Elster v. Ayers, No. 3:2008cv03279 - Document 19 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [re 1 Petition for Writ of Habeas Corpus filed by Jerry Elster]. Signed by Judge William Alsup on 6/12/2009. (whasec, COURT STAFF) (Filed on 6/12/2009)
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Elster v. Ayers Doc. 19 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 JERRY ELSTER, 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 Petitioner, No. C 08-03279 WHA v. R. K. WONG, Warden of San Quentin State Prison, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Respondent. / BOARD OF PAROLE HEARINGS, ARNOLD SCHWARZENEGGER, Governor, Real Parties in Interest. / INTRODUCTION 20 Petitioner Jerry Elster was convicted of second-degree murder in 1984 and was 21 sentenced to a term of incarceration of seventeen years to life. In this federal petition for writ 22 of habeas corpus, he contends that he was denied due process of law when state authorities 23 denied him parole on three separate occasions. Elster was subsequently granted parole but 24 remains incarcerated for another offense. A prior order ruled that the petition is not moot. 25 For the merits reasons stated below, however, Elster’s petition is DENIED. 26 STATEMENT 27 In this petition for writ of habeas corpus, Jerry Elster challenges the state’s decision 28 to deny him parole on three occasions. Petitioner is an inmate at San Quentin State Prison. Dockets.Justia.com 1 He was convicted of second-degree murder in 1984 and sentenced to a term of incarceration 2 of seventeen years to life. The California Board of Parole Hearings denied him parole on six 3 occasions between 1994 and 2003, denials which are not here at issue. Petitioner challenges 4 three additional parole denials between 2005 and 2007. Following those three denials, 5 petitioner was eventually granted parole on the second-degree murder conviction but he 6 remains incarcerated on a consecutive sentence imposed for a different offense. For the Northern District of California United States District Court 7 The three challenged denials of parole occurred between 2005 and 2007. In September 8 2005, at his seventh hearing, the board found Elster suitable for release subject to the 9 Governor’s power of review. In January 2006, however, Governor Schwarzenegger reversed 10 the board and denied petitioner release on parole. In September 2006, at his eighth parole 11 hearing, the board again found Elster suitable for release subject to the Governor’s power of 12 review. In January 2007, Governor Schwarzenegger again reversed the board and denied Elster 13 parole. In September 2007, at his ninth parole hearing, the board reversed course and deemed 14 Elster unsuitable for release and deferred consideration of his parole for another year. In this 15 petition, Elster contends that these three decisions to deny him parole (two by the Governor 16 and one by the board) violated his due process rights. 17 Elster has made substantial strides while in prison. Although he had some disciplinary 18 problems in his early years in prison, including seven “CDC” citations — i.e., serous rules 19 violations — he has had a clean disciplinary record for more than a decade and a half. He has 20 distanced himself from his gang ties and, moreover, has assumed a leadership role in combating 21 gang violence, a role that has included founding two violence-prevention programs for prisoners 22 and youth. Although he entered prison with just over a seventh-grade education (according to 23 prison testing), he has since earned a GED and two associate of arts degrees. He has a steady 24 prison work history and has completed two vocations. 25 Following the three parole denials here at issue, in early 2009 Elster was ultimately 26 granted parole on the second-degree murder conviction. Elster, however, remains incarcerated 27 on another offense. In 1986, Elster was convicted in San Joaquin County Superior Court of 28 possession of a concealed weapon while in prison and was sentenced to a term of incarceration 2 1 of sixteen months, to run consecutively with his sentence for second-degree murder. Elster is 2 currently serving his sentence for possession of a concealed weapon. 3 A June 2009 order denied a motion by the government to dismiss Elster’s habeas 4 petition as moot. It ruled that, if Elster’s due process challenge to the prior sentence prevailed, 5 Elster would have served too long on the first sentence and the second sentence could be 6 reduced accordingly. This order addresses the merits of Elster’s habeas petition. 7 8 For the Northern District of California United States District Court 9 ANALYSIS Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas relief can be granted only if the challenged state-court decision was “contrary to, or involved an 10 unreasonable application of, clearly established Federal law, as determined by the Supreme 11 Court of the United States,” or “resulted in a decision that was based on an unreasonable 12 determination of the facts in light of the evidence presented in the State court proceeding.” 13 28 U.S.C. 2254(d). 14 The phrase “clearly established” in AEDPA refers to the holdings, as opposed to the 15 dicta, of decisions of the Supreme Court as of the time of the relevant state-court decision. 16 LOCKYER v. Andrade, 538 U.S. 63, 71 (2003). A state court’s decision is “contrary to” federal 17 law if it applies an improper rule (as determined by the Supreme Court) to a question of law or 18 if it applies the correct rule incorrectly to a case involving facts “materially indistinguishable” 19 from those in the controlling decision. A state court’s decision involves an “unreasonable 20 application” of federal law if it applies the governing Supreme Court rule in a way that is 21 objectively unreasonable. Williams v. Taylor, 529 U.S. 362, 405, 409–10 (2000). 22 Petitioner’s claims distill to the following: the due process clause required the state’s 23 denials of parole to be supported by “some evidence” in the record, but the three challenged 24 parole decisions were not in fact supported by “some evidence” in the record. The government 25 challenges both aspects of the claim: it contends that, as a matter of clearly established federal 26 law, the “some evidence” standard does not apply in the parole context and, in all respects, the 27 state courts correctly found that the parole denials at issue were supported by some evidence in 28 the record. 3 1 1. 2 When a state’s parole system holds out the mere possibility of parole, i.e., a mere hope 3 that the benefit will be attained, that hope is not protected by due process. When a state’s 4 parole system creates an expectancy of parole, however, that expectancy constitutes a liberty 5 interest that is entitled to some measure of constitutional protection under the due process 6 clause. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 8–12 (1979). 8 For the Northern District of California 9 United States District Court DOES THE “SOME EVIDENCE” STANDARD APPLY? California’s parole statute, which spoke (and still speaks) in mandatory terms, created an expectancy of parole. See Cal. Penal Code § 3041; Cal. Code Regs, tit. 15, § 2402(a).1 In such 10 instances, the Supreme Court has ruled, due process requires that the state’s parole system 11 “afford[] an opportunity to be heard, and when parole is denied . . . inform[] the inmate in what 12 respects he f[ell] short of qualifying for parole; this affords the process that is due under these 13 circumstances. The Constitution does not require more.” Greenholtz, 442 U.S. at 16. 14 Petitioner contends that the due process clause also required the state court’s decisions 15 to be supported by “some evidence” in the record and that the state’s denials of his parole were 16 not supported by some evidence. The government responds that, although the “some evidence” 17 standard governs certain due process claims, under AEDPA the “some evidence” standard was 18 not clearly established in the parole context. The Ninth Circuit has held, however, that under 19 AEDPA, clearly established federal law did require that a parole denial be supported by “some 20 evidence.” Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007). This order is not free to revisit 21 that determination. The state’s parole denials were required to be supported by some evidence 22 in the record. 23 24 25 1 26 27 28 The statute provides, for example, that “The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.” Cal. Penal Code § 3041(a). It further provides that “The panel or the board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual.” Id. at 3041(b). 4 For the Northern District of California United States District Court 1 2. THE PAROLE DENIALS. 2 Federal courts review the last-reasoned state court decision to deny the habeas claim. 3 Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991). Here, both sides agree, because the 4 California Supreme Court denied Elster’s state habeas petition without comment, the last 5 reasoned decision concerning the Governor’s first (i.e., January 2006) rejection of his parole 6 was the order of the California Court of Appeal dated December 5, 2007, finding that some 7 evidence supported the Governor’s decision. The last reasoned decision regarding the 8 Governor’s second (i.e., January 2007) parole denial and the board’s September 2007 rejection 9 of parole was the Los Angeles County Superior Court’s order dated February 19, 2008, finding 10 that some evidence supported those determinations (Ans. Exh. D, H). This order therefore 11 reviews those two decisions to determine whether they were contrary to, or an unreasonable 12 application of, clearly established federal law. 13 14 15 16 17 Petitioner contends that neither of these decisions were supported by “some evidence” in the record. The Supreme Court described the “some evidence” standard as follows: Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. 18 Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 455–56 (1985). 19 A. December 2007 Decision. 20 In its order dated December 5, 2007, the California Court of Appeal explained that the 21 Governor’s first (i.e., January 2006) rejection of Elster’s parole was based on the circumstances 22 of Elster’s offense of conviction. The regulations governing parole stated that “[t]he panel shall 23 first determine whether the life prisoner is suitable for release on parole. Regardless of the 24 length of time served, a life prisoner shall be found unsuitable for and denied parole if in the 25 judgment of the panel the prisoner will pose an unreasonable risk of danger to society if 26 released from prison.” Cal. Code Regs, tit. 15, § 2402(a). The regulations set forth certain 27 “circumstance tending to show unsuitability” and “circumstances tending to show suitability.” 28 The first enumerated circumstance tending to show unsuitability was the following: 5 1 2 (1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: 3 (A) Multiple victims were attacked, injured or killed in the same or separate incidents. 4 5 (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. 6 (C) The victim was abused, defiled or mutilated during or after the offense. 7 (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. 8 9 (E) The motive for the crime is inexplicable or very trivial in relation to the offense. 11 For the Northern District of California United States District Court 10 12 Id. at § 2402(c). As stated, the first of the Governor’s challenged unsuitability determinations emphasized 13 the circumstances of the commitment offense. The December 2007 decision of the California 14 Court of Appeal explained the offense as follows. Petitioner shot and killed a rival gang member 15 in 1983. Petitioner and the victim argued. The victim, who was under the influence of narcotics, 16 was armed with a knife. Petitioner initially fled but then obtained a gun from a fellow gang 17 member. He shot twice at the victim, missing both times. He then threatened the victim: 18 “I missed you once. If you keep coming, I’m not going to miss you again.” The victim turned 19 and walked away but threatened to return. Petitioner’s fellow gang members urged him not to 20 let the victim depart. Petitioner fired three more times at the retreating victim, killing him. 21 Petitioner admitted at the parole hearing that, although he was scared of the victim during the 22 incident, he was also motivated by not wanting to look bad in front of his fellow gang members 23 (Ans. Exh. D at 1–2). 24 The Court of Appeal concluded that these circumstances constituted “some evidence 25 that the crime was sufficiently heinous to justify the Governor’s decision.” It reasoned, based on 26 prior California decisions, that a parole denial may be based solely on the commitment-offense 27 factor if the circumstances of the crime were particularly heinous when compared to the 28 minimum necessary to convict. It emphasized that petitioner warned the victim to leave and, 6 1 when the victim heeded his warning, shot the retreating man to impress his fellow gang 2 members. For the Northern District of California United States District Court 3 Petitioner nevertheless contends that the Governor’s unsuitability determination was 4 unsupported by any evidence in the record. First, petitioner contends that some evidence of a 5 single unfavorable factor was not enough. He argues that, even if some evidence supported a 6 determination that the offense was especially heinous, atrocious or cruel, the Governor’s 7 determination was irrational based on the record as a whole. He relies on a decision of the 8 California Supreme Court which held: “that the circumstance that the offense is aggravated does 9 not, in every case, provide evidence that the inmate is a current threat to public safety.” In re 10 Lawrence, 44 Cal.4th 1181, 1213 (2008). As explained, the Court of Appeal’s decision relied 11 on state authority to the effect that a parole denial may be based solely on the nature of the 12 offense in appropriate circumstances, and it concluded that petitioner’s offense presented 13 such circumstances. At best, the rule appears unsettled under California law. In all respects, 14 petitioner fails to establish that the rule he urges is clearly established under federal law as 15 determined by the Supreme Court of the United States. Under clearly established federal law, 16 where “some evidence” supports the parole denial, this order is not free to re-weigh the 17 evidence in the record and reach a conclusion different than that reached by the state authorities. 18 The California parole rules indicated that an “especially heinous, atrocious or cruel” offense was 19 evidence of unsuitability. The California authorities determined that the offense was especially 20 heinous, and the record contains evidence of such aggravating factors. “Some evidence” 21 supported the parole denial. 22 Second, petitioner contends that evidence of bad character many years ago eventually 23 ceases to prove a person’s current proclivities and that the state erred by relying on “dated” 24 facts. For this proposition, petitioner relies predominantly on state and Ninth Circuit decisions. 25 Two Ninth Circuit decisions have ruled, for example, that “in some cases, indefinite detention 26 based solely on an inmate’s commitment offense, regardless of the extent of his rehabilitation, 27 will at some point violate due process.” Irons v. Carey, 505 F.3d 846, 854 (9th Cir. 2007). 28 See also Biggs v. Terhune, 334 F.3d 910, 916 (9th Cir. 2003) (similar). Both decisions, however, 7 For the Northern District of California United States District Court 1 rejected a habeas petition challenging the denial of parole; both decisions made these statements 2 only in dicta.2 AEDPA requires, moreover, that the state’s decision was “contrary to, 3 or involved an unreasonable application of, clearly established Federal law, as determined by the 4 Supreme Court of the United States.” 5 Petitioner cites only one Supreme Court decision for his proposition that the evidence of 6 the especially heinous nature of the offense was outdated. The decision, however, is inapposite. 7 It overturned a state Board of Bar Examiners’ denial (on moral character grounds) of an 8 application to take the bar examination. Granted, the decision noted that certain twenty-year old 9 evidence — evidence of the use of aliases — was insufficient to support the state’s finding of 10 bad moral character. The decision so ruled, however, because “the[] aliases were adopted so 11 [appellant] could secure a job in businesses which discriminated against Jews in their 12 employment practices and so that he could more effectively organize non-Jewish employees 13 at plants where he worked.” Schware v. Board of Bar Exam. of State of N.M., 353 U.S. 232, 14 240–41 (1957). In other words, the decision found that the evidence was of only limited 15 probative value as to bad moral character irrespective of the fact that the evidence was “dated.” 16 Here, in contrast, the evidence at issue is certainly probative of unsuitability — California’s 17 parole rules specifically render evidence of the heinousness of the offense pertinent to the issue 18 of unsuitability. As respondent emphasizes, moreover, the Supreme Court has disapproved of 19 reliance under AEDPA on a rule governing a different, but arguably analogous, situation than 20 that presented by the petition; it is unclear whether Schware (even if relevant) could govern this 21 petition. See Carey v. Musladin, 549 U.S. 70, 76 (2006). 22 For these reasons, clearly established federal law does not establish that evidence of 23 the heinous nature of an offense eventually becomes stale under the due process clause nor 24 where that point might be, much less that the evidence here at issue was in fact too “dated.” 25 The December 2007 decision of the California Court of Appeal was not “contrary to, or . . . an 26 27 28 2 Irons reversed a district court decision that had granted a habeas petition, while Biggs affirmed the denial of a habeas petition. 8 1 unreasonable application of, clearly established Federal law, as determined by the Supreme 2 Court of the United States.”3 B. 3 As stated, the applicable decision regarding the Governor’s second (i.e., January 2007) For the Northern District of California 4 United States District Court February 2008 Decision. 5 rejection of parole and the board’s September 2007 rejection of parole was the Los Angeles 6 County Superior Court’s decision dated February 19, 2008. Those two adverse parole 7 determinations, the decision ruled, were based on “several factors.” A primary factor, once 8 again, was the especially heinous nature of the offense. The decision further explained that, 9 under California’s parole regulations, serious misconduct in prison is also an adverse suitability 10 factor. See Cal. Code Regs, tit. 15, § 2402(c)(6). Although Elster’s record had been clean for 11 many years, the decision explained, in his early incarceration Elster was associated with a prison 12 gang; had been cited for serious rules violations several times for fighting and violence, 13 including once for stabbing in 1985; and was convicted of possession of a weapon while 14 incarcerated.4 The decision reasoned that “[a]lthough petitioner has made great improvement in 15 his behavior recently, the Board found that due to his violent start in prison, he needs to maintain 16 his gains for a longer period of time.” 17 Petitioner challenges the decision on grounds similar to those described above — 18 challenges which must fail for the above-described reasons. Petitioner also protests that the 19 parole board had reversed itself and, relying on no new current evidence, found petitioner 20 unsuitable for parole when it had previously found him suitable for parole. Although this claim 21 is sympathetic, petitioner cites no authority stating that the board was bound by its earlier 22 suitability determinations. Indeed, California’s parole system affords the parole officials 23 3 24 25 26 27 28 Petitioner also challenges the Governor’s January 2006 parole denial on the grounds that the Governor relied in part on evidence outside of the pertinent record. Whether or not the Governor did so, the California Court of Appeal found that the Governor’s decision was supported by “some evidence” due to evidence in the record alone — the heinous nature of the offense itself. That decision was not “contrary to, or involved an unreasonable application of, clearly established Federal law.” 4 Elster disputes that he did in fact stab anyone in 1985 and contends that the documentation of the incident merely stated that he was “involved” in a stabbing but did not stab anyone. He does not, however, present the documentation to support this claim, and this order is therefore unable to overturn the factual findings of the September 2007 report. In all respects, neither the conclusions herein nor the conclusions of the September 2007 decision relied on the stabbing alone. 9 1 substantial discretion. Where “some evidence” in the record supported the board’s 2 determination, that determination was not contrary to, or an unreasonable application of, 3 clearly established federal law merely because the board could have reached — and in this 4 instance did in fact reach — a different conclusion. The Superior Court’s decision was not 5 “contrary to, or . . . an unreasonable application of, clearly established Federal law, as 6 determined by the Supreme Court of the United States.” 7 CONCLUSION 8 For the reasons stated above, Elster’s petition for writ of habeas corpus is DENIED. 9 The Clerk shall enter judgment and close the file. 11 For the Northern District of California United States District Court 10 IT IS SO ORDERED. 12 13 Dated: June 12, 2009. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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