Sanders v. Ayers, No. 3:2007cv06007 - Document 7 (N.D. Cal. 2009)
Court Description: ORDER DENYING Petition for Writ of Habeas Corpus. Signed by Judge Thelton E. Henderson on 06/09/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 6/10/2009)
Download PDF
<![CDATA[
Sanders v. Ayers Doc. 7 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 No. C-07-6007 TEH (PR) GREGORY SANDERS, Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. ROBERT AYERS, Warden 15 Respondent. 16 / 17 18 Petitioner Gregory Sanders, a state prisoner incarcerated 19 at San Quentin State Prison, seeks a writ of habeas corpus under 28 20 U.S.C. section 2254 challenging the California Board of Parole 21 Hearings’ (“BPH”) September 21, 2006 decision to deny him parole, 22 which, for the reasons that follow, the Court denies. 23 24 25 I At the time of the offense, Petitioner was separated from 26 his estranged wife, who, along with her boyfriend, were staying with 27 her mother at her mother’s mobile home in San Bernardino County. 28 Doc. #5-6 at 2. Petitioner also was staying at the mobile home with Dockets.Justia.com 1 his four year old son. 2 Id; Doc. #5-5 at 17. On February 1, 1988, Petitioner and his son left the 3 mobile home. 4 Prior to their return, Petitioner noticed a “great big huge 5 handprint” on his son’s arm. 6 asked his son what had happened, he explained that his mother’s 7 boyfriend “had hurt him.” 8 9 Doc. #5 at 2; Doc. #5-5 at 17, 57; Doc. #5-6 at 2. Doc. #5-5 at 18. When Petitioner Id; see also id. at 79. Petitioner became angry and when he returned to the mobile home, he went directly to the bedroom shared by his estranged wife 10 and her boyfriend and shot both of them. 11 at 2. 12 gunshots, she went to the bedroom and witnessed Petitioner shoot the 13 boyfriend a second time and then shoot her daughter. 14 fled the scene and was arrested later by the San Bernardino County 15 Sheriff’s helicopter crew. 16 Petitioner’s estranged wife survived. 17 Doc. #5-5 at 79; Doc. #5-6 When the mother of Petitioner’s estranged wife heard the Petitioner The boyfriend died at the scene; Doc. #5-6 at 2. On November 9, 1988, Petitioner was sentenced to 16 years 18 to life in state prison following his guilty plea to second degree 19 murder with a special allegation that he was armed with a deadly 20 weapon during the commission of the murder. 21 minimum eligible parole date was October 1, 1998. 22 Doc. #5-2 at 2-4. His Doc. #5-5 at 4. On September 21, 2006, Petitioner appeared before BPH for 23 his sixth parole suitability hearing. 24 hearing, BPH found Petitioner “was not yet suitable for parole and 25 . . . would pose an unreasonable risk of danger to society or a 26 threat to public safety if released from prison.” 27 28 2 Doc. #5-5 at 2. At that Id. at 76. BPH 1 cited several reasons to support its decision, including: 2 Petitioner’s unrealistic parole plan; (2) the “specially cruel and 3 callous” nature of the commitment offense, characterized as “an 4 execution style murder” that “demonstrate[d] [an] exceptionally 5 callous disregard for human suffering;” (3) a “very, very trivial” 6 motive for the crime; and (4) that multiple victims were attacked. 7 Id. at 76-78. 8 at 78. 9 (1) Petitioner’s parole was deferred for two years. Id. Petitioner unsuccessfully challenged BPH’s decision in the 10 state superior and appellate courts. 11 37. 12 denied Petitioner’s Petition for Review. 13 federal Petition for a Writ of Habeas Corpus followed. Doc. #5-7 at 2-5; Doc. #5-9 at On October 24, 2007, the California Supreme Court summarily 14 Doc. #5-9 at 2. This Doc. #1. Per order filed on March 27, 2008, the Court found 15 Petitioner’s claim that BPH violated his due process rights, when 16 liberally construed, colorable under section 2254, and ordered 17 Respondent to show cause why a writ of habeas corpus should not be 18 granted. 19 has filed a Traverse. Doc. #4. Respondent has filed an Answer and Petitioner Doc. ## 5 & 6. 20 21 22 II The Antiterrorism and Effective Death Penalty Act of 1996 23 (“AEDPA”), codified under 28 U.S.C. section 2254, provides “the 24 exclusive vehicle for a habeas petition by a state prisoner in 25 custody pursuant to a state court judgment, even when the petitioner 26 is not challenging his underlying state court conviction.” 27 28 3 White v. 1 Lambert, 370 F.3d 1002, 1009–10 (9th Cir. 2004). 2 Court may entertain a petition for habeas relief on behalf of a 3 California state inmate “only on the ground that he is in custody in 4 violation of the Constitution or laws or treaties of the United 5 States.” 6 Under AEDPA, this 28 U.S.C. § 2254(a). The writ may not be granted unless the state court’s 7 adjudication of any claim on the merits: 8 decision that was contrary to, or involved an unreasonable 9 application of, clearly established Federal law, as determined by “(1) resulted in a 10 the Supreme Court of the United States; or (2) resulted in a 11 decision that was based on an unreasonable determination of the 12 facts in light of the evidence presented in the State court 13 proceeding.” 14 federal habeas relief will not be granted “simply because [this] 15 court concludes in its independent judgment that the relevant 16 state-court decision applied clearly established federal law 17 erroneously or incorrectly. 18 unreasonable.” 19 28 U.S.C. § 2254(d). Under this deferential standard, Rather, that application must also be Williams v. Taylor, 529 U.S. 362, 411 (2000). While circuit law may provide persuasive authority in 20 determining whether the state court made an unreasonable application 21 of Supreme Court precedent, the only definitive source of clearly 22 established federal law under 28 U.S.C. section 2254(d) rests in the 23 holdings (as opposed to the dicta) of the Supreme Court as of the 24 time of the state court decision. 25 v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Williams, 529 U.S. at 412; Clark 26 27 28 4 1 III 2 Petitioner seeks federal habeas corpus relief from BPH’s 3 September 21, 2006 decision finding him unsuitable for parole and 4 denying him a subsequent hearing for two years on the ground that 5 the decision does not comport with due process. 6 7 A 8 9 Under California law, prisoners like Petitioner who are serving indeterminate life sentences for noncapital murders, i.e., 10 those murders not punishable by death or life without the 11 possibility of parole, become eligible for parole after serving 12 minimum terms of confinement required by statute. 13 34 Cal. 4th 1061, 1077-78 (2005). 14 parole scheme provides that BPH “shall set a release date unless it 15 determines that the gravity of the current convicted offense or 16 offenses, or the timing and gravity of current or past convicted 17 offense or offenses, is such that consideration of the public safety 18 requires a more lengthy period of incarceration.” 19 3041(b). 20 prisoner shall be found unsuitable for and denied parole if in the 21 judgment of the panel the prisoner will pose an unreasonable risk of 22 danger to society if released from prison.” 23 15, § 2402(a). 24 various factors, including the prisoner’s social history, past 25 criminal history, and base and other commitment offense, including 26 behavior before, during and after the crime. At that point, California’s Cal. Penal Code § Regardless of the length of the time served, “a life Cal. Code Regs. tit. In making this determination, BPH must consider 27 28 In re Dannenberg, 5 See Id. § 2402(b)–(d). 1 California’s parole scheme “gives rise to a cognizable 2 liberty interest in release on parole” that cannot be denied without 3 adequate procedural due process protections.” 4 Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006); McQuillion 5 v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). 6 parole release date has not been set for the inmate because “[t]he 7 liberty interest is created, not upon the grant of a parole date, 8 but upon the incarceration of the inmate.” 9 F.3d 910, 915 (9th Cir. 2003). 10 Sass v. California It matters not that a Biggs v. Terhune, 334, Petitioner’s due process rights require that “some 11 evidence” support BPH’s decision finding him unsuitable for parole. 12 Sass, 461 F.3d at 1125. 13 deferential, but ensures that “the record is not so devoid of 14 evidence that the findings of [the board] were without support or 15 otherwise arbitrary.” 16 (1985). 17 require examination of the entire record, independent assessment of 18 the credibility of witnesses, or weighing of the evidence.” 19 455. 20 evidence in the record that could support the conclusion reached by 21 the disciplinary board.” 22 This “some evidence” standard is Superintendent v. Hill, 472 U.S. 445, 457 Determining whether this requirement is satisfied “does not Id. at Rather, “the relevant question is whether there is any Id. at 455–56. Due process also requires that the evidence underlying 23 BPH’s decision have some indicium of reliability. 24 at 915; McQuillion, 306 F.3d at 904. 25 whether the prisoner was afforded an opportunity to appear before, 26 and present evidence to, BPH. Relevant to this inquiry is See Pedro v. Oregon Parole Bd., 825 27 28 Biggs, 334 F.3d 6 1 F.2d 1396, 1399 (9th Cir. 1987). 2 unsuitability is to satisfy due process, there must be some reliable 3 evidence to support the decision. 4 1232 (9th Cir. 2005). If BPH’s determination of parole Rosas v. Nielsen, 428 F.3d 1229, 5 6 B 7 Petitioner claims that BPH’s finding that he was 8 unsuitable for parole violated his due process rights because: 9 BPH’s decision was not supported by some evidence, see Doc. #1 at 1- (1) 10 8 (Contention I), 13-20 (Contention III) & 21-23 (Contention IV); 11 (2) BPH considered impermissible evidence in its decision; and (3) 12 BPH’s continuous denials of parole violate the terms of Petitioner’s 13 plea agreement. Each of Petitioner’s claims is analyzed below. 14 15 16 1 Petitioner claims BPH’s finding that he was unsuitable for 17 parole violated his due process rights because the decision was not 18 supported by some evidence. 19 Petitioner claims BPH’s finding that he was unsuitable for parole 20 violated his due process rights because “there is no . . . evidence 21 to support the board’s decision that Petitioner currently poses an 22 unreasonable threat to public safety if released from prison.” 23 #1 at 1, emphasis in original; see id. at 1-8. 24 Petitioner disputes the sufficiency of the evidence finding him 25 unsuitable, rather than suitable, for parole, going through each of 26 the specific factors set forth in California Code of Regulations, Specifically, in Contention I, 27 28 7 Doc. In Contention III, 1 Title 15, § 2402(b)–(d). 2 Petitioner claims the decision to deny him parole was not based on 3 sufficient evidence, but rather was the result of a biased decision 4 maker who predetermined his fate. Doc. #1 at 13-20. And in Contention IV, Doc. #1 at 21-23. 5 As an initial matter, the Court notes that the record 6 shows BPH afforded Petitioner and his counsel an opportunity to 7 speak and present Petitioner’s case at the hearing, gave them time 8 to review documents relevant to Petitioner’s case and provided them 9 with a reasoned decision in denying parole. 10 Doc #5-5 at 8-11, 14 & 76-89. 11 The record also shows that BPH relied on several 12 circumstances tending to show unsuitability for parole and that 13 these circumstances formed the basis for its conclusion that 14 Petitioner posed “an unreasonable risk of danger to society or a 15 threat to public safety if released from prison.” 16 see Cal. Code Regs. tit. 15, § 2402(a) (stating that a prisoner 17 determined to be an unreasonable risk to society shall be denied 18 parole). 19 Doc #5-5 at 76; First, BPH told Petitioner that he had “one of the more 20 unrealistic set of parole plans,” which referred to Petitioner’s 21 plan “to retire and go fishing and live off the generosity of [his] 22 children for the rest of [his] life.” 23 id. at 42-45, 58-60 & 84. 24 “perchance considered working” Petitioner responded, “[o]nly as a 25 hobby.” 26 During the hearing, when asked if he Id. at 45. Second, BPH examined the commitment offense and found that 27 28 Doc. #5-5 at 76-77; see also 8 1 the offense: 2 . . . was carried out in a specially cruel and callous manner. . . . Multiple victims were attacked. These were people that semi-trusted you, an estranged wife, her boyfriend, you’d been invited into the home. The offense was carried out in an execution style murder. You had a loaded gun. You walked into a room with the intent of killing somebody. You almost hit or injured a third person, a lady who cared for you, the mother. The offense was carried out in a manner which demonstrate[s] exceptionally callous disregard for human suffering and your motive for the crime was trivial, very, very trivial. 3 4 5 6 7 8 9 10 Doc. #5-5 at 77-78; see also id. at 86-87; see Cal Code Regs tit 15, 11 § 2402(c)(1)(D) (listing “exceptionally callous disregard for human 12 suffering” as factor tending to show unsuitability for parole). 13 Third, BPH noted that Petitioner had been in prison for 18 14 years and had “not yet developed a vocation.” 15 Fourth and somewhat related, BPH expressed concern over Petitioner’s 16 “lack of specifically designed self-help programs for dealing with 17 [his] issues with women,” an apparent reference to Petitioner’s 18 domestic violence history. 19 noted that Petitioner “seem[s] to find [his] way to very hostile and 20 aggressive and potentially murderous relationships with women[]” and 21 “[found] it more than a coincidence that [Petitioner has been] 22 married to three different women and all three of them . . . made 23 some attempt at injuring . . . or killing [him]”). 24 Doc. #5-5 at 80. Id. at 81; see also id. at 87 & 52 (BPH Fifth, BPH cited the psychological evaluation prepared in 25 anticipation of Petitioner’s parole suitability hearing, which noted 26 Petitioner 27 28 9 1 2 3 4 5 6 7 8 9 . . . would present a low risk of future violence . . . if he were able to have his psychological needs met. In an environment where he would have checks on his tendency to form intense volatile relationships he would be expected to do so well. His maladaptive personality traits contribute to his repeated selection of partners who are emotionally unstable, untrustworthy or exploitive. Until [Petitioner] understands himself better he is at risk of becoming involved with persons who will evoke maladaptive behaviors and/or emotional instability. Doc. #5-5 at 83, emphasis added. BPH also considered other factors tending to support 10 suitability for parole including: (1) Petitioner’s lack of 11 significant history of violent crime; (2) that Petitioner received 12 at least 24 educational units through Patten University; (3) that 13 Petitioner was a member of Vietnam Veterans of America; (4) that he 14 had been working through the Prison Industry Authority, currently as 15 a sergeant’s clerk at the infirmary; and (5) that Petitioner had 16 received no Rules Violation Reports under California Department of 17 Corrections and Rehabilitation (“CDCR”) Form 115(A), and received 18 only one Custodial Counseling Chrono pursuant to CDCR Form 128-A in 19 March 1991. 20 #5-5 at 79-80 & 86. 21 22 23 24 25 26 27 28 See Cal. Code Regs. tit. 15, § 3312(a)(2)-(3). Doc. At the conclusion of the hearing, BPH cited specific areas in which Petitioner could improve: . . . And one [area] is a vocation. You need to develop something that will support yourself. You need to be able to do that. You know, you’re 54 going on 55 and you’re not going to get Social Security till you’re 62 . . . Don’t put all your eggs in one basket. You need to work on some insight issues. Also, . . . you’re a little bit flip. You’re affect is off and 10 1 2 3 4 5 6 . . . you’re defensive and avoidant in some arenas. . . . We talked about you need to deal with issues of volatile relationships and improve your parole plans, develop a vocation and do some more self-help, book reports for example, with regards to your relationships with women. Doc. #5-5 at 88. The state superior court affirmed the decision of BPH to 7 deny Petitioner parole, finding that it was supported by “more than 8 ‘some evidence.’” 9 the superior court stated: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Doc #5-7 at 5. Indeed, in addressing this claim, The board found that the Petitioner was not yet ready for parole as he would pose an unreasonable risk to society. The board found that the Petitioner’s parole plans were unrealistic in that he intended to retire and go fishing and live off his children. The board recommended that he develop some realistic parole plans and demonstrate that he would be able to support himself. The board further found that the offense was carried out in a cruel and callous manner and in this the court agrees. The court further agrees with the board in its classification of the killing as being an execution style murder. The board viewed the Petitioner’s prison conduct and commended him for not receiving any CDC 115’s and having received only one CDC 128 in March of 1991. The board was concerned that the Petitioner had been in prison for 18 years and had not developed any type of vocation. The board recommended that the Petitioner develop some skills. The board considered the psychological report . . . dated in March of 2006 and commented on the Petitioner’s poor performance on his GAF [Global Assessment Functioning] test. [It] was obvious from a reading from the proceedings in the board’s decision that the Petitioner did not make a good impression with the board and that the board considered his attitude to be somewhat flippant. 27 28 11 1 This court finds that there was more than “some evidence” to justify the finding of unsuitability of Petitioner for parole and a two year denial on that finding. 2 3 4 Doc. #5-7 at 4-5. 5 Petitioner’s request for habeas corpus relief, Doc. #5-9 at 37, and 6 the state supreme court summarily denied his Petition for Review. 7 Doc. #5-9 at 2. 8 9 The state appellate court summarily denied On this record, the court finds that the state courts’ rejection of Petitioner’s due process claim that BPH’s decision was 10 not supported by “some evidence” was not contrary to, nor did it 11 involve an unreasonable application of, clearly established federal 12 law, and it was not based on an unreasonable determination of the 13 facts. 14 See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 409. The record shows that BPH had some reliable evidence to 15 support its finding of unsuitability. 16 had unrealistic parole plans, failed to develop a vocation, failed 17 to participate sufficiently in self-help programs addressing his 18 domestic violence issues, and did not receive a psychological 19 evaluation supportive of his parole. 20 especially when viewed in conjunction with the nature of the 21 commitment offense, this Court cannot say that BPH’s finding that 22 Petitioner was unsuitable for parole was “without support or 23 otherwise arbitrary.” 24 BPH reasonably concluded that Petitioner was not yet suitable for 25 parole. 26 parole based on gravity of offense and the petitioner’s psychiatric Based on these failures, See Hill, 472 U.S. at 457. On this record, See, e.g., Rosas, 428 F.3d at 1232-33 (upholding denial of 27 28 BPH observed that Petitioner 12 1 reports documenting his failure to complete programming while in 2 prison); Biggs, 334 F.3d at 916 (upholding denial of parole based on 3 gravity of offense and the petitioner’s conduct prior to 4 imprisonment); Morales v. California Dep’t. of Corrections, 16 F.3d 5 1001, 1005 (9th Cir. 1994), rev’d on other grounds, 514 U.S. 499 6 (1995) (upholding denial of parole based on the cruel nature of 7 offense, the petitioner’s unstable and criminal history, and his 8 need for further psychiatric treatment). 9 Court, as Petitioner urges in Contention III, see Doc. #1 at 13-20, 10 to “reweigh the evidence.” 11 Cir. 1994). 12 It is not up to this Powell v. Gomez, 33 F.3d 39, 42 (9th Petitioner in Contention IV attacks BPH’s decision finding 13 him unsuitable for parole on the ground the decision was not based 14 on sufficient evidence, but rather was the result of a biased 15 decision maker who predetermined his fate. 16 support of this claim, Petitioner cites a comment made by one of the 17 BPH panel members, claiming she “chose to make the parole 18 consideration hearing personal, . . . when she stated: 19 know, your presentation today kind of got under my skin a little 20 bit. 21 this panel member “took it so personal, she even made an 22 unprofessional opinion when stating that Petitioner was a little bit 23 flip.” 24 suitability hearing “was predetermined as a result of [the panel 25 member’s] admittance that she felt effected [sic] by Petitioner and 26 Petitioner’s parole plans to possibly stay with and mooch from his Your [sic] a little bit flip.’” Id. Id. at 21. In ‘Also, you Petitioner claims According to Petitioner, the result of his parole 27 28 Doc. #1 at 21-23. 13 1 2 children until he got on his feet.” Id. at 23. Due process requires that a parole board charged with 3 determining whether or not a particular prisoner is suitable for 4 parole be “neutral and detached.” 5 471, 488-89; see also O’Bremski v. Maass, 915 F.2d 418, 422 (9th 6 Cir. 1990) (to satisfy due process, a prisoner “is entitled to have 7 his release date considered by a parole board that [is] free from 8 bias or prejudice”). 9 Morrissey v. Brewer, 408 U.S. Here, although the panel member’s observation was an 10 honest, albeit perhaps a less than artful one, the Court disagrees 11 with Petitioner’s claim that it demonstrates bias. 12 sake of argument, however, that the comment did demonstrate bias, 13 there is no evidence in the record indicating that this alleged bias 14 affected BPH’s decision or served as the basis for finding 15 Petitioner unsuitable for parole. 16 from Petitioner’s September 21, 2006 parole hearing demonstrates 17 that he received an individualized assessment of his potential 18 parole suitability. 19 above, there was ample reliable evidence to support BPH’s decision 20 to deny petitioner parole. 21 Assuming for the On the contrary, the transcript Doc #5-5 at 76-89. Further, as demonstrated Under these circumstances, the state courts’ rejections of 22 Petitioner’s claim cannot be said to have been objectively 23 unreasonable. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 409. 24 25 26 2 Petitioner next claims that BPH considered impermissible 27 28 14 1 evidence at his parole suitability hearing in violation of his right 2 to due process. 3 find that the commitment offense was “especially cruel,” because 4 that is an element of first degree murder, and he “was not convicted 5 of having committed the commitment offense in a[n] ‘especially 6 cruel’ manner.” 7 549 U.S. 270 (2007), Petitioner claims that his minimum term of 8 imprisonment was 16 years, and that “[i]n order for Petitioner’s 9 term to be set at life without the possibility of parole, the According to Petitioner, it was improper for BPH to Doc. #1 at 9. Relying on Cunningham v. California, 10 elements used to determine that finding must be found true by a 11 jury.” Id. at 11; see id. at 9-13. 12 In Cunningham, the United States Supreme Court held that 13 California’s Determinate Sentencing Law, which authorized a judge, 14 rather than a jury, to find facts that exposed a defendant to an 15 elevated upper term sentence, violated a defendant’s Sixth Amendment 16 right to a trial by jury. 17 is the progeny of an earlier Supreme Court case, Apprendi v. New 18 Jersey, 530 U.S. 466 (2000). 19 that “[o]ther than the fact of a prior conviction, any fact that 20 increases the penalty for a crime beyond the prescribed statutory 21 maximum must be submitted to a jury, and proved beyond a reasonable 22 doubt.” 23 is the maximum sentence a judge could impose based solely on the 24 facts reflected in the jury verdict or admitted by the defendant; in 25 other words, the relevant “statutory maximum” is not the sentence 26 the judge could impose after finding additional facts, but rather Id. at 490. Cunningham, 549 U.S. at 293. In Apprendi, the Supreme Court held The “statutory maximum” discussed in Apprendi 27 28 Cunningham 15 1 the maximum he could impose without any additional findings. 2 Blakely v. Washington, 542 U.S. 296, 303–04 (2004). 3 Cunningham involved a violation of a defendant’s Sixth 4 Amendment right to a trial by jury with respect to sentencing under 5 the Determinate Sentencing Law, and did not address a petitioner’s 6 rights at a parole suitability hearing, which is what Petitioner is 7 challenging. 8 Determinate Sentencing Law; rather, he was sentenced to an 9 indeterminate life sentence following his guilty plea to second Petitioner was not sentenced under California’s 10 degree murder with a special allegation that he was armed with a 11 deadly weapon during the commission of the murder. 12 4. 13 situation, the state courts’ rejections of Petitioner’s claim cannot 14 be said to have been objectively unreasonable. 15 2254(d); Williams, 529 U.S. at 409. Doc. #5-2 at 2- Given the inapplicability of Cunningham to Petitioner’s See 28 U.S.C. § 16 17 18 3 Petitioner’s final claim is that his continued 19 incarceration violates the terms of his plea agreement in that he is 20 being deprived of enforcement of the October 1, 1998 minimum 21 eligible parole date he bargained for when he entered a guilty plea 22 to the charged offense. 23 claim, the state superior court wrote: 24 agreement reveals that there was no specific term agreeing to the 25 consideration of a finding of suitability for parole at any 26 particular time in the future.” Doc. #1 at 23-28. “[a] review of the [plea] Doc. #5-7 at 3. 27 28 In addressing this 16 1 “[W]hen a plea rests in any significant degree on a 2 promise or agreement of the prosecutor, so that it can be said to be 3 a part of the inducement or consideration, such promise must be 4 fulfilled.” 5 plea agreement containing a specific promise, such as when the 6 defendant will be paroled, is enforceable. 7 F.3d 1155, 1161 (9th Cir. 2003) (that state prosecutor had no right 8 to offer deal defendant accepted in exchange for waiving her 9 constitutional rights may be a problem for state, but not Santobello v. New York, 404 U.S. 257, 262 (1971). A See Brown v. Poole, 337 10 defendant). 11 any alleged promise made by the prosecution. 12 U.S. at 261-62. But it is Petitioner who bears the burden of proving See Santobello, 404 Petitioner makes no such showing. 13 Rather, the record shows that although Petitioner’s 14 minimum sentence was 16 years, he potentially could serve the 15 maximum of life in prison. 16 indicates that Petitioner is entitled to release at any time prior 17 to a finding by BPH that he is suitable for parole. 18 observation that “[a]t the time [he] agreed to waive his rights [and 19 plead guilty], the finding of suitability for parole was not as 20 stringent as it is today,” Doc. #1 at 28, is of no import. 21 Evenstad v. United States, 978 F.2d 1154, 1158-5 (9th Cir. 1992) 22 (change in the law regarding parole eligibility does not render an 23 earlier guilty plea involuntary). 24 Doc. #5-2 at 2-4. Nothing in the record Petitioner’s Cf. Under these circumstances, the state courts’ rejection of 25 Petitioner’s breach of plea agreement claim cannot be said to be 26 objectively unreasonable. See 28 U.S.C. § 2254(d); Williams, 529 27 28 17 1 U.S. at 409. 2 3 IV 4 5 For the reasons set forth above, the Petition for a Writ of Habeas Corpus is DENIED. 6 7 The Clerk shall terminate any pending motions as moot, enter judgment in favor of Respondent and close the file. 8 9 10 IT IS SO ORDERED. 11 12 13 14 DATED 06/09/09 THELTON E. HENDERSON United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 G:\PRO-SE\TEH\HC.07\Sanders-07-6007-bph denial.wpd 27 28 18
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
