Cordoba v. Curry, No. 4:2007cv04579 - Document 10 (N.D. Cal. 2009)
Court Description: ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 10/22/09. (scc, COURT STAFF) (Filed on 10/22/2009)
Download PDF
<![CDATA[
Cordoba v. Curry Doc. 10 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 ROGELIO CORDOBA, Petitioner, 6 7 8 ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS v. BEN CURRY, Warden, Respondent. 9 / 10 United States District Court For the Northern District of California No. C 07-04579 CW (PR) 11 12 On September 5, 2007, Petitioner Rogelio Cordoba filed a 13 petition for a writ of habeas corpus pursuant to title 28 U.S.C. 14 § 2254, challenging as a violation of his constitutional rights the 15 16 17 seventh denial1 of parole by the California Board of Parole Hearings (Board) on September 12, 2006. On February 7, 2008, the Court issued an order to show cause 18 why the writ should not be granted. 19 May 7, 2008. 20 Petitioner also asks the Court to conduct an evidentiary hearing. 21 (Pet. at 23; Traverse at 7.) 22 Respondent filed an answer on Petitioner filed a traverse on May 20, 2008. Having considered all of the papers filed by the parties, the 23 Court grants the petition and remands the matter to the Board to 24 reevaluate Petitioner's parole suitability in accordance with this 25 Order. 26 1 27 28 The denial was for one year. (Resp't Ex. D, Board Transcript at 46.) The record contains no information regarding any subsequent parole hearings, and Petitioner has not filed another habeas petition with the Court. Dockets.Justia.com 1 2 BACKGROUND I. 3 The following summary of the facts of Petitioner's commitment 4 offense is derived from the June 30, 1988 opinion of the California 5 Court of Appeal. 6 United States District Court For the Northern District of California The Commitment Offense (Resp't Ex. B, Appellate Opinion at 5-9.) On February 2, 1985, Ronnie Luke observed Petitioner (street 7 name "Loco Doc")2 and Rodney Smith (street name "Snowman") 8 departing in Smith's car. 9 McIntosh (street name "M Bone") were standing on the sidewalk in At about 7 p.m., Willie Rubin and Marvin 10 front of 4817 South Ninth Avenue, Los Angeles, California. 11 observed a beige car approaching. 12 off its lights. 13 front of the property next door. 14 trouble, took refuge behind two cars parked in the driveway of 4817 15 South Ninth Avenue. 16 of which struck McIntosh in the head and killed him. 17 Turner, who had observed the shooting, testified that he had "heard 18 a pop that sounded like a small caliber gunshot, followed by two 19 loud bangs, which sounded like large caliber gunshots." 20 7.) 21 22 Rubin The car slowed down and turned The car passed Rubin and McIntosh, then stopped in Rubin and McIntosh, suspecting Two shots were fired from the beige car, one Kendall (Id. at The beige car then sped away. Later on the evening of February 2, 1985, Ronnie Luke saw Smith. Smith said that he and Petitioner had driven through the 23 24 25 26 27 28 2 At the parole suitability hearing, Petitioner stated that "back in the days when [he] was playing basketball and the coach wanted [them] to . . . take the name of a very good basketball player," he chose "Doctor J." (Resp't Ex. D, Board Transcript at 16.) He claims that his friends called him "Doc," and not "Loco Doc." (Id.) He further states that he is "not allowed to go by that name" because he became a Muslim and changed his name to "Malachi." (Id. at 35.) 2 1 "Fifties hood."3 2 "blasted some Fifties." 3 neighborhood of the shooting to check out Smith's story. 4 interviewed by some police detectives and told them that Smith had 5 said that he and Petitioner had just shot at some Bloods on Ninth 6 Avenue. 7 was dead, Smith said, "Then Loco Doc is in trouble." 8 United States District Court For the Northern District of California 9 Smith also said that he and Petitioner had (Id. at 6.) Luke subsequently went to the He was The following morning, when Smith was told that "M Bone" (Id. at 7.) On February 5, 1985, Los Angeles Police Detective Johnson interviewed Petitioner. At trial, Detective Johnson testified that 10 Petitioner had told him that he was a passenger in the car driven 11 by Smith on or about 7 or 7:30 p.m. on February 2, 1985. 12 passed a residence on the 4800 block of Ninth Avenue, they were 13 fired on by rival gang members. 14 up a few feet. 15 told him to shoot at them. 16 him not to be a coward. 17 crawled out of the passenger window and fired over the top of the 18 car in the direction of the persons standing in front of the 19 residence. 20 not know that anyone had been hit and killed until the following 21 day. 22 II. 23 24 As they Smith stopped the car and backed He handed Petitioner a .38 caliber revolver and Petitioner hesitated, but Smith told Petitioner then leaned or partially Detective Johnson also testified that Petitioner did Conviction and Sentencing Petitioner and Smith were charged with the murder of Marvin McIntosh and with assault with a firearm on Willie Rubin. (Id. at 25 26 27 28 3 "The 'Fifties' is a gang associated with the 'Bloods' . . . . The 'hood' refers to a neighborhood, an area where members of a particular gang live or gather; the 'Fifties hood,' therefore, is a neighborhood where 'Fifties' live or gather." (Resp't Ex. B, Appellate Opinion at 6.) 3 United States District Court For the Northern District of California 1 2.) 2 bench trial, both were found guilty of second degree murder and 3 assault with a firearm. 4 Cordoba, No. A762389 (Cal. Super. Ct. entered Jan. 7, 1986).) 5 January 7, 1986, the court sentenced Petitioner to seventeen years 6 to life for second degree murder and five years for assault, to run 7 concurrently. 8 minimum eligible parole date was November 12, 1995. 9 Board Transcript at 1.) Both waived their right to a jury trial. (Id.) At a (Resp't Ex. A, Judgment in People v. On The life term began on June 11, 1986, and the (Resp't Ex. D, Petitioner is currently incarcerated at 10 the Correctional Training Facility at Soledad. 11 III. September 12, 2006 Board Hearing 12 (Id. at 3.) (Id.) Petitioner had been incarcerated for over twenty years at the 13 time of his September 12, 2006 parole suitability hearing. 14 represented by counsel at the hearing. 15 incarceration, Petitioner has had two documented disciplinary 16 violations. 17 threatening prison staff. 18 1988, was for theft of government food. 19 indicates that Petitioner has had six administrative violations, 20 the last of which occurred in 1995. 21 (Id. at 2.) He was During his The first, dated November 19, 1987, was for (Id. at 23.) The second, dated June 23, (Id.) The record (Id. at 50.) Petitioner presented the Board with an extensive record of his 22 positive prison performance and rehabilitation. 23 incarcerated, Petitioner has earned his high school equivalency 24 diploma. 25 a welder's license, and a certification in vocational printing.4 (Id. at 19.) While He has earned a certification as a welder, 26 27 28 4 The Board Transcript refers to a certification in "vocational training technology" that Petitioner received on February 5, 2004. (Resp't Ex. D, Board Transcript at 18-19.) However, Petitioner's Life Prisoner Post-Conviction Progress Report 4 1 (Id. at 18.) 2 the recreation department, organizing the football and basketball 3 leagues. 4 supervisor and two work evaluations, which rate him as 5 "exceptional" (the highest grade possible) in all areas of 6 performance. United States District Court For the Northern District of California 7 At the time of the hearing, Petitioner was working in (Id. at 21.) He has received laudatory chronos from his (Pet'r Ex. E, Chronos and Certificates.) Petitioner presented evidence that he had availed himself of 8 many self-help, self-improvement and community programs in prison. 9 He has completed a number of self-help programs, including 10 Alternatives to Violence, Values and Morals, Breaking Barriers 11 Program, Anger Management, and several self-help videos. 12 Ex. D, Board Transcript at 21-22; Resp't Ex. E, Mental Health 13 Assessment at 2.) 14 in a Re-entry Activity Group Program. 15 Transcript at 22.) 16 abuse, Petitioner voluntarily attended Alcoholics Anonymous and 17 Narcotics Anonymous because he thought he could benefit from them. 18 (Resp't Ex. E, Mental Health Assessment at 2.) 19 (Resp't At the time of the hearing he was participating (Resp't Ex. D, Board Despite having no history of alcohol or drug The Board began by asking Petitioner how he felt about his 20 participation in the crime. 21 remorseful and took full responsibility for the crime. 22 10.) 23 with gang members. 24 participating in other criminal activity with the gang members 25 involved in his crime. Petitioner responded that he was very (Id. at The Board questioned Petitioner regarding his involvement Petitioner denied being in a gang or (Id. at 10, 34-35.) He admitted that he 26 27 28 clarifies that the certification received on February 5, 2004 was in vocational printing. (Pet'r Ex. C, Life Prisoner Post-Conviction Progress Report 10/03-9/04.) 5 1 was acquainted with gang members and that he spent time around 2 them. 3 same area with these persons, attended school with them, and played 4 on the same sports teams in high school. 5 also admitted that his companion on the night of the murder was a 6 gang member. United States District Court For the Northern District of California 7 (Id. at 12-13.) He explained that he had grown up in the (Id. at 14-15, 35.) He (Id. at 30.) Petitioner agreed to discuss the commitment offense with the 8 Board. 9 the night of the crime because he had asked Smith to give him a (Id. at 28.) He explained that he was riding with Smith on 10 ride to a party. 11 of the shooting, Smith said that someone was shooting at them. 12 (Id.) 13 people firing on them. 14 window, and then Smith drove away. 15 he did not intend to shoot anyone, but shot in the direction Smith 16 had indicated because he was scared. 17 admitted, however, that he understood the serious risk caused by 18 his action. 19 He claimed that, as they passed the scene (Id.) Smith handed Petitioner a gun and told him to shoot at the (Id.) Petitioner fired the gun out the (Id.) Petitioner claimed that (Id. at 29, 38-39.) He (Id. at 29.) The Board examined Petitioner's pre-incarceration history and 20 noted that he had two previous arrests, one as a juvenile for 21 robbery and one for trespassing, neither of which resulted in a 22 conviction. 23 (Id. at 11-12.) The Board reviewed a 2006 report by Dr. M. Macomber, a staff 24 psychologist. 25 drug or alcohol abuse. 26 2.) 27 incarcerated. 28 psychological evaluations that Petitioner poses a very low risk to Dr. Macomber noted that Petitioner has no history of (Resp't Ex. E, Mental Health Assessment at Petitioner has never been involved in gang activities while (Id.) Dr. Macomber agreed with the two previous 6 United States District Court For the Northern District of California 1 society. 2 not pose any more risk to society than the average citizen. 3 fact, due to his life experiences, he probably poses less risk to 4 the community than the average citizen." 5 has no mental or emotional problems that would interfere with his 6 parole planning. 7 successful adjustment to the community. 8 noted that Petitioner accepts full responsibility for his actions 9 in the commitment offense and demonstrates apparently sincere and (Id. at 3.) Dr. Macomber stated that Petitioner "does (Id. at 4.) (Id. at 4.) In Petitioner He has an excellent prognosis for (Id.) Dr. Macomber also 10 genuine sorrow at the victim's death. 11 described the commitment offense as "very situational" and 12 apparently related to immaturity, poor judgment, impulsive 13 behavior, and peer pressure. 14 singularly out of character with Petitioner's pre- and post- 15 conviction history. 16 are assessed as "very good." 17 noted that Dr. Macomber's report indicated that Petitioner used the 18 word "accidentally" when describing his version of the shooting. 19 (Resp't Ex. D, Board Transcript at 24, 29.) 20 it, Petitioner initially denied having said "accidentally" when 21 describing his offense to Dr. Macomber, but later admitted that he 22 might have. (Id.) (Id.) (Id. at 3.) Dr. Macomber He describes the offense as Petitioner's insight and self-awareness (Id. at 2.) The Board particularly When questioned about (Resp't Ex. D, Board Transcript at 24, 29.) 23 The Board noted that Petitioner, who as a child immigrated to 24 the United States from Panama, needed to clarify the status of his 25 naturalization. 26 members both in Panama and the United States who are prepared to 27 help him transition back to the community. 28 specifically noted that Petitioner was raised in a two-parent home (Id. at 27.) However, Petitioner has family 7 (Id.) The Board 1 and still has a close relationship with his parents and siblings. 2 (Resp't Ex. D, Board Transcript at 13, 16.) 3 Petitioner's thirteen letters of support, including three offers of 4 a place to live and seven offers of employment, including one in 5 Panama. 6 these parole plans as "excellent." United States District Court For the Northern District of California 7 (Id. at 30-33.) The Board considered In its decision, the Board characterized (Id. at 49.) Finally, the Board considered the opposition to Petitioner's 8 parole. 9 Montagma attended the hearing and stated that he opposed parole 10 based on his concern that Petitioner's "explanation of the crime 11 leaves a lot to be desired. 12 member, he clear [sic] was associating with the Crips, for the 13 record, we oppose parole at this time." Los Angeles County Deputy District Attorney Michael Whether or not he was actually a gang (Id. at 40.) 14 The Board concluded that Petitioner was not suitable for 15 parole and would pose an unreasonable risk of danger to society or 16 threat to public safety if released. 17 commended Petitioner for his vocational and educational 18 achievements and his long discipline-free history, it found that 19 these gains did not outweigh his present unsuitability for parole. 20 (Id. at 50.) 21 22 23 24 25 26 (Id. at 46.) While the Board The Board's finding of unsuitability for parole was based on the commitment offense. (Id. at 46.) This is a one-year denial. It is based on the commitment offense. The offense was carried out in an especially callous manner. The offense was carried out in a dispassionate and calculated manner. The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. The motive for the crime was very trivial in relation to the offense. 27 (Id. at 46.) The Board also found that Petitioner had an 28 8 United States District Court For the Northern District of California 1 escalating pattern of criminal conduct. (Id. at 49.) 2 The Board members expressed their concern regarding the 3 perceived discrepancy between Dr. Macomber's indication that 4 Petitioner used the word "accidentally" when describing the 5 shooting and Petitioner's denial that he had used that word. 6 (Resp't Ex. D, Board Transcript at 49.) 7 another psychological evaluation to clarify this. 8 The Board advised Petitioner that he needs "to better articulate 9 his participation in the commitment offense and his relationship to The Board requested (Id. at 51.) 10 the others involved." 11 Petitioner "need[ed] more insight into why [he was] associating 12 with known gang members in a way that resulted in [him] committing 13 murder." 14 IV. 15 (Id. at 51.) It also believed that (Id. at 50.) California Supreme Court Petition for Writ of Habeas Corpus On March 20, 2007, Petitioner filed a petition for a writ of 16 habeas corpus in the California Supreme Court challenging the 17 Board's Decision. 18 at 1.) 19 (Resp't Ex. G, California Supreme Court Denial.) (Resp't Ex. F, California Supreme Court Petition On August 8, 2007, the court summarily denied the petition. 20 21 22 DISCUSSION I. Standard of Review Because this case involves a federal habeas corpus challenge 23 to a state parole eligibility decision, the applicable standard is 24 contained in the Antiterrorism and Effective Death Penalty Act of 25 1996 (AEDPA). 26 2002). 27 28 McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. Under AEDPA, a district court may not grant habeas relief unless the state court's adjudication of the claim: 9 1 4 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 5 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000). 6 A federal court must presume the correctness of the state court's 7 factual findings. 2 3 8 United States District Court For the Northern District of California 9 28 U.S.C. § 2254(e)(1). Where as here the state court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no 10 reasoned lower court decision on the claim, the standard of review 11 under AEDPA is somewhat different. 12 record is the only means of deciding whether the state court's 13 decision was objectively reasonable. 14 F.3d 1190, 1197-98 (9th Cir. 2006); Himes v. Thompson, 336 F.3d 15 848, 853 (9th Cir. 2003); Greene v. Lambert, 288 F.3d 1081, 1088 16 (9th Cir. 2002); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 17 2001); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 18 confronted with such a decision, a federal court should conduct "an 19 independent review of the record" to determine whether the state 20 court's decision was an objectively unreasonable application of 21 clearly established federal law. 22 Himes, 336 F.3d at 853; Delgado, 223 F.3d at 982; accord Lambert v. 23 Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004). 24 court need not otherwise defer to the state court decision: 25 state court's decision on the merits concerning a question of law 26 is, and should be, afforded respect. 27 on the merits, however, there is nothing to which to defer." 28 Greene, 288 F.3d at 1089. In such a case, a review of the Plascencia v. Alameida, 467 When Plascencia, 467 F.3d at 1198; The federal "A If there is no such decision Nonetheless, "while we are not required 10 United States District Court For the Northern District of California 1 to defer to a state court's decision when that court gives us 2 nothing to defer to, we must still focus primarily on Supreme Court 3 cases in deciding whether the state court's resolution of the case 4 constituted an unreasonable application of clearly established 5 federal law." 6 II. Fisher v. Roe, 263 F.3d 906, 914 (9th Cir. 2001). Analysis 7 Petitioner argues that: (1) he was denied due process because 8 the Board's decision was not supported by some evidence that he is 9 presently dangerous and because the Board disregarded evidence 10 tending to establish his suitability for parole; (2) the Board 11 failed to follow California law because it did not compare his 12 conduct to other instances of the same type of crime and then use 13 its proportionality matrix to determine a parole date; and (3) the 14 Board's decision was motivated by a systematic bias against 15 granting parole to indeterminately sentenced inmates and therefore 16 violates the legislative intent. 17 A. 18 The United States Supreme Court has clearly established that a Due Process Claim 19 parole board's decision deprives a prisoner of due process with 20 respect to his constitutionally protected liberty interest in a 21 parole release date if the board's decision is not supported by 22 "some evidence in the record," or is "otherwise arbitrary." 23 v. California Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 24 2006) (citing Superintendent v. Hill, 472 U.S. 445, 457 (1985)). 25 Respondent argues that California inmates do not have a Sass 26 federally protected liberty interest in parole release and that the 27 Ninth Circuit's holding to the contrary in Sass is not clearly 28 established federal law for the purposes of AEDPA. 11 However, this 1 Court is bound by Ninth Circuit authority. 2 Carey, 505 F.3d 846, 850 (9th Cir. 2007) (all California prisoners 3 whose sentences provide for the possibility of parole are vested 4 with a constitutionally protected liberty interest in the receipt 5 of a parole release date, a liberty interest that is protected by 6 the procedural safeguards of the Due Process Clause); McQuillion, 7 306 F.3d at 898 ("under clearly established Supreme Court 8 precedent, the parole scheme in California . . . [gives] rise to a 9 constitutionally protected liberty interest"). United States District Court For the Northern District of California 10 11 See, e.g., Irons v. Therefore, Respondent's argument fails. When assessing whether a state parole board's suitability 12 determination was supported by "some evidence," the court's 13 analysis is framed by the statutes and regulations governing parole 14 suitability determinations in the relevant state. 15 at 1128; Irons, 505 F.3d at 851. 16 court must look to California law to determine the findings that 17 are necessary to deem a prisoner unsuitable for parole, and then 18 must review the record to determine whether the state court 19 decision constituted an unreasonable application of the "some 20 evidence" principle. 21 Sass, 461 F.3d Accordingly, in California, the Id. California law provides that a parole date is to be granted 22 unless it is determined "that the gravity of the current convicted 23 offense or offenses, or the timing and gravity of current or past 24 convicted offense or offenses, is such that consideration of the 25 public safety requires a more lengthy period of 26 incarceration . . . ." Cal. Penal Code § 3041(b). 27 The California Code of Regulations sets out the factors 28 showing suitability or unsuitability for parole that the Board is 12 1 required to consider. 2 include "[a]ll relevant, reliable information available," such as, 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 See Cal. Code Regs. tit. 15, § 2402. These the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in finding of unsuitability. Id. at § 2402(b). Circumstances tending to show unsuitability for parole include 12 the nature of the commitment offense and whether "[t]he prisoner 13 committed the offense in an especially heinous, atrocious or cruel 14 manner." 15 number of victims, whether "[t]he offense was carried out in a 16 dispassionate and calculated manner," whether the victim was 17 "abused, defiled or mutilated during or after the offense," whether 18 "[t]he offense was carried out in a manner which demonstrates an 19 exceptionally callous disregard for human suffering," and whether 20 "[t]he motive for the crime is inexplicable or very trivial in 21 relation to the offense." 22 unsuitability for parole are a previous record of violence, an 23 unstable social history, previous sadistic sexual offenses, a 24 history of severe mental health problems related to the offense, 25 and serious misconduct in prison or jail. 26 Id. at § 2402(c). This includes consideration of the Id. Other circumstances tending to show Id. Circumstances tending to support a finding of suitability for 27 parole include no juvenile record, a stable social history, signs 28 of remorse, that the crime was committed as a result of significant 13 United States District Court For the Northern District of California 1 stress in the prisoner's life, a lack of criminal history, a 2 reduced possibility of recidivism due to the prisoner's present 3 age, that the prisoner has made realistic plans for release or has 4 developed marketable skills that can be put to use upon release, 5 and that the prisoner's institutional activities indicate an 6 enhanced ability to function within the law upon release. 7 Id. at § 2402(d). 8 process is denied when "an inquiry focuse[s] only upon the 9 existence of unsuitability factors." The California Supreme Court stated that due In re Lawrence, 44 Cal. 4th 10 1181, 1208 (2008). 11 conclusion that current dangerousness (rather than the mere 12 presence of a statutory unsuitability factor) is the focus of the 13 parole [suitability] decision . . . ." 14 Irons, the Ninth Circuit stated that due process is denied when the 15 Board fails to consider evidence of suitability as well as 16 unsuitability. 17 In Lawrence, the court reiterated "our Id. at 1210. Similarly, in 505 F.3d at 851. Respondent contends that, even if California prisoners do have 18 a liberty interest in parole, the due process protections to which 19 they are entitled by clearly established Supreme Court authority 20 are limited to an opportunity to be heard and a statement of 21 reasons for denial. 22 rejected by the Ninth Circuit, which held in Irons that a 23 prisoner's due process rights are violated if the Board's decision 24 is not supported by "some evidence in the record," or is "otherwise 25 arbitrary." 26 identified is thus clearly established federal law in the parole 27 context for purposes of 28 U.S.C. § 2254(d). 28 1128-29. This position, however, has likewise been 505 F.3d at 851. The "some evidence" standard Sass, 461 F.3d at Petitioner argues that the higher standard of "clear and 14 1 convincing evidence" should be applied. 2 Santosky v. Kramer, 455 U.S. 745, 767-69 (1982)).) 3 bound by Ninth Circuit authority and therefore must apply the "some 4 evidence" standard established in Sass. United States District Court For the Northern District of California 5 (Traverse at 4-6 (citing This Court is Respondent next argues that the Board did identify "some 6 evidence" to support its denial, namely: (1) the gravity of the 7 commitment offense (Resp't Ex. D, Board Transcript at 46); 8 (2) Petitioner's "escalating pattern of criminal conduct" (id. at 9 49); (3) his inability satisfactorily to articulate his degree of 10 participation in the crime (id. at 50); (4) his failure adequately 11 to explain how he became involved with individuals he knew to be 12 gang members (id. at 50-51); (5) his lack of insight into the 13 nature of the crime (id.); and (6) the need for another 14 psychological evaluation (id. at 51-52). 15 1. Gravity of the Commitment Offense 16 The Board quoted a portion of the summary of facts from the 17 appellate opinion but did not identify any specific facts in the 18 record which it felt supported its findings that the offense was 19 carried out in a manner which demonstrates an exceptionally callous 20 disregard for human suffering. 21 (Id. at 46-49.) Contrary to the Board's description, there is no evidence in 22 the record that Petitioner's crime was carried out in a 23 dispassionate and calculated manner. 24 upholding Petitioner's conviction (in a portion which the Board did 25 not mention during the hearing), the court stated: 26 27 28 In the appellate opinion It should be noted that neither of these defendants was convicted of murder in the first degree, which is defined as "Murder is the unlawful kiling [sic] of a human being, or a fetus, with malice aforethought." (Pen. Code, § 187, subd. (a).) While the prosecution sought 15 1 conviction for first degree murder, the prosecutor argued also that the evidence could be interpreted to show the commission of second degree murder . . . on an implied malice theory. 2 3 (Resp't Ex. B, Appellate Opinion at 11-12.) Petitioner was 4 convicted of second degree murder under a theory of implied malice, 5 which does not entail calculation or a lack of passion. (See id. 6 at 14.) 7 There is also no evidence to support the Board's assertion 8 that Petitioner's crime was committed in an especially callous 9 manner. The evidence instead shows that Petitioner was reluctant United States District Court For the Northern District of California 10 to fire the weapon when his co-defendant handed it to him. (Id. at 11 13.) Moreover, the Board did not mention Kendall Turner's 12 testimony (he observed the shooting and heard "a pop . . . followed 13 by two loud bangs"), which tended to corroborate Petitioner's claim 14 that he shot in response to shots fired at him and Smith from 15 outside the car. (Id. at 7.) Thus all the relevant evidence 16 indicates that Petitioner's crime was not committed in a manner 17 especially callous compared to other second degree murders. See 18 Irons, 505 F.3d at 852 (relying on In re Dannenberg, 34 Cal. 4th 19 1061 (2005), to hold that the relevant inquiry with respect to the 20 commitment offense is whether it shows more than the minimum level 21 of viciousness required to be convicted of second degree murder). 22 The record provides no evidence to support the Board's 23 assertion that Petitioner's crime demonstrated exceptionally 24 callous disregard for human suffering. Detective Johnson testified 25 that Petitioner was not aware anyone had been hit when he left the 26 scene. (Resp't Ex. B, Appellate Opinion at 9.) The evidence tends 27 to show that Petitioner believed someone was shooting at him. 28 16 (Id. 1 at 7, 8; Resp't Ex. C, Probation Report at 3.) 2 decision to depart without checking to see if anyone had been 3 injured does not demonstrate callous disregard for human suffering. 4 In addition, Smith, not Petitioner, was in control of the car and 5 made the decision to drive away. 6 Petitioner had stayed, it is unlikely that he could have offered 7 any assistance to the victim, who had sustained a gunshot wound to 8 the head. United States District Court For the Northern District of California 9 Therefore, his (Id. at 6, 11.) Even if (Id. at 6.) The Board's finding that Petitioner's motive was extremely 10 trivial in relation to the offense is also unsupported by the 11 record. 12 believed that someone was shooting at him and his companion. 13 Petitioner's response was criminally reckless, given that he and 14 Smith could have simply left the scene, his belief that he was 15 under attack does not qualify as an extremely trivial motive. 16 As noted above, the evidence indicates that Petitioner While Even if some evidence did support the Board's findings that 17 Petitioner's commitment offense was particularly egregious, the 18 commitment offense's value as a predictive indicator of present 19 dangerousness two decades later is questionable. 20 Terhune and Sass, the Ninth Circuit made observations on the effect 21 of continued denial of parole based solely on unchanging factors 22 such as the inmate's commitment offense and prior criminal history. 23 See Biggs v. Terhune, 334 F.3d 910, 917 (9th Cir. 2003); Sass, 461 24 F.3d at 1129. 25 "continued reliance in the future on an unchanging factor, the 26 circumstance of the offense and conduct prior to imprisonment, runs 27 contrary to the rehabilitative goals espoused by the prison system 28 and could result in a due process violation." In Biggs v. In Biggs, the court, in dicta, stated that 17 334 F.3d at 917. United States District Court For the Northern District of California 1 The Ninth Circuit's opinion in Irons sheds further light on whether 2 reliance on an immutable factor such as the commitment offense 3 violates due process. 4 Court for the Eastern District of California granted a habeas 5 petition challenging the parole board's fifth denial of parole 6 where the petitioner had served sixteen years of a seventeen-years- 7 to-life sentence for second degree murder with a two-year 8 enhancement for use of a firearm, and where all factors indicated 9 suitability for parole; however, the Ninth Circuit reversed. 505 F.3d at 850. In Irons, the District 358 10 F. Supp. 2d 936, 947 (E.D. Cal. 2005), rev'd, 505 F.3d 846 (9th 11 Cir. 2007). 12 deemed unsuitable prior to the expiration of their minimum 13 sentences and left the door open for inmates deemed unsuitable 14 after the expiration of their minimum sentences. 15 at 854. 16 17 18 19 20 21 22 23 The Ninth Circuit limited its holding to inmates Irons, 505 F.3d The Ninth Circuit stated: We note that in all the cases in which we have held that a parole board's decision to deem a prisoner unsuitable for parole solely on the basis of his commitment offense comports with due process, the decision was made before the inmate had served the minimum number of years required by his sentence. Specifically, in Biggs, Sass, and here, the petitioners had not served the minimum number of years to which they had been sentenced at the time of the challenged parole denial by the Board. Biggs, 334 F.3d at 912; Sass, 461 F.3d at 1125. All we held in those cases and all we hold today, therefore, is that, given the particular circumstances of the offenses in these cases, due process was not violated when these prisoners were deemed unsuitable for parole prior to the expiration of their minimum terms. 24 Id. at 853-54. 25 inmate has served his minimum sentence, the probative value of his 26 commitment offense as an indicator of an unreasonable risk of 27 danger to society recedes below the "some evidence" required by 28 due process to support a denial of parole. The court recognized that at some point after an 18 Id. United States District Court For the Northern District of California 1 Unlike Biggs, Sass and Irons, Petitioner had served more than 2 three years after the expiration of his minimum seventeen-year 3 sentence at the time of the Board's decision. 4 distinguishes the present case from Biggs, Sass and Irons, and 5 pushes it beyond the point at which the circumstances of the 6 commitment offense may be said to constitute "some evidence" in 7 compliance with due process. 8 murder for playing a central role in a conspiracy to murder a 9 witness. In addition, much Biggs was convicted of first degree Biggs, 334 F.3d at 912. Biggs paid the actual 10 murderers, assisted in luring the victim to his death by 11 bludgeoning, and later returned to the scene to conceal the body 12 better. 13 convictions, Sass was convicted of second degree murder for a 14 homicide while he was driving under the influence of alcohol. 15 Sass, 461 F.3d at 1125, 1126 n.2. 16 confrontation with his housemate Nicholson, "went to his room, 17 retrieved his gun, and then went to Nicholson's room where he 18 fired 12 rounds into Nicholson and, after Nicholson complained 19 that he was in pain, stabbed him twice in the back." 20 F.3d at 849. 21 Petitioner's offense was less egregious than each of those 22 described above; he has no prior convictions; and his crime did 23 not involve abuse of drugs or alcohol. 24 that Irons was using drugs at the time of his offense). 25 Furthermore, Petitioner's present age, forty-four, indicates a 26 reduced likelihood of recidivism. 27 28 Id. at 912, 916. After seven separate previous DUI Irons, after an angry Irons, 505 Irons was convicted of second degree murder. Id. Cf. id. at 850 (noting For the reasons above, the Court finds that there is no evidence to support the Board's finding of the factor tending to 19 1 indicate unsuitability that "[t]he prisoner committed the offense 2 in an especially heinous, atrocious or cruel manner." 3 Regs. tit. 15, § 2402(b). 4 circumstances of the commitment offense no longer provide some 5 evidence that Petitioner is presently dangerous, in the light of 6 his efforts at rehabilitation discussed below. 7 8 United States District Court For the Northern District of California 9 2. Cal. Code Furthermore, the Court finds that the Escalating Pattern of Criminal Conduct The Board found that Petitioner "has an escalating pattern of criminal conduct." (Resp't Ex. D, Board Transcript at 49.) The 10 record shows five possible incidents of criminal conduct by 11 Petitioner, including the commitment offense. 12 arrests, neither resulting in a conviction, prior to the commitment 13 offense. 14 been cited for two criminal-level offenses: threatening prison 15 staff in 1987 and stealing food in 1988. 16 (Id. at 11-12.) There are two During his incarceration, Petitioner has (Id. at 23.) There is no evidence that Petitioner currently displays a 17 pattern of escalating criminal conduct. 18 that he has avoided all criminal activity for eighteen years. 19 (Resp't Ex. D, Board Transcript at 49.) 20 accomplished this while in prison, an environment arguably more 21 conducive to violence, gang activity and criminal conduct than he 22 would face in normal society. 23 psychological evaluation specifically notes that he "has never been 24 involved in racial riots (although we have several of them), 25 assaults on others, possession of weapons, or other aggressive 26 behavior." 27 no history of drug or alcohol abuse, or of gang membership. 28 at 4.) The undisputed facts show Moreover, Petitioner has Petitioner's most recent (Resp't Ex. E, Mental Health Assessment at 3.) He has (Id. His psychological reports unanimously assess his potential 20 1 United States District Court For the Northern District of California 2 for violence as no more than the average citizen. (Id. at 3.) Petitioner's record can be compared to that of the petitioner 3 in Biggs. 4 degree murder and had a prior conviction. 5 Biggs had been crime- and discipline-free for seventeen years and 6 had positive psychological evaluations, the Ninth Circuit held that 7 there was no evidence of an escalating pattern of criminal conduct. 8 Id. at 916. 9 in trafficking in stolen computer parts, for which he was convicted See 334 F.3d at 916. Biggs had been convicted of first Id. at 912. Noting that Biggs committed his offense as part of his involvement 10 after the murder but two years prior to his arrest for it. 11 at 912. 12 commitment offense was more clearly established than Petitioner's, 13 who had no prior convictions. 14 pattern of criminal conduct at the time of conviction, the time has 15 now passed when the Board can rely on that finding to conclude that 16 Petitioner still poses a danger to the public. 17 See id. His pattern of criminal activity leading up to his Even if Petitioner had an escalating See id. at 916. For the reasons above, the Court finds that the record 18 provides no evidence to support the Board's finding that Petitioner 19 demonstrates an escalating pattern of criminal conduct. 20 further finds that, even assuming both pre-commitment arrests were 21 justified, Petitioner's twenty-year-old record of criminal conduct 22 does not provide some evidence of Petitioner's present 23 dangerousness. 24 3. The Court Inability Satisfactorily to Articulate His Degree of Participation in the Crime 25 The Board found, "The prisoner needs to better articulate his 26 participation in the commitment offense . . . ." (Resp't Ex. D, 27 Board Transcript at 50.) The Board further stated: 28 21 1 2 3 4 5 [I]t's true that your counsel says you haven't changed your story over the years, but there are different shadings that are put into your story, not necessarily by you. We weren't comfortable with the way the situation is right now, as far as the explanations. We needed more than that and . . . what happened and why you were there with those people will have to be articulated clearly enough for it not to just be the panel granting it tentatively, but also it going through decision review and the governor's office. 6 (Id. at 50-51.) Petitioner answered all of the Board's questions 7 clearly, and his account of the incident was consistent with the 8 official facts, his original confession to Detective Johnson, the 9 description in Dr. Macomber's report, and the version in his United States District Court For the Northern District of California 10 probation report. Moreover, Petitioner agreed to discuss the 11 commitment offense with the Board in order to clarify any concerns 12 it might have. (Id. at 26.) Petitioner admitted that he knew that 13 his companion, Smith, and the victims were gang members. (Id. at 14 30; Resp't Ex. C, Probation Report at 11.) He admitted that he 15 deliberately fired the weapon in the direction from which Smith had 16 indicated shots were coming. (Resp't Ex. D, Board Transcript at 17 36-39.) He admitted that he understood the danger inherent in this action. (Id. at 29.) 18 When asked by the Board how he felt about 19 his participation in the crime, he responded, "I take full 20 responsibility for the crime which I committed against Mr. Marvin 21 McIntosh." (Id. at 10.) In his closing statement to the Board, 22 Petitioner said: "I accept full and complete responsibility for the 23 crime of murder, committed against Mr. Marvin McIntosh, and his 24 family. The crime of murder was committed by me during a drive-by 25 shooting in which I was the responsible person . . . ." (Id. at 26 43-44.) There is no evidence that Petitioner has misrepresented 27 his crime or has told differing versions of it. 28 22 The Board's 1 concern that Petitioner denies the intent to shoot anyone is 2 apparently based on Dr. Macomber's report that Petitioner used the 3 word "accidentally" in describing the killing. 4 Petitioner's implied malice conviction for second degree murder is 5 corroborative of his account. 6 position that he fired the gun accidentally, only that he did not 7 intend to kill anyone. 8 that he caused and accepts that responsibility. United States District Court For the Northern District of California 9 However, Petitioner has never taken the He recognizes the clear risk of killing The Court finds that there is no evidence in the record to 10 support the Board's findings that Petitioner has failed 11 satisfactorily to articulate his participation in the offense and 12 that his level of articulation of the commitment offense indicates 13 he is presently dangerous to the public. 14 4. Failure Adequately to Explain How He Became Involved with Individuals He Knew to Be Gang Members 15 In its decision, the Board found that Petitioner needed "more 16 insight into why [he was] associating with known gang members in a 17 way that resulted in [him] committing murder." (Id. at 50.) 18 Board expressed this concern repeatedly, stating: 19 20 21 22 The prisoner needs to better articulate . . . his relationship to the others involved [in the crime]. . . . We do think [you need] some insight into -- they were known gang members to you, and getting, in that kind of a situation, you've got to think about how you put yourself in that place. 23 (Id. at 50-51.) 24 Petitioner regarding his association with gang members. 25 During the hearing, the Board questioned PRESIDING COMMISSIONER HARRIS-RITTER: in a gang? Were you involved 26 INMATE CORDOBA: No, ma'am. 27 28 PRESIDING COMMISSIONER HARRIS-RITTER: Were you involved in other criminal activity with these same people? 23 The 1 INMATE CORDOBA: 2 PRESIDING COMMISSIONER HARRIS-RITTER: Can you tell us how you got yourself to in that situation that you were in at the time the crime was committed? 3 4 5 6 No, ma'am. INMATE CORDOBA: That day, or that night, I was supposed to go and DJ at a party in Riverside and I didn't have no way to get there, so I asked (inaudible) could he give me a ride. So, but we decided to go to a McDonalds and on the way back from McDonalds, that's when the incident happened. 7 (Id. at 10.) The Board did not question him regarding whether he 8 had intended to join a gang, whether he understood the role that 9 his association with gang members played in precipitating his United States District Court For the Northern District of California 10 crime, or how he would take steps to avoid involvement with gangs 11 upon release. 12 13 PRESIDING COMMISSIONER HARRIS-RITTER: people prior to that crime? 14 INMATE CORDOBA: 15 PRESIDING COMMISSIONER HARRIS-RITTER: were shot? Did you know those Yes, I knew them. The people who 16 INMATE CORDOBA: Yes. 17 18 PRESIDING COMMISSIONER HARRIS-RITTER: know them? 19 INMATE CORDOBA: high school. And how did you Because I used to play basketball at the 20 . . . . 21 22 23 24 25 PRESIDING COMMISSIONER HARRIS-RITTER: Okay. And, were these guys, that you were hanging out with, people who had been friends of yours since elementary school or junior high? INMATE CORDOBA: I wouldn't say friends, it was just guys I had I [sic] been in (inaudible) same, you know, at the same, you know, elementary school, I played basketball on an (inaudible). 26 27 PRESIDING COMMISSIONER HARRIS-RITTER: asked the guy for a ride, right? 28 INMATE CORDOBA: And that's why you Yes, because I knew him. 24 1 (Id. at 11, 14-15.) 2 regarding his level of involvement with the Crips. 3 The Board questioned Petitioner specifically DEPUTY COMMISSIONER ESTRADA: of the (inaudible) Crips? You've never been a member 4 INMATE CORDOBA: No, sir. 5 DEPUTY COMMISSIONER ESTRADA: Or the (inaudible)? 6 7 INMATE CORDOBA: neighborhood. No, sir, I just live in the 8 DEPUTY COMMISSIONER ESTRADA: neighborhood, huh? You just live in the 9 INMATE CORDOBA: Yes, sir. United States District Court For the Northern District of California 10 11 12 DEPUTY COMMISSIONER ESTRADA: Okay (inaudible) on page (inaudible) as they drove by and then fired one shot. ["Smith told Luke that Cordoba had yelled 'Harlem Crips, roll in thirties' as they drove by and had then fired one shot." (Resp't Ex. B, Appellate Opinion at 7.)] 13 INMATE CORDOBA: That's not true. 14 (Id. at 34-35.) Deputy District Attorney Montagma also focused on 15 Petitioner's level of association with the Crips gang, but offered 16 no evidence to rebut Petitioner's denial. 17 18 DEPUTY DISTRICT ATTORNEY MONTAGMA: At any prior board hearing did you indicate that you were a member of (inaudible) Crips? 19 INMATE CORDOBA: Never. 20 (Id. at 38.) 21 None of Petitioner's answers conflicts with the official facts 22 or with his other accounts of the offense. His acquittal of the 23 charge of first degree murder and conviction under a theory of 24 implied malice indicate that the trial court found the portrayal of 25 his level of gang involvement accurate. (Resp't Ex. B, Appellate 26 Opinion at 11-12.) While the Board may not find his story 27 credible, there is no evidence in the record that Petitioner has 28 25 1 United States District Court For the Northern District of California 2 ever been seriously involved in gang activity. Whatever his involvement may have been before the commitment 3 offense, Petitioner has completely avoided any gang involvement 4 during his more than two decades of incarceration, despite frequent 5 gang-related incidents at the institution. 6 Health Assessment at 1.) 7 environment, in which the pressure to join a gang, particularly if 8 he had been previously associated with one, would be more intense 9 than in normal society. (Resp't Ex. E, Mental He has accomplished this in a prison His psychological evaluation concluded, 10 "His insight and self-awareness [are] very good." 11 from a stable family background. 12 Transcript at 13, 15-16.) 13 immediate and extended family and friends, including multiple 14 offers of jobs and places to live. 15 at 30-34.) 16 his GED. 17 These factors indicate that Petitioner has a strong chance of 18 reintegrating himself as a productive, law-abiding member of the 19 community upon release and make him very unlikely to become 20 involved with gangs. 21 (Id.) He comes (Id.; Resp't Ex. D, Board He has significant support from his (Resp't Ex. D, Board Transcript He has mastered two vocational skills and has earned (Id. at 18-19.) He is presently forty-four years of age. For the reasons above, the Court finds that there is no 22 evidence that Petitioner failed adequately to explain his 23 involvement with known gang members. 24 that his pre-commitment involvement with gang members and his level 25 of insight into that involvement provide no evidence of present 26 dangerousness. 27 28 5. Furthermore, the Court finds Lack of Insight into the Nature of the Crime Respondent argues that the Board made a separate finding that 26 1 Petitioner lacks insight into the nature of the crime, citing the 2 Board's finding that Petitioner "need[s] more insight into why [he 3 was] associating with known gang members in a way that resulted in 4 [him] committing murder." 5 The Board also expressed concern about "the extent to which the 6 prisoner has explored the commitment offense and come to terms with 7 the underlying causes." 8 to any specific facts in the record as evidence of Petitioner's 9 lack of insight. United States District Court For the Northern District of California 10 (Resp't Ex. D, Board Transcript at 50.) (Id. at 51-52.) The Board does not point Petitioner's most recent psychological evaluation concludes 11 that his "insight and self-awareness were very good." 12 E, Mental Health Assessment at 2.) 13 Macomber concluded that Petitioner has no mental or personality 14 disorders, that he accepts the official version of the crime, that 15 he takes full responsibility for his actions, and that he is 16 remorseful. 17 above, Petitioner's statements to the Board reflect a clear 18 understanding of the gravity of his actions and his responsibility 19 for the taking of a human life. 20 fired the gun in a direction where he believed persons were 21 located. 22 does deny any intent to hit or injure anyone, this denial is 23 supported by his conviction under a theory of implied malice. 24 (Resp't Ex. The Board noted that Dr. (Resp't Ex. D, Board Transcript at 24.) As discussed He admits that he intentionally (Resp't Ex. D, Board Transcript at 29, 36-39.) While he For the reasons above, the Court finds that there is no 25 evidence to support the Board's findings that Petitioner lacks 26 insight into the nature of his crime and that his present level of 27 insight into his crime indicates that he still poses a danger to 28 society. 27 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 6. Need for Another Psychological Evaluation Finally, the Board found that Petitioner required a new psychological evaluation,5 stating: We're asking for a new psych report because we want to clarify the problem with the way the last one was written regarding the word accidentally, we don't think that's fair to you to have that sitting like that, from your testimony to us. So we've requested this report, based on the panel's belief that the prisoner's current mental health is an important issue. And in a new full evaluation the panel requests that the clinician specifically address the following and we request that it be the extent to which the prisoner has explored the commitment offense and come to terms with the underlying causes. And a review of Dr. Macomber's report regarding the commitment offense and clarify the inmate's description of what actually occurred. 11 (Resp't Ex. D, Board Transcript at 51-52.) As noted above, the 12 Board was particularly troubled by the fact that Dr. Macomber used 13 the word "accidentally" when reporting Petitioner's description of 14 the commitment offense. The report stated: 15 16 17 18 19 20 Mr. Cordoba accepts the official version of this offense. He accepts full responsibility for his actions in the commitment offense, which resulted in the death of the victim. He feels very badly about this offense. Someone was accidentally killed as a result of his actions. He stated that he did not know anything about guns, and he had never shot one before. When his crime partner yelled at him and gave him the gun and ordered him to shoot, he did. It was dark and he did not aim it at anyone. However, he accidentally shot the 19 year old victim. 21 (Resp't Ex. E, Mental Health Assessment at 3.) 22 as the basis for ordering another psychological evaluation to 23 "clarify [Petitioner's] description of what actually occurred" and 24 to examine "the extent to which [Petitioner] has explored the 25 commitment offense and come to terms with the underlying causes." 26 (Resp't Ex. D, Board Transcript at 51-52.) The Board used this Respondent 27 5 28 The record does not show whether a new psychological evaluation has been completed since his September 12, 2006 parole suitability hearing. 28 United States District Court For the Northern District of California 1 characterizes this issue as a discrepancy between the versions of 2 the crime that Petitioner presented to Dr. Macomber and to the 3 Board, suggesting a lack of insight into the crime. 4 12.) 5 that Petitioner has not adequately explored the nature of the 6 commitment offense and come to terms with the underlying causes, 7 i.e., taken responsibility for his actions. 8 alleged discrepancy, there is no inconsistency between the version 9 reflected in the report and the one that Petitioner told the Board. 10 In both versions, Petitioner admits that he deliberately fired the 11 weapon. 12 Mental Health Assessment at 3.) 13 shows that Petitioner described the hitting of the victim as 14 accidental, not the act of shooting. 15 (Answer at 11- As discussed above, the Court finds that there is no evidence With regard to the (Resp't Ex. D, Board Transcript at 28-29; Resp't Ex. E, A plain reading of the report The Board seemed to make much of the fact that Petitioner 16 initially denied using the word "accidentally" when describing the 17 crime to Dr. Macomber: 18 21 DEPUTY COMMISSIONER ESTRADA: Now, in regards to the view of the life crime, [the psychological evaluation] indicates that you accept the official version of the offense and you accept full responsibility for your actions (inaudible) feel badly about (inaudible) accidentally killed as a result of your action. (inaudible) accidentally killed? 22 INMATE CORDOBA: 23 DEPUTY COMMISSIONER ESTRADA: 24 INMATE CORDOBA: 25 . . . . 26 PRESIDING COMMISSIONER HARRIS-RITTER: Okay. The report says that you accidentally, that somebody accidentally got shot. You indicated you did not use that word accidentally. Do you recall what you did say to the psychologist? 19 20 27 28 No, sir. I did not say accidentally. Huh? I did not say accidentally. 29 1 INMATE CORDOBA: 2 PRESIDING COMMISSIONER HARRIS-RITTER: 3 INMATE CORDOBA: The reason why -- I may have said accidentally is because, like I said, when he got shot, because I didn't mean to kill anyone or hurt anyone, I was just shooting because they scared me. 4 No, I don't recall. Okay. Go ahead. 5 (Id. at 24, 29.) Whether or not Petitioner said "accidentally," 6 there is no discrepancy between the two versions of Petitioner's 7 story. 8 Despite the Board's concerns, the psychological report 9 unreservedly supports Petitioner's suitability for parole. It United States District Court For the Northern District of California 10 provides no evidence of discrepancies in his story or insufficient 11 insight into his crime. Therefore, the Court finds that 12 Petitioner's current psychological evaluation provides no evidence 13 that he is presently dangerous to society. 14 As discussed above, the Court finds no evidentiary support for 15 the Board's findings tending to indicate unsuitability. Therefore, 16 Petitioner demonstrates none of the factors tending to show 17 unsuitability which are established in Cal. Code Regs. tit. 15, 18 § 2402(c): (1) his commitment offense was not committed in an 19 especially heinous, atrocious, or cruel manner; (2) he has no 20 previous record of violence -- i.e., he had not, prior to the 21 commitment offense, inflicted or attempted to inflict serious 22 injury on a victim; (3) he does not have an unstable social 23 history; (4) he has no history of sadistic sexual offenses; (5) he 24 has no record of severe mental problems related to the offense; and 25 (6) he has not engaged in serious misconduct while incarcerated. 26 "The Board must determine whether a prisoner is presently too 27 dangerous to be deemed suitable for parole based on the 28 'circumstances tending to show unsuitability' and the 30 United States District Court For the Northern District of California 1 'circumstances tending to show suitability' set forth in Cal. Code. 2 Regs. tit. 15, § 2402(c)-(d)." 3 Lawrence, 44 Cal. 4th at 1208, 1211-12 (focusing only on 4 unsuitability factors violates due process). 5 Dr. Macomber's report during the hearing. 6 Transcript at 24-25.) 7 disregarded the report as evidence of suitability. 8 In light of the importance of this evidence in describing 9 Petitioner's rehabilitative progress, the fact that it Irons, 505 F.3d at 851; cf. The Board reviewed (Resp't Ex. D., Board In its decision, however, the Board (Id. at 49.) 10 unequivocally supported Petitioner's suitability for parole and the 11 mandate of Irons, 505 F.3d at 851, that the Board must consider 12 evidence of suitability as well as unsuitability, the Board's 13 failure to consider this evidence supports Petitioner's claim of 14 denial of due process. 15 Of the nine factors tending to show suitability listed in Cal. 16 Code Regs. tit. 15, § 2402(d),6 Petitioner demonstrates at least 17 six7: (1) Petitioner has a stable social history and maintains 18 close relationships with his parents and siblings; (2) he shows 19 signs of remorse; (3) his violence-free years before he was 20 21 22 23 24 25 26 27 28 6 Whether the prisoner was suffering from Battered Woman Syndrome at the time of the crime is a circumstance tending to indicate suitability. Cal. Code Regs. tit. 15, § 2402(d)(5). However, this factor does not apply to Petitioner. The other factor which Petitioner does not demonstrate is that the crime was committed as a result of significant stress in the prisoner's life. Id. at § 2402(d)(4). 7 Petitioner arguably also satisfies the remaining suitability factor -- that of no juvenile record. Id. at § 2402(d)(1). The record only shows one juvenile arrest (for robbery), which the complainant refused to prosecute. (Resp't Ex. C, Probation Report at 7.) According to Petitioner, he was recovering his cousin's stolen bicycle. (Id.; Resp't Ex. D, Board Transcript at 11-12.) There is no other evidence that Petitioner has a juvenile record. 31 United States District Court For the Northern District of California 1 arrested indicate that he lacks any significant history of violent 2 crime; (4) his current age, forty-four, reduces the probability of 3 recidivism; (5) his educational achievements, including his high 4 school equivalency diploma and his certifications as a welder and 5 vocational printer, have given him valuable marketable skills that 6 can be put to use upon release; and (6) his institutional 7 activities, including self-help, self-improvement and community 8 programs, indicate an enhanced ability to function within the law 9 upon release. (Resp't Ex. D, Board Transcript; Resp't Ex. E, 10 Mental Health Assessment; Pet'r Ex. E, Chronos and Certificates.) 11 Moreover, Petitioner's rehabilitation is evidenced by his 12 relatively minor prison record containing only two disciplinary 13 violations -- the last of which was for theft of food eighteen 14 years prior to the Board hearing. 15 family members and friends indicating that they can provide 16 employment and housing to assist him in becoming a productive, law- 17 abiding member of society. He has numerous letters from 18 The Court DENIES Petitioner's request for an evidentiary 19 hearing because the material facts in this case are not in dispute 20 and because Petitioner's claims do not rely upon new or 21 extra-record evidence. 22 In light of the analysis above, the Court finds that 23 Petitioner has been deprived of the due process guaranteed by the 24 Fifth and Fourteenth Amendments. 25 under 28 U.S.C. § 2254(d) because the Board's finding of 26 unsuitability was not supported by "some evidence" and the state 27 court's decision upholding it was an unreasonable application of 28 federal law. Petitioner is entitled to relief 32 1 Accordingly, the Court GRANTS the petition for a writ of 2 habeas corpus and remands to the Board to evaluate Petitioner's 3 suitability for parole in accordance with due process of law. United States District Court For the Northern District of California 4 Petitioner also raises two alternative grounds for habeas 5 relief. 6 Petitioner is entitled to relief based on his first claim, the 7 Court will do so below. While there is no need to address these claims because 8 B. 9 Petitioner claims that the Board failed to follow California Petitioner's State Law Claim 10 law. 11 In re Ramirez, 114 Cal. Rptr. 2d 381, 397 (Cal. App. Ct. 2001), for 12 the proposition that the Board must grant him a parole date that 13 will result in a sentence commensurate with that served for similar 14 crimes. 15 Dannenberg, 34 Cal. 4th at 1083, 1100. 16 Court there held that the Board should not engage in a 17 proportionate sentence analysis unless it first finds the prisoner 18 suitable for parole. 19 at 1205. 20 (Pet. at 16.) This claim is without merit. (Pet. at 16.) He relies upon Ramirez, however, has been overruled by The California Supreme Id. at 1083; see also Lawrence, 44 Cal. 4th More importantly, Petitioner supports his argument only with 21 state statutes and case law. 22 federal court is limited to deciding whether a conviction violated 23 the Constitution, laws, or treaties of the United States." 24 v. McGuire, 502 U.S. 62, 67 (1991). 25 available for violations of state law or for alleged errors in the 26 interpretation or application of state law. 27 Petitioner's state law claim is DISMISSED. "In conducting habeas review, a 28 33 Estelle Federal habeas relief is not Id. Accordingly, United States District Court For the Northern District of California 1 C. 2 Petitioner contends that the Board failed to act impartially Petitioner's Systematic Bias Claim 3 in his case due to a systematic bias in the California parole 4 system. 5 denies parole, doing so in 98.5 percent of all cases. 6 claims that this systematic bias violates his due process rights. 7 (Id.) 8 rates evidence a predisposition on the part of the Board and the 9 Governor to deny parole. (Pet. at 17.) Petitioner asserts that the Board routinely (Id.) He It may be logical to deduce that the current parole denial However, Petitioner has not proven that 10 this alleged predisposition played any role in the Board's decision 11 in his case. Therefore, this claim fails. 12 13 CONCLUSION For the foregoing reasons, Petitioner's request for an 14 evidentiary hearing is DENIED, and the petition for a writ of 15 habeas corpus is GRANTED. 16 hearing within sixty (60) days and re-evaluate Petitioner's 17 suitability for parole in accordance with this Order. 18 finds Petitioner suitable for parole and sets a release date and 19 the Governor does not reverse, the Court will stay Petitioner's 20 actual release for two (2) weeks to allow Respondent to request a 21 stay from this Court, and if necessary from the Court of Appeals, 22 of the release date pending appeal. The Court retains jurisdiction 23 to review compliance with its Order. The Clerk of the Court shall 24 terminate all pending motions, enter judgment and close the file. 25 Each party shall bear his own costs. 26 27 The Board shall hold a new parole If the Board IT IS SO ORDERED. Dated: 10/22/09 CLAUDIA WILKEN United States District Judge 28 P:\PRO-SE\CW\HC.07\Cordoba4795.HCgrant.frm 34 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 ROGELIO CORDOBA, Case Number: CV07-04579 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 BEN CURRY et al, 7 Defendant. / 8 9 United States District Court For the Northern District of California 10 11 12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 22, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 17 Rogelio Cordoba D-22031 CFT-Soledad ZW-240L P.O. Box 689 Soledad, CA 93960-0689 18 Dated: October 22, 2009 15 16 19 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk 20 21 22 23 24 25 26 27 28 P:\PRO-SE\CW\HC.07\Cordoba4795.HCgrant.frm 35
]]>
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.
