(HC) Juan Lopez v. Derral Adams, No. 1:2008cv01270 - Document 27 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the 1 Petition for Writ of Habeas Corpus be Denied with Prejudice and the Clerk of Court be Directed to enter Judgment for Respondent signed by Magistrate Judge John M. Dixon, Jr on 12/14/2009. Referred to Judge Wanger; Objections to F&R due by 1/19/2010.(Flores, E)
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(HC) Juan Lopez v. Derral Adams Doc. 27 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 JUAN LOPEZ, ) ) Petitioner, ) ) v. ) ) DERRAL ADAMS, ) ) Respondent. ) ____________________________________) 1:08-cv-01270-OWW-JMD-HC FINDINGS AND RECOMMENDATIONS REGARDING PETITION FOR WRIT OF HABEAS CORPUS OBJECTIONS DUE WITHIN THIRTY DAYS 15 16 17 Petitioner Juan Lopez (“Petitioner”) is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 18 Procedural History 19 In 1990, Petitioner was convicted of assault with a firearm and kidnaping. (Pet. at 2). The 20 sentencing court sentenced Petitioner to a term of seven years to life with the possibility of parole. 21 (Id.). 22 On January 3, 2007, Petitioner appeared before California’s Board of Parole Hearings (BPH) 23 for a parole suitability determination. (Answer, Ex. A). The BPH found Petitioner unsuitable for 24 parole. (Id.). 25 Petitioner challenged the BPH’s 2007 denial of parole by filing a petition for writ of habeas 26 corpus with the San Diego County Superior Court. The Superior Court issued a reasoned decision 27 denying Petitioner relief. (Answer, Ex. B). 28 /// U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 Petitioner filed a petition for writ of habeas corpus before the California Court of Appeal, 2 and the Court of Appeal issued a reasoned decision denying Petitioner relief on April 17, 2008. 3 (Answer, Ex. D). Petitioner then filed a petition for review in the California Supreme Court. The 4 California Supreme Court summarily denied the petition on June 25, 2008. (Answer, Ex. F). 5 Petitioner filed the instant federal petition for writ of habeas corpus on August 21, 2008. 6 (Doc. 1). Respondent filed an answer to the petition on February 19, 2009. (Doc. 21). Petitioner 7 filed a traverse on February 26, 2009. (Doc. 23). 8 Factual Background 9 Petitioner does not challenge his underlying conviction or sentence in this action. Rather, 10 Petitioner contends that the BPH’s denial of parole to him at his 2007 hearing violated his due 11 process rights. Accordingly, the factual background relevant to the instant petitioner concerns 12 Petitioner’s 2007 parole hearing.1 13 Petitioner attended his 2007 parole hearing and was assisted by counsel. (See Answer, Ex. 14 A). Petitioner was given an opportunity to be heard and to present evidence on his own behalf 15 concerning his parole suitability. (Id.). At the hearing, the BPH considered Petitioner’s adult and 16 juvenile criminal histories, his record of discipline while incarcerated, the commitment offense, 17 Petitioner’s participation in self-help programing as an inmate, Petitioner’s parole plans, and 18 Petitioner’s mental health evaluations. (See Answer, Ex. D). The BPH explained its reasons for 19 denying Petitioner parole during the decision portion of the hearing. (Answer, Ex. A at 93-97). The 20 BPH relied on Petitioner’s commitment offense, juvenile criminal history, “limited” programing 21 while incarcerated, disciplinary record while incarcerated, lack of insight into his crime, and an 22 unfavorable mental health evaluation in determining that Petitioner was unsuitable for parole. (Id.). 23 /// 24 /// 25 /// 26 27 28 1 The Court omits the BPH’s factual summary of the offense because it is not necessary to determine whether Petitioner’s commitment offense provides a legitimate independent basis for Petitioner’s 2007 parole denial in this action. As discussed below, other evidence cited by the BPH is sufficient to satisfy the “some evidence” requirement notwithstanding the BPH’s characterization of the commitment offense. U .S. D istrict C ourt E. D . C alifornia 2 1 2 Discussion I. Jurisdiction and Venue 3 A person in custody pursuant to the judgment of a state court may file a petition for a writ of 4 habeas corpus in the United States district courts if the custody is in violation of the Constitution or 5 laws or treaties of the United States. 28 U.S.C. § 2254(a)2; 28 U.S.C. § 2241(c)(3); Williams v. 6 Taylor, 529 U.S. 362, 375, n.7 (2000). Venue for a habeas corpus petition is proper in the judicial 7 district where the prisoner is held in custody. See 28 U.S.C. § 2241(d). 8 9 Petitioner asserts that he is currently incarcerated at Corcoran State Prison in Kings County, California, in violation of his right to due process under the United States Constitution. As Kings 10 County is within the Eastern District of California, the Court has jurisdiction to entertain the petition 11 and venue is proper in the Eastern District. 28 U.S.C. § 84; 28 U.S.C. § 2241(c)(3). 12 II. 13 Standard of Review Section 2254 “is the exclusive vehicle for a habeas petition by a state prisoner in custody 14 pursuant to a state court judgment, even when the petitioner is not challenging his underlying state 15 court conviction.” Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126 (9th Cir. 2006) 16 (quoting White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004)). Under section 2254, a petition 17 for habeas corpus may not be granted unless the state court decision denying Petitioner’s state habeas 18 petition “was contrary to, or involved an unreasonable application of, clearly established Federal law, 19 as determined by the Supreme Court of the United States,” or “was based on an unreasonable 20 determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. 21 § 2254(d). “A federal habeas court may not issue the writ simply because that court concludes in its 22 independent judgment that the relevant state-court decision applied clearly established federal law 23 erroneously or incorrectly...rather, that application must be objectively unreasonable.” Lockyer v. 24 Andrade, 538 U.S. 63, 75 (2003) (citations omitted). 25 2 26 27 28 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions. U .S. D istrict C ourt E. D . C alifornia 3 1 III. Petitioner’s “Some Evidence” Due Process Claim 2 A. The Due Process Framework 3 The Due Process Clause of the Fourteenth Amendment of the United States Constitution 4 prohibits states from depriving persons of protected liberty interests without due process of law. See, 5 e.g., Sass, 461 F.3d at 1127. The Court must “analyze Petitioner’s due process claim in two steps: 6 ‘the first asks whether there exists a liberty or property interest which has been interfered with by the 7 State; the second examines whether the procedures attendant upon that deprivation were 8 constitutionally sufficient.’” Id. (quoting Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 9 460 (1989) partially overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)). 10 California law vests prisoners whose sentences provide for the possibility of parole with a 11 constitutionally protected liberty interest in the receipt of a parole release date. Irons v. Carey, 505 12 F.3d 846, 850-51 (9th Cir. 2007); Sass, 461 F.3d at 1128; McQuillion v. Duncan, 306 F.3d 895, 903 13 (9th Cir. 2002) (citing Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 12 14 (1979)); Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir. 2003). Although California’s parole statute 15 creates a liberty interest protected by the Due Process Clause, Irons, 306 F.3d at 903, “since the 16 setting of a minimum term is not part of a criminal prosecution, the full panoply of rights due a 17 defendant in [a criminal prosecution proceeding] is not constitutionally mandated” in the parole 18 context, Pedro v. Oregon Parole Bd., 825 F.3d 1396, 1399 (9th Cir. 1987). Due process requires 19 that a parole board’s denial of parole to a prisoner be supported by “some evidence.”3 Irons, 505 20 F.3d at 851 (citing Sass, 461 F.3d at 1128-29 (quoting Superintendent v. Hill, 472 U.S. 445, 21 457(1985)); see also Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904. The requirement that the 22 parole board’s denial of parole to Petitioner be supported by some evidence is clearly established 23 federal law.4 See Irons, 505 F.3d at 851 (citing Sass, 461 F.3d at 1128-29 (quoting Superintendent v. 24 3 25 The Ninth Circuit is currently considering the “some evidence” standard en banc. Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008) reh’g en banc granted, 527 F.3d 797 (2008). 26 4 27 28 Respondent contends that no clearly established federal law requires that California parole decisions be supported by “some evidence.” “The Supreme Court need not have addressed the identical factual circumstances at issue in a case in order for it to have created ‘clearly established’ law governing that case....rather, it is enough that the Supreme Court has prescribed a rule that plainly governs the petitioner’s claim.” McQuillion, 306 F.3d at 901 (citations omitted). Further, this Court is not authorized to disregard the settled law of the Ninth Circuit, which holds that the “some evidence” requirement is clearly established federal law in the parole context. See id. U .S. D istrict C ourt E. D . C alifornia 4 1 Hill, 472 U.S. 445, 457(1985)); see also Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904. 2 The “some evidence” standard is minimal, and is meant only to “[assure] that ‘the record is 3 not so devoid of evidence that the findings of...[the] board were without support or otherwise 4 arbitrary.’” Sass, 461 F.3d at 1129 (quoting Hill, 472 U.S. at 457). “Ascertaining whether [the some 5 evidence] standard is satisfied does not require...weighing of the evidence. ..the relevant question is 6 whether there is any evidence in the record that could support the conclusion reached.” Hill, 472 7 U.S. at 455-456. Want of due process is not established by showing merely that incompetent 8 evidence was received and considered. United States ex rel. Vajtauer v. Commissioner of 9 Immigration, 273 U.S. 103, 106 (1927).5 “Upon a collateral review in habeas corpus proceedings, it 10 is sufficient that there was some evidence from which the conclusion of the administrative tribunal 11 could be deduced.” Id. “The fundamental fairness guaranteed by the Due Process Clause does not 12 require courts to set aside decisions of prison administrators that have some basis in fact.” Hill, 472 13 U.S. at 456 (citations omitted). 14 In assessing whether the parole board's denial of parole to Petitioner is supported by “some 15 evidence,” the Court’s analysis “is framed by the statutes and regulations governing parole suitability 16 determinations in the relevant state.” Irons, 505 F.3d at 851. Accordingly, the Court must look to 17 California law “to determine the findings that are necessary to deem a prisoner unsuitable for parole, 18 and then must review the record in order to determine whether the state court decision holding that 19 these findings were supported by ‘some evidence’ in Petitioner’s case constituted an unreasonable 20 application of the ‘some evidence’ principle articulated in Hill.” Id. 21 Under California law, the paramount inquiry in determining whether to grant a prisoner 22 parole is whether the prisoner “will pose an unreasonable risk of danger to society if released from 23 prison.” CAL. CODE. REGS. TIT 15, § 2402(a) (2008); In Re Lawrence, 44 Cal. 4th 1181, 1202 (Cal. 24 2008). Title 15, section 2402 of the California Code of Regulations sets forth the factors to be 25 considered by the BPH in applying California’s parole statute to Petitioner. Section 2402 provides in 26 part: 27 28 5 Vajtauer concerned a collateral challenge to an immigration decision. The Supreme Court cited Vajtauer in support of its formulation of the some evidence standard in Hill. 472 U.S. at 455. U .S. D istrict C ourt E. D . C alifornia 5 1 2 3 4 5 6 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. 7 CAL. CODE. REGS., tit. 15, § 2402(b) (2008). Factors supporting a finding of unsuitability for parole 8 include misconduct while incarcerated and psychological risk factors. CAL. CODE REGS., tit. 15, § 9 2402(c). 10 The factors listed in section 2402(c) “establish unsuitability [for parole] if, and only if, those 11 circumstances are probative to the determination that a prisoner remains a danger to the public.” 12 Lawrence, 44 Cal.4th at 1212. “When a court reviews a decision of the Board or the Governor, the 13 relevant inquiry is whether some evidence supports the decision ...that the inmate constitutes a 14 current threat to public safety...not merely whether some evidence confirms the existence of certain 15 factual findings.” Id. A rational nexus between the unsuitability factors applicable to the prisoner 16 and the ultimate determination of dangerousness must exist. See id. at 1227 17 B. Review of Petitioner’s State Habeas Proceeding 18 The Court must “look through” the summary disposition of the California Supreme Court to 19 the last reasoned decision issued by the State. Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991). As the 20 California Court of Appeal issued the last reasoned decision denying Petitioner relief in his state 21 habeas actions, this Court must determine whether the California Court of Appeal’s decision was 22 objectively unreasonable. Lockyer, 538 U.S. at 75. 23 The Court of Appeal held that the BPH’s denial of parole to Petitioner was supported by 24 some evidence of current dangerousness; specifically, the Court of Appeal noted the BPH’s 25 permissible reliance on the nature of the commitment offense, Petitioner’s disciplinary infractions 26 while in prison, Petitioner’s lack of insight into his crime, and Petitioner’s less-than-favorable 27 psychological report. (Answer, Ex. A at 93-97). Each of these factors may be considered by the BPH 28 in determining parole suitability. See CAL. CODE REGS., tit. 15, §§ 2402(c)(3)-(6). U .S. D istrict C ourt E. D . C alifornia 6 1 The Court cannot say that the California Court of Appeal’s decision denying Petitioner relief 2 was objectively unreasonable. As the BPH noted, a psychologist’s report on Petitioner prepared 3 approximately two months prior to the 2007 parole hearing determined that Petitioner’s risk of 4 dangerousness if released on parole was “above average” at the time of the 2007 hearing. (Answer, 5 Ex. A at 97; Pet. Vol. 3 at 30). The psychologist further opined that Petitioner “ranked slightly 6 above average for future violence within a controlled setting.” (Id.). The psychologist’s assessment 7 was based on Petitioner’ attitude toward the crime and risk of relapsing into substance abuse if 8 released into society. (Id. at 26-30). It is axiomatic that there is a rational nexus between Petitioner’s 9 dangerousness at the 2007 hearing and the finding of dangerousness contained in the psychologists’ 10 report. Accordingly, the psychologist’s assessment of Petitioner’s dangerousness constitutes “some 11 evidence” sufficient to support the BPH’s parole denial. The Court need not address the remaining 12 evidence of Petitioner’s unsuitability discussed by the BPH, as due process is satisfied so long as 13 there is any evidence to support the BPH’s conclusion. See Sass, 461 F.3d at 1128 (“relevant 14 question is whether there is any evidence in the record that could support the conclusion reached”) 15 (emphasis added); see also Biggs, 334 F.3d at 916 (despite the fact that several of the Board’s 16 reasons for denying parole were not supported by the record, some evidence as to one of the Board’s 17 reasons was sufficient to preclude habeas relief). Because the California Court of Appeal’s 18 determination that the some evidence standard had been satisfied was entirely reasonable, Petitioner 19 is not entitled to relief under section 2254. 20 IV. Petitioner’s Remaining Claims 21 A. Lack of Articulated Nexus 22 Petitioner contends that “[i]f a BPH panel uses, as here, immutable offense facts to justify 23 denying parole, it must de minimus articulate some nexus or bearing the facts it dutifully recites have 24 upon the risk to public safety.” (Pet. at 41). Initially, the Court notes that Petitioner’s argument fails 25 under its own terms, as the BPH did not rely solely on Petitioner’s commitment offense to deny 26 Petitioner parole. Further, as noted above, it is axiomatic that there is a rational nexus between the 27 psychologists’ assessment of Petitioner’s dangerousness and Petitioner’s dangerousness at the time 28 of his 2007 hearing. Most importantly, Petitioner cites no clearly established federal law which U .S. D istrict C ourt E. D . C alifornia 7 1 holds that a prisoner’s due process rights are violated when, despite being supported by some 2 evidence, a parole board’s decision to deny parole does not articulate a nexus between unsuitability 3 factors and current dangerousness. Petitioner’s argument therefore fails to state a cognizable claim 4 for relief under section 2254. 28 U.S.C. § 2254(d). 5 B. Sentencing Argument 6 Petitioner contends that “the only arguably viable ground for the 2007 panel’s finding ...was 7 the gravity of the offense, ” and that continued reliance on his commitment offense to deny parole 8 effectively converts his sentence to a life sentence without the possibility of parole. (Pet. at 46-50). 9 Petitioner’s argument is of no avail because the record demonstrates that the BPH did not rely solely 10 on Petitioner’s commitment offense to deny Petitioner parole. Accordingly, Petitioner’s argument 11 lacks merit. 12 C. Plea Bargain Claim 13 Petitioner argues that the State has impermissibly re-characterized Petitioner’s crime as 14 murder in order to deny Petitioner parole, and that such re-characterization violates Petitioner’s plea 15 agreement. (Id. at 51).6 Petitioner complains that the BPH’s characterization of Petitioner’s offense 16 as “especially heinous, atrocious, or cruel” recasts “his kidnaping offense into a category of the most 17 severe first degree murders.” (Id. at 52). The essence of Petitioner’s argument is that the state has 18 reneged on its promise to punish Petitioner for kidnaping and is instead punishing Petitioner as if he 19 had been convicted of murder, contrary to his plea agreement. (Id. at 53-54). Petitioner’s argument 20 overlooks the simple fact that Petitioner’s plea agreement resulted in a permissible seven years to life 21 sentence. Petitioner has not been punished more severely than his plea bargain contemplated simply 22 because he has not yet been found suitable for parole. Nor is Petitioner being punished as if he 23 committed the crime of murder. To the contrary, Petitioner’s minimum eligible parole date was 24 based on the seven years to life sentence he received, whereas Petitioner’s minimum eligible parole 25 date would have been based, at best, on a fifteen-year minimum sentence had he been convicted of 26 27 28 6 Petitioner correctly points out that a criminal defendant's right to due process entitles him to enforce the terms of a plea agreement. E.g., Santobello v. New York, 404 U.S. 257, 261-62 (1971); United States v. De La Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993) ("Plea agreements are contractual in nature and are measured by contract law standards."). However, Petitioner points to no specific term of the plea agreement that the State has allegedly violated. U .S. D istrict C ourt E. D . C alifornia 8 1 murder. See People v. Huynh, 229 Cal. App. 3d 1067, 1081 (Cal. Ct. App. 1991) (noting fifteen-year 2 minimum eligible parole date for second degree murders committed after November 8, 1978). 3 Petitioner is not entitled to relief on his plea bargain claim. 4 C. Two-Year Denial 5 Petitioner contends that the BPH’s decision to issue a two-year parole denial violated his due 6 process rights because the BPH’s action was arbitrary and not supported by the evidence. (Pet. at 7 54). Petitioner cites no clearly established federal law in support of this contention. Assuming 8 arguendo that a California prisoner’s due process rights are violated by the BPH’s unsupported 9 decision to issue a multi-year parole denial, in the instant case, the BPH’s decision was supported by 10 “some evidence.” The BPH’s decision to defer annual parole consideration hearings is guided by the 11 same criteria used to determine parole suitability. E.g., In re Lugo, 164 Cal.App.4th 1522, 1537 12 (Cal. Ct. App. 2008) (citations omitted). As discussed above, Petitioner’s most recent psychological 13 evaluation provided “some evidence” sufficient to justify denial of parole, and the BPH could 14 reasonably conclude that the report provided the basis for a two-year denial. “The reasons for 15 postponing the next scheduled parole hearing need not be completely different from the reasons for 16 denying parole suitability...[r]ather, the only requirement is an identification of the reasons that 17 justify postponement.” Id. (citations omitted). Here, the BPH adequately identified its reasons for 18 issuing a two-year denial. Accordingly, Petitioner’s claim lacks merit. 19 20 RECOMMENDATION Based on the reasons stated above, the Court RECOMMENDS that the petition for writ of 21 habeas corpus be DENIED WITH PREJUDICE and the Clerk of Court be DIRECTED to enter 22 judgment for Respondent. 23 This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United 24 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72-304 25 of the Local Rules of Practice for the United States District Court, Eastern District of California. 26 Within thirty (30) days after being served with a copy, any party may file written objections with the 27 court and serve a copy on all parties. Such a document should be captioned “Objections to 28 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and U .S. D istrict C ourt E. D . C alifornia 9 1 filed within ten (10) court days (plus three days if served by mail) after service of the objections. 2 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(c). The 3 parties are advised that failure to file objections within the specified time may waive the right to 4 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 IT IS SO ORDERED. 6 Dated: hkh80h December 14, 2009 /s/ John M. Dixon UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 10
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