Liebb v. Ayers, No. 4:2008cv02643 - Document 9 (N.D. Cal. 2009)
Court Description: ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 12/2/09. (scc, COURT STAFF) (Filed on 12/2/2009)
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Liebb v. Ayers Doc. 9 1 IN THE UNITED STATES DISTRICT COURT 2 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 No. C 08-02643 CW STEPHEN LIEBB, 6 7 8 v. R. AYERS JR., 9 Respondent. / United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 On May 27, 2008, Petitioner Stephen Liebb, proceeding pro se, filed the present petition for a writ of habeas corpus pursuant to title 28 U.S.C. § 2254, challenging as a violation of his constitutional rights a denial of parole by the Board of Parole Hearings (Board) on September 26, 2007.1 answer. 21 22 23 24 Respondent has filed an Petitioner, now represented by counsel, has filed a traverse. Having considered all of the papers filed by the parties, the Court grants the petition. 19 20 ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS Petitioner, BACKGROUND A Los Angeles County jury found Petitioner guilty of first degree murder with the use of a deadly weapon (a knife) in violation of California Penal Code §§ 187 and 12022(b) (Count 1). The jury also found Petitioner guilty of assault with a deadly weapon in violation of California Penal Code § 245 (Count 2). The 25 26 1 27 28 Petitioner also challenges the Board's decision to deny parole for two years. In light of the fact that the Court grants the petition for a writ of habeas corpus, it does not address this claim. Dockets.Justia.com United States District Court For the Northern District of California 1 court sentenced Petitioner to twenty-five years to life in prison 2 for the murder, plus a one year enhancement for the use of a knife, 3 and a concurrent sentence of three years in prison for the assault. 4 Petitioner’s minimum eligible parole date was January 14, 1997. 5 On September 26, 2007, Petitioner was found unsuitable for 6 parole for the fifth time,2 for a two-year period. 7 Transcript of September 26, 2007 Board Hearing (Tr.) at 212. 8 December 5, 2007, Petitioner filed, in the California superior 9 court, a petition for a writ of habeas corpus challenging the Pet'r Ex. E, On 10 Board's 2007 parole suitability decision. 11 February 5, 2008, in a reasoned decision, the superior court denied 12 the petition. 13 a writ of habeas corpus in the California court of appeal. 14 Ex. 3. 15 5, 2008. 16 review in the California Supreme Court, which summarily denied it 17 on March 14, 2008. 18 Resp't Ex. 2. Resp't Ex. 1. On Petitioner then filed a petition for Resp't The court of appeal summarily denied the petition on March Resp't Ex. 4. Petitioner then filed a petition for Resp't Exs. 5 and 6. At Petitioner's 2007 parole suitability hearing, the Board 19 described the facts of the murder and assault, which it took from 20 the appellate court decision on direct appeal. 21 Petitioner became embroiled in a series of business disputes with 22 the family and friends of the victim, Michael Diller. 23 Joe Gold, a friend of the family, hitting him fifteen times on the 24 head with a bat. To summarize, He assaulted He also hit Michael Diller’s brother, Arthur. 25 26 27 28 2 The Board found Petitioner unsuitable for parole in 1996, 2000, 2003 and 2006. Petitioner challenged the 2003 parole denial in Liebb v. Brown, 04-4213 CW, and his petition was denied by this Court. Petitioner filed a pro se petition challenging the 2006 parole denial in Liebb v. Ayers, 07-5577 CW. This case is pending. 2 United States District Court For the Northern District of California 1 Later, in a telephone call with the Diller brothers’ mother, he 2 threatened the Diller family. 3 Petitioner. 4 breaking his nose and causing injuries requiring stitches. 5 Subsequently, Petitioner confronted Michael Diller, who was in a 6 car with a female friend. 7 it open before Michael’s friend could close it, jumped on the 8 friend’s lap and hit her and Michael. 9 and Petitioner grabbed the wheel, causing the car to crash into a The next morning, Arthur confronted They fought, and Petitioner hit Arthur with a pipe, Petitioner grabbed the car door, pulled Michael accelerated the car 10 building. 11 and ran towards a park, with Petitioner chasing him. 12 to the park office and dove through a half-open window. 13 lay on the window sill of the park office, facing Michael. 14 Petitioner had a knife, and Michael grabbed it, cutting his hand. 15 Petitioner pulled the knife away from Michael, stabbed him in the 16 chest and then ran. 17 medical examiner testified that Michael died of loss of blood and a 18 stab wound through his lung and heart. 19 three-quarter-inch blade, had been given a hard thrust and twisted 20 inside Michael’s chest. 21 After the crash, Michael jumped out of the driver’s side Michael died shortly thereafter. Michael ran Petitioner The deputy The knife, a three-and- Petitioner explained to the Board his version of the events 22 that led to the commitment offense. 23 bad decisions. . . . And I was just angry, you know, at everything 24 that was happening. . . . without expressing it to anybody . . . I 25 guess I wanted more understanding.” 26 that, because he had made a derogatory remark about Arthur Diller’s 27 sister, Arthur would be coming after him. 28 did come for Petitioner with a pipe, but Petitioner was able to 3 He said that he “was making Tr. at 42. Petitioner assumed Tr. at 48-49. Arthur 1 pull it away from him and he hit Arthur with his fist. United States District Court For the Northern District of California 2 Tr. at 49. After the incidents with Joe Gold and Arthur Diller, 3 Petitioner expected to have “problems” so he bought a knife from a 4 sporting goods store. 5 Petitioner was riding his motorcycle and saw Michael Diller driving 6 his car. 7 going on because I just got anxiety . . . and if they’re coming 8 after me. . . . I wanted to confront him with this because I 9 wrongly blamed him for, what I realize today, and what I didn’t Tr. at 53. Tr. at 51. On the day of the homicide, Petitioner didn’t “want this thing to keep 10 realize then [inaudible] that I blamed him for the pain I was 11 feeling and my anger.” 12 thinking when he jumped into Michael’s car on top of the girl and 13 grabbed the steering wheel. 14 to kill Michael when he stabbed him. Tr. at 56. Petitioner really wasn’t Tr. at 58. Petitioner didn’t intend Tr. at 59. 15 The Board considered the following facts regarding 16 Petitioner's background before and after he was incarcerated. 17 Petitioner grew up in a supportive, loving, middle-class 18 family and has four siblings. 19 Psychological Report by Dr. Kristin Hibbard, Ph.D, Clinical 20 Forensic Psychologist (Hibbard Rep’t) at 3. 21 Orthodox Jewish and very strictly followed those religious beliefs. 22 Id. 23 arts degree and a law degree and passed the California bar 24 examination. 25 attorney at the time of the commitment offense. 26 of his free time involved in physical activities such as body 27 building and running marathons. 28 prior to the commitment offense. Pet's Ex. H, September 7, 2007 His family was Prior to his incarceration, Petitioner earned a bachelor of Id. He then joined a law firm and was working as an Id. Id. 4 Id. He spent most He had never been arrested He has no record of alcohol 1 or drug abuse or mental health problems. 2 Petitioner's disciplinary history while incarcerated consisted 3 of two rules violation reports (CDC-115) and one disciplinary memo 4 (CDC-128A). 5 for refusing to work for religious reasons. 6 115 was issued on March 26, 1989 for fighting with another inmate. 7 Id. 8 work for religious reasons. 9 United States District Court For the Northern District of California Id. at 3, 5. Tr. at 97-98. A CDC-115 was issued on July 7, 1990 Id. The second CDC- His CDC-128A was issued on June 22, 1991, also for refusing to Tr. at 98. In the previous Board decision, issued on July 27, 2006, it 10 had found that, although Petitioner had “programmed extremely 11 well,” he had not been involved with self-help programs until three 12 years before the hearing. 13 discipline-free, continue to participate in self-help, and continue 14 to go the routes that you’re going right now.” 15 Transcript of July, 2006 Decision at 2-4. 16 Board noted that, since the 2006 hearing, Petitioner had 17 participated in self-help programs including the IMPACT program, 18 yoga, the Friends Outside parenting class and non-violent 19 communication classes. 20 in 1985, he had taken self-help classes in subjects such as 21 parenting, insight and meditation, yoga, men’s ethics and creative 22 conflict resolution. 23 academic classes through Patten College in English, biology, 24 business, literature, electronics, economics, Spanish and paralegal 25 studies. 26 received a certificate. 27 received many laudatory chronos and letters from correctional 28 officers, teachers, and chaplains. Tr. at 82. The Board advised him to “remain Tr. at 75-77. Pet’s Ex. E, At the 2007 hearing, the It also noted that, starting Tr. at 75-76, 82-83. Petitioner also took He completed the paralegal program and Tr. at 82. 5 Beginning in 1984, Petitioner Tr. at 76, 82-83. United States District Court For the Northern District of California 1 The Board reviewed several psychological evaluations of It quoted from a July 20, 20063 psycho-social 2 Petitioner. 3 assessment by psychologist Michel Lynn Inaba, Ph.D, which noted 4 that Petitioner had insight into the external forces that were 5 operating at the time of the offense, but had less understanding of 6 the internal dynamics that contributed to the murder. 7 Dr. Inaba also noted that Petitioner expressed remorse for his 8 crime and had "some insight into the attitudes and behavior that 9 led to his crime. Tr. at 86. He acknowledges that he was the aggressor in the 10 killing and that his victim had not threatened him in any way." 11 Tr. at 86-87. 12 Petitioner would engage in violence again was low. 13 Inaba noted that Petitioner did not have any record of violence 14 prior to the murder and the violent incidents that preceded it, and 15 that Petitioner had not received a rules violation in the prison 16 since 1991. 17 there is no reason to believe that his risk for future violence 18 would be greater than that of the average parolee. 19 means to support himself in the community without resorting to 20 criminal behavior. 21 work performance and supportive family members. 22 comply with all conditions of parole. . . . Given that there is no 23 clear motivation for Mr. Liebb's unprovoked pursuit and stabbing of 24 the victim, it would be beneficial for Mr. Liebb to obtain therapy 25 to further explore the reasons for the fatal assault as well as 26 other instances of assaultive behavior. . . . He has gained a sense Dr. Inaba opined that the actuarial probability that Tr. at 91. Dr. Dr. Inaba concluded, "If released to the community, He has the Mr. Liebb has job skills, a history of good He's willing to 27 3 28 It appears that the Board misstated the date of this report as July 20, 2004. 6 1 of purpose while incarcerated by assisting other inmates with legal 2 matters. 3 would appear that he is better able to tolerate insults, has a 4 better sense of who he is, and is more sensitive to the needs of 5 others." United States District Court For the Northern District of California 6 He also uses writing as a means of self-expression. It Tr. at 93-94. The Board reviewed the September 7, 2007 report of Dr. Kristin 7 Hibbard, which concluded that "the inmate presents as a very low 8 risk of recidivism or risk to participate in any anti-social or 9 criminal behavior in the future. Risk factors that would lead to 10 an anti-social, criminal, or dangerous behavior are virtually 11 absent. 12 headed individual who is dedicated strongly to his spirituality. 13 It is highly unlikely that he would encounter any difficulties 14 within the community that he is not equipped to handle, nor is 15 there any evidence historically of any anti-social behavior prior 16 to the encapsulated time period surrounding his crime. 17 and insight that he has gained, as well as the person he is, give 18 him ample coping skills. . . . 19 he be considered for release into the community. . . " 20 99. 21 In summary, Mr. Liebb is an unusually stable and level- The tools It is strongly recommend [sic] that The Board reviewed Petitioner’s parole plans. Tr. at 98- It noted that 22 he had been accepted into the San Francisco Muslim Community Center 23 supportive living program with services that include room and 24 board, residential treatment, job referrals, substance abuse 25 programs and cognitive restructuring workshops. 26 Petitioner had offers of employment as a paralegal in a private law 27 firm and with the California Prison Focus program. 28 The Board noted that Petitioner had accomplished all the 7 Tr. at 114. Tr. at 115. 1 suggestions given by the 2006 Board that had denied parole, in that 2 he had remained discipline-free and had continued with self-help 3 programs including non-violent communication and yoga. 4 35. 5 The Board also noted that the Beverly Hills police department 6 was opposed to Petitioner being found suitable for parole. 7 126. 8 statement opposing parole. 9 victim's brother, made an impassioned plea against Petitioner's 10 United States District Court For the Northern District of California Tr. at 131- The deputy district attorney who prosecuted Petitioner made a parole. 11 Tr. at Tr. at 140-61. Arthur Diller, the Tr. at 173-94. The Board found that Petitioner was unsuitable for parole 12 because he would pose an unreasonable risk of danger to society if 13 released from prison. 14 its finding that the commitment offense was carried out in an 15 especially cruel and callous manner. 16 psychological reports were of "grave concern" to the Board. 17 198. 18 psychiatrist Marjorie Tavoularis, which concluded that Petitioner's 19 potential for violence was above average and that he had a 20 potential for predatory violence. 21 Inaba's 2006 report that Petitioner had insight into the external, 22 but not the internal forces that contributed to the commitment 23 offense. Tr. at 195. The Board primarily relied upon Tr. at 196. The Tr. at The Board cited a 1992 psychological report by senior Tr. at 203. The Board cited Dr. Tr. at 204.4 24 25 26 27 28 4 In a separate decision, the Board found it not reasonable to expect that parole would be granted for two more years. Tr. at 199. For this decision, the Board relied on its finding that Petitioner was emotional when discussing the losses of his family members, but displayed a “very dry affect” with respect to the victim and his family. Tr. at 202. By dry affect, the Board meant (continued...) 8 1 2 participation in self-help programs. 3 to participate in more self-help and to continue to read, and that 4 he would benefit from some therapy, even though it was aware that 5 therapy was limited in the institutional setting in which 6 Petitioner was incarcerated. 7 United States District Court For the Northern District of California The Board found that Petitioner had only recently stepped up It concluded that he needed Tr. at 212. The state habeas court, in a two-page opinion, affirmed the 8 Board's decision, acknowledging that the Board based its decision 9 primarily on the commitment offense. Resp't Ex. 2 at 1. The court 10 found that there was some evidence to support the Board's finding 11 that Petitioner presents an unreasonable risk of danger to society 12 and is unsuitable for parole. 13 evidence to support the Board’s finding that the commitment offense 14 was carried out in a dispassionate and calculated manner, that the Id. The court also found some 15 4 16 17 18 19 20 21 22 23 24 25 26 27 28 (...continued) that Petitioner said the right words, but displayed little emotion. Tr. at 202. The Board was concerned whether Petitioner was being honest and noted that "there is still some resistance on your part [] to actually discuss this crime in terms of what this really was, and that calls into question if you do understand the nature and magnitude of this crime." Tr. at 202. The Board also was concerned that, in his discussion of the circumstances leading up to the commitment offense, Petitioner did not describe his relationships with some of the major players nor did he describe his relationships with women or his mother, although the Board noted that it had not questioned him about this area of his life. Tr. at 204. The Board was also concerned with the fact that Petitioner's description of the stabbing was non-emotional and clinical and that it was hard to believe Petitioner's description that the victim grabbed the knife with his hand; the Board felt the wounds on the victim's hands were defensive wounds he received when he was trying to protect himself from being stabbed. Tr. at 205. The Board found that Petitioner's statement to the victim after the stabbing, that "I never did anything to you or your family," was outrageous. Tr. at 205. The Board also found unbelievable Petitioner's statement that he was not aware that the wound he inflicted on the victim was fatal. Tr. at 206. The Board also highlighted Dr. Inaba's comment that Petitioner would benefit from therapy to explore the reasons for his assaultive behavior because there is no clear motivation for Petitioner's attack. Id. 9 1 crime was premeditated, that the motive for the crime--business 2 disputes with the victim’s family–-was trivial in relation to the 3 offense. 4 Rule 115 violation that involved violence while he was in prison. 5 Id. at 2. Id. at 1-2. 6 7 United States District Court For the Northern District of California 8 The court also noted that Petitioner had one DISCUSSION I. Standard of Review Because this case involves a federal habeas corpus challenge 9 to a state parole eligibility decision, the applicable standard is 10 contained in the Antiterrorism and Effective Death Penalty Act of 11 1996 (AEDPA). 12 2002). 13 McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. Under AEDPA, a district court may not grant habeas relief 14 unless the state court's adjudication of the claim: "(1) resulted 15 in a decision that was contrary to, or involved an unreasonable 16 application of, clearly established Federal law, as determined by 17 the Supreme Court of the United States; or (2) resulted in a 18 decision that was based on an unreasonable determination of the 19 facts in light of the evidence presented in the State court 20 proceeding." 21 362, 412 (2000). 22 the state court's factual findings. 23 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. A federal court must presume the correctness of 28 U.S.C. § 2254(e)(1). In determining whether the state court's decision is contrary 24 to, or involved an unreasonable application of, clearly established 25 federal law, a federal court looks to the decision of the highest 26 state court to address the merits of a petitioner's claim in a 27 reasoned decision. 28 Cir. 2000). LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Here, the highest state court to address the merits of 10 United States District Court For the Northern District of California 1 Petitioner's claim is the superior court. 2 II. Analysis 3 Petitioner argues that he was deprived of due process because 4 (1) the Board and the superior court applied an erroneous standard 5 of parole suitability and (2) the parole denial was not supported 6 by any evidence of current dangerousness. 7 (1) there is no federally protected liberty interest in parole, and 8 thus Petitioner has not stated a federal question invoking this 9 Court's jurisdiction, (2) even if there is a federal liberty Respondent argues that 10 interest in parole, under Greenholtz v. Inmates of Neb. Penal Corr. 11 Complex, 442 U.S. 1, 16 (1979), Petitioner received all due process 12 to which he is entitled, and (3) even if the “some evidence” 13 standard of review applies, the Board and superior court decisions 14 were supported by some evidence that Petitioner remained a danger 15 to public safety. 16 The United States Supreme Court has clearly established that a 17 parole board's decision deprives a prisoner of due process with 18 respect to his constitutionally protected liberty interest in a 19 parole release date if the board's decision is not supported by 20 "some evidence in the record," or is "otherwise arbitrary." 21 v. California Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 22 2006) (citing Superintendent v. Hill, 472 U.S. 445, 457 (1985)). 23 Sass In his argument that California inmates do not have a 24 federally protected liberty interest in parole release, Respondent 25 claims that the Ninth Circuit's holding to the contrary in Sass is 26 not clearly established federal law for the purposes of AEDPA. 27 However, this Court is bound by Ninth Circuit authority. 28 Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) (all California 11 See also, 1 prisoners whose sentences provide for the possibility of parole are 2 vested with a constitutionally protected liberty interest in the 3 receipt of a parole release date, a liberty interest that is 4 protected by the procedural safeguards of the Due Process Clause); 5 McQuillion v. Duncan, 306 F.3d 895, 898 (9th Cir. 2002) ("under 6 clearly established Supreme Court precedent, the parole scheme in 7 California . . .[gives] rise to a constitutionally protected 8 liberty interest"). 9 no liberty interest in parole fails. United States District Court For the Northern District of California 10 Therefore, Respondent's argument that there is Citing Greenholtz, 442 U.S. at 16, Respondent argues that, 11 because due process only entitles Petitioner to an opportunity to 12 present his case and an explanation of why the Board denied parole, 13 Petitioner received all process due in the parole context under 14 federal law. 15 argument, holding that the minimal “some evidence” standard 16 announced in Hill, 472 U.S. at 457, applies in the parole context, 17 reasoning that "to hold that less than the some evidence standard 18 is required would violate clearly established federal law because 19 it would mean that a state could interfere with a liberty interest 20 --that in parole--without support or in an otherwise arbitrary 21 manner." 22 the Ninth Circuit was aware of Greenholtz when it held that the 23 “some evidence” standard applies to parole board decisions. 24 Therefore, Respondent's argument based on Greenholtz fails. 25 In Sass, the Ninth Circuit directly addressed this Sass, 461 F.3d at 1129. Greenholtz predates Sass, and When assessing whether a state parole board's suitability 26 determination was supported by "some evidence," the court's 27 analysis is framed by the statutes and regulations governing parole 28 suitability determinations in the relevant state. 12 Id. at 1128; 1 Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007). 2 California, the court must look to California law to determine the 3 findings that are necessary to deem a prisoner unsuitable for 4 parole, and then must review the record to determine whether the 5 state court decision constituted an unreasonable application of the 6 "some evidence" principle. 7 at 851. United States District Court For the Northern District of California 8 Accordingly, in Sass, 461 F.3d at 1128; Irons, 505 F.3d California law provides that a parole date is to be granted 9 unless it is determined "that the gravity of the current convicted 10 offense or offenses, or the timing and gravity of current or past 11 convicted offense or offenses, is such that consideration of the 12 public safety requires a more lengthy period of 13 incarceration . . . ." 14 Cal. Penal Code § 3041(b). The California Code of Regulations (CCR) sets out the factors 15 showing suitability or unsuitability for parole that the Board is 16 required to consider. 17 "[a]ll relevant, reliable information available," such as, 18 19 20 21 22 23 24 25 26 See CCR tit. 15, § 2402.5 These include 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. CCR § 2402(b). Circumstances tending to show unsuitability for parole include 27 28 5 All references to California regulations are to title 15. 13 United States District Court For the Northern District of California 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 of victims, whether "[t]he offense was carried out in a 5 dispassionate and calculated manner," whether the victim was 6 "abused, defiled or mutilated during or after the offense," whether 7 "[t]he offense was carried out in a manner which demonstrates an 8 exceptionally callous disregard for human suffering," and whether 9 "[t]he motive for the crime is inexplicable or very trivial in CCR § 2402(c). This includes consideration of the number 10 relation to the offense." 11 unsuitability for parole are a previous record of violence, an 12 unstable social history, previous sadistic sexual offenses, a 13 history of severe mental health problems related to the offense, 14 and serious misconduct in prison or jail. 15 Id. Other circumstances tending to show Id. Circumstances tending to support a finding of suitability for 16 parole include no juvenile record, a stable social history, signs 17 of remorse, that the crime was committed as a result of significant 18 stress in the prisoner's life, battered woman syndrome, a lack of 19 criminal history, a reduced possibility of recidivism due to the 20 prisoner's present age, that the prisoner has made realistic plans 21 for release or has developed marketable skills that can be put to 22 use upon release, and that the prisoner's institutional activities 23 indicate an enhanced ability to function within the law upon 24 release. 25 due process is denied when "an inquiry focuse[s] only upon the 26 existence of unsuitability factors." 27 1181, 1208 (2008). 28 conclusion that current dangerousness (rather than the mere CCR § 2402(d). The California Supreme Court stated that In re Lawrence, 44 Cal. 4th In Lawrence, the court reiterated "our 14 1 presence of a statutory unsuitability factor) is the focus of the 2 parole [suitability] decision . . ." 3 denying parole must establish a rational nexus between the relevant 4 factors "and the necessary basis for the ultimate decision--the 5 determination of current dangerousness." 6 that 7 8 9 United States District Court For the Northern District of California 10 Id. at 1210. Id. The decision The court explained the statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness. 11 Id. at 1211.6 12 A. Continued Reliance on Commitment Offense 13 Petitioner argues that the Board’s continued reliance on his 14 commitment offense to find him unsuitable for parole, in light of 15 his exemplary behavior and evidence of rehabilitation, violated his 16 due process rights. In Biggs v. Terhune and Sass, the Ninth 17 Circuit discussed the effect of continued denials of parole based 18 solely on unchanging factors such as the commitment offense and 19 prior criminal history. See Biggs v. Terhune, 334 F.3d 910, 917 20 (9th Cir. 2003); Sass, 461 F.3d at 1129. In Biggs, the court, in 21 dicta, stated that "continued reliance in the future on an 22 23 6 24 25 26 27 28 In his reply, Petitioner contends that the petition should be granted because the Board and the superior court applied an erroneous standard of review in that their decisions were issued before the California Supreme Court decided Lawrence. Because this argument was presented only in Petitioner’s reply, Respondent has not had an opportunity to respond to it. However, the Court need not address it because, as discussed below, under the pre-Lawrence some evidence standard of review, the Court finds that the superior court’s decision was an unreasonable application of Supreme Court authority. 15 United States District Court For the Northern District of California 1 unchanging factor, the circumstance of the offense and conduct 2 prior to imprisonment, runs contrary to the rehabilitative goals 3 espoused by the prison system and could result in a due process 4 violation." 5 in Irons sheds further light on whether reliance on an immutable 6 factor such as the commitment offense violates due process. 7 F.3d at 850. 8 of California granted a habeas petition challenging the parole 9 board's fifth denial of parole where the petitioner had served 10 sixteen years of a seventeen-years-to-life sentence for second 11 degree murder with a two-year enhancement for use of a firearm, and 12 where all factors indicated suitability for parole; however, the 13 Ninth Circuit reversed. 14 rev'd, 505 F.3d 846 (9th Cir. 2007). 15 holding to inmates deemed unsuitable prior to the expiration of 16 their minimum sentences and left the door open for inmates deemed 17 unsuitable after the expiration of their minimum sentences. 18 F.3d at 854. 19 20 21 22 23 24 25 26 Biggs, 334 F.3d at 917. The Ninth Circuit's opinion 505 In Irons, the District Court for the Eastern District 358 F. Supp. 2d 936, 947 (E.D. Cal. 2005), The Ninth Circuit limited its 505 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. 27 Id. at 853-54. 28 inmate has served his minimum sentence, the probative value of his The court recognized that at some point after an 16 1 commitment offense as an indicator of an unreasonable risk of 2 danger to society recedes below the "some evidence" required by 3 due process to support a denial of parole. 4 Supreme Court is in accord that "the circumstance that the offense 5 is aggravated does not, in every case, provide evidence that the 6 inmate is a current threat to public safety. 7 the circumstance that the crime is particularly egregious that 8 makes a prisoner unsuitable for parole--it is the implication 9 concerning future dangerousness that derives from the prisoner United States District Court For the Northern District of California 10 11 having committed that crime." Id. The California Indeed, it is not Lawrence, 44 Cal. 4th at 1214. Petitioner received a twenty-six years to life sentence and 12 he had been in custody since his arrest on July 12, 1981, a total 13 of twenty-six years and two and one-half months at the time of the 14 hearing before the Board. 15 Irons, Petitioner had served more than his minimum twenty-six-year 16 sentence. Therefore, unlike Biggs, Sass and 17 B. Rule 115 Violation Involving Violence 18 The state court also noted the Board's finding that, in 1989, 19 Petitioner had received a Rule 115 violation involving violence and 20 that the deputy district attorney had opposed Petitioner’s release. 21 Citing California Penal Code § 30427, the court noted that the 22 Board could not rely on these factors, but that they may be 23 properly considered. 24 1989 violation, it noted that Petitioner's record was violence-free 25 since then and that he had turned his behavior around. However, although the Board mentioned the Tr. at 198. 26 7 27 28 The court cited California Penal Code § 3402. Because § 3402 applies to record-keeping for inmates, the court must have cited it in error and most likely meant to cite Penal Code § 3042 which applies to parole review hearings. 17 United States District Court For the Northern District of California 1 Therefore, it does not appear that the Board considered the 2 eighteen-year old rule violation as evidence of Petitioner’s danger 3 to the public if released on parole. 4 C. Factors Establishing Suitability 5 Petitioner’s psychological reports indicate that he poses a 6 low risk of engaging in violent behavior if released on parole. 7 The most recent psychological report by Dr. Hibbard indicated that 8 Petitioner poses a very low risk of recidivism or of engaging in 9 violent behavior in the future. Hibbard Rep't at 11. Dr. Inaba's 10 2006 report noted that Petitioner presented a low risk of violence 11 in a controlled environment and the risk for violence if he were 12 released into the community was not greater than the average 13 parolee. 14 Prisoner Evaluation Report, written by Correctional Counselors V. 15 Zanni, V. Kelley and C. Belshaw, indicated that: (1) Petitioner 16 expressed remorse for the death of his friend and took 17 responsibility for his crime; (2) Petitioner wrote a lengthy letter 18 dated December 25, 2002, that sheds light on the events leading up 19 to the crime; (3) Petitioner has very favorable work reports and 20 support letters from staff indicating that they feel he is a good 21 candidate for parole; (4) Petitioner has remained discipline-free 22 since 1991; (5) Petitioner has become more involved in self-help 23 and educational programs since his last appearance before the 24 Board; (6) Petitioner has numerous support letters from churches, 25 former professors and various community members who knew him before 26 he came to prison, are supportive of his release and have offered 27 to provide various levels of support; and (7) Petitioner has a 28 strong educational background which will help him in obtaining 2006 Inaba Rep't at 6. Also, the July, 2006 Life 18 United States District Court For the Northern District of California 1 employment. 2 Report, written by Correctional Counselors V. Zanni, S. Robinson 3 and D. Trumpy, indicated that everything remained the same as in 4 the previous report, updated Petitioner's therapy and self-help 5 activities, laudatory chronos and academic achievements and noted 6 that he had three offers of employment and a strong support system 7 with many people offering to provide him with any kind of help that 8 he may need. 9 Senior Psychologist for the Board, and Jasmine Tehrani, an Pet'r Ex. B. The July, 2007 Life Prisoner Evaluation Pet'r Ex. C. In May, 2007, Drs. Steven Walker, 10 independent psychologist, reviewed Dr. Inaba's 2006 report and the 11 2007 Life Prisoner Evaluation Report and concluded that "the 12 opinions rendered in Dr. Inaba's report, including diagnosis and 13 violence risk potential, appear well supported and flow directly 14 from the data." 15 based on the Life Prisoner Evaluation Report, in the year after Dr. 16 Inaba's report, Petitioner continued to participate in self-help 17 programming, received seven laudatory chronos, and was free of any 18 disciplinary violations. 19 Pet'r Ex. G. Drs. Walker and Tehrani noted that, Id. Also significant is the fact that several correctional 20 officers, some who have never before supported an inmate for 21 parole, have written letters of support for Petitioner. 22 Furthermore, Petitioner clearly meets all but one of the 23 suitability factors listed in CCR § 2402(d).8 24 CCR §§ 2402(d)(1) and (6) because he has no criminal juvenile 25 record or adult record except for the commitment offense and his 26 attacks on Gold and Arthur Diller leading up to the commitment Petitioner satisfies 27 8 28 CCR § 2402(d)(5), battered woman syndrome, does not apply to Petitioner. 19 United States District Court For the Northern District of California 1 offense. 2 of remorse, has made realistic plans for release and has developed 3 marketable skills that can be put to use upon release and has 4 participated in institutional activities that indicate an enhanced 5 ability to function within the law if released. 6 Petitioner's present age of fifty-one reduces the probability of 7 recidivism, fulfilling CCR § 2402(d)(7). 8 in regard to whether Petitioner meets CCR § 2402(d)(4), significant 9 stress as a factor in the commission of the crime. Petitioner has a stable social history, expresses signs Additionally, There is a dispute only The 10 psychological reports seem to agree that the motivation for the 11 crime remains a mystery. 12 he was under a great deal of stress shortly before the commitment 13 offense because enmity had developed between himself and Arthur 14 Diller and Arthur Diller’s friend Joe Gold, and because Petitioner 15 felt betrayed by the victim, Michael Diller, his once close friend, 16 who took Joe Gold’s side against Petitioner and did nothing to stop 17 his brother, Arthur, from attacking Petitioner. However, Petitioner told the Board that 18 When all factors favor parole and indicate the inmate has been 19 rehabilitated, continued reliance on unchanging factors such as the 20 commitment offense may result in a due process violation. 21 Biggs, 334 F.3d at 917. 22 violent episodes leading up to it, are immutable facts that 23 occurred more than twenty-six years before the Board’s hearing. 24 Based on this record, they do not, alone, after this length of 25 time, constitute “some evidence” that Petitioner currently is a 26 danger to the public if released on parole. 27 affirmation of the Board’s decision was an unreasonable application 28 of Supreme Court authority. See Here, the commitment offense, and the 20 Therefore, the court’s United States District Court For the Northern District of California 1 Respondent argues that the Court should look through the state 2 court's decision to the Board's decision to find that there was 3 some evidence to support the Board's finding that Petitioner was 4 unsuitable for parole. 5 relied on its findings that (1) Petitioner had attacked people on 6 two occasions in addition to the crimes for which he was convicted; 7 (2) Petitioner had threatened and harassed the murder victim's 8 mother; (3) Petitioner only recently began to participate in group 9 self-help programs; (4) Petitioner’s psychological reports were Notably, Respondent argues that the Board 10 troubling; and (5) the victim's brother, the district attorney and 11 the police department argued that Petitioner was unsuitable for 12 parole. 13 the “some evidence” standard. 14 However, the Board's decision likewise does not satisfy The Board noted, in reciting the events leading up to 15 Petitioner's commitment offense, that he had attacked Joe Gold and 16 Arthur Diller and that he had harassed Michael Diller’s mother. 17 However, as discussed above, like the commitment offense itself, 18 these events are immutable facts that occurred many years ago and 19 do not, after this length of time, constitute some evidence that 20 Petitioner currently is a danger to the public if released on 21 parole. 22 The Board noted that Petitioner's "participation in self-help 23 in a group sense has been relatively recent. 24 record, and we saw that you had one self-help therapy in 1999, and 25 then you had the father's program in 2002 and only after that did 26 you then sort of step it up and really participate in group self- 27 help." 28 Petitioner's participation in self-help was only recent is not Tr. at 197. We looked at your However, the Board's conclusion that 21 United States District Court For the Northern District of California 1 supported by the record. 2 Petitioner had accomplished all the suggestions given by the 2006 3 Board that had criticized his lack of participation in programs. 4 Second, the July, 2006 Life Prisoner Evaluation Report for 5 Petitioner lists his self-help and therapy activities and indicates 6 that Petitioner began psychological therapy in 1985, participated 7 in the father's program in 2002, insight meditation classes in 8 2003, IMPACT sessions in 2003 through 2005, yoga in 2004 and 2005 9 and the Friends Outside creative conflict resolution workshops in First, the Board itself noted that 10 2005 and 2006. 11 Petitioner participated extensively in self-help programs from 2002 12 through 2006. 13 enrolled in numerous academic and vocational courses and 14 successfully completed a three-year paralegal program. 15 Petitioner also received what the Board described as "an 16 exceptional list of laudatory chronos" that extends from 1984 17 through 2006. 18 prison programs cannot be characterized as "recent," and this 19 criticism does not contribute to “some evidence” for the Board's 20 decision. 21 Pet'r Ex. B at 11. This list indicates that In addition, from 1997 through 2006, Petitioner Id. at 8-10. Id. at 7-8. Thus, Petitioner's participation in The Board relied on the portion of Dr. Tavoularis' 1992 22 psychological report which indicated that she believed that 23 Petitioner had a potential for predatory violence and a strong 24 tendency to hide issues and intellectualize. 25 Board also relied on the portion of Dr. Inaba's 2006 report that 26 indicated that Petitioner had good insight into the external, but 27 not the internal, dynamics operating at the time of his offense. 28 Tr. at 204. 22 Tr. at 203. The United States District Court For the Northern District of California 1 Dr. Tavoularis' report, which was written fifteen years before 2 the Board's hearing, is not evidence of Petitioner's psychological 3 state of mind at the time of the hearing, especially given the many 4 subsequent psychological reports which concluded that Petitioner's 5 risk of violence if released was the same or lower than the average 6 inmate. 7 Petitioner had less understanding of internal dynamics contributing 8 to the commitment offense, especially in light of Dr. Inaba’s 9 positive assessments that Petitioner had gained maturity and Also, the Board over-emphasized Dr. Inaba’s remark that 10 insight during his years of incarceration, had gone beyond the 11 identity crisis that caused him to develop a hyper-aggressive 12 persona, and presented a low risk for violent behavior. 13 D at 4-6. 14 Pet’r Ex. Therefore, the psychological assessments cited by the Board do 15 not contribute to “some evidence” that Petitioner is currently a 16 danger to the public if released. 17 The Board also relied on the fact that there was opposition to 18 a finding of parole suitability by the deputy district attorney, 19 the Beverly Hills police department and Arthur Diller. 20 However, as noted by Petitioner, because opposition to parole is 21 not a factor listed in CCR § 2402(d), the Board could not properly 22 rely on it to support its finding of unsuitability. 23 24 Tr. at 199. CONCLUSION The commitment offense and the violent incidents that preceded 25 it, which occurred over twenty-six years ago, no longer constitute 26 “some evidence” that Petitioner’s release will pose an imminent 27 danger to public safety, in light of Petitioner’s violence-free 28 years before and since the attacks and commitment offense, his 23 United States District Court For the Northern District of California 1 lengthy incarceration, his rehabilitation through self-help and 2 education, his realistic plans for parole and his support from 3 community and family members. 4 the commitment offense and the preceding attacks violated 5 Petitioner's due process rights, and the state court's affirmation 6 of the Board's denial was unreasonable in light of the facts and an 7 unreasonable application of United States Supreme Court law. 8 Accordingly, Petitioner's petition for a writ of habeas corpus is 9 granted. The Board's continued reliance on The Board shall hold a new parole hearing within sixty 10 (60) days from the date of this order and reevaluate Petitioner's 11 suitability for parole in accordance with this order. 12 finds Petitioner suitable for parole and sets a release date and 13 the Governor does not reverse, the Court will stay Petitioner's 14 actual release for two weeks to allow Respondent to request a stay 15 pending appeal from this Court and, if necessary, from the Court of 16 Appeals. 17 its order. 18 The Court retains jurisdiction to review compliance with The Clerk of the Court shall terminate all pending motions, 19 enter judgment and close the file. 20 costs. 21 If the Board Each party shall bear his own IT IS SO ORDERED. 22 23 Dated: December 2, 2009 CLAUDIA WILKEN United States District Judge 24 25 26 27 28 24
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