(HC) Sargent v. Patrick, No. 1:2007cv01448 - Document 27 (E.D. Cal. 2010)

Court Description: ORDER LIFTING STAY; ORDER DENYING PETITION; and ORDER GRANTING Certificate of Appealability, signed by Judge Barry T. Moskowitz on 11/2/2010. CASE CLOSED. (Jessen, A)
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(HC) Sargent v. Patrick Doc. 27 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 FRESNO DIVISION 12 13 CASE NO. 07cv1448-BTM GINA SARGENT, Petitioner, 14 ORDER LIFTING STAY AND DENYING 28 U.S.C. § 2254 PETITION FOR WRIT OF HABEAS CORPUS vs. 15 16 17 DEBRA PATRICK, Warden, Respondent. 18 Petitioner Gina Sargent ("Sargent"), a state prisoner serving an indeterminate sentence of 19 seventeen-years-to-life for a 1982 second-degree murder conviction following a jury trial, proceeding 20 pro se, seeks a 28 U.S.C. § 2254 writ of habeas corpus. Sargent challenges the California Board of 21 Parole Hearings' ("Board") decision to deny her parole on February 1, 2006, at her twelfth suitability 22 hearing in the then-twenty-fourth year of her sentence. She raises six grounds for relief, alleging 23 among other things violations of her federal due process and state law rights associated with the 24 hearing and the result. Respondent filed an Answer (Dkt No. 16), and Sargent filed a Traverse (Dkt 25 No. 21). Respondent concedes the Petition is timely under 28 U.S.C. § 2244(d)(1) and is not subject 26 to any other procedural bar. (Dkt No. 16, 3:7-13.) 27 28 On November 25, 2008, this case was reassigned for all purposes from the bench of the Eastern District of California to the undersigned visiting judge. -1- (Dkt No. 22.) By Order entered 07cv1448 Dockets.Justia.com 1 March 18, 2009, the Court stayed the matter in anticipation of the Ninth Circuit's en banc decision on 2 rehearing of Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted by 527 F.3d 3 797 (9th Cir. 2008), vacated by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). (Dkt 4 No. 25.) The en banc decision issued April 22, 2010. Among other things, that decision has answered 5 the questions for this Circuit "whether federal constitutional law imposes on the states a requirement 6 for some quantum of evidence to support a state's denial of parole," and "whether, even if there is no 7 general federal quantum of evidence requirement, applicants for parole in California, under the state's 8 current laws, may obtain federal habeas review of whether there is 'some evidence' supporting a 9 negative parole decision." Hayward, 603 F.3d at 549. The Court now lifts the stay and reaches the 10 merits of Sargent's cognizable claims, applying the clarified review standards. For the reasons 11 discussed below, the Petition is DENIED. 12 I. 13 14 15 16 17 18 19 20 BACKGROUND In her Petition, Sargent summarizes: On April 21, 1982, Petitioner was sentenced to 17 years to life for the murder of Ilana Sargent with whom Petitioner had a relationship [as Ilana's stepmother]. Petitioner pushed Ilana down several stairs in anger. Petitioner thought Ilana was fine, however later Ilana got sick, was sent to the shower where she passed out. Petitioner got help and Ilana was rushed to the hospital. Petitioner remained with Ilana. Ilana died on November 21, 1980. Petitioner was arrested and released on her own recog[nizance]. Later a $1,000 bail was posted. Petitioner was eligible for parole on December 24, 1990. [¶] In 2006, a Parole Consideration hearing was held before the Board of Prison [sic] Hearings. Petitioner was found unsuitable for the 12th time. (Dkt No. 1, p. 19.) 21 The February 2006 parole suitability hearing transcript provides additional factual detail about 22 the circumstances of the crime. Although Sargent exercised her right not to discuss the details again 23 at that hearing, the panel elaborated the circumstances from her probation report and from her 24 statements for prior parole suitability hearings. In particular, the five-year-old child died after a weeks- 25 long period of mental and physical abuse culminating in Sargent pushing her down the stairs, resulting 26 in the ultimately fatal head injury. (Dkt No. 1, 61:6-63:10.) At the time, Sargent had a history of drug 27 and alcohol abuse. A jury convicted her in Amador County Superior Court Case No. 11282 of second 28 degree murder (CAL. PEN . CODE § 187), and three violations of CAL. PENAL CODE § 273(d) (child -2- 07cv1448 1 endangerment, corporal /traumatic injury to a child, and cruelty to a child counts). She was sentenced 2 in May 1982 to fifteen years to life, the base term for second-degree murder under CAL. PENAL CODE 3 § 190, plus an additional two-year enhancement. (Id., 56:7-16.) 4 Sargent's 2006 suitability hearing proceedings and the Board's denial rationale are discussed 5 below. A February 7, 2007 Order from the Amador County Superior Court denying her habeas corpus 6 relief is the only reasoned state court decision to address her challenges to that result. (Dkt No. 1, Pt. 7 1, pp. 41-42.) The California Court of Appeal and the California Supreme Court summarily denied 8 her subsequent habeas petitions to those courts on March 1, 2007 and August 29, 2007, respectively. 9 (Id., pp. 39, 40.) 10 II. DISCUSSION 11 A. Legal Standards For Federal Habeas Relief 12 A federal court "shall entertain an application for a writ of habeas corpus in behalf of a person 13 in custody pursuant to the judgment of a State court only on the ground he is in custody in violation 14 of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A state's 15 interpretation of its own law is binding on federal habeas courts. Estelle v. McGuire, 502 U.S. 62, 68 16 (1991) (federal courts may not "reexamine state-court determinations on state-law questions"); Jackson 17 v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (federal courts "have no authority to review a state's 18 application of its own laws"). 19 Federal habeas petitions filed after April 24, 1996 are governed by the Antiterrorism and 20 Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); 21 Byrd v. Lewis, 566 F.3d 855, 859 (2009). AEDPA establishes a "'highly deferential standard for 22 evaluating state-court rulings,'" requiring "that state-court decisions be given the benefit of the doubt." 23 Woodford v. Visciotti, 537 U.S. 19, 24 (2002), quoting Lindh, 521 U.S. at 333 n.7. The petitioner has 24 "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. 25 § 2254(e)(1). Federal habeas relief is warranted only if the result of a claim adjudicated on the merits 26 by a state court "was contrary to, or involved an unreasonable application of, clearly established 27 Federal law, as determined by the Supreme Court of the United States," or "was based on an 28 unreasonable determination of the facts in light of the evidence presented in the State court -3- 07cv1448 1 proceeding." 28 U.S.C. § 2254(d); see Bell v. Cone, 535 U.S. 685, 694 (2002); see also Miller-El v. 2 Cockrell, 537 U.S. 322, 340 (2003) ("[A] decision adjudicated on the merits in a state court and based 3 on a factual determination will not be overturned on factual grounds unless objectively unreasonable 4 in light of the evidence presented in the state court proceeding."), citing 28 U.S.C. § 2254(d)(2). A 5 federal court applies AEDPA standards to the "last reasoned decision" by a state court. Campbell v. 6 Rice, 408 F.3d 1166, 1170 (9th Cir. 2005); see Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) 7 ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders 8 upholding the judgment or rejecting the same claim rest upon the same ground."). 9 B. Due Process Review Standards Applicable To Denials Of Parole 1. 10 Federal Standards Of Review 11 A due process claim raises two questions: "the first asks whether there exists a liberty or 12 property interest which has been interfered with by the State; the second examines whether the 13 procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dep't of 14 Corrections v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted). "[A]n individual claiming 15 a protected interest must have a legitimate claim of entitlement to it" arising either from "the Due 16 Process Clause itself" or from "the laws of the States." Id. (citation omitted). Sargent's claims 17 presume a state prisoner has a liberty interest in parole. Both the Ninth Circuit and the California 18 Supreme Court "have been engaged in modification of the law to determine what limits there are on 19 denial of parole." Hayward, 603 F.3d. at 552 ("Hayward's appeal addresses what if anything the 20 federal Constitution requires as a condition of denial of parole."), citing 28 U.S.C. § 2254(a). The en 21 banc Hayward court held California state prisoners have a liberty interest in release on parole and 22 clarified the standards federal habeas courts in this Circuit must apply in reviewing California 23 prisoners' due process challenges to parole denials.1 24 In particular, one question presented was whether "federal constitutional law imposes on the 25 states a requirement for some quantum of evidence to support a state's denial of parole." Hayward, 26 603 F.3d at 549. The majority opinion distinguished the deprivation of good time credits earned by 27 1 28 The Hayward en banc court also held a Certificate Of Appealability is required to appeal a district court's Order denying a writ of habeas corpus for a denial of parole. Hayward, 603 F.3d. at 554-55. -4- 07cv1448 1 prisoners while incarcerated, creating "a liberty interest of the most fundamental sort," from denial of 2 release on parole, a decision entailing the "discretionary assessment of a multiplicity of 3 imponderables." Id. at 557; see also id. at 555 n.44. The Hayward court held: "in the absence of state 4 law establishing otherwise, there is no federal constitutional requirement that parole be granted in the 5 absence of 'some evidence' of future dangerousness or anything else." 603 F.3d at 561. "We overrule 6 any decisions suggesting that the federal constitution imposes a requirement of 'some evidence' of 7 future dangerousness without regard to state law."2 Id., at 563. 11 Although the due process clause does not, by itself, entitle a prisoner to parole in the absence of some evidence of future dangerousness, state law may supply a predicate for that conclusion. "[D]espite the necessarily subjective and predictive nature of the parole-release decision, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause." 12 Hayward, 603 F.3d at 561, adding emphasis and quoting Bd. of Pardons v. Allen, 482 U.S. 369, 13 371 (1987). 8 9 10 14 California has created by statute a liberty interest in parole reviewable by federal habeas 15 courts.3 Hayward, 603 F.3d at 563 ( the "right in California to parole in the absence of some evidence 16 of one's future dangerousness to the public arises from California law"). The "crucial determinant of 17 whether the prisoner gets parole in California is 'consideration of the public safety.'" Hayward, 603 18 F.3d at 561-62 citing In re Lawrence, 44 Cal.4th 1181 (2008) and In re Shaputis, 44 Cal.4th 1241 19 (2008). "[T]he California Supreme Court established in [those] two decisions . . . that as a matter of 20 state law, 'some evidence' of future dangerousness is indeed a state sine quo non for denial of parole 21 in California." Id. at 562. If evidence establishes that "necessary predicate for denial of parole," the 22 23 24 25 26 27 28 2 "To the extent our prior decisions including Biggs v. Terhune[, 334 F.3d 910 (9th Cir. 2003)], Sass v. California Board of Prison Terms[, 461 F.3d 1123 (9th Cir. 2006)], Irons v. Carey[, 505 F.3d 846, 850-51 (9th Cir. 2007)] and our panel decision in this case might be read to imply that there is a federal constitutional right regardless of whether state law entitles the prisoner to release, we reject that reading and overrule those decisions to the extent they may be read to mean that." Hayward, 603 F.3d at 555 (footnotes omitted). 3 The en banc majority declined to decide "whether the California parole scheme establishes a predicate for imposing [the liberty interest] as a matter of federal constitutional law." Hayward. 603 F.3d at 562 (finding it need "not decide whether a right arises in California under the United States Constitution to parole in the absence of some evidence of future dangerousness" because "State law already does what Hayward would have federal constitutional law do"). -5- 07cv1448 1 due process standard is satisfied. Id. at 552. "There was some evidence of future dangerousness, so 2 [Hayward's] parole was [properly] denied, and the district court correctly denied the writ." Id. at 563. 3 The Ninth Circuit succinctly extracted pertinent holdings from the Hayward opinion in Pearson 4 v. Muntz, 606 F.3d 606 (9th Cir. 2010). It is "state law that gives rise to 'interests' on the part of state 5 prisoners that may be enforced as a matter of federal law." Pearson, 606 F.3d at 609. Federal courts 6 "must apply the California 'some evidence' test on federal habeas review under AEDPA." Id. at 608. 7 "[F]ederal habeas courts must 'decide whether the California judicial decision approving the governor's 8 decision rejecting parole was an "unreasonable application" of the California "some evidence" 9 requirement, or was "based on an unreasonable determination of the facts in light of the evidence."'"4 10 Id., quoting Hayward, 603 F.3d at 563. "By holding that a federal court may review the reasonableness 11 of the state court's application of the California 'some evidence' rule, Hayward necessarily held that 12 compliance with the state requirement is mandated by federal law, specifically the Due Process 13 Clause." Id. at 609. 14 Inasmuch as "Hayward specifically commands federal courts to examine the reasonableness 15 of the state courts' application of the California 'some evidence' requirement, as well as the 16 reasonableness of the state court's determination of the facts in light of the evidence," the federal court 17 must review "how the state court applied the requirement." Pearson, 606 F.3d at 609, quoting 18 Hayward, 603 F.3d at 562-63. A parole denial is not justified "merely because the state court 19 purported to identify some evidence of future dangerousness;" there must actually be " 'some evidence 20 of future dangerousness' justifying the denial of parole." Id. "[I]t is not enough that there is some 21 evidence to support the factors cited for the denial; that evidence must also rationally support the core 22 determination required by the statute before parole can be denied, i.e., that a prisoner's release will 23 unreasonably endanger public safety." In re Roderick, 154 Cal.App.4th 242, 263, 264 (2007) ("Some 24 evidence of the existence of a particular factor does not necessarily equate to some evidence the 25 parolee's release unreasonably endangers public safety."). 26 27 4 28 The Governor may review the Board's parole decisions and is authorized to reverse or modify them, applying the same standards as the Board. C AL . C ONST . art. V, § 8, subd. (d); C AL . P ENAL C ODE § 3041.2. -6- 07cv1448 2. 1 California Parole Statute And Parole Denial Standards Of Review 2 Under California law, prisoners subject to indeterminate life sentences with the possibility of 3 parole "may serve up to life in prison, but they become eligible for parole consideration after serving 4 minimum terms of confinement." In re Dannenberg, 34 Cal.4th 1061, 1078 (2005). "[L]ife inmates' 5 actual confinement periods within the statutory range are decided by [the Board of Prison Terms]." 6 Id. The Board must make parole decisions in the manner prescribed by CAL. PENAL CODE § 3041 and 7 implementing regulations, applying "detailed standards" to evaluate "whether an individual is 8 unsuitable for parole on public safety grounds." Id. at 1096 n.16; see In re Rosenkrantz, 29 Cal.4th 9 616, 677 (2002) (the Board's discretion is circumscribed by the requirement that "the decision must 10 reflect an individualized consideration of the specific criteria and cannot be arbitrary and capricious"). 11 The Board must consider both circumstances tending to show suitability5 and circumstances tending 12 to show unsuitability6 in the particular case. The regulations prescribe how the evidence is to be 13 treated: All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall 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 a finding of unsuitability. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Guideline circumstances tending to show suitability include: (1) no juvenile record; (2) reasonably stable social history; (3) signs of remorse, such as performing acts or giving "indications he understands the nature and magnitude of the offense;" (4) the crime was the result of significant personal stress; (5) lack of any significant history of violent crime; (6) the prisoner's present age as reducing the probability of recidivism; (7) realistic plans for the future upon release, or development of marketable skills usable upon release; and (8) institutional behavior "indicating an enhanced ability to function within the law upon release." C AL . C ODE R EGS., tit. 15, §§ 2402(d), 2281(d). 6 Guideline circumstances tending to show unsuitability include: (1) the heinousness or cruelty of the commitment offense; (2) the prisoner's previous record of violence, "particularly if the prisoner demonstrated serious assaultive behavior at an early age;" (3) unstable social history in relationships with others; (4) sadistic sexual offenses; (5) psychological factors; and (6) engaging in serious misconduct while incarcerated. C AL . C ODE R EGS., tit. 15, §§ 2402(c), 2281(c). -7- 07cv1448 1 CAL. CODE REGS., tit. 15, §§ 2281(b), 2402(b) (emphasis added).7 2 Thus, "A parole date shall be set if the prisoner is found suitable for parole under Section 3 2402(d)," but "[a] parole date shall be denied if the prisoner is found unsuitable for parole under 4 Section 2402(c)." CAL. CODE REGS., tit. 15, § 2401. While the Board must consider all pertinent 5 information, "[i]t is not the existence or nonexistence of suitability or unsuitability factors that forms 6 the crux of the parole decision; the significant circumstance is how those factors interrelate to support 7 a conclusion of current dangerousness to the public." Lawrence, 44 Cal.4th at 1212. The factors "are 8 set forth as general guidelines; the importance attached to any circumstance or combination of 9 circumstances in a particular case is left to the judgment of the panel." Id., at 1203, quoting CAL. 10 CODE REGS, tit. 15, § 2281, subds. (c), (d); see Roderick, 154 Cal.App.4th at 264 ("We read those 11 directives as mandating that the Board, in its decisions, must articulate reasons that are grounded in 12 evidence and rationally related to the statutory basis for denial."), citing, inter alia, CAL. PENAL CODE 13 § 3401(b) and Dannenberg, 34 Cal.4th at 1071. "[I]t is irrelevant that a court might determine that 14 evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating 15 unsuitability for parole." Rosenkrantz, 29 Cal. 4th at 677. 16 "Regardless of the length of time served, a life prisoner shall be found unsuitable for and 17 denied parole if in the judgment of the panel [or Governor] the prisoner will pose an unreasonable risk 18 of danger to society if released from prison." CAL. CODE REGS., tit. 15, §§ 2281(a), 2402(a). Due 19 process is satisfied if there is at least "a modicum of evidence" to support the decision. Rosenkrantz, 20 29 Cal. 4th at 676-77 ("As long as the [denial] decision reflects due consideration of the specified 21 factors applied to the individual prisoner in accordance with applicable legal standards, the court's 22 review is limited to ascertaining whether there is some evidence in the record that supports the [denial] 23 decision"). When an unsuitability determination is based on the circumstances of the offense, the 24 decision must also identify "some evidence" of aggravating facts beyond the minimum elements of that 25 offense. Rosenkrantz, 29 Cal.4th at 683. In denying parole in reliance on an aggravated commitment 26 27 28 7 "The two sections are identical." Lawrence, 44 Cal.4th at 1202 n.5. C AL .C ODE R EGS., tit. 15, § 2402 provides the Parole Consideration Criteria And Guidelines applicable to murders committed on or after November 8, 1978. C AL . C ODE R EGS., tit. 15, §§ 2281 applies to murders committed before then. -8- 07cv1448 1 offense, the Board or Governor must also identify other evidence supporting an inference of current 2 dangerousness. The Hayward court summarized: As a matter of California law, "the paramount consideration for both the Board [of Prison Terms] and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety." . . . . The prisoner's aggravated offense does not establish current dangerousness "unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, supports the inference of dangerousness. Thus, in California, the offense of conviction may be considered, but the consideration must address the determining factor, "a current threat to public safety."[8] 3 4 5 6 7 8 Hayward, 603 F.3d at 562 (footnotes omitted), quoting Lawrence, 44 Cal.4th at1210, 1213-14. 9 While judicial review of a parole denial is "extremely deferential," the purpose of the review 10 is to ensure the result is supported by "some evidence." Hayward, 603 F.3d at 562; see also 11 Rosenkrantz, 29 Cal.4th at 660; Dannenberg, 34 Cal.4th at 1071. A reviewing court need only verify 12 that evidence of the factors recited as the reasons for denial supports the "core determination" of 13 present dangerousness.9 Lawrence, 44 Cal.4th at 1212 ("[T]he circumstances of the commitment 14 offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those 15 circumstances are probative to the determination that a prisoner remains a danger to the public."); see 16 Id. at 1227 (setting aside the Governor's action in vacating the Board's grant of parole based on the 17 "immutable and unchanging" circumstances of the "egregious" commitment offense, on grounds the 18 denial decision was not supported by "some evidence" of the prisoner's current dangerousness). 19 \\ 20 21 22 23 24 25 26 27 28 8 "In sum, the Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate's criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. (Regs., § 2281, subd. (a).) Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor." Lawrence, 44 Cal.4th at 1221. 9 This standard disposes of Sargent's request for an evidentiary hearing on grounds "the lower courts did not resolve the issue" whether her due process rights were violated in connection with Board's 2006 decision. (See Dkt No. 21, 2:25-27.) This Court's determination does not depend on the resolution of disputed issues of fact. No additional factual development would remove from the existing record the "some evidence" of unsuitability based on public safety concerns the Court finds supports the decision to deny parole. -9- 07cv1448 1 C. Grounds One, Three, And Four Are Not Cognizable 2 Sargent's Petition alleges six grounds for federal habeas relief: (1) violation of her federal due 3 process rights when the Board denied her parole based on her election to not discuss the life crime or 4 admit guilt as authorized in CAL. PENAL CODE § 5011 ("Section 5011");10 (2) violation of her federal 5 due process rights for the Board's failure to cite "some evidence" in support of its determination she 6 remained unsuitable for parole; (3) violation of her federal due process rights through the Board's 7 continued reliance on unchanging factors to deny her parole, purportedly resulting in a de facto 8 transformation of her sentence to life without parole; (4) continued denial of parole constitutes cruel 9 and unusual punishment under the Eighth Amendment; (5) the Board used arbitrary and irrational 10 standards in violation of her substantive due process rights; and (6) the Board violated her 11 "presumptive" right to a parole release date "by failing to follow the law." (Dkt No. 1, pp. 4-12.) 12 In Ground One, Sargent argues she had a state statutory right not to discuss the life crime at 13 the suitability hearing, and the Board violated her Fifth and Fourteenth Amendment rights by denying 14 her parole "based primarily on" the exercise of her Section 5011(b) right. (Dkt No. 1, p. 7.) The panel 15 confirmed at the outset of the hearing Sargent elected not to discuss the commitment offense, and it 16 relied on other descriptions of the life crime in the record to fulfill its obligation to "determine the 17 extent of personal culpability" in discussion with the prisoner.11 PRESIDING COMMISSIONER SAWYER: speaking with the panel? 18 Will the inmate be 19 ATTORNEY BESHWATE: Yes, however to [sic] Penal Code Section 5011, she will not be discussing the life crime, she will be submitting her statements on the last several statements on the last several hearings that have occurred, as well as the prisoner's version of the offense in the Board Report from October of '05 calendar. She certainly admits her 20 21 22 23 10 24 25 26 27 28 "(a) The Department of Corrections shall not require, as a condition for any form of treatment or custody that the department offers, an admission of guilt to any crime for which an inmate was committed to the custody of the department. [¶] (b) The Board of Prison Terms shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed." C AL . P ENAL C ODE § 5011. 11 "The facts of the crime shall be discussed with the prisoner to assist in determining the extent of personal culpability. The board shall not require an admission of guilt to any crime for which the prisoner was committed. A prisoner may refuse to discuss the facts of the crime in which instance a decision shall be made based on the other information available and the refusal shall not be held against the prisoner. . . ." C AL . C ODE R EGS. tit.15, § 2236 (emphasis added); see C AL . P EN . C ODE § 5011, subd. (b). - 10 - 07cv1448 1 2 3 involvement and takes full responsibility; but she wants to rely upon her previous statements regarding the life offense. . . . [¶] [S]he'll be talking about other things. (Dkt No. 1, 60:9-25.) 4 Although the panel suggested that Sargent review the probation and police reports before her 5 next parole suitability hearing and that she be willing to talk about the crime, the record does not 6 support her representation she was denied parole at the 2006 hearing based on her Section 5011 7 election. The panel did not require her to admit guilt before it would grant a parole date. The advice 8 was given in the context of her approach at the 2006 hearing to distance herself from the life-crime, 9 to put it behind her, without mentioning the victim or demonstrating remorse or empathy. (See Dkt 10 No. 16-1, 63:13-16, 56:8-57:1.) Furthermore, parole proceedings are not part of criminal prosecutions 11 carrying particular safeguards arising from the U.S. Constitution. On the face of her claim, the Section 12 5011 rights she invokes arise from state law, not federal law. Federal habeas relief is not available for 13 alleged errors in the application of state law. Estelle, 502 U.S. at 67; Jackson, 921 F.2d at 885. 14 In Ground Three, Sargent argues repeated denials of parole based on the unchanging factors 15 of "the circumstances of the offense," the "nature of the crime," and the "triviality of the motive," 16 irrespective of her rehabilitation, transform her sentence from an indeterminate life sentence with the 17 possibility of parole to a sentence of life without the possibility of parole. (Dkt No. 1, p. 9.) However, 18 Sargent was convicted of second-degree murder. 19 indeterminate life term. Parole denials do not lengthen her maximum sentence of life in prison. "[F]or 20 crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of 21 imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of 22 legislative prerogative." Rummel v. Estelle, 445 U.S. 263, 274 (1980) (upholding against an Eighth 23 Amendment challenge a life sentence based on a series of non-violent property crimes imposed 24 pursuant to a state's recidivist criminal statute). "[A] prisoner is not entitled to have his term fixed at 25 less than maximum or to receive parole." Rosenkrantz, 29 Cal.4th at 655; see Greenholtz v. Inmates 26 of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979) (it is well established there is "no 27 constitutional or inherent right of a convicted person to be conditionally released before the expiration 28 of a valid sentence"). Nevertheless, to the extent Ground Three may overlap with her argument in - 11 - She was sentenced under state law to an 07cv1448 1 Ground Two that the 2006 parole denial did not satisfy the "some evidence" of present dangerousness 2 due process standard, the Court finds that argument is subsumed in her Ground Two claim, addressed 3 on the merits below. 4 As Ground Four, Sargent alleges her continued incarceration as a result of repeated denials of 5 parole violates her Eighth Amendment rights. She argues her rehabilitation record satisfies the 6 statutory standards for release and her continued confinement is accordingly "arbitrary and constitutes 7 cruel and unusual punishment." (Dkt No. 1, pp. 10, 36.) She relies on Furman v. Georgia, 408 U.S. 8 238 (1972), a death penalty case, for the proposition: "Punishment that is arbitrary and thus violates 9 due process may be cruel and unusual." (Id., p. 25.) While the Eighth Amendment contains "a narrow 10 proportionality principle" that applies to noncapital sentences when a sentence is extreme and "grossly 11 disproportionate" to the severity of the crime (see Ewing v. California, 538 U.S. 11, 20, 21 (2003), 12 quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) and Rummel, 445 U.S. at 271), Sargent's 13 codified term-of-years-to-life sentence for murder is neither "arbitrary" nor "grossly disproportionate" 14 to her crime. She is serving no longer than her maximum and lawfully-imposed sentence and thus fails 15 to state a cognizable Eighth Amendment claim. See Greenholtz, 442 U.S. at 7; see also Dannenberg, 16 34 Cal.4th at 1096. 17 The Court finds remaining Grounds Two, Five, and Six are facets of Sargent's overarching 18 contention her due process right to release on parole was violated by the February 2006 panel decision, 19 upheld by the state courts, and addresses that challenge on the merits below, applying the clarified 20 review standards from Hayward. 21 D. Conduct And Results Of Prior Parole Suitability Hearings Are Not At Issue 22 Sargent provides as Petition exhibits transcripts of prior suitability hearings dating back to 23 1998 in support of her argument that she meets the criteria for release on parole and that her continued 24 incarceration violates due process. Those prior hearing records were available to her 2006 panel, 25 which alluded to portions of the prior decisions and relied on some of the same supporting 26 documentation. Her 2006 panel made similar findings and reached similar conclusions as had prior 27 panels in assessing factors of suitability and of unsuitability for parole. To the extent Sargent provides 28 those transcripts as evidence to support her theory that successive denials of parole are converting her - 12 - 07cv1448 1 indeterminate life sentence into a sentence of life without parole, or that those decisions individually 2 or cumulatively constitute an Eight Amendment violation, those grounds for federal habeas relief are 3 rejected above. To the extent she may be inviting the Court to evaluate the conduct and results of 4 those prior decisions, the scope of this Court's ruling is limited to her Petition's due process challenge 5 to the February 2006 proceeding and the state's judicial review of that result based on the evidence 6 available to those authorities. 7 E. February 2006 Subsequent Parole Suitability Hearing 8 The transcript of Sargent's February 1, 2006 suitability hearing is provided as an exhibit to the 9 Petition and to the Answer.12 (Dkt No. 1, Pt. 1 pp. 54-158, Pt. 2 pp. 1-17; Dkt No. 16-1, pp. 6-64.) 10 Sargent, her attorney, and a deputy district attorney ("DA") participated in the proceedings. Sargent's 11 daughter, Stephanie Boatwright, attended to support her mother's parole. (Dkt No. 16-1, p. 6.) One 12 of the panel commissioners read into the record a summary of prior statements Sargent had made 13 describing the crime, as well as portions of the May 7, 1982 Probation and Pre-Sentence Report.13 . . . I'm going to be talking about the crime initially here, the commitment offense, October 2005 Calendar, page 1, "Summary of the Crime." "On 11/19/1980, at approximately 10:00 p.m., the victim was observed to be unconscious, but breathing, after police were summoned to the home. Miss Sargent indicated that her stepdaughter had fallen down the stairs, ate, took a shower, then passed out. The child was ill and had vomited. At this time Miss Sargent went to the neighbors house for help. Two doctors in the emergency room were highly suspicious of the incident and noticed bruises and abrasions on the child that were yellowish to black and blue. A large bruise on the forehead was prominent and was suggestive of an extensive head injury. She was placed in the pediatric intensive care and subsequently died on 11/21/1980 of acute cardio-vascular collapse, secondary to a massive cerebral swelling." This very brief information was taken from 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 The record consists of electronically-scanned exhibits accompanying the Petition (Dkt No. 1, Part 1 and Part 2, Exhibits A through J) and the Answer (Dkt No. 16, Exhibits 1 through 10, Attachments 1 through 4) rather than lodgments. 13 That report (Dkt No. 16-1, pp. 67-81) identified circumstances of aggravation to be the "crimes involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness, whether or not chargeable as an enhancement, . . . [t]he victim was particularly vulnerable, . . . the defendant took advantage of a position of trust or confidence to commit the offense, . . . [and] [t]he defendant has engaged in a pattern of violent conduct which indicates a serious danger to society," with a mitigation factor of "no prior arrest record." (Id., p. 79.) The officer also noted "the crimes were committed within a single period of deviate behavior," no information indicated she was prone to violence "prior to the present series of incidents." (Id., p. 80.) The Evaluation section observes: "Although she expressed remorse over Ilana's death, she i[n] no way accepts responsibility for the crime." (Id.) - 13 - 07cv1448 1 2 3 4 5 6 7 8 9 10 11 12 the Amador County Sheriff's office report dated 11/22/1980. Now the petitioner's version, "Sargent maintained that after she inflicted the injury to the victim the resulting emergency surgery contributed to the victim's death. She now takes full responsibility. She stated that she has come to realize that it was her actions alone that caused the death of the child. Her statement is as follows, "I became upset with . . . [Ilana], my stepdaughter because of her resistance in assisting me. I pushed Alana down the stairs. I didn't think she was hurt. She ate, then got sick. I told her to go take a shower and I would be there in a minute. She passed out in the shower. At that time I went for help at the neighbors. I take full responsibility for Alana's death." Also, in prior reports she stated that there was no prior physical abuse of the victim and that she'd only spanked her one time. She now admits Alana was abused mentally and physically. It was progressive. There were days when I would slap her. The spanking left several bruises on her bottom. [Punctuation mark omitted.] The aggravating factors in this case – "the victim was particularly vulnerable due to her young age. Miss Sargent took advantage of a special relationship, with confidence and trust with the victim, her five-year-old stepdaughter. The nature of the crime exhibited cruelty as Miss Sargent pushed her five-year-old stepdaughter down a flight of stairs." Mitigating circumstances – "after finding the child past [sic] out she went to the neighbors house for help and had no prior arrest history." 13 (Dkt No. 16-1, 13:7-15:10; see also Id., 57-3-58:2.) 14 The panel then reviewed Sargent's personal and pre-commitment history. She was 47-years-old 15 at the time of the hearing. (Dkt No. 16-1, 15:20.) She had dropped out of school at age sixteen to 16 marry, had a daughter, divorced six months later, went to live with her parents, met her step-daughter's 17 father, Mr. Sargent, when she was twenty, and married him four months later. Mr. Sargent gained 18 custody of his daughter about seven months before the child's death. She received state aid and 19 income from her part time work at a hamburger stand. (Id., 17:1-12.) She had used drugs 20 (methamphetamine, cocaine, and marijuana) beginning at age fifteen, began drinking at age eighteen, 21 and abused both from age twenty to twenty-three, through and including the time of the commitment 22 offenses. (Id., 17:14-19.) She and Mr. Sargent divorced in 1985. She had no prior criminal record. 23 Turning to Sargent's parole plans, the panel confirmed she intended to live with her mother or, 24 alternatively, she had been accepted into a group home. (Dkt No. 16-1, 19:20-24, 21:7-16.) She 25 provided letters from her sister, aunt, and mother urging her release and offering support, a home, and 26 a vehicle. (Id., pp. 22-23, 25:5-11.) She had an AA sponsor on the outside, she planned to complete 27 a general education Associates degree she had started while incarcerated, and she planned to work in 28 - 14 - 07cv1448 1 the dental prosthetics field. She had letters of interest from potential employers and discussed realistic 2 employment objectives. (Id., 20:10-21:2.) She provided updated letters from her AA sponsor and a 3 recent actual job offer. (Id., 25:16-28:21.) A letter from the Prison Industry Authority ("PIA") 4 substantiated Sargent had started working in the dental lab in 1999 and rated her an accomplished lab 5 tech. (Id., 26:15-19.) The panel summarized: "Good work ethic, high standard of work quality, 6 earned certificates in set-up, shipping receiving, finishing and metal casting. Get along well, patient 7 teacher when helping other inmates learn the trade. Upon release, very employable, 'especially of [sic] 8 her expertise in metal casting.'" (Id., 26:22-27:1.) One commissioner observed: "You've got a nice 9 package there." (Id., 28:21.) She provided additional positive details about her parole plan options 10 in response to DA questioning. (Id., pp. 43-46.) 11 Turning to Sargent's conduct while incarcerated, the panel reviewed relevant factors 12 interactively with her. Since she was received in prison in May, 1982, she had never had any 115 13 disciplinary writes-ups, but had eight 128s for less serious conduct, the most recent for having words 14 with staff about five and one-half years before the February 2006 suitability hearing. (Dkt No. 16-1, 15 29:5-30:1.) She had obtained her GED within a year or two of her incarceration and had about five 16 or six classes to complete toward her Associates degree through Coastline Valley College, where she 17 was currently enrolled. (Id., 30:3-18.) Her programming participation since her last suitability hearing 18 in 2004 included completion of vocational dental and vocational word processing while she remained 19 in PIA dental, and she had received "exceptional work reports" as a lab tech and teaching assistant. 20 (Id., 30:22-31:13.) She had been "very active and consistent in [her] participation in AA during this 21 entire period." (Id., 31:13-19.) She confirmed she was "still working the 12 Steps," had ordered by 22 mail an additional 12 Step program, and displayed her knowledge of the steps. (Id., 31:22- 32:24.) 23 Sargent had completed several self-help programs since her most recent prior hearing, 24 including Creative Conflict Resolution, Parenting, an art meditation group, and she volunteered in Peer 25 Health. (Dkt No. 16-1, 32:24, 33:1.) She had a September 2005 chrono from a correctional officer 26 noting she had been "a model inmate" in recent years, getting along well with staff and prisoners alike. 27 (Id., 33:2-12.) She had an August 2005 chrono describing her "professional attitude" with respect to 28 her participation in Protestant Chapel. (Id., 35:2-4.) She had participated in two crime-specific group - 15 - 07cv1448 1 sessions in 2003 and September 2004 (Domestic Violence Group), and in anger/stress management 2 group in June 2004. (Id., 34:17-35:1.) She identified a new training program through the dental lab 3 she was currently taking. (Id., 35:10-21.) 4 The panel noted Sargent's most recent psychological evaluation was by forensic psychologist 5 Steven Walker dated April 17, 2003, the same evaluation as had been used at her 2003 and 2004 6 suitability hearings. That report provided an overview of all her prior evaluations, then gave Dr. 7 Walker's diagnostic impression: "Axis 1 – alcohol dependence in sustained, full remission in a 8 controlled environment; and poly-substance dependence, cocaine, amphetamine and alcohol in fully 9 sustained remission in a controlled environment; with a Global Assessment Function ["GAF"] of 92." 10 11 12 13 14 15 16 17 18 19 20 21 22 (Dkt No. 16-1, 36:16-26.) The commissioner summarized: The doctor then goes on to discuss the various assessments that are done in order to evaluate a risk of dangerousness if released to the community. Under the history/background assessment he found that you presented as a moderately low risk for future violence. In the clinical presentation he stated that your present low risk for future violence[] and in the management of future risk, "the inmate presents a low risk for future violence." He makes a comment in the conclusion that, "She does present as a primary substance abuser and a positive prognosis for a successful parole will remain consistent as long as abstinence is maintained. The inmate does evidence a help-seeking orientation and has programmed well while in prison. So the risk assessment measures suggest that the inmate posse[sses] a low likelihood of becoming involved in a violent offense if released into the community. This estimate takes into account the inmate[']s cultural background, language issues if any, personal, social and criminal history, institutional programming, community and social support, release plans and current clinical presentation. In addition there is the caveat that such an assessment is at least partially based on the likelihood of keeping you abstinent from any substance abuse." [¶] Then the doctor goes on to talk about your being discipline free with a classification score of zero. (Dkt No. 16-1, 36:27-38:3.) 23 Sargent confirmed she had participated in AA regularly since 1987 and had been at times 24 Chair, Vice-Chair, Secretary, and Sargeant of Arms of the group. (Dkt No. 16-1, 38:15-24.) The 25 program gives her "structure for a way to live my life, which is what I didn't have before." (Id., 39:9- 26 11.) She anticipated she would find life outside prison changed and "much faster than when I was out 27 there." (Id., 39:21-23.) She intended to create structure for herself after institutional life by "going to 28 work, that type of thing, going to meetings" such as AA and her church. (Id., 40:3-7, 40:21-24.) - 16 - 07cv1448 1 The DA was not permitted to ask Sargent about the life offense at the hearing because of her 2 Section 5011 election not to speak about it. (Dkt No. 16-1, 41:3-14.) In response to his question 3 whether Sargent felt she still had an anger problem, she responded she still got angry, but was "much 4 more mature than I was at twenty-four when I came to prison," having "learned ways to deal with anger 5 instead of just lashing out. . . ." (Id., 41:24-42:7.) With respect to substance abuse, she acknowledged 6 "I'll always be an alcoholic," but had selected a program "structured around AA, I have [a] sponsor, 7 my church is very important to me, my foundation," and "I always know that if I start drinking, it's 8 over," observing her other prior substance abuse started with alcohol, "so I figure if I stay away from 9 that I can pretty much stay away from the other." (Id., 42:8-23.) She replied to the question whether 10 11 12 she believed her drug use had been out of control: INMATE SARGENT: Oh, absolutely. My whole life was out of control, the alcohol, drug abuse, all of it. The anger, all the emotions that I didn't know how to deal with that just came out because I didn't know how to deal with them. Yes, everything was out of control. 13 (Dkt No. 16-1, 43:1-8.) 14 In his closing remarks, the DA stated the County's position that "Miss Sargent at this time, is 15 not suitable for parole." (Dkt No. 16-1, 47:26-48:2.) The DA argued: 16 17 18 19 20 21 22 23 24 25 26 27 28 First and foremost of [sic] the vulnerability of the victim, the age of the victim, the cruel and haneous [sic] nature of the crime. Not just the crime itself that resulted in the child's death, but the multiple acts of abuse that took place prior, indicating that this was not a one-time incident. The Probation Report coupled with the autopsy report lists [ninety-seven] scars, numerous bruises, eighty-five bruises on the lower extremities. In effect, the child's body was covered with some type of injury. The period of abuse appears to be a one to two-month period. There was the October of 1980 situation, which the child, suffering from chicken pox[], was left outside while the inmate drank alcohol with some friends inside a residence. Then this offense took place, culminating in the death of [the] child on November 21, 1980. It seems that there are still questions that remain about exactly how the child died, noting in the Probation Report the number of doctors and experts who were involved (indiscernible) that the injuries would not seem to result from a push or fall down a flight of stairs. One of the doctors felt that the delay in the child receiving medical assistance may have contributed to the child's death. The inmate has indicated that the child was unconscious, but the child seemed to be reactive; and thinking that a child would fall down a flight of stairs wouldn't result in an injury seems to be somewhat self serving. There are issues of alcohol and substance abuse and obviously the fact that the inmate was in a position of trust and authority over this child. She obviously has taken steps in order to transition into the community. I would just point out that while - 17 - 07cv1448 1 she definitely has some plans there are some questions remaining about certain [sic] she will be able to put those plans into effect. . . .\ 2 (Dkt No. 16-1, 48:2-49:15.) 3 Sargent's attorney argued in favor of her parole: 4 11 . . . I thought the best place for me to start is taking a paragraph from the current, October '05 Board report, and I'll just quote: [¶] "Inmate Sargent continues to meet the expectations set forth by the BPT as demonstrated by her continuous efforts in gaining (indiscernible) as well as employable skills. She has remained disciplinary free with no serious or administrative CDC 115s since reception. She has demonstrated the capacity to obtain and hold an assignment as evidenced by her excellent performance in PIA dental. She's taken advantage of the self-help programs, including Alcoholics Anonymous. She has a positive attitude and has developed the skills necessary to succeed outside a prison setting. She has learned skills to prepare herself to be sufficient in society and has, more importantly, family support. She has taken advantage of the courses in CDC to improve herself." 12 (Dkt No. 16-1, 49:18-50:13; see also Id., pp. 50-52 (reviewing multiple suitability factors supported 13 by the record).) 5 6 7 8 9 10 14 15 16 17 18 19 20 21 22 Sargent briefly addressed the Board with remarks focused on her personal progress, without mentioning her step-daughter or her perspective and feelings about the life-crime: I believe – I know who I was back in 1980 and I was a very immature person who didn't think of consequences, who didn't think of what my actions would do or cause or how it would affect anyone. I'm not – I mean, I'm the same person, but I'm totally, totally changed. I think about how what I say and what I do – how it's going to affect a person. I don't just fly off the handle without thinking, what could this possibly do to me, to someone else, to – I just think that with my age, my maturity, the choices, the decisions that I make based on my morals and my ethics that I didn't really focus on at that time – I just think that at this time that I could be – like I say, from one structure into a different type of structure, that I would be fine out there and that I could be a productive person in society and I would hope that you would give me that chance today, and I thank you. 23 (Dkt No. 16-1, 52:21-53:13.) 24 After its recess for deliberations, the panel returned with its "difficult decision" to deny Sargent 25 parole for another year. (See Dkt No. 16-1, pp. 54-63, 54:18.) The panel informed her they had 26 focused carefully on her history and all the material of record, finding her a "tough case" because she 27 had "loaded up" the positive side of the scale "really well" in terms of the work she had done while in 28 custody and in "connecting to the outside." (Id., 55:8-16.) "You're doing fine, whoever checks your - 18 - 07cv1448 1 work in your 12 Step program seems to be very satisfied and the back page said 'good work' on the 2 check offs, on the work that you've done, and the organization that you got [with] all your material . . . 3 you should be congratulated on that." (Id., 54:25-55:5.) The panel also commended Sargent for her 4 parole plans, her programming, her job offers, her marketable skills, the good work reports, and one 5 panel member observed: "I see you getting out of here." (Id., 55:19:56:6.) The panel reviewed in 6 detail the record of her accomplishments, noted her lack of a prior criminal record, the absence of any 7 serious misconduct while in prison, her educational, vocational, and self-help accomplishments, her 8 solid parole plans, her outside support, and her favorable recent psychological reports. (Id., pp. 60-63.) 9 Despite those positive factors, the panel discussed the circumstances surrounding the commitment 10 11 12 13 14 15 16 17 18 19 crimes in support of its decision to deny parole: PRESIDING COMMISSIONER SAWYER: The summary of the crime on 11/19/1980, the victim, Alana [sic] Sargent, age 5, was observed to be unconscious, but breathing, after police were summoned to the home. You indicated that your stepdaughter had fallen down the stairs, took a shower, passed out, the child was ill and vomited. At the time you went to a neighbor[']s house for help. Two doctors at the emergency room were highly suspicious of the incident, notice[d] bruises and abrasions, they were yellowish to black and blue. A large bruise on the forehead suggested an extensive head injury. She was placed in a pediatric intensive care and subsequently died on 11/21/1980 of acute cardi[o]-vascular collapse, secondarily to the massive cerebral swelling. The crime in this case is certainly cruel and callous. It was carried out over a period of time. This is – what I just read in the Board report was a very brief, very brief, description of what had been happening and what happened. It demonstrates an exceptional callous disregard for human suffering. There was no motive for this, other than [the child's lack of] cooperation. The crime was inexplicable in terms of a motive. 20 (Dkt No. 16-1, 57:3-58:2.) 21 Despite the one-year denial result, the panel observed: 22 23 24 The scales are certainly going in your direction. There's nothing you can do about changing the crime, we all know that, but you might again want to review the Olsen File and those reports that I mentioned. . . . So stay discipline free, continue your self-help, and earn those positive chronos. . . . 25 (Dkt No. 16-1, 63:12-20.) 26 Sargent provides as a Petition exhibit a letter her attorney wrote to her on February 7, 2006, 27 the week after the hearing, to elaborate the panel's reasoning, as they had explained it to him, in 28 - 19 - 07cv1448 1 particular the import of its suggestion that she consider and acknowledge at her next Board review the 2 contents of the police and other reports of the crime. (Dkt No. 1, p. 52.) The factors counsel 3 emphasized in his letter are all discernable in the hearing transcript and the panel's statement of 4 decision. First, with respect to the suggestion that she review the official reports describing the life 5 offense, he identified their concerns: "the extent of the abuse that you have been discussing with the 6 panels is less than what is indicated in the official reports;" "you need to get a handle on the significant 7 abuse that you had admitted to leading up to the event, and not that it was just an isolated incident 8 where something bad happened, but that this had been going on for one to two months;" and "you need 9 to be able to convey the depth and breadth of your own responsibility to them by focusing on all your 10 acts, not only the acts that led to the life offense." (Id.) Second, "the panel was concerned that your 11 statements really didn't include anything about the victim;" the victim must be "in your mind and in 12 your thoughts when you are discussing the life offense;" the focus "isn't about people feeling sorry for 13 you," but rather "it's about you feeling remorse for the life that you are responsible for taking;" and the 14 panel found "nothing said at the hearing that showed that you were remorseful or sorry nor did you 15 make any statements regarding the victim in your closing." (Id.) He advised her "the panel thought 16 that if you could convey [those things] in a more open and appropriate manner, that you are probably 17 going to get a date within the next couple of years." (Id.) 18 F. "Some Evidence" Supports The 2006 Parole Denial, Satisfying Due Process 19 As construed by the Ninth Circuit in Hayward, federal habeas courts reviewing state judicial 20 decisions must apply California's "some evidence" of present dangerousness due process standard: 21 Since the "some evidence" requirement applies without regard to whether the United States Constitution requires it, we in this case, and courts in this circuit facing the same issue in the future, need only decide whether the California judicial decision approving the governor's decision rejecting parole was an "unreasonable application" . . . of the California "some evidence" requirement, or was "based on an unreasonable determination of the facts in light of the evidence." 22 23 24 25 Hayward, 603 F.3d at 562-63, quoting 28 U.S.C. §§ 2254(d)(1)-(2); see also Id. at 569, Berzon, J., 26 concurring in part and dissenting in part (the "some evidence" rule must be applied in light of the 27 deference owed to the factual determinations of state courts under AEDPA). 28 - 20 - 07cv1448 1 The only reasoned state court decision to address Sargent's challenges to the Board's 2006 2 parole denial is the Amador County Superior Court's February 7, 2007 Order denying her habeas 3 corpus relief. (Dkt No. 1, Pt. 1, pp. 41-42.) That Order provides, in its entirety: 4 5 6 7 The Court has read and considered the petition for a writ of habeas corpus filed by petitioner GINA SARGENT, an inmate at Central California Women[]s' Facility. The Court, having read and considered the petition, informal response, reply to informal response, and the respective supporting documents, hereby denies the petition. Petitioner challenges the decision of the Board of Parole Hearings finding her unsuitable for parole. 8 9 10 In reviewing the decision of the Board of Parole Hearings, the court is to consider whether there is some evidence to support the decision to deny parole. (In re Rosenkrantz (2002) 29 Cal.4th 616.) In this instance, there was some evidence to support the Parole Board's decision. [¶] Therefore, the instant petition is denied. 11 (Dkt No. 1, Pt. 1, pp. 41-42.) 12 The Superior Court does not reveal "how" it may have applied the "some evidence" of public 13 danger standard in reaching that conclusion. See Pearson, 606 F.3d at 609. The court summarily 14 recites it "read and considered" the parties' arguments and supporting documents and found some 15 (unspecified) evidence "to support the Parole Board's decision." While "the court's review is limited 16 to ascertaining whether there is some evidence in the record that supports" the ultimate determination 17 the inmate's release would unreasonably endanger public safety (Rosenkrantz, 29 Cal. 4th at 676-77), 18 the Superior Court in Sargent's case relegates its analysis to arrive at that conclusion to the reader's 19 conjecture. While federal habeas courts applying AEDPA must accord considerable deference to the 20 state court's factual findings in support of its decision (28 U.S.C. § 2254(e)(1)), the Superior Court 21 here made no factual findings. The terse Order does not demonstrate the state court actually applied 22 California's "detailed standards" for review of parole denials. 23 Despite the state court's opaque decision, this Court's role is to determine whether the state 24 court result in upholding the parole denial was a reasonable application of the California "some 25 evidence" standard and was not the result of an unreasonable determination of the facts from the 26 record. Hayward, 603 F.3d at 562-63. As elaborated above, "[u]nder the statute and governing 27 regulations, the circumstances of the commitment offense (or any of the other factors related to 28 - 21 - 07cv1448 1 unsuitability) establish unsuitability if, and only if, those circumstances are probative to the 2 determination that a prisoner remains a danger to the public." Lawrence, 44 Cal.4th at 1212. The 3 Court must answer the question whether the decision to deny Sargent parole is supported by "some 4 evidence" probative of her current unsuitability for release on public safety grounds. See Hayward, 5 603 F.3d at 562-63; see also Lawrence, 44 Cal.4th at 1212 ("the relevant inquiry is whether some 6 evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat 7 to public safety"). 8 The due process standard requires a rational nexus between the prisoner's "current 9 circumstances" and a finding of public safety risk in order "to provide the 'modicum of evidence' 10 necessary" for a legitimate denial of parole. Lawrence, 44 Cal.4th at 1227. Nevertheless, "[t]he nature 11 of the prisoner's offense alone can constitute a sufficient basis for denying parole," and "the authority 12 properly may weigh the degree of violence used and the amount of viciousness shown by a defendant," 13 as long as the decision reflects "individualized treatment and due consideration" of all relevant and 14 reliable information. Rosenkrantz, 29 Cal.4th at 682-84; see Hayward, 603 F.3d at 562 (the "prisoner's 15 aggravated offense does not establish current dangerousness 'unless the record also establishes that 16 something in the prisoner's pre- or post-incarceration history, or . . . current demeanor and mental state, 17 supports the inference of dangerousness'"), quoting Lawrence, 44 Cal.4th at 1210, 1213-14. 18 The transcript of the February 2006 suitability hearing demonstrates the panel gave Sargent 19 individualized consideration of the multiple factors supported by the evidence tending to show 20 suitability before basing its decision primarily on the unsuitability factor of the heinousness and cruelty 21 of the commitment offense. The panel pointed to factors beyond the minimum elements of second 22 degree murder, signaling among other things: the pattern of physical abuse in the one to two months 23 leading up to the child's death while in Sargent's custody, as substantiated in medical records; the 24 victim was a defenseless and vulnerable five-year-old girl; the provocation for the push down the stairs 25 was Sargent's characterization that the child was being "uncooperative;" and her delay in seeking 26 treatment despite the obvious head injury and other symptoms after the fall. Those circumstances are 27 beyond the minimum elements for a second-degree murder conviction and also provide "some 28 evidence" for the panel's findings the circumstances of the crime demonstrate "an exceptionally callous - 22 - 07cv1448 1 disregard for human suffering" and the "motive for the crime is inexplicable or very trivial in relation 2 the offense." CAL. CODE REGS., tit. 15 § 2402(c)(1)(D), (E). 3 In addition, a central consideration in the panel’s denial of parole appears to be Sargent’s lack 4 of insight into the systematic abuse leading up to the death of her step daughter. Failure to recognize 5 causative factors that led to a violent crime is probative of future dangerousness and thus supports a 6 denial of parole. See In re Shaputis, 44 Cal. 4th at 1261 n.20. 7 The panel in announcing its decision spoke favorably of Ms. Sargent’s behavior in prison and 8 post-release plans. The panel, however, provided the following advice about how to improve her 9 chances of parole: 11 For your next hearing, you need to go through your Olsen Review, review the Probation Report, review the crime reports. . . . And I’m not going to tell you anything more. If you want to change anything for your next hearing, that’s up to you. 12 (Dkt No. 16-1, 49:8-21.) The panel then concluded by emphasizing that it was not denying parole 13 based on immutable factors: 10 15 The scales are certainly going in your direction. There’s nothing you can do about changing the crime, we all know that, but you might again want to review that Olsen File and those reports that I mentioned. Okay? 16 (Id., 56:12-16.) Sargent’s letter from her attorney explaining the panel’s reasoning, makes clear that 17 references to the probation report and the crime reports demonstrate the panel’s concern that Sargent 18 does not have “a handle on the significant abuse. . . leading up to the event, and not that it was just an 19 isolated incident where something bad happened, but that this had been going on for one to two 20 months.”14 (Dkt No. 1, p. 52.) 14 21 This lack of insight could call into question the sufficiency of Sargent’s explanation as to why 22 she will not have anger management issues outside of prison. (See, e.g., Dkt No. 16-1, 35:3-7 ( “I’ve 23 learned ways to deal with anger instead of just lashing out like I used to do at one time.”).) If Sargent 24 25 26 27 28 14 As noted above, these factors are discernable in the hearing transcript. Moreover, the panel need not explicitly articulate the connection between the systematic abuse leading up to the underlying crime and the possibility that Ms. Sargent will not adequately be able to deal with her anger outside of prison. “There is. . . no requirement that the Board point out the particulars of the rational nexus between the evidence and [its] finding that Petitioner was not ready for parole; it was enough that the Board pointed out the evidence it found relevant, and stated its conclusions.” Wallach v. Hernandez, No. 06cv2279, 2010 U.S. Dist. LEXIS 72987, at *8 (S.D. Cal. July 20, 2010). 07cv1448 - 23 - 1 approaches anger management from the perspective of suppressing one-off incidents, she may not have 2 addressed the root causes that led to the systematic abuse of her step-daughter. When, as is the case 3 here, “there is evidence in the record [that] supports the conclusion that the circumstances of the crime 4 continue to be predictive of current dangerousness despite an inmate’s discipline-free record during 5 incarceration,” parole may be properly denied. In re Lawrence, 44 Cal. 4th at 1228; see also Morrison 6 v. Carey, No. CIV S-06-284, 2009 U.S. Dist. LEXIS 113349, at *22-23 (E.D. Cal. Dec. 4, 2009); In 7 re Shaputis, 44 Cal. 4th at 1261, n.20 (“[P]etitioner’s failure to take full responsibility for past 8 violence, and his lack of insight into his behavior, establish that the circumstances of petitioner's crime 9 and violent background continue to be probative to the issue of his current dangerousness.”); In re 10 Lazor, 172 Cal. App. 4th 1185, 1202 (Cal. App. 6th Dist. 2009) (“An inmate’s lack of insight into, or 11 minimizing of responsibility for, previous criminality, despite professing some responsibility, is a 12 relevant consideration.”). 13 Ninth Circuit case law supports this conclusion. In a recent decision, the court held that a 14 parole board’s sole reliance on “two immutable characteristics (commitment offense and criminal 15 history)” could support a denial of parole. Varner v. Brown, No. 05-16029, 2010 U.S. App. LEXIS 16 18015, at *2-5 (9th Cir. Cal. Aug. 26, 2010). There, the parole board based its conclusion on the 17 following facts: “(1) [Petitioner] carried out his commitment offense ‘in an especially cruel and 18 callous manner’ and his motive ‘was inexplicable or very trivial’; and (2) [Petitioner] had a prior 19 criminal history involving the infliction or attempted infliction of serious injury on a victim.” Id. at 20 *3. Both of these facts are present in the instant case. As noted in the panel’s decision, “The crime 21 in this case is certainly cruel and callous. . . . The crime was inexplicable in terms of motive.” (Dkt 22 No. 16-1, 50:19-20, 51:1-2.) And although Sargent had no prior criminal record, she had engaged in 23 systematic abuse of the victim prior to the life crime. 24 Moreover, the evidence before Sargent’s panel went beyond the pre-conviction facts that the 25 Ninth Circuit found sufficient to support a denial of parole in Varner. As noted above, the panel was 26 concerned about Sargent’s failure to adequately acknowledge the pattern of abuse leading up to her 27 life offense, a fact probative of future dangerousness. This fact likely would have satisfied the 28 dissenting judge in Varner, who pointed to a series of Ninth Circuit cases including Cooke v. Solis, - 24 - 07cv1448 1 606 F.3d 1206, 1208, 1216 (9th Cir. 2010), for the proposition, “Where the Board denies parole to a 2 prisoner in a case where the sentencing judge found the possibility of parole appropriate, the ‘some 3 evidence’ rule requires that the Board rely on something more than pre-conviction factors.” Varner, 4 2010 U.S. App. LEXIS 18015, at *9 (Pregerson, J., dissenting). 5 Although the facts of Cooke share some similarities with the instant case, Cooke does not 6 direct a conclusion that Sargent’s parole board’s decision was unreasonable. In Cooke, the board 7 denied petitioner’s parole, stating in relevant part: 8 9 [T]he prisoner does need self-help and/or therapy programming in order to face, discuss, understand, and cope with stress in a nondestructive manner. And to face, discuss, and understand the causative factors that led to the life crime. Until progress is made, he continues to be unpredictable and a threat to others. 10 Cooke, 606 F.3d at 1211-12. In granting petitioner’s habeas appeal, the Ninth Circuit did not dispute 11 that failure to understand causative factors leading to a life crime could support a finding of future 12 dangerousness. Instead, the court found that the evidence before the parole board did not support a 13 finding that petitioner could benefit from additional self-help programming: 14 15 16 17 Cooke has received numerous accolades for his extensive participation in self-help groups and programming; indeed, he has designed such programming and is now leading such groups. Nothing in the record so much as hints at the possibility that Cooke might need further programming in order to become non-dangerous, or even that he suffered from stress of any kind while in prison. Accordingly, the Board’s bare assertion that Cooke needs additional programming cannot reasonably be viewed as providing evidence that supports a finding of current dangerousness. 18 Id. at 1215. In contrast, here, the board praised Sargent’s engagement in self-help opportunities but 19 noted that she should review documents–her Probation Report and crime reports–which could help 20 provide insight into the abusive acts preceding her life offense. Thus, unlike the situation in Cooke, 21 evidence before the board supported a finding that Sargent had not adequately targeted behavior that 22 preceded the life offense, a potential indicator of future dangerousness. 23 The Court may not substitute its own weighing of the evidence for that of the state authorities. 24 See Rosenkrantz, 29 Cal. 4th at 677. The Court finds from its independent review of the record the 25 Board's February 2006 decision "reflects due consideration of the specified factors applied to the 26 individual prisoner in accordance with applicable legal standards." Id. at 676-77. Due process is 27 satisfied when, as here, the parole denial "decision is supported by" at least "a modicum of evidence." 28 - 25 - 07cv1448 1 Id. (emphasis added). The state court's upholding of that result therefore did not entail an unreasonable 2 application of the California "some evidence" requirement, nor was it "based on an unreasonable 3 determination of the facts in light of the evidence." Hayward, 603 F.3d at 562-63, quoting 28 U.S.C. 4 §§ 2254(d)(1)-(2). Sargent is accordingly not in custody "in violation of the Constitution or laws or 5 treaties of the United States," foreclosing federal habeas relief. 28 U.S.C. § 2254(a). 6 7 III. CONCLUSION AND ORDER 8 For all the foregoing reasons, the Court finds no due process violation accompanied Sargent's 9 denial of parole in February 2006 because "some evidence" supported a reasonable inference of present 10 dangerousness, as required under the California statute creating a liberty interest in parole. See 11 Hayward, 603 F.3d at 561-62; Pearson, 606 F.3d at 608-09. The Court notes Sargent filed a 12 Supplement to her Traverse informing the Court she was found suitable for parole at a Board hearing 13 on December 19, 2007, after the February 2006 suitability hearing forming the subject matter of this 14 Order. (Dkt No. 24.) The Governor of California reversed that decision, and Sargent states she is 15 pursuing habeas relief from that result through the state courts, a process she had not yet completed. 16 (Id., p. 2.) That subsequent history and any issues raised there are not before this Court at this time 17 through this Petition. IT IS HEREBY ORDERED Sargent's Petition is DENIED, and judgment shall 18 be entered accordingly. The Court GRANTS a certificate of appealability on the issue of whether the 19 state court’s determination that there was some evidence supporting the parole board’s decision was 20 unreasonable. This grant of a certificate of appealability is not a substitute for complying with all 21 appellate rules. Petitioner is reminded that she still must file a timely Notice of Appeal. 22 IT IS SO ORDERED. 23 Dated: November 2, 2010 __________________________________ HONORABLE BARRY TED MOSKOWITZ UNITED STATES DISTRICT JUDGE 24 25 26 27 28 - 26 - 07cv1448