(HC) Salgado v. Hartley, No. 1:2008cv01094 - Document 15 (E.D. Cal. 2009)
Court Description: ORDER DENYING Petition for a Writ of Habeas Corpus; Clerk to enter Judgment,signed by Chief Judge Vaughn R. Walker on 07/09/2009. CASE CLOSED (Martin, S)
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(HC) Salgado v. Hartley Doc. 15 1 2 3 4 5 6 7 8 United States District Court For the Eastern District of California 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 13 VICTOR SALGADO, No 14 Petitioner, 15 v 16 C 08-1094 VRW ORDER JAMES HARTLEY, 17 Respondent. / 18 19 Petitioner Victor Salgado, a California state prisoner 20 proceeding pro se, petitions for a writ of habeas corpus pursuant 21 to 28 USC § 2254. 22 Governor Schwarzenegger denying him parole. 23 an answer addressing the merits of the petition, Doc #11, and 24 Salgado has filed a traverse, Doc #14. 25 and the underlying record, the court concludes that Salgado is not 26 entitled to relief based on the claims presented and denies the 27 petition. Doc #1. Salgado challenges a decision by Respondent has filed Having reviewed the briefs 28 Dockets.Justia.com 1 I United States District Court For the Eastern District of California 2 On July 7, 1981, Salgado was a passenger in a car driven 3 by a fellow 18th Street gang member. 4 front of a residence, Salgado fired three or four shots at four men 5 sitting on the porch, striking and killing one of them. 6 54. 7 one of the men had been harassing his girlfriend. 8 convicted of second-degree murder and was sentenced to fifteen 9 years to life. When the vehicle stopped in Doc #1 at Apparently, Salgado was motivated to shoot because at least 10 Id. Salgado was Id at 16. The California Department of Corrections set Salgado’s 11 minimum eligible parole date at December 5, 1991. 12 of Prison Terms (BPT) denied Salgado parole seven times beginning 13 in 1990. 14 for parole. 15 Id at 20. Id. The Board On May 3, 2006, the BPT found Salgado suitable Id. The governor reversed the BPT’s suitability determination 16 on September 22, 2006. 17 emphasized “the gravity of the second-degree murder perpetrated by 18 Mr Salgado.” 19 offense, the governor cited to Salgado’s drug use and discipline 20 record in prison, gang membership that continued until “seven or 21 eight years ago” and the Los Angeles county district attorney’s 22 opposition to Salgado’s parole. 23 Id at 156. Id at 157. In his decision, the governor In addition to the gravity of the Id at 156-57. Salgado unsuccessfully challenged the governor’s decision 24 in California superior court, id at 54, and in the California 25 Supreme Court, id at 58. 26 denied the petition without comment, the superior court’s decision 27 is the last reasoned decision. Because the California Supreme Court Ylst v Nunnemaker, 501 US 797, 803- 28 2 1 04 (1991). After the state court denied his petition for review on 2 June 18, 2008, Salgado filed the instant federal petition for a 3 writ of habeas corpus. Doc #1. 4 5 II United States District Court For the Eastern District of California 6 The Antiterrorism and Effective Death Penalty Act of 1996 7 (“AEDPA”), codified under 28 USC § 2254, provides “the exclusive 8 vehicle for a habeas petition by a state prisoner in custody 9 pursuant to a state court judgment, even when the petitioner is not 10 challenging his underlying state court conviction.” 11 Lambert, 370 F3d 1002, 1009-10 (9th Cir 2004). 12 court may entertain a petition for habeas relief on behalf of a 13 California state inmate “only on the ground that he is in custody 14 in violation of the Constitution or laws or treaties of the United 15 States.” 16 17 18 19 20 21 White v Under AEDPA, this 28 USC § 2254(a). The writ may not be granted unless the state court's adjudication of any claim on the merits: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 22 Id at § 2254(d). 23 not be granted “simply because [this] court concludes in its 24 independent judgment that the relevant state-court decision applied 25 clearly established federal law erroneously or incorrectly. 26 Rather, that application must also be unreasonable.” 27 Taylor, 529 US 362, 411 (2000). 28 Under this standard, federal habeas relief will 3 Williams v 1 While circuit law may provide persuasive authority in 2 determining whether the state court made an unreasonable 3 application of Supreme Court precedent, the only definitive source 4 of clearly established federal law under 28 USC § 2254(d) is in the 5 holdings (as opposed to the dicta) of the Supreme Court as of the 6 time of the state court decision. 7 F3d 1062, 1069 (9th Cir 2003). Id at 412; Clark v Murphy, 331 8 United States District Court For the Eastern District of California 9 III 10 Salgado seeks federal habeas corpus relief from the 11 governor's September 22, 2006 decision to reverse the BPT’s parole 12 decision. 13 comport with due process because it is not supported by some 14 evidence in the record and is based solely on an unchanging factor: 15 his commitment offense. 16 Salgado claims that the governor's decision does not Under California law, prisoners serving indeterminate 17 life sentences, like Salgado, become eligible for parole after 18 serving minimum terms of confinement required by statute. 19 Dannenberg, 34 Cal 4th 1061, 1069-70 (2005). 20 California's parole scheme provides that the board 21 22 23 In re At that point, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration. 24 Cal Penal Code § 3041(b). 25 the board should deny parole if it determines “the prisoner will 26 pose an unreasonable risk of danger to society if released from 27 prison.” 28 Regardless of the length of time served, Cal Code Regs tit 15, § 2402(a). 4 The board must consider 1 various factors to reach its decision, including the prisoner's 2 social history, past criminal history, and base and other 3 commitment offenses, including behavior before, during and after 4 the crime. 5 same factors in determining whether to reverse a grant of parole by 6 the board. 7 4th 616, 665 (2002). 8 United States District Court For the Eastern District of California 9 See id § 2402(b)-(d). The governor must consider these See Cal Const art 5, § 8(b); In re Rosenkrantz, 29 Cal California's parole scheme “gives rise to a cognizable liberty interest in release on parole which cannot be denied 10 without adequate procedural due process protections.” 11 California Bd of Prison Terms, 461 F3d 1123, 1128 (9th Cir 2006); 12 McQuillion v Duncan, 306 F3d 895, 902 (9th Cir 2002). 13 interest is created, not upon the grant of a parole date, but upon 14 the incarceration of the inmate.” 15 914-15 (9th Cir 2003). 16 Sass v “The liberty Biggs v Terhune, 334 F3d 910, Salgado's due process rights require that “some evidence” 17 support the governor's decision finding him unsuitable for parole. 18 Irons v Carey, 505 F3d 846, 851 (9th Cir 2007) (holding that “some 19 evidence” standard for disciplinary hearings outlined in 20 Superintendent v Hill, 472 US 445, 454-55 (1985), applies to parole 21 decisions in § 2254 habeas petition); Sass, 461 F3d at 1125 (same); 22 Biggs, 334 F3d at 915 (same); McQuillion, 306 F2d at 904 (same). 23 This “some evidence” standard is minimally stringent and ensures 24 that the governor’s decision was not arbitrary. 25 457. 26 require examination of the entire record, independent assessment of Determining whether this requirement is satisfied “does not 27 28 Hill, 472 US at 5 1 the credibility of witnesses, or weighing of the evidence.” 2 455-56 (quoted in Sass, 461 F3d at 1128). United States District Court For the Eastern District of California 3 Id at Here, the state court’s decision to uphold the governor’s 4 parole reversal was not contrary to clearly established law. 5 governor supported his decision with “some evidence” when he 6 pointed to the circumstances of Salgado’s crime along with his 7 prison drug use, discipline record and history of gang membership. 8 Doc #1 at 156-57. 9 factors in the record indicates his decision was neither arbitrary The The governor’s reference to post-conviction 10 nor based solely on an unchanging circumstance. 11 and should not determine whether it would reach the same decision 12 as the governor. 13 supports the conclusion that Salgado is not currently suitable for 14 parole and thus satisfies minimum due process requirements. The court need not The evidence used by the governor reasonably 15 16 17 IV Because the record contains, at a minimum, some evidence 18 to support the governor’s decision, the petition for a writ of 19 habeas corpus, Doc #1, is DENIED. 20 terminate all motions and close the file. The clerk shall enter judgment, 21 22 IT IS SO ORDERED. 23 24 25 26 VAUGHN R WALKER United States District Chief Judge 27 28 6
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