Tatum v. Curry, No. 3:2008cv00814 - Document 6 (N.D. Cal. 2009)
Court Description: ORDER DENYING Petition for Writ of Habeas Corpus. Signed by Judge Thelton E. Henderson on 07/30/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 7/31/2009)
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Tatum v. Curry Doc. 6 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-08-0814 TEH (PR) WILLIE E. TATUM, Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. BEN CURRY, Warden Respondent. / 17 18 Pro se Petitioner Willie E. Tatum, a state prisoner 19 incarcerated at the California Training Facility in Soledad, 20 California, seeks a writ of habeas corpus under 28 U.S.C. § 2254 21 challenging the California Board of Parole Hearings’ (“BPH”) 22 September 15, 2005 decision to deny him parole, which, for the 23 reasons that follow, the Court denies. 24 25 26 27 I The facts of the crimes, as recited by BPH without objection from Petitioner, are as follows: 28 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 On May 21, 1982, at about 2:00 A.M., female victim[s] Becker and Simon . . . were forced off the road by [a] van. [Petitioner] and [another man] exited the van and approached the victim[]s[’] car. [Three more men remained in the van.] [Petitioner] was armed with a loaded revolver and forced his way into the passenger side of the victim[]s[’] vehicle. [One of the other men] threatened the victims with a knife and also forced his way into the victim[]s[’] vehicle. The victims screamed. [Both the brother and boyfriend of one of the victims] heard the scream and went out to investigate. [Petitioner] pointed the revolver directly at the m[en] and told them to get back. The two men complied with [Petitioner’s] order. The victims were forced to drive away from their location. [Petitioner] ordered Becker to follow the van. They drove a short distance during which [Petitioner] and [a co-perpetrator] robbed the victims of their jewelry. They then ordered the victims out of their car and into the waiting van. Inside the van, [Petitioner] ordered the victims to remove their clothes. [One of the co-perpetrators] attempted to unbutton [] Simon’s pants. He stopped when he was told to wait until they got on the freeway. The police had been contacted by the victim’s boyfriend, and the van was identified. The police spotted the van and a chase ensued. The chase lasted a short time. The chase culminated when the van crashed into a tree. The five defendants then attempted to escape by running out of the van. [Petitioner] and [one of the coperpetrators] were arrested immediately at the scene. [The] remaining [co-perpetrators] were arrested later near the scene of the crashed van. Doc. #4-1 at 43-44. In 1982, Petitioner was sentenced to seven years to life 23 in state prison following his guilty plea to two counts of 24 kidnapping for the purpose robbery and an attached deadly weapon 25 enhancement. 26 parole date was February 28, 1989. Doc. #4-1 at 36; Doc. #4-3 at 2. 27 28 2 His minimum eligible Doc. #4-1 at 36. 1 On September 15, 2005, Petitioner appeared before BPH for 2 his twelfth parole suitability hearing. 3 hearing concluded, Petitioner, who apparently exhibited disruptive 4 behavior at his prior parole suitability hearings, became 5 “combative” and “argumentative” and was removed. 6 27. 7 yet suitable for parole and would pose an unreasonable risk of 8 danger to society or a threat to public safety if released from 9 prison.” Doc. #1 at 9. Before the Doc. #4-2 at 26- At the conclusion of the hearing, BPH found Petitioner “was not Doc. #4-2 at 40. BPH cited several reasons to support its 10 decision, including: 11 commitment offense; (2) that there were multiple victims who were 12 subject to Petitioner’s “abusive” threats; (3) Petitioner’s 13 “unstable” social history, including his history of domestic 14 violence; and (4) his “inability to control his temper, as once 15 again was evidenced today at this hearing.” 16 Petitioner’s parole was deferred for two years. 17 (1) the “very callous” nature of the Id. at 40-42, 44. Id. at 40. Petitioner unsuccessfully challenged BPH’s decision in the 18 state superior and appellate courts. 19 2. 20 denied Petitioner’s Petition for Review. 21 federal Petition for a Writ of Habeas Corpus followed. Doc. #4-3 at 2-4; Doc. #4-5 at On December 12, 2007, the California Supreme Court summarily 22 Doc. #4-7 at 2. This Doc. #1. Per order filed on July 2, 2008, the Court found 23 Petitioner’s claim that BPH violated his due process rights, when 24 liberally construed, colorable under § 2254, and ordered Respondent 25 to show cause why a writ of habeas corpus should not be granted. 26 Doc. #3. Respondent has filed an Answer and Petitioner has filed a 27 28 3 1 Traverse. Doc. ## 4 & 5. 2 3 II 4 The Antiterrorism and Effective Death Penalty Act of 1996 5 (“AEDPA”), codified under 28 U.S.C. § 2254, provides “the exclusive 6 vehicle for a habeas petition by a state prisoner in custody 7 pursuant to a state court judgment, even when the petitioner is not 8 challenging his underlying state court conviction.” 9 Lambert, 370 F.3d 1002, 1009–10 (9th Cir. 2004). White v. Under AEDPA, this 10 Court may entertain a petition for habeas relief on behalf of a 11 California state inmate “only on the ground that he is in custody in 12 violation of the Constitution or laws or treaties of the United 13 States.” 14 28 U.S.C. § 2254(a). The writ may not be granted unless the state court’s 15 adjudication of any claim on the merits: 16 decision that was contrary to, or involved an unreasonable 17 application of, clearly established Federal law, as determined by 18 the Supreme Court of the United States; or (2) resulted in a 19 decision that was based on an unreasonable determination of the 20 facts in light of the evidence presented in the State court 21 proceeding.” 22 federal habeas relief will not be granted “simply because [this] 23 court concludes in its independent judgment that the relevant 24 state-court decision applied clearly established federal law 25 erroneously or incorrectly. 26 unreasonable.” 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). 27 28 “(1) resulted in a 4 1 While circuit law may provide persuasive authority in 2 determining whether the state court made an unreasonable application 3 of Supreme Court precedent, the only definitive source of clearly 4 established federal law under 28 U.S.C. § 2254(d) rests in the 5 holdings (as opposed to the dicta) of the Supreme Court as of the 6 time of the state court decision. 7 v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 8 Williams, 529 U.S. at 412; Clark In determining whether the state court’s decision is 9 contrary to, or involved an unreasonable application of, clearly 10 established federal law, a federal court looks to the decision of 11 the highest state court to address the merits of a petitioner’s 12 claim in a reasoned decision. 13 n.7 (9th Cir. 2000). 14 state court decision that was examined, and whose reasoning was 15 adopted, by the highest state court to address the merits of a 16 petitioner’s claim. 17 (9th Cir. 2004). 18 LaJoie v. Thompson, 217 F.3d 663, 669 The federal court also looks to any lower See Williams v. Rhoades, 354 F.3d 1101, 1106 Where the state court cited only state law, the federal 19 court must ask whether state law, as explained by the state court, 20 is “contrary to” clearly established governing federal law. 21 e.g., Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001); 22 Hernandez v. Small, 282 F.3d 1132, 1141 (9th Cir. 2002) (state court 23 applied correct controlling authority when it relied on state court 24 case that quoted Supreme Court for proposition squarely in accord 25 with controlling authority). 26 law, correctly identified the governing federal legal rules, the If the state court, relying on state 27 28 See, 5 1 federal court must ask whether the state court applied them 2 unreasonably to the facts. See Lockhart, 250 F.3d at 1232. 3 4 III 5 Petitioner seeks federal habeas corpus relief from BPH’s 6 September 15, 2005 decision finding him unsuitable for parole and 7 denying him a subsequent hearing for two years on the ground that 8 the decision does not comport with due process. 9 Petitioner claims BPH’s decision was not supported by “some 10 evidence.” Specifically, Doc. #1 at 10-11. 11 12 13 A Under California law, prisoners like Petitioner who are 14 serving indeterminate life sentences become eligible for parole 15 after serving minimum terms of confinement required by statute. 16 re Dannenberg, 34 Cal.4th 1061, 1077-78 (2005). 17 California’s parole scheme provides that BPH “shall set a release 18 date unless it determines that the gravity of the current convicted 19 offense or offenses, or the timing and gravity of current or past 20 convicted offense or offenses, is such that consideration of the 21 public safety requires a more lengthy period of incarceration.” 22 Cal. Penal Code § 3041(b). 23 served, “a life prisoner shall be found unsuitable for and denied 24 parole if in the judgment of the panel the prisoner will pose an 25 unreasonable risk of danger to society if released from prison.” 26 Cal. Code Regs. tit. 15, § 2402(a). At that point, Regardless of the length of the time 27 28 In 6 In making this determination, 1 BPH must consider various factors, including the prisoner’s social 2 history, past criminal history, and base and other commitment 3 offense, including behavior before, during and after the crime. 4 Id. § 2402(b)–(d). 5 See California’s parole scheme “gives rise to a cognizable 6 liberty interest in release on parole” that cannot be denied without 7 adequate procedural due process protections. 8 of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006); McQuillion v. 9 Duncan, 306 F.3d 895, 902 (9th Cir. 2002). Sass v. California Bd. It matters not that a 10 parole release date has not been set for the inmate because “[t]he 11 liberty interest is created, not upon the grant of a parole date, 12 but upon the incarceration of the inmate.” 13 F.3d 910, 915 (9th Cir. 2003). 14 Biggs v. Terhune, 334, Petitioner’s due process rights require that “some 15 evidence” support BPH’s decision finding him unsuitable for parole. 16 Sass, 461 F.3d at 1125. 17 deferential, but ensures that “the record is not so devoid of 18 evidence that the findings of [the board] were without support or 19 otherwise arbitrary.” 20 (1985). 21 require examination of the entire record, independent assessment of 22 the credibility of witnesses, or weighing of the evidence.” 23 455. 24 evidence in the record that could support the conclusion reached by 25 the disciplinary board.” 26 This “some evidence” standard is Superintendent v. Hill, 472 U.S. 445, 457 Determining whether this requirement is satisfied “does not Rather, “the relevant question is whether there is any Id. at 455–56. Due process also requires that the evidence underlying 27 28 Id. at 7 1 BPH’s decision have some indicium of reliability. 2 at 915; McQuillion, 306 F.3d at 904. 3 whether the prisoner was afforded an opportunity to appear before, 4 and present evidence to, BPH. 5 F.2d 1396, 1399 (9th Cir. 1987). 6 unsuitability is to satisfy due process, there must be some reliable 7 evidence to support the decision. 8 1232 (9th Cir. 2005). Biggs, 334 F.3d Relevant to this inquiry is See Pedro v. Oregon Parole Bd., 825 If BPH’s determination of parole Rosas v. Nielsen, 428 F.3d 1229, 9 10 B 11 Petitioner claims BPH’s finding that he was unsuitable for 12 parole violated his due process rights because it is not supported 13 by “some evidence.” 14 Doc. #1 at 10-11. Petitioner is mistaken. As an initial matter, the Court notes the record shows 15 BPH afforded Petitioner and his counsel an opportunity to speak and 16 present Petitioner’s case at the hearing, gave them time to review 17 documents relevant to Petitioner’s case and provided them with a 18 reasoned decision in denying parole. 19 at 40–46. 20 Doc. #4-1 at 38-43; Doc. #4-2 The record also shows BPH relied on several circumstances 21 tending to show unsuitability for parole and that these 22 circumstances formed the basis for its conclusion that Petitioner 23 was “not suitable for parole and would pose an unreasonable risk of 24 danger to society or a threat to public safety if released from 25 prison.” 26 (stating that a prisoner determined to be an unreasonable risk to Doc. #4-2 at 40; see Cal. Code Regs. tit. 15, § 2402(a) 27 28 8 1 society shall be denied parole). 2 First, regarding the commitment offense, BPH noted: 3 12 the offense was carried out in a very callous manner. [] [T]here were multiple victims, and the victims were abused during this offense because they were robbed, and then they were forced into a van with apparently four men, [Petitioner] being one of them. And [Petitioner], according to the victims and corroborated by one of his crime partners, told them to take off their clothes because he was going to fuck them. Whether or not a hand was laid on them, that was abusive. Those women were terrified. There’s no doubt about it. This was a horrible crime. It was a crime where these young women had absolutely no ability to protect themselves. They were outnumbered, and they were quite clearly going to be sexually abused had not the police already been called and proceeded on their behalf before they were raped. 13 Doc. #4-2 at 41; see Cal. Code Regs. tit. 15, § 2402(c)(1)(A) & (C) 14 (listing that “multiple victims were attacked, injured or killed in 15 the same or separate incidents” and “the victim[s] [were] abused, 16 defiled or mutilated during or after the offense” as factors tending 17 to show the commitment offense demonstrates an unsuitability for 18 parole). 4 5 6 7 8 9 10 11 19 Second, BPH noted Petitioner’s previous “history of law 20 enforcement contact related to domestic violence issues in 21 particular. . . . [Petitioner] indicated . . . today that there were 22 fights with the wife and he indicated to the probation officer in 23 discussing this arrest that he had hit her. 24 stabbed him.” 25 2402(c)(3) (listing “unstable social history” defined as “a history 26 of unstable or tumultuous relationships with others” as factors Doc. #4-2 at 41-42; see Cal. Code Regs. tit. 15, § 27 28 Also, notably she 9 1 tending to show unsuitability for parole). 2 Third, BPH noted Petitioner’s inability to control his 3 anger and his resulting need for continued participation in self- 4 help so that he could “understand and cope with stress in a non- 5 destructive manner.” 6 Doc. #4-2 at 44. BPH also considered other factors tending to support 7 suitability for parole including that Petitioner: 8 General Educational Development while incarcerated; (2) had a 9 marketable skill; (3) had been involved in substance abuse (1) completed his 10 programming since about 1989; and (4) planned on residing with his 11 mother and stepfather should he be paroled. 12 Doc. #4-2 at 42-43. The state superior court affirmed the decision of BPH to 13 deny Petitioner parole, finding that it was supported by “some 14 evidence.” 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Doc. #4-3 at 2-4. The court noted: there is some evidence to support the Board’s finding that multiple victims were attacked in the same incident [Citation]. The Board also found that the offense was carried out in ‘a very callous manner[.]’ [Citation]. There is some evidence to support the finding that the offense was carried out in manner [sic] that demonstrates an exceptionally callous disregard for human suffering[.] [Citation]. An ‘exceptionally callous disregard for human suffering’ means the offense in question must have been committed in a more aggravated or violent manner than that ordinarily shown in the commission of that offense. [Citation]. Here, the two female victims were outnumbered by five male attackers. The victims were ordered to take off their clothes and threatened with sexual assault. The record reflects that the Board relied on additional factors in denying parole, and there is some evidence to support that decision. There is some evidence that petitioner is unsuitable for parole due to his ‘history of 10 1 unstable or tumultuous relationships with others[.]’ [Citation]. The record reflects that the petitioner ‘has a history of law enforcement contact related to domestic violence issues[.]’ [Citation]. In determining suitability, the Board may consider ‘all relevant, reliable information available[.]’ [Citation]. The record shows that petitioner’s behavior at the parole suitability hearing was uncooperative and combative[.] [Citation]. There is some evidence to support the Board’s finding that Petitioner could benefit from continuing to participate in self-help to ‘address his anger issues and his inability to control his temper’ [citation] based on his conduct at the parole suitability hearing. Although the Board commended petitioner for the positive aspects of his behavior, [it] found that this positive behavior did not outweigh the factors of unsuitability. 2 3 4 5 6 7 8 9 10 11 12 Doc. #4-3 at 3-4. 13 The state appellate court also affirmed the decision of 14 BPH to deny Petitioner parole, in an order that stated, in its 15 entirety: 16 17 18 19 20 21 22 23 24 The petition for writ of habeas corpus has been read and considered. The petition is denied. Denial of parole may be based solely or in part upon the particular circumstances of the inmate’s commitment offense. The record shows that the particular circumstances of petitioner’s kidnapping-for-purpose-of-robbery offense “exceed the minimum elements necessary to sustain a conviction” of that offense in numerous respects. (In re Dannenberg (2005) 34 Cal.4th 1061, 1070-1071, 1094-1095.) The record also amply satisfies the applicable “some evidence” standard with regard to the other factors identified by the Board in determining petitioner unsuitable for parole in 2005. 25 Doc. #4-5 at 2; see also Doc. #4-6 at 32. 26 summarily denied Petitioner’s Petition for Review. 27 28 11 The state supreme court Doc. #4-7 at 2. 1 On this record, the Court finds that the state courts’ 2 rejection of Petitioner’s due process claim that BPH’s decision to 3 deny him parole was not supported by “some evidence” was not 4 contrary to, nor did it involve an unreasonable application of, 5 clearly established federal law, and it was not based on an 6 unreasonable determination of the facts. 7 LaJoie, 217 F.3d at 669 n.7; Williams, 354 F.3d at 1106. 8 the state courts cited only state law in denying Petitioner’s claim, 9 both courts correctly identified the “some evidence” standard that See 28 U.S.C. § 2254(d); Although 10 applies under federal law; therefore this Court must determine 11 whether the state courts applied the standard unreasonably to the 12 facts. Doc #4-3 at 2; see Lockhart, 250 F.3d at 1232. 13 The record shows that BPH had some reliable evidence to 14 support its finding of unsuitability. 15 demonstrated in prior suitability hearings, Petitioner remained 16 unable “to control his temper” and had to be removed from the 17 hearing because of his “combative” and “argumentative” behavior. 18 Doc. #4-2 at 26-27 & 44. 19 BPH indicated that Petitioner need[ed] to continue to participate in self-help in order to understand and cope with stress in a non-destructive manner . . . [and] to continue to address his anger issue and[] his inability to control his temper, as once again was evidenced today at this hearing. In [light] of his history and his continued negative behavior, there’s no indication that he would behave differently if paroled. 20 21 22 23 24 BPH observed that, as he had Id. at 44. 25 BPH also noted Petitioner’s history of domestic violence, 26 including an incident where Petitioner hit his wife and she stabbed 27 28 12 1 him. 2 when viewed in conjunction with the nature of the commitment 3 offense, which involved Petitioner and four other men kidnapping and 4 robbing two women and threatening them with sexual assault, this 5 Court cannot say that BPH’s finding that Petitioner was unsuitable 6 for parole was “without support or otherwise arbitrary.” 7 472 U.S. at 457. 8 9 Doc. #4-2 at 41-42. Based on these considerations, especially See Hill, Given the evidence before the Court, BPH reasonably concluded that Petitioner was not yet suitable for parole. See, 10 e.g., Rosas, 428 F.3d at 1232-33 (upholding denial of parole based 11 on gravity of offense and the petitioner’s psychiatric reports 12 documenting his failure to complete programming while in prison); 13 Biggs, 334 F.3d at 916 (upholding denial of parole based on gravity 14 of offense and the petitioner’s conduct prior to imprisonment); 15 Morales v. California Dep’t. of Corrections, 16 F.3d 1001, 1005 (9th 16 Cir. 1994), rev’d on other grounds, 514 U.S. 499 (1995) (upholding 17 denial of parole based on the cruel nature of offense, the 18 petitioner’s unstable and criminal history, and his need for further 19 psychiatric treatment). 20 evidence.” 21 // 22 // 23 // 24 // 25 // 26 // It is not up to this Court to “reweigh the Powell v. Gomez, 33 F.3d 39, 42 (9th Cir. 1994). 27 28 13 1 IV 2 3 For the reasons set forth above, the Petition for a Writ of Habeas Corpus is DENIED. 4 5 The Clerk shall terminate any pending motions as moot, enter judgment in favor of Respondent and close the file. 6 7 8 IT IS SO ORDERED. 9 10 11 12 DATED 07/30/09 THELTON E. HENDERSON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 G:\PRO-SE\TEH\HC.08\Tatum-08-814-bph denial.wpd 27 28 14
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