substantial body of favorable 3 evidence, BPH decided to deny petitioner parole. 4 decision, BPH first told petitioner: 5 In rendering its This was a truly difficult situation for us. And – but there are some things that we do have some concerns about. And once [we] go through the entire process, you’ll understand why I have some concerns about this. But I want to make sure that you understand * * * and don’t get discouraged because you are extremely close to being let go out of here. 6 7 8 9 10 Doc #9-2 at 93; see also id at 101 (BPH told petitioner he was 11 “very, very close” to being paroled). 12 was “not suitable for parole” and that he “would pose an 13 unreasonable risk of danger to society or a threat to public safety 14 if released from prison.” 15 BPH then told petitioner he Id at 92-93. The state superior court affirmed the decision of BPH to 16 deny petitioner parole, stating “[b]ecause [p]etitioner’s commitment 17 offense was for financial gain, premeditated, and not committed as 18 the result of significant stress in [his] life, the commitment 19 offense does provide some evidence that the [p]etitioner would 20 present an unreasonable risk to public safety if released from 21 prison.” 22 assess that [p]etitioner’s uncertain parole plans, with their 23 attendant financial uncertainty, exacerbated the risk to public 24 safety.” 25 petitioner’s request for habeas corpus relief, Doc #9-9 at 2, and 26 the state supreme court summarily denied his petition for review. Doc #9-8 at 84. Id. The court added that BPH “could properly The state appellate court summarily denied 27 28 27 1 Doc #9-9 at 23. 2 3 E 4 In light of the entire record now before the court, it is 5 difficult, if not impossible, to reconcile BPH’s decision to deny 6 petitioner parole with the evidence upon which it relied to make 7 that decision. 8 acknowledged how “difficult” the decision was, implying how 9 seemingly easy it would have been to reach the opposite conclusion, Indeed, even BPH, in denying petitioner parole, 10 ie, that petitioner was suitable for parole. 11 The court finds the record was “so devoid of evidence that the 12 findings of [BPH] were without support or otherwise arbitrary.” 13 Hill, 472 US at 457, such that the state court’s determination that 14 there was “some evidence” in the record to support BPH’s decision to 15 deny petitioner parole was an objectively unreasonable application 16 of Hill. 17 evidence to suggest that if released on parole, petitioner would 18 pose an unreasonable risk of danger to society or a threat to public 19 safety if released from prison. 20 See 28 USC § 2254(d). Doc #9-2 at 93 & 101. There simply was no reliable Cal Code Regs tit 15, § 2402(a). Rather than accept the solid body of evidence 21 demonstrating petitioner’s uncontroverted efforts at rehabilitation 22 and his firmly established commitment to bettering himself, BPH’s 23 comments prove that its decision to deny petitioner parole stemmed 24 primarily from speculative fear. 25 conjecture in discussing the circumstances of the crime, with the 26 presiding commissioner claiming that he “kn[ew]” that the gun could For instance, BPH engaged in sheer 27 28 28 1 have “explode[d],” implying that as a result of his actions, 2 petitioner could have been responsible for maiming or even killing 3 someone. 4 to police when he was arrested, which was confirmed by lab work 5 performed on the gun following petitioner’s arrest, the gun was 6 “inoperable,” missing at least three pieces. 7 36 & 42-43; Doc #9-3 at 13. 8 Doc #9-2 at 99. 9 But according to petitioner’s statement Doc #9-2 at 33-34, 35- Regarding his parole plans, BPH conjured up a scenario – made out of whole cloth – wherein a recently-paroled petitioner 10 found himself craving a doughnut but without money to buy one, 11 necessarily implying that he would resort to committing a crime to 12 satisfy an impulse. 13 31 (according to petitioner’s psychological evaluation, he does not 14 exhibit evidence of “impulsivity”). 15 See Doc #9-2 at 97-98; see also Doc #9-3 at 30- But the evidence regarding petitioner’s parole plans shows 16 that if he were granted parole, petitioner planned on living with 17 and caring for his elderly mother, to whom he expressed his 18 gratitude and indebtedness for not abandoning him during his lengthy 19 incarceration. 20 his release petitioner’s mother “reaffirm[ed] [her] commitment to 21 provide [petitioner] with whatever [he] need[s] in the way of 22 shelter, clothes, transportation, and money,” Doc #9-2 at 67; see id 23 at 69, a commitment which the presiding commissioner summarily 24 dismissed. 25 would not be able to help you as much”). 26 See Doc #9-3 at 28-29. See Doc #9-2 at 97 (emphasis added) (“your mother * * * The evidence shows that some of petitioner’s free time 27 28 The evidence shows that upon 29 1 would be spent regularly attending religious services with his 2 mother, who was active in her church. 3 also planned to spend some of his time continuing his regular 4 participation in AA meetings, which he began in 1992. 5 62-63. 6 sponsor outside of prison, petitioner did demonstrate his continuing 7 commitment to participating in AA even if he were paroled by 8 obtaining a list of meeting locations close to his mother’s home, 9 Doc #9-3 at 29, something that BPH failed to recognize. Doc #9-3 at 29. Petitioner Doc #9-2 at Although, as BPH noted, petitioner had not yet secured an AA See Doc #9- 10 2 at 97 (in expressing “concern” regarding petitioner’s parole 11 plans, BPH advised him “to identify what NA/AA programs are 12 available in the area” he planned on attending if paroled). 13 is no evidence in the record to suggest that petitioner would fail 14 to obtain an AA sponsor or otherwise lapse in his commitment to his 15 recovery if he were released on parole. 16 There In addition to having the support of the church and AA, 17 the evidence shows petitioner had “extended family in many 18 communities in the Bay Area,” which included a “26-year-old daughter 19 with whom he is in contact” and with whom he recently had visited, 20 and a “niece who had offered to help him upon his release.” 21 2 at 97; Doc #9-3 at 28. Doc #9- 22 The evidence also shows that petitioner had deep remorse 23 for his actions, and an even deeper motivation to make the most of 24 the remainder of his life if released from prison. 25 29 (petitioner “looks forward to develop[ing] a positive circle of 26 friends, in the future, [and] states ‘there are a lot of people out 27 28 30 See Doc #9-3 at 1 there who are doing good things. 2 see my life getting better. 3 enjoy working.’”); id at 28-31; Doc #9-2 at 63 & 90-92. I know I made a bad decision and I I know I got life left in me. I still 4 Petitioner’s record of developing various vocational 5 skills while incarcerated, which included woodworking, sewing, 6 upholstering and operating a forklift, and establishing himself as a 7 “lead man” and overall model employee support his self-stated desire 8 to find gainful employment upon his release from prison. 9 at 57-60 & 72-73. Doc #9-2 Petitioner even provided BPH with a guaranteed 10 offer of employment in roofing, a profession in which he was engaged 11 prior to his incarceration. 12 Mike Farrell who “will guarantee a job for [petitioner]” in 13 Sausalito in industrial roofing at $14 an hour with a possible raise 14 after three months). 15 Id at 67-68 (undated letter from Mr BPH’s decision regarding petitioner’s parole suitability 16 lies in stark contrast to that of the psychologist, who concluded 17 that in light of petitioner’s “history, institutional adjustment, 18 and present clinical presentation there are no psychological factors 19 that would suggest an increased risk for violent behavior, in either 20 the community, or a controlled setting at the present time.” 21 #9-3 at 31. 22 similarly concluded: 23 24 25 26 27 28 The July 2006 “Life Prisoner Evaluation Report” Based on the absence of a prior criminal history (taking into account his commitment offense), his prison adjustment, the findings in his psychiatric reports, and his family support I believe [petitioner] will re-integrate into society without incident. I did not note any information that would indicate he would not be able to function as a law-abiding citizen should 31 Doc 1 2 3 he be allowed parole at this time. Doc #9-5 at 49. Petitioner’s criminal offense was an isolated aberration 4 in his past, “temporally remote” – committed some twenty-three years 5 earlier – and certainly mitigated by various circumstances 6 indicating the conduct is unlikely to recur. 7 4th at 1191. 8 the eleventh time in 2006, he had served twenty-three years on his 9 seven-to-life sentence, over thirteen years past his minimum See Lawrence, 44 Cal At the time BPH denied petitioner a parole date for 10 eligible parole date. 11 prisoner’s commitment offense reasonably may continue to predict his 12 future, even in spite of a prisoner’s dramatic behavioral 13 improvement while in prison. 14 complete lack of a violent history, his extensive and successful 15 programming in prison, strong family support, realistic parole 16 plans, highly favorable psychological evaluations and model behavior 17 that has been maintained for his entire time spent behind bars, his 18 continued incarceration based on the circumstances of his 1982 19 commitment offense rises to the level of a due process violation the 20 Ninth Circuit envisioned. 21 cases, indefinite detention based solely on an inmate’s commitment 22 offense, regardless of the extent of his rehabilitation, will at 23 some point violate due process, given the liberty interest in parole 24 that flows from the relevant California statutes”). 25 26 Perhaps in some cases the circumstances of a But, where, as here, petitioner’s See Irons, 505 F3d at 854 (“in some After careful review of the record and pertinent law, the court finds there simply is no evidence that petitioner was not 27 28 32 1 suitable for parole and would pose an unreasonable risk of danger to 2 society or a threat to public safety if released from prison. 3 state court’s determination that BPH’s reliance on the commitment 4 offense as well as what it termed petitioner’s “uncertain parole 5 plans” satisfied the “some evidence” standard was an objectively 6 unreasonable application of Hill. 7 result, petitioner is entitled to federal habeas relief on his due 8 process claim. See 28 USC § 2254(d). The As a 9 10 V 11 For the reasons stated above, the petition for writ of 12 habeas corpus is GRANTED. 13 order, BPH must calculate a term for petitioner and set an imminent 14 date for his release in accordance with California Penal Code 15 § 3041(a). 16 file a notice with the court confirming the date on which petitioner 17 was released. Within twenty days of the date of this Within ten days of petitioner’s release, respondent must 18 19 IT IS SO ORDERED. 20 21 22 VAUGHN R WALKER United States District Chief Judge 23 24 25 26 G:\PRO-SE\VRW\HC.07\Sullivan-07-4963-BPH grant.wpd 27 28 33
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