Edwards v. Curry, No. 4:2008cv01923 - Document 20 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 6/30/09. (scc, COURT STAFF) (Filed on 6/30/2009)
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Edwards v. Curry Doc. 20 1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 No. C 08-1923 CW WILLIE EDWARDS, 7 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 8 v. 9 BEN CURRY, United States District Court For the Northern District of California 10 Respondent. 11 / 12 13 INTRODUCTION 14 Petitioner Willie Edwards, a state prisoner incarcerated at 15 the Correctional Training Facility in Soledad, California, has 16 filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. 17 § 2254, alleging that his constitutional rights were violated when 18 the Board of Parole Hearings (the Board) denied him parole for the 19 third time on September 29, 2005. As grounds for federal habeas 20 relief, Petitioner claims that: (1)“some evidence” did not support 21 the Board's denial of parole; (2) the Board improperly relied on 22 his commitment offense to deny parole; and (3) the Board relied on 23 an unconstitutionally vague provision of title 15 of the California 24 Code of Regulations to deny parole.1 On July 14, 2008, Respondent 25 Warden Ben Curry filed an answer. Petitioner timely filed a 26 27 1 28 Unless otherwise noted, all further references to code sections are to title 15 of the California Code of Regulations. Dockets.Justia.com 1 traverse. 2 parties, the Court DENIES the petition. 3 BACKGROUND 4 I. United States District Court For the Northern District of California 5 Having considered all of the papers filed by the Commitment Offense At the time of the commitment offense, Petitioner was nineteen 6 years old. 7 rival street gangs, the "Four Trey Hoover Crips" (the Crips) and 8 the "Budlong Boys," were involved in a series of disputes over drug 9 trafficking territories. Between August, 1988 and September 19, 1988, members of (Pet.'s Ex. A, 2005 Parole Bd. Hr'g at 10 67.) 11 of another street gang with which Petitioner and co-defendant Corey 12 Willis were associated. 13 No. B051979 at 2 (Cal. App. Ct., Feb. 14, 1994).) 14 shot at a "drug house" operated by Willis. 15 retaliation, on September 18, 1988, Petitioner, Willis and a third 16 person fired gunshots at a Crips drug House. 17 September 19, 1988, Petitioner, Willis and co-defendant Jerome Ray 18 armed themselves and went to a residence located at 1049 West 43rd 19 Street in Los Angeles, California. 20 Hr'g at 67.) 21 In August, 1988, members of the Crips shot Pat Cole, a member (Pet.'s Ex. D, People v. Willis, et al., The Crips also (Id. at 3.) (Id.) In Then, on (Pet.'s Ex. A, 2005 Parole Bd. Petitioner and his co-defendants arrived at the residence at 22 2:40 a.m. 23 automatic handgun, Willis was armed with an AK-47 automatic rifle, 24 and Ray was armed with a handgun. 25 victim, Andre Hicks, and a number of other persons who were 26 standing in the front yard, Petitioner and co-defendants began 27 shooting. 28 (Id.) Petitioner was armed with a nine millimeter (Id.) (Id. at 67-68.) 2 After observing the 1 The Los Angeles Police Department (LAPD) investigative report 2 indicated that Petitioner had fired in excess of twenty rounds from 3 his gun. 4 victim's head on the left side and exited through the back. 5 Although the injury was consistent with an AK-47 rifle, the fatal 6 bullet was not recovered. 7 the scene at approximately 3:00 a.m. on September 19, 1988. 8 United States District Court For the Northern District of California 9 (Id. at 68.) One of the assailants' rounds entered the (Id.) (Id.) The victim was pronounced dead at Petitioner and Willis were charged with murder. D, People v. Willis, et al., No. B051979 at 3.) (Id.) (Pet.'s Ex. However, because 10 it was not clear that Petitioner had actually shot the victim, the 11 district attorney offered to allow him to plead guilty to 12 manslaughter in exchange for testifying against co-defendant 13 Willis. 14 retaliation against his family, Petitioner declined the plea 15 bargain. 16 (Pet.'s Ex. A, Parole Bd. Hr'g at 52-53.) Fearing (Id. at 53-54.) A jury found Petitioner guilty of second degree murder and 17 found the gun enhancement allegations to be true. 18 People v. Willis et al, No. B051979 at 3.) 19 Petitioner to fifteen years to life, plus a two-year enhancement 20 for firearm use. 21 of Corrections on May 31, 1990. 22 at 1.) 23 (Id.) 24 II. 25 (Id.) (Pet.'s Ex. D, The court sentenced Petitioner was received by the Department (Pet.'s Ex. B, 2005 Prisoner Eval. His minimum parole eligibility date was April 22, 2000. Parole Hearings In March, 1999, Petitioner had his first hearing before the 26 Board, which found that he was unsuitable for parole. 27 B, 1999 Prisoner Eval. at 2.) 28 (Pet.'s Ex. In support of its finding, the Board 3 1 cited the nature of Petitioner's commitment offense, two juvenile 2 arrests in 1985 and 1986 for carrying a concealed weapon, and 3 several disciplinary violations that he had received since he had 4 been incarcerated. 5 Petitioner remain disciplinary-free, upgrade academically and 6 vocationally, and participate in self-help programs. United States District Court For the Northern District of California 7 (Id. at 1-2.) The Board recommended that (Id. at 3.) In April, 2003, at his second parole hearing, the Board again 8 found Petitioner unsuitable for parole. 9 Prisoner Eval. at 3.) (Pet.'s Ex. B, 2003 The Board acknowledged that Petitioner had 10 followed its recommendations from the first parole hearing, but, 11 nevertheless, found that Petitioner "would pose a moderate degree 12 of threat to the public . . . if released from prison." 13 support of its finding, the Board again cited Petitioner's 14 commitment offense, juvenile record, and record of disobeying 15 orders of prison staff. 16 Petitioner remain disciplinary-free and continue with his 17 educational, vocational, and self-help development. 18 (Id. at 2-3.) (Id.) In The Board recommended that (Id.) On September 29, 2005, Petitioner attended his third parole 19 hearing. 20 cited several factors favoring Petitioner's suitability for parole. 21 For example, it noted that, since Petitioner had been in prison, he 22 had completed his general education development (GED) classes, 23 attended college classes by correspondence, completed vocational 24 training in computer services, and taken real estate classes. 25 at 70.) 26 several self-help programs, including Narcotics Anonymous for which 27 he had served as chairman. 28 (Pet.'s Ex. A, 2005 Parole Bd. Hr'g at 1.) The Board (Id. The Board also noted that Petitioner had engaged in Further, Petitioner's prison (Id.) 4 1 psychiatric report assessed him as posing no more danger of 2 violence to the community than the average citizen. 3 The Board also noted that Petitioner had realistic parole plans in 4 that he has marketable welding skills and several family members 5 have offered him employment options and a place to live. United States District Court For the Northern District of California 6 (Id. at 69.) (Id.) The Board also cited several factors tending to indicate 7 unsuitability for parole. 8 offense was carried out in an "especially cruel and callous manner" 9 because Petitioner and his co-defendants had opened fire in a The Board found that the commitment 10 residential area. 11 offense was carried out in a "calculated manner" because Petitioner 12 and his co-defendants had gone to the scene of the crime armed with 13 "sophisticated and high powered weapons." 14 Petitioner and his co-defendants had carried out the commitment 15 offense with "exceptionally callous disregard to human suffering" 16 because the "spray of bullets" could have injured other people. 17 (Id. at 66-67.) 18 which Petitioner had fired from his nine millimeter gun. 19 67.) 20 the Board found that the "motive for the crime was . . . trivial." 21 Id. 22 the Board considered Petitioner's juvenile record and disciplinary 23 violations since his prior parole hearing in 2003. 24 The Board noted that Petitioner had received one CDC-128-A 25 counseling chrono on November 4, 2003, for stealing state-owned 26 food (cookies), another CDC-128 on March 9, 2004, for failing to 27 respond promptly and courteously to prison staff, and a more 28 (Id. at 66.) It found that the commitment (Id.) It found that The Board cited as evidence the twenty rounds (Id. at Because the commitment offense appeared to be gang-related, In addition to its findings regarding the commitment offense, 5 (Id. at 68-69.) 1 serious CDC-115 rules violation report on May 22, 2004 for having 2 an unauthorized "cooking utensil" in his cell.2 United States District Court For the Northern District of California 3 (Id. at 39-40.) In response, Petitioner explained his version of the 4 commitment offense. 5 Petitioner admitted that he fired the rounds from his gun, but 6 claimed that he did not intend to hit anyone. 7 Petitioner, his intent was to accompany Willis to the victim's 8 house so that Willis could have a conversation with the victim. 9 (Id.) (Pet.'s Ex. B, 2005 Prisoner Eval. at 1.) (Id.) According to Petitioner stated that, before he knew it, things got out of 10 hand and shots were fired. 11 the offense and stated that he had never been a gang member. 12 Petitioner expressed remorse for (Id.) (Id.) The Board found that the factors indicating unsuitability for 13 parole outweighed the factors indicating suitability. 14 A, 2005 Parole Bd. Hr'g at 70.) 15 would pose an unreasonable risk of danger to society or a threat to 16 public safety if released. 17 years and recommended that Petitioner get more self-help and 18 therapy, and remain disciplinary-free. 19 III. Habeas Corpus Petitions 20 21 (Pet.'s Ex. The Board found that Petitioner (Id. at 66.) It denied parole for four (Id. at 71-72.) On August 30, 2006, Petitioner filed a petition for a writ of habeas corpus in Los Angeles County superior court, alleging that 22 23 24 25 2 CDC-128-A and CDC-115 refer to different CDC forms used by prison officials to report rules violations. Prison staff use a CDC-128-A form to document repeated minor misconduct and a CDC-115 form for misconduct that is not minor or is believed to violate the law. Cal. Code. Regs. tit. 15 § 3312(a). 26 27 28 6 United States District Court For the Northern District of California 1 there was no evidence to support the Board's 2005 determination 2 that he was not suitable for parole and that the decision violated 3 his due process rights. 4 3; Resp't's Ex. 1, Super. Ct. Pet. at 20.) 5 in a two-page opinion, the court denied the petition. 6 E at 1.) 7 evidence' to support the determination that Petitioner presents an 8 unreasonable risk of danger to society and is, therefore, not 9 suitable for release on parole." (Resp't's Ex. 1, Super. Ct. Form Pet. at On September 4, 2007, (Pet.'s Ex. The court concluded "that the record contains 'some (Id.) In support of its 10 conclusion, the court found that the record showed Petitioner and 11 his co-defendants knew that they were going to the scene of the 12 crime to confront rival gang members and had heavily armed 13 themselves for that purpose. 14 the Board's finding that the commitment offense was carried out in 15 a "calculated and dispassionate manner," as set forth in 16 § 2402(c)(1)(B). 17 received one CDC-115 and three CDC-128-A's since his previous 18 parole hearing, and that this also supported the Board's finding 19 that Petitioner was unsuitable for parole based on his poor 20 institutional behavior, as set forth in § 2402(c)(6). 21 314.) 22 justify postponing parole for four years using the same factors it 23 had used to justify denial of parole. 24 (Id.) (Id.) It found that this supported The court also found that Petitioner had (Id. at 313- The court also concluded that it was proper for the Board to (Id. at 314.) On November 30, 2007, Petitioner raised the same claims in his 25 state habeas petition to the California court of appeal, which 26 summarily denied it on December 13, 2007. 27 App. Pet.; Resp't's Ex. 4, Ct. App. Order.) 28 7 (Resp't's Ex. 3, Ct. Petitioner then filed United States District Court For the Northern District of California 1 a petition for review with the California Supreme Court, which 2 summarily denied it on February 27, 2008. 3 Resp't's Ex. 6.) 4 state court remedies. 5 Petitioner timely filed this federal habeas petition. (Resp't's Ex. 5; Respondent concedes that Petitioner exhausted his (Resp't's Answer at 2.) On April 11, 2008, 6 LEGAL STANDARD 7 Under the Antiterrorism and Effective Death Penalty Act of 8 1996 (AEDPA), a district court may not grant habeas relief unless 9 the state court's adjudication of the claim: “(1) resulted in a 10 decision that was contrary to, or involved an unreasonable 11 application of, clearly established Federal law, as determined by 12 the Supreme Court of the United States; or (2) resulted in a 13 decision that was based on an unreasonable determination of the 14 facts in light of the evidence presented in the State court 15 proceeding.” 16 362, 412 (2000). 17 and to mixed questions of law and fact, Williams, 529 U.S. at 18 407-09, and the second prong applies to decisions based on factual 19 determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 20 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. The first prong applies both to questions of law A state court decision is “contrary to” Supreme Court 21 authority, that is, falls under the first clause of § 2254(d)(1), 22 only if “the state court arrives at a conclusion opposite to that 23 reached by [the Supreme] Court on a question of law or if the state 24 court decides a case differently than [the Supreme] Court has on a 25 set of materially indistinguishable facts.” 26 412-13. 27 Supreme Court authority, under the second clause of § 2254(d)(1), 28 Williams, 529 U.S. at A state court decision is an “unreasonable application of” 8 1 if it correctly identifies the governing legal principle from the 2 Supreme Court's decisions but “unreasonably applies that principle 3 to the facts of the prisoner's case.” 4 court on habeas review may not issue the writ “simply because that 5 court concludes in its independent judgment that the relevant 6 state-court decision applied clearly established federal law 7 erroneously or incorrectly.” 8 must be “objectively unreasonable” to support granting the writ. 9 Id. at 409. United States District Court For the Northern District of California 10 Id. at 413. Id. at 411. The federal Rather, the application “Factual determinations by state courts are presumed correct 11 absent clear and convincing evidence to the contrary.” 12 537 U.S. at 340. 13 evidence to overcome § 2254(e)(1)'s presumption of correctness; 14 conclusory assertions will not do. 15 Court law is binding on the states, Ninth Circuit precedent remains 16 relevant persuasive authority in determining whether a state court 17 decision is objectively unreasonable. 18 1062, 1069 (9th Cir. 2003). 19 Miller-El, A petitioner must present clear and convincing Id. Although only Supreme Clark v. Murphy, 331 F.3d When there is no reasoned opinion from the highest state court 20 to consider the petitioner's claims, the court looks to the last 21 reasoned opinion to analyze whether the state judgment was 22 erroneous under the standard of § 2254(d). 23 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 24 1079 n.2 (9th Cir. 2000). 25 court to address the merits of Petitioner's claim is the Los 26 Angeles County superior court. In the present case, the only state 27 28 Ylst v. Nunnemaker, 501 9 1 2 DISCUSSION I. United States District Court For the Northern District of California 3 Jurisdiction Respondent argues that the Court does not have subject matter 4 jurisdiction on the ground that the denial of state parole does not 5 affect a liberty interest protected by the United States 6 Constitution. 7 contention that California prisoners have no liberty interest in 8 parole and thus have no federal due process rights in connection 9 with parole eligibility. The Ninth Circuit, however, has rejected the See Sass v. California Bd. of Prison 10 Terms, 461 F.3d 1123, 1128 (9th Cir. 2006). 11 has subject matter jurisdiction, under 28 U.S.C. § 2254, to decide 12 whether Petitioner's Fourteenth Amendment right to due process was 13 violated by the Board's determination that he was not suitable for 14 parole. 15 II. Therefore, the Court Due Process Claims 16 A. 17 Petitioner argues that the Board's decision denying parole 18 violated his due process rights because it was not supported by 19 some evidence and, therefore, was arbitrary. 20 clearly established that a parole board's decision deprives a 21 prisoner of due process with respect to his constitutionally 22 protected liberty interest in a parole release date if the board's 23 decision is not supported by "some evidence in the record," or is 24 "otherwise arbitrary." 25 Superintendent v. Hill, 472 U.S. 445, 457 (1985)). 26 of the entire record is not required nor is an independent weighing 27 of the evidence. 28 "Some Evidence" Test Id. The Supreme Court has Sass, 461 F.3d at 1128 (citing An examination The "some evidence" standard is minimal, and 10 1 assures that "the record is not so devoid of evidence that the 2 findings of the disciplinary board were without support or 3 otherwise arbitrary." 4 U.S. at 457). 5 evidence in the record that could support the conclusion reached by 6 the administrative board. United States District Court For the Northern District of California 7 Sass, 461 F.3d at 1129 (quoting Hill, 472 The relevant question is whether there is some Hill, 472 U.S. at 455. When assessing whether a state parole board's unsuitability 8 determination is supported by “some evidence,” the court's analysis 9 is framed by the guidelines set forth in the statutes and 10 regulations governing parole suitability determinations in the 11 relevant state. 12 "Regardless of the length of time served, a life prisoner shall be 13 found unsuitable for and denied parole if in the judgment of the 14 [Board] the prisoner will pose an unreasonable risk of danger to 15 society if released from prison." 16 § 2402(a). 17 reliable information available," such as: 18 19 20 21 22 23 24 Sass, 461 F.3d at 1128. California law provides, Cal. Code Regs. tit. 15, The Board is required to consider "all relevant, 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 a finding of unsuitability. 25 Cal. Code Regs. tit. 15, § 2402(b). 26 Circumstances tending to show unsuitability for parole include 27 28 11 1 the nature of the commitment offense and whether “[t]he prisoner 2 committed the offense in an especially heinous, atrocious or cruel 3 manner.” 4 consideration of the number of victims, whether “[t]he offense was 5 carried out in a dispassionate and calculated manner,” whether the 6 victim was “abused, defiled or mutilated during or after the 7 offense,” whether “[t]he offense was carried out in a manner which 8 demonstrates an exceptionally callous disregard for human 9 suffering,” and whether “[t]he motive for the crime is inexplicable United States District Court For the Northern District of California 10 11 Cal. Code Regs. tit. 15, § 2402(c). or very trivial in relation to the offense.” This includes Id. Other circumstances tending to show unsuitability for parole 12 are a previous record of violence, an unstable social history, 13 previous sadistic sexual offenses, a history of severe mental 14 health problems related to the offense, and serious misconduct in 15 prison or jail. 16 Id. In contrast, circumstances tending to support a finding of 17 suitability for parole include no juvenile record, a stable social 18 history, signs of remorse, that the crime was committed as a result 19 of significant stress in the prisoner's life, a lack of criminal 20 history, a reduced possibility of recidivism due to the prisoner's 21 present age, that the prisoner has made realistic plans for release 22 or has developed marketable skills that can be put to use upon 23 release, and that the prisoner's institutional activities indicate 24 an enhanced ability to function within the law upon release. 25 Code Regs. tit. 15, § 2402(d). Cal. 26 Applying these guidelines here, there is some evidence to 27 support the Board's finding that Petitioner was unsuitable for 28 12 1 parole. 2 unreasonable risk of danger to society or a threat to public safety 3 if released from prison" was supported by its finding that 4 Petitioner and his co-defendants had carried out the commitment 5 offense in an "especially cruel and callous manner." 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 The Board's determination that Petitioner "would pose an Id. [Petitioner] and his crime partners went to . . . a residential neighborhood and proceeded to open fire with an AK-47 and a nine millimeter gun. The offense was carried out in a calculated manner, in that . . . [Petitioner] and his crime partner armed themselves and went to the scene with sophisticated and high powered weapons. The offense was carried [out] in a manner which . . . demonstrates an exceptionally callous disregard to human suffering in that . . . there is no telling what other individuals could've been in the area . . . that might have been affected or even injured by this spray of bullets. [T]here was evidence of 20 rounds being fired from the nine millimeter gun that [Petitioner] used. And the motive for the crime [was] very trivial [in] relation to the offense in that it appears from the record that it was some type of gang activity. Id. at 66-67. In addition to the nature and circumstances of the commitment 17 offense, the Board considered other parole unsuitability factors, 18 such as Petitioner's juvenile record of two convictions for 19 carrying a concealed weapon in 1985 and 1986 and his misconduct 20 while incarcerated, citing his "three 128a counseling chronos and 21 one serious 115," all of which he received since his previous 22 parole hearing in 2003.3 23 Despite the evidence that the Board cited to support its 24 25 26 27 28 3 According to the Board, Petitioner received three CDC-128-A's and one CDC-115 disciplinaries between his 2003 and 2005 parole hearings. The Court finds evidence in the record of two CDC-128A's and one CDC-115, which leaves one CDC-128A unaccounted for. 13 United States District Court For the Northern District of California 1 decision, Petitioner argues that his young age at the time of the 2 commitment offense, the district attorney's plea bargain offer of 3 manslaughter, and the fact that none of his disciplinary violations 4 was violent justify granting parole. 5 evidence already considered by the Board. 6 39, 42 (9th Cir. 1994). 7 the record supports the minimally stringent "some evidence" 8 standard. 9 that Petitioner "would pose an unreasonable risk of danger to Id. The Court cannot re-weigh Powell v. Gomez, 33 F.3d Instead, the Court looks only to see if Because some evidence supports the Board's finding 10 society" and was, therefore, "not suitable for parole," the Board's 11 decision complied with the requirements of due process in 12 accordance with the Ninth Circuit's holding in Sass. 13 1128. 14 contrary to, or an unreasonable application of, clearly established 15 federal law. 16 B. 17 Citing Biggs v. Terhune, 334 F.3d 910, 915-16 (9th Cir. 2003), 461 F.3d at Therefore, the state court's denial of this claim was not Immutable Circumstances 18 Petitioner argues that, in denying parole, the Board violated his 19 right to due process by relying on the immutable circumstances of 20 the commitment offense. 21 denial of parole based solely on the gravity of the commitment 22 offense can initially satisfy due process requirements. 23 916. 24 reliance in the future on an unchanging factor, the circumstance of 25 the offense and conduct prior to imprisonment, runs contrary to the 26 rehabilitative goals espoused by the prison system and could result 27 in a due process violation." 28 In Biggs, the Ninth Circuit found that the Id. at However, in dicta, the Biggs court stated that "continued Id. at 917. 14 United States District Court For the Northern District of California 1 The Ninth Circuit has not specified the number of denials or 2 the length of time served beyond the minimum sentence that would 3 constitute a due process violation. 4 by the Board three times. 5 Eastern District of California granted a habeas petition 6 challenging the Board's denial of parole after a similar number of 7 parole hearings where the petitioner had served sixteen years of a 8 seventeen-years-to-life sentence for second degree murder with a 9 two-year enhancement for use of a firearm where all factors Petitioner was denied parole In Irons v. Carey, a court in the 10 indicated suitability for parole; the Ninth Circuit reversed. 11 F. Supp. 2d 936, 947 (E.D. Cal. 2005), rev'd, 505 F.3d 846 (9th 12 Cir. 2007) (given the egregiousness of the commitment offense, due 13 process not violated when Board deemed petitioner unsuitable for 14 parole prior to expiration of his minimum term). 15 358 In another case, a court in the Eastern District granted a 16 habeas petition, finding a due process violation in the denial of 17 parole at the petitioner's twelfth parole suitability hearing after 18 he had served twenty-four years of a sentence of life with the 19 possibility of parole for first degree murder where all factors 20 indicated suitability for parole. 21 12 (E.D. Cal. 2006); appeal docketed, No. 06-17042 (9th Cir. Oct. 22 30, 2006). 23 Johnson v. Finn, 2006 WL 195159, Here, the state court correctly found that the Board relied on 24 more than the "unchanging factor" of Petitioner's commitment 25 offense and criminal history in denying him parole. 26 "cruel and callous" nature of Petitioner's commitment offense 27 factored into the Board' determination, Petitioner's disciplinaries 28 15 Although the 1 since his prior parole hearing also weighed heavily against parole. 2 Pet.'s Ex. A, 2005 Parole Bd. Hr'g at 71. 3 all of Petitioner's self-help achievements would be "zeroed out" as 4 long as he continued to receive disciplinaries between parole 5 hearings. 6 this claim was not contrary to, or an unreasonable application of, 7 clearly established federal law. 8 United States District Court For the Northern District of California 9 Id. The Board stated that Based on the foregoing, the state court's denial of The Ninth Circuit's evolving guidance in Biggs, Sass, and Irons suggests that the Board may continue to evaluate static 10 factors, including the nature of the commitment offense and 11 pre-conviction criminality, in deciding whether to grant parole. 12 See Sass, 461 F.3d at 1129. 13 immutable events, however, should decrease as a predictor of future 14 dangerousness as the years pass and the prisoner demonstrates 15 favorable behavior. 16 at 851. 17 a positive disciplinary record, continued parole denials based on 18 Petitioner's commitment offense alone could eventually give rise to 19 a due process violation. The weight to be attributed to those See Biggs, 334 F.3d at 916-17; Irons, 505 F.3d Should Petitioner follow the Board's advice by maintaining See Biggs, 334 F.3d at 916-17. 20 C. 21 Petitioner also claims that the state court erred in that it Four-Year Parole Denial 22 failed to address the merits of the Board's four-year parole 23 denial. 24 the proposition that this four-year denial constitutes a violation 25 of his due process or other federal rights. 26 court's decision not to address this claim was not contrary to, or 27 an unreasonable application of, clearly established federal law. 28 Petitioner, however, cites no controlling authority for 16 Therefore, the state 1 United States District Court For the Northern District of California 2 III. Vagueness Petitioner argues that the state court's decision was based on 3 an unconstitutionally vague parole regulation. 4 Petitioner challenges the court's reliance on § 2402(c)(1), which 5 provides that a prisoner may be unsuitable for parole where the 6 underlying offense was committed "in an especially heinous, 7 atrocious, or cruel manner." 8 court's reliance on this language was contrary to clearly 9 established federal law because the Supreme Court has held similar 10 statutory and regulatory language to be unconstitutionally vague. 11 See Maynard v. Cartwright, 486 U.S. 356, 361-64 (1988) (striking 12 down an aggravating circumstance statutory provision that permitted 13 juries to consider whether a murder was "especially heinous, 14 atrocious, or cruel"). 15 Specifically, According to Petitioner, the state Vagueness challenges made under the Due Process Clause "rest 16 on the lack of notice." 17 out that a statute or regulation is unconstitutionally vague "if it 18 fails to give adequate notice to people of ordinary intelligence 19 concerning the conduct it proscribes, or if it invites arbitrary 20 and discriminatory enforcement." 21 F.2d 630, 634 (9th Cir. 1989). 22 regulations that do not threaten First Amendment rights, such as 23 this one, are analyzed on an as-applied basis. 24 at 361. 25 provided Petitioner with adequate notice and the state court with 26 adequate guidance. 27 28 Id. at 361. Petitioner correctly points United States v. Doremus, 888 Vagueness challenges to statutes or Maynard, 486 U.S. Thus, the issue before the Court is whether § 2402(c)(1) This issue was addressed in McCottrell v. Ayers, 2007 WL 17 United States District Court For the Northern District of California 1 4557786 at *9-10 (N.D. Cal.). 2 was deemed unsuitable for parole based, in part, on the "heinous, 3 atrocious, and cruel" nature of his commitment offense. 4 inmate argued that the language "heinous, atrocious, and cruel," 5 contained in § 2281(c)(1), was unconstitutionally vague. 6 court disagreed and held that the language was properly clarified 7 by the five sub-factors set forth in §§ 2281(c)(1)(A)-(E), which 8 include: (A) whether multiple victims were attacked; (B) whether 9 the offense was carried out in a dispassionate and calculated In McCottrell, a California inmate The Id. Id. The 10 manner; (C) whether the victim was abused, defiled or mutilated 11 during the offense; (D) whether the offense was carried out in a 12 manner which demonstrates an exceptionally callous disregard for 13 human life; or (E) whether the motive for the crime is very trivial 14 in relation to the offense. 15 to those which are set forth in §§ 2402(c)(1)(A)-(E) and which 16 guided the Board's determination that Petitioner was unsuitable for 17 parole. Id. These sub-factors are identical 18 The Court is persuaded by the reasoning in McCottrell. 19 statute at issue in Maynard, the case Petitioner cites in support 20 of his argument, is distinguishable from § 2402(c)(1). 21 the court struck down the "especially heinous, atrocious, or cruel" 22 aggravating circumstance provision in Oklahoma's capital punishment 23 statute, holding that it was unconstitutionally vague because it 24 failed to guide the jury's discretion in determining whether to 25 impose the death penalty. 26 limit the construction of "especially heinous, atrocious, or cruel" 27 offenses to those characterized by five clearly defined sub- 28 Id. The In Maynard, In contrast, §§ 2402(c)(1)(A)-(E) 18 1 United States District Court For the Northern District of California 2 factors. Further, because these sub-factors are set forth in simple 3 plain words, such that a reasonable person of ordinary intelligence 4 would understand their meaning and the conduct they proscribe, the 5 notice requirement is satisfied. 6 F. 2d 1503, 1504 (9th Cir. 1985)(ruling that a defendant is deemed 7 to have fair notice of an offense if a reasonable person of 8 ordinary intelligence would understand that his or her conduct is 9 prohibited by the rule in question). See United States v. Hogue, 752 And, as to the enforcement 10 requirement, the state court concluded that the Board properly 11 found that the commitment offense satisfied one of the sub-factors 12 in that it had been carried out in a "calculated and dispassionate 13 manner." 14 E, Super. Ct. Decision at 1. 15 cited the Board's finding that Petitioner and his co-defendants 16 arrived heavily armed, with the intent to confront the rival gang 17 members and retaliate for a prior assault by that gang. 18 court also noted, "Although Petitioner did not actually shoot the 19 victim and claims that he only fired shots at the ground and in the 20 air, he was acting in concert with his co-defendants and, 21 therefore, their actions are imputed to him. 22 were going to the location to confront the rival gang members and 23 brought a gun for that purpose." 24 2402(c)(1) was not unconstitutionally vague as applied to 25 Petitioner's case. 26 claim was not contrary to, or an unreasonable application of, 27 clearly established federal law. 28 See Cal. Code. Regs. tit. 15 § 2402(c)(1)(B); Pet.'s Ex. In support of this, the state court Id. Id. The Petitioner knew they Based on the foregoing, § Therefore, the state court's denial of this 19 1 2 CONCLUSION For the foregoing reasons, the petition for a writ of habeas 3 corpus is DENIED. 4 close the file. 5 The Clerk of the Court shall enter judgment and IT IS SO ORDERED. 6 7 Dated: 6/30/09 CLAUDIA WILKEN United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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