Lewis v. Curry, No. 3:2009cv00551 - Document 8 (N.D. Cal. 2009)
Court Description: ORDER DENYING Petition for Writ of Habeas Corpus. Signed by Judge Thelton E. Henderson on 11/12/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 11/13/2009)
Download PDF
<![CDATA[
Lewis v. Curry Doc. 8 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 No. C-09-0551 TEH (PR) VONDELL LEWIS, Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. BEN CURRY, Warden Respondent. 16 / 17 18 Pro se Petitioner Vondell Lewis, a state prisoner 19 incarcerated at the California Correctional Training Facility in 20 Soledad, California, seeks a writ of habeas corpus under 28 U.S.C. § 21 2254 challenging the California Board of Parole Hearings’ (“BPH”) 22 May 7, 2008 decision to deny him parole, which, for the reasons that 23 follow, the Court denies. 24 25 26 27 28 I The California Court of Appeal summarized the factual background of the case in an unpublished opinion as follows: [D]uring the early morning hours of August 30, Dockets.Justia.com 1 1990, [Petitioner], Edna Gonzales and Curtis Fairley were consuming cocaine and beer outside a house belonging to “A-Day.” Gonzales, the only eyewitness, stated that she had not slept and had been using cocaine and drinking beer for the previous 24 hours. She also testified that a “problem” between A-Day and Fairley developed and A-Day ordered Fairley off of the property. Fairley refused to leave and he and A-Day argued for approximately one hour. [Petitioner] joined in and also ordered Fairley to leave. When Fairley, who was “loaded” and crying, still refused to leave, [Petitioner], who was “kind of buzzed,” struck him. Gonzales could not recall whether [Petitioner] or Fairley was the man who brandished a knife, but Fairley picked up and threw a bottle at [Petitioner]. 2 3 4 5 6 7 8 9 10 [Petitioner] left the area and returned approximately 15 minutes later carrying a sock which apparently contained a gun. [Petitioner] resumed the argument with Fairley, then suddenly ran inside the house, leaving Fairley outside. Inside, [Petitioner] appeared angry and pointed the gun at the others present and stated that he would shoot Fairley if Fairley continued “messing” with him. [Petitioner] then went back outside, pointed the gun at Fairley and stated, “I’ll put this through your . . . head.” [Petitioner] then fired the gun, fatally wounding Fairley. The autopsy revealed recent cocaine use by Fairley and concluded death was caused by a single bullet wound. 11 12 13 14 15 16 17 18 Doc. #6-1 at 33-34. 19 On May 6, 1991, Petitioner was sentenced to twenty years 20 to life in state prison following his conviction of second degree 21 murder with an attached firearm enhancement. 22 minimum eligible parole date was September 30, 2003. 23 15. 24 Doc. #1-1 at 2. His Doc. #6-1 at On May 7, 2008, Petitioner appeared before BPH for his 25 third parole suitability hearing. 26 hearing, BPH found Petitioner was “not suitable for parole and would Doc. #6-1 at 15. 27 28 2 At that 1 pose an unreasonable risk of danger to society or a threat to public 2 safety if released from prison.” 3 reasons to support its decision, including: 4 offense “was carried out in a dispassionate and calculated manner” 5 in that Petitioner “shot an unarmed man . . . in the head during an 6 argument;” (2) that Petitioner was convicted of voluntary 7 manslaughter as a juvenile for a crime that also involved the use of 8 a handgun; (3) that Petitioner “failed to profit from society’s 9 previous attempts to correct [his] criminal behavior,” which Id. at 41. BPH cited several (1) that the commitment 10 included previous grants of juvenile and adult probation and a 11 commitment to the California Youth Authority; (4) Petitioner’s 12 history of substance abuse and association with gangs; and (5) a 13 psychological evaluation that found Petitioner as presenting “a 14 moderate risk” for future violence. 15 Doc. #6-1 at 41-44 & 47. Petitioner unsuccessfully challenged BPH’s decision in the 16 state superior and appellate courts. 17 at 2. 18 denied Petitioner’s Petition for Review. 19 federal Petition for a Writ of Habeas Corpus followed. Doc. #6-3 at 14-17; Doc. #6-4 On January 21, 2009, the California Supreme Court summarily Doc. #6-6 at 2. This Doc. #1. 20 Per order filed on April 22, 2009, the Court found that 21 Petitioner’s claim that BPH violated his due process rights, when 22 liberally construed, was colorable under § 2254, and ordered 23 Respondent to show cause why a writ of habeas corpus should not be 24 granted. 25 has filed a Traverse. Doc. #5. Respondent has filed an Answer and Petitioner Doc. ## 6 & 7. 26 27 28 3 1 II 2 The Antiterrorism and Effective Death Penalty Act of 1996 3 (“AEDPA”), codified under 28 U.S.C. § 2254, provides “the exclusive 4 vehicle for a habeas petition by a state prisoner in custody 5 pursuant to a state court judgment, even when the petitioner is not 6 challenging his underlying state court conviction.” 7 Lambert, 370 F.3d 1002, 1009–10 (9th Cir. 2004). 8 Court may entertain a petition for habeas relief on behalf of a 9 California state inmate “only on the ground that he is in custody in White v. Under AEDPA, this 10 violation of the Constitution or laws or treaties of the United 11 States.” 12 28 U.S.C. § 2254(a). The writ may not be granted unless the state court’s 13 adjudication of any claim on the merits: 14 decision that was contrary to, or involved an unreasonable 15 application of, clearly established Federal law, as determined by 16 the Supreme Court of the United States; or (2) resulted in a 17 decision that was based on an unreasonable determination of the 18 facts in light of the evidence presented in the State court 19 proceeding.” 20 federal habeas relief will not be granted “simply because [this] 21 court concludes in its independent judgment that the relevant 22 state-court decision applied clearly established federal law 23 erroneously or incorrectly. 24 unreasonable.” 25 26 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 determining whether the state court made an unreasonable application 27 28 “(1) resulted in a 4 1 of Supreme Court precedent, the only definitive source of clearly 2 established federal law under 28 U.S.C. § 2254(d) rests in the 3 holdings (as opposed to the dicta) of the Supreme Court as of the 4 time of the state court decision. 5 v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Williams, 529 U.S. at 412; Clark 6 7 III 8 Petitioner seeks federal habeas corpus relief from BPH’s 9 May 7, 2008 decision finding him unsuitable for parole and denying 10 him a subsequent parole suitability hearing for two years on the 11 ground that the decision does not comport with due process. 12 13 A 14 Under California law, prisoners like Petitioner who are 15 serving indeterminate life sentences for noncapital murders, i.e., 16 those murders not punishable by death or life without the 17 possibility of parole, become eligible for parole after serving 18 minimum terms of confinement required by statute. 19 34 Cal. 4th 1061, 1077-78 (2005). 20 parole scheme provides that BPH “shall set a release date unless it 21 determines that the gravity of the current convicted offense or 22 offenses, or the timing and gravity of current or past convicted 23 offense or offenses, is such that consideration of the public safety 24 requires a more lengthy period of incarceration.” 25 3041(b). 26 prisoner shall be found unsuitable for and denied parole if in the At that point, California’s Cal. Penal Code § Regardless of the length of the time served, “a life 27 28 In re Dannenberg, 5 1 judgment of the panel the prisoner will pose an unreasonable risk of 2 danger to society if released from prison.” 3 15, § 2402(a). 4 various factors, including the prisoner’s social history, past 5 criminal history and base and other commitment offense, including 6 behavior before, during and after the crime. 7 Cal. Code Regs. tit. In making this determination, BPH must consider See Id. § 2402(b)–(d). California’s parole scheme “gives rise to a cognizable 8 liberty interest in release on parole” that cannot be denied without 9 adequate procedural due process protections.” Sass v. California 10 Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006); McQuillion 11 v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). 12 parole release date has not been set for the inmate because “[t]he 13 liberty interest is created, not upon the grant of a parole date, 14 but upon the incarceration of the inmate.” 15 F.3d 910, 915 (9th Cir. 2003). 16 It matters not that a Biggs v. Terhune, 334 Petitioner’s due process rights require that “some 17 evidence” support BPH’s decision finding him unsuitable for parole. 18 Sass, 461 F.3d at 1125. 19 deferential but ensures that “the record is not so devoid of 20 evidence that the findings of [the board] were without support or 21 otherwise arbitrary.” 22 (1985). 23 require examination of the entire record, independent assessment of 24 the credibility of witnesses, or weighing of the evidence.” 25 455. 26 evidence in the record that could support the conclusion reached by 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 27 28 Id. at 6 1 the disciplinary board.” 2 Id. at 455–56. Due process also requires that the evidence underlying 3 BPH’s decision have some indicium of reliability. 4 at 915; McQuillion, 306 F.3d at 904. 5 whether the prisoner was afforded an opportunity to appear before, 6 and present evidence to, BPH. 7 F.2d 1396, 1399 (9th Cir. 1987). 8 unsuitability is to satisfy due process, there must be some reliable 9 evidence to support the decision. 10 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, 1232 (9th Cir. 2005). 11 12 B 13 Petitioner claims BPH’s finding that he was unsuitable for 14 parole violated his due process rights because the decision was not 15 supported by “some evidence.” 16 Petitioner disputes the sufficiency of the permissible evidence upon 17 which BPH relied in rendering its decision to deny Petitioner parole 18 and argues that the superior court’s denial of his petition was 19 based upon an unreasonable determination of the facts in light of 20 the evidence presented. 21 Doc. #1-1 at 6. Specifically, Id. at 6 & 15-18. The record shows that BPH relied on several circumstances 22 tending to show unsuitability for parole and that these 23 circumstances formed the basis for its conclusion that Petitioner 24 was “not suitable for parole and would pose an unreasonable risk of 25 danger to society or a threat to public safety if released from 26 prison.” Doc. #6-1 at 41; see Cal. Code Regs. tit. 15, § 2402(a) 27 28 7 1 (stating that a prisoner determined to be an unreasonable risk to 2 society shall be denied parole). 3 First, regarding the commitment offense, BPH noted: 4 [T]he offense was . . . carried out in a dispassionate and calculated manner in the fact that[] . . . an unarmed man was shot in the head during an argument. . . . After the victim was shot, he was left on the ground, no aid was rendered. Matter of fact, [Petitioner] said that he saw [the] victim with a hole in his head and left the scene. Motive for the crime was very trivial in nature. The victim and . . . [Petitioner] had been involved in a physical altercation, but the victim did not have [a] weapon. 5 6 7 8 9 10 11 Doc. #6-1 at 41-42; see Cal. Code Regs. tit. 15, § 2402(c)(1)(B) 12 (listing “dispassionate and calculated manner” as a factor tending 13 to show the commitment offense demonstrates an unsuitability for 14 parole). 15 Second, BPH addressed Petitioner’s previous record of 16 violence, noting: [T]here was extensive criminal history. . . . 17 [Petitioner] had been convicted of manslaughter, had used a gun 18 before . . . . [Petitioner] ha[s] on . . . one occasion killed an 19 individual. [Petitioner] w[as] 14 years old. 20 escalating pattern of criminal misconduct. 21 Cal. Code Regs. tit. 15, § 2402(c)(2) (listing “previous record of 22 violence” as factor tending to show unsuitability for parole, 23 “particularly if the prisoner demonstrated serious assaultive 24 behavior at an early age”). 25 26 Doc. #6-1 at 43-44; see Third, BPH commented on Petitioner’s social history, observing: 27 28 [He] ha[s] an 8 1 [Petitioner] ha[s] a history of unstable relationships. [Petitioner] associated . . . with . . . known drug users . . . . and lost [a basketball scholarship] because of [his own] drug use. [Petitioner] failed to profit from society’s previous attempts to correct [his] criminal behavior. [He] had juvenile probation, . . . adult probation, and [he] had a CYA commitment. None of these factors were instrumental in correcting [his] behavior. 2 3 4 5 6 7 Doc. #6-1 at 44; see Cal. Code Regs. tit. 15, § 2402(c)(3) (listing 8 “unstable social history” as factor tending to show unsuitability 9 for parole). Fourth and somewhat related, BPH acknowledged 10 Petitioner’s history of substance abuse and association with gangs. 11 Doc. #6-1 at 42-43; see also id. at 44 (Petitioner was already 12 involved in drugs by age fourteen). 13 Fifth, BPH noted that Petitioner’s March 19, 2008 14 psychological evaluation was “not totally supportive of release” and 15 assessed him as presenting “a moderate risk for violence” because 16 his statements about the crime suggested an “inability to take 17 responsibility for his actions” and because of his “pattern of 18 minimizing the seriousness of his anger and impulse control.” 19 #6-1 at 45 & 47. 20 Doc. BPH also considered other factors tending to support 21 suitability for parole including Petitioner’s positive institutional 22 behavior and limited misconduct while in prison. 23 45. 24 included living with and caring for his father who had a stroke and 25 procuring employment. 26 Petitioner possessed a marketable skill and participated in BPH commended Petitioner’s “realistic parole plans” that Id. at 48. BPH also acknowledged that 27 28 Doc. #6-1 at 44- 9 1 2 educational programs while in prison. Id. at 45. The state superior court affirmed the decision of BPH to 3 deny Petitioner parole, finding that the record contained “some 4 evidence” to support BPH’s finding that Petitioner was unsuitable 5 for parole. 6 claim challenging BPH’s decision, the superior court noted: 7 8 9 10 11 12 Doc. #7-2 at 2. Indeed, in addressing Petitioner’s [T]he Court . . . finds that there is some evidence to support [BPH’s] finding that the committed offense was carried out in a dispassionate and calculated manner. [Citation.] The record indicates that after the argument took place, the Petitioner left and returned 15 minutes later with a gun which was hidden in a sock. The Petitioner subsequently shot the victim in the head after threatening him. [Citation.] There is also some evidence that the motive for the crime was very trivial in relation to the offense. [Citation.] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Court also finds that the Petitioner had a previous criminal history, including acts of assault at an early age. [Citation.] The record indicates that the Petitioner committed voluntary manslaughter when he was 14 years of age. He also provided false identification to a police officer. Furthermore, the psychological report which was prepared in 2008 was not fully supportive of release and found the Petitioner to be a moderate risk of violence. It noted that the Petitioner had been involved in heavy drug use at an early age and had killed another man at the age of 14. It also appears that the Petitioner minimizes his crime by suggesting that it should have been treated as a voluntary manslaughter case at most, even as he denies having committed the crime. . . . [A] Petitioner’s inability to gain insight into his antisocial behavior may provide some evidence that the Petitioner’s [sic] remains dangerous and is unsuitable for parole. Doc. #6-3 at 15. The superior court also found, however, that there 27 28 10 1 was: 2 no evidence to support [BPH’s] finding that the offense was carried out in manner which demonstrates an exceptionally callous disregard for human suffering.” [Citation.] An “exceptionally callous disregard for human suffering” means that “the offense in question must have been committed in a more aggravated or violent [manner] than that ordinarily shown in the commission of second degree murder.” [Citation.] Petitioner did the minimum to commit his crime, one shot to the victim’s head. [Citation.] 3 4 5 6 7 8 9 Doc. #6-3 at 14-15, emphasis added. The state appellate court 10 summarily denied Petitioner’s request for habeas corpus relief, Doc. 11 #6-4 at 2, and the state supreme court summarily denied his Petition 12 for Review. Doc. #6-6 at 2. 13 14 C 15 On this record, the Court finds that the state courts’ 16 rejection of Petitioner’s due process claim that BPH’s decision was 17 not supported by “some evidence” was not contrary to, nor did it 18 involve an unreasonable application of, clearly established federal 19 law, and it was not based on an unreasonable determination of the 20 facts. 21 See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 409. The record shows that BPH had some reliable evidence to 22 support its finding of unsuitability. 23 as a juvenile had a prior conviction of manslaughter involving the 24 use of a handgun, multiple prior probation and parole failures, a 25 history of substance abuse and association with gangs, and a recent 26 psychological evaluation that labeled him as presenting a “moderate 27 28 11 BPH observed that Petitioner 1 risk of violence.” 2 considerations, especially when viewed in conjunction with the 3 nature of the commitment offense, this Court cannot say that BPH’s 4 finding that Petitioner was unsuitable for parole was “without 5 support or otherwise arbitrary.” 6 Doc. #6-1 at 41-48. Based on these See Hill, 472 U.S. at 457. Based on the record before the Court, BPH reasonably 7 concluded that Petitioner was not yet suitable for parole. 8 e.g., Rosas, 428 F.3d at 1232-33 (upholding denial of parole based 9 on gravity of offense and the petitioner’s psychiatric reports See, 10 documenting his failure to complete programming while in prison); 11 Biggs, 334 F.3d at 916 (upholding denial of parole based on gravity 12 of offense and the petitioner’s conduct prior to imprisonment); 13 Morales v. California Dep’t. of Corrections, 16 F.3d 1001, 1005 (9th 14 Cir. 1994), rev’d on other grounds, 514 U.S. 499 (1995) (upholding 15 denial of parole based on the cruel nature of offense, the 16 petitioner’s unstable and criminal history, and his need for further 17 psychiatric treatment). 18 evidence.” 19 // 20 // 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 12 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 IT IS SO ORDERED. 8 9 10 11 DATED 11/12/09 THELTON E. HENDERSON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 G:\PRO-SE\TEH\HC.09\Lewis-09-551-bph denial.wpd 27 28 13
]]>
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.
