(HC) Felix v. Hartley, No. 1:2009cv00223 - Document 16 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the 1 Petition for Writ of Habeas Corpus be Denied and Judgment be Entered in Favor of Respondent signed by Magistrate Judge Gary S. Austin on 8/26/2009. Referred to Judge Oliver W. Wanger. Objections to F&R due by 9/29/2009. (Sant Agata, S)
Download PDF
<![CDATA[
(HC) Felix v. Hartley Doc. 16 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 BRIAN FELIX, 13 14 1:09-CV-00223 OWW GSA HC Petitioner, FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS v. 15 J. D. HARTLEY, Warden, 16 Respondent. 17 / 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. 20 PROCEDURAL BACKGROUND 21 Petitioner is currently in the custody of the California Department of Corrections pursuant 22 to a judgment of the Superior Court of California, County of Los Angeles, following his 23 conviction by plea of guilty to second degree murder in violation of Cal. Penal Code § 187. See 24 Answer, Exhibit 1. On June 10, 1992, Petitioner was sentenced to serve an indeterminate term of 25 sixteen years to life in state prison with the possibility of parole. Id. 26 On February 27, 2007, a subsequent parole suitability hearing was held before the 27 California Board of Parole Hearings (“Board”) to determine Petitioner’s eligibility for parole. See 28 1 Dockets.Justia.com 1 Petition, Exhibit A. Petitioner attended the hearing and was represented by an attorney. Id. At the 2 conclusion of the hearing, the Board denied parole and deferred rehearing for one year. Id. at 78- 3 82. 4 On January 10, 2008, Petitioner filed a petition for writ of habeas corpus in the Los 5 Angeles County Superior Court. See Answer, Exhibit 2. On April 10, 2008, the petition was 6 denied in a reasoned decision. Id. Petitioner then filed a habeas petition in the California Court of 7 Appeals, Second Appellate District, on November 3, 2008. See Answer, Exhibit 3. The petition 8 was denied on November 6, 2008. Id. On November 19, 2008, Petitioner filed a petition for 9 review in the California Supreme Court. See Answer, Exhibit 4. On January 14, 2009, the 10 11 petition was denied. Id. On February 3, 2009, Petitioner filed the instant petition for writ of habeas corpus in this 12 Court. The petition challenges the 2007 decision of the Board of Parole Hearings denying parole. 13 Petitioner contends: 1) the Board failed to provide him with individualized consideration when it 14 based its decision on acts he did not commit; 2) a parole decision based on the circumstances of 15 the offense rather than an individual’s actions is unconstitutional; 3) the Board’s decision was not 16 supported by “some evidence”; 4) the Board’s continued reliance on the commitment offense is 17 ineffective and dangerous; 5) his second degree murder does not indicate unsuitability because it 18 was not especially heinous, atrocious or cruel; and 6) there is no evidence that Petitioner is a 19 current risk to society. On May 6, 2009, Respondent filed an answer to the petition. Petitioner 20 filed a traverse to Respondent’s answer on May 28, 2009. FACTUAL BACKGROUND1 21 22 On October 19, 1991, at 1014 North Main Avenue, Wilmington, a witness was 23 interviewed and related the following: He had observed a tan Monte Carlo or Regal coming south 24 on Main Avenue with the passenger, David Neisinger, sitting in the right side window area. The 25 passenger was leaning over the top of the car holding a handgun with both hands and pointing at 26 a group of people on the east side of the street. At this point, the passenger yelled, “West Wilmas 27 1 28 The information is derived from the factual summary as set forth in the parole hearing proceedings. See Petition, Exhibit 1 at 10-12. 2 1 Locos” and began firing at the group of people. The car continued south on Opp Street while the 2 passenger climbed back into the front passenger seat. The car turned right on Opp and sped away. 3 At 1:00 a.m. on the same date, police officers on patrol were traveling in a police vehicle 4 on Opp Street when they heard several gunshots coming from the northeast corner of Main 5 Avenue and Opp Street, one block east of their location. The officers immediately observed a 6 brown Cutlass turn right from southbound Main Avenue to eastbound Opp Street. Petitioner and 7 Neisinger were taken into custody. 8 During a crime scene investigation, officers recovered a nine-millimeter automatic pistol 9 thrown under a parked vehicle located on the north side of Opp Street, west of Main and east of 10 the alley utilized by Petitioner and Neisinger. That location was approximately where officers 11 first observed Petitioner and Neisinger’s vehicle fleeing from the scene. The victim, Arnulfo 12 Rodarte, was observed by police lying supine on the sidewalk with a single gunshot wound to the 13 left side of his chest. There was a large pool of blood on the ground near the victim’s shoulder 14 and head. A rescue ambulance was requested and the victim failed to respond to treatment and 15 was pronounced dead at 1:20 a.m. by paramedics. 16 17 18 DISCUSSION I. Standard of Review On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 19 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 20 enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 (1997); Jeffries 21 v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th 22 Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 23 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). 24 The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its 25 provisions. 26 Petitioner is in custody of the California Department of Corrections pursuant to a state 27 court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 28 U.S.C. § 2254 remains the exclusive vehicle for his habeas petition because he meets the 3 1 threshold requirement of being in custody pursuant to a state court judgment. Sass v. California 2 Board of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir.2006), citing White v. Lambert, 370 3 F.3d 1002, 1006 (9th Cir.2004) (“Section 2254 ‘is the exclusive vehicle for a habeas petition by a 4 state prisoner in custody pursuant to a state court judgment, even when the petition is not 5 challenging [his] underlying state court conviction.’”). 6 The instant petition is reviewed under the provisions of the Antiterrorism and Effective 7 Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 8 70 (2003). Under the AEDPA, an application for habeas corpus will not be granted unless the 9 adjudication of the claim “resulted in a decision that was contrary to, or involved an 10 unreasonable application of, clearly established Federal law, as determined by the Supreme Court 11 of the United States” or “resulted in a decision that was based on an unreasonable determination 12 of the facts in light of the evidence presented in the State Court proceeding.” 28 U.S.C. 13 § 2254(d); see Lockyer, 538 U.S. at 70-71; see Williams, 529 U.S. at 413. 14 As a threshold matter, this Court must "first decide what constitutes 'clearly established 15 Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, 16 quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this 17 Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as 18 of the time of the relevant state-court decision." Id., quoting Williams, 592 U.S. at 412. "In other 19 words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or 20 principles set forth by the Supreme Court at the time the state court renders its decision." Id. 21 Finally, this Court must consider whether the state court's decision was "contrary to, or 22 involved an unreasonable application of, clearly established Federal law." Lockyer, 538 U.S. at 23 72, quoting 28 U.S.C. § 2254(d)(1). “Under the ‘contrary to’ clause, a federal habeas court may 24 grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] 25 Court on a question of law or if the state court decides a case differently than [the] Court has on a 26 set of materially indistinguishable facts.” Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. 27 at 72. “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if the 28 state court identifies the correct governing legal principle from [the] Court’s decisions but 4 1 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 2 413. 3 “[A] federal court may not issue the writ simply because the court concludes in its 4 independent judgment that the relevant state court decision applied clearly established federal 5 law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. 6 A federal habeas court making the “unreasonable application” inquiry should ask whether the 7 state court’s application of clearly established federal law was “objectively unreasonable.” Id. at 8 409. 9 Petitioner has the burden of establishing that the decision of the state court is contrary to 10 or involved an unreasonable application of United States Supreme Court precedent. Baylor v. 11 Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the 12 states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a 13 state court decision is objectively unreasonable. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th 14 Cir.2003); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999). 15 AEDPA requires that we give considerable deference to state court decisions. The state 16 court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). We are bound by a state's 17 interpretation of its own laws. Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir.2002), cert. denied, 18 537 U.S. 859 (2002), rehearing denied, 537 U.S. 1149 (2003). 19 In this case, because the California Supreme Court summarily denied the habeas petition, 20 this Court must “look through” that decision to the decisions below. Ylst v. Nunnemaker, 501 21 U.S. 797, 804-05 & n.3 (1991). 22 II. Review of Petition 23 A parole release determination is not subject to all the due process protections of an 24 adversary proceeding. Pedro v. Oregon Parole Board, 825 F.2d 1396, 1398-99 (9th Cir. 1987); see 25 also Greenholtz, 442 U.S. at 12 (explaining that due process is flexible and calls for procedural 26 protections that particular situations demand). "[S]ince the setting of a minimum term is not part 27 of a criminal prosecution, the full panoply of rights due a defendant in such a proceeding is not 28 constitutionally mandated, even when a protected liberty interest exists." Pedro, 825 F.2d at 5 1 1399; Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir.1987). At a state parole 2 board proceeding, the only procedural process to which an inmate is entitled is: 1) the inmate 3 must receive advance written notice of a hearing, Pedro, 825 F.2d at 1399; 2) the inmate must be 4 afforded an "opportunity to be heard," Greenholtz, 442 U.S. at 16; and 3) if the inmate is denied 5 parole, the inmate must be told why "he falls short of qualifying for parole.” Id. 6 As to these procedural protections, Petitioner was provided with all that is required. He 7 was given advanced written notice of the hearing, an opportunity to submit materials for the 8 Board’s consideration, an opportunity to be heard, representation by an attorney, and a written 9 decision explaining the reasons parole was denied. 10 “In Superintendent v. Hill, the Supreme Court held that ‘revocation of good time does not 11 comport with ‘the minimum requirements of procedural due process,’ unless the findings of the 12 prison disciplinary board are supported by some evidence in the record.’ 472 U.S. 445, 454 13 (1985), quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974).” Sass v. California Board of 14 Prison Terms, 461 F.3d 1123, 1128 (9th Cir.2006) (italics added); Irons v. Carey, 505 F.3d 846, 15 851 (9th Cir.2007), quoting Hill, 472 U.S. at 457 (“We have held that ‘the Supreme Court ha[s] 16 clearly established that a parole board’s decision deprives a prisoner of due process with respect 17 to this interest if the board’s decision is not supported by ‘some evidence in the record,’ or is 18 ‘otherwise arbitrary.’”). In assessing “whether a state parole board’s suitability determination 19 was supported by ‘some evidence’ in a habeas case, our analysis is framed by the statutes and 20 regulations governing parole suitability determinations in the relevant state.” Irons, 505 F.3d at 21 851. Here, the Court must look to California law and review the record. In reviewing the record 22 and determining whether the “some evidence” standard is met, the Court need not examine the 23 entire record, independently assess the credibility of witnesses, or re-weigh the evidence. Sass, 24 461 F.3d at 1128. 25 Further, the California Supreme Court more recently stated: 26 “[T]he relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after the commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of 27 28 6 1 the passage of time or the attendant changes in the inmate’s psychological or mental attitude. 2 In re Lawrence, 44 Cal.4th 1181, 1221 (2008). The nature of the commitment offense “does not 3 in and of itself provide some evidence of current dangerousness to the public unless the record 4 also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her 5 current demeanor and mental state, indicates that the implications regarding the prisoner’s 6 dangerousness that derive from his or her commission of the commitment offense remain 7 probative to the statutory determination of a continuing threat to public safety.” Id. at 1214. 8 In denying parole in this case, the Board based its decision on the following factors: 1) 9 The nature and gravity of the commitment offense; 2) Previous criminal record; and 3) Violent 10 criminal behavior during imprisonment. See Petition, Exhibit 1 at 78-83. 11 First, the Board determined that Petitioner committed the offense in an especially 12 heinous, atrocious or cruel manner.2 The Board found that Petitioner’s offense involved attacking 13 multiple victims. 15 Cal. Code Regs. § 2402(c)(1)(A). The Board noted that Petitioner drove the 14 vehicle while his crime partner shot at a group of people, ultimately killing one individual. The 15 Board also determined that the offense was carried out in a calculated manner. 15 Cal. Code 16 Regs. § 2402(c)(1)(B). The Board noted that Petitioner and his partner deliberately drove a 17 vehicle to a known rival gang location equipped with gloves and a firearm to retaliate and exact 18 revenge for a fellow gang member. As noted by the superior court, Petitioner and his crime 19 partner’s actions were “deliberate, planned, dispassionate, and calculated.” See Answer, Exhibit 20 2. Finally, the Board determined that the motive for the crime was very trivial. 15 Cal. Code 21 22 23 24 25 26 27 28 2 Pursuant to Title 15, of the California Code of Regulations, Section 2402(c) sets forth circumstances tending to demonstrate unsuitability for parole when the prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: (A) Multiple victims were attacked, injured or killed in the same or separate incidents. (B) The offense was carried out in a dispassionate and calculated manner, such as an executionstyle murder. (C) The victim was abused, defiled or mutilated during or after the offense. (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. (E) The motive for the crime is inexplicable or very trivial in relation to the offense. 15 Cal.Code Regs. § 2402(c)(1)(A)-(E). 7 1 Regs. § 2402(c)(1)(E). Again, the Board noted that the drive-by shooting was committed in 2 retaliation, because a fellow gang member had been physically assaulted. The superior court 3 noted that committing a murder against a random rival gang member in retaliation is a very 4 trivial motive. In light of the facts of the offense, the superior court’s determination that some 5 evidence supported the Board’s finding that the offense was especially heinous, atrocious or cruel 6 as to be a sufficient basis to deny parole was not unreasonable. 7 The Board also found Petitioner’s prior offenses to be an indicator of unsuitability. 15 8 Cal. Code Regs. § 2402(c)(2). Petitioner had sustained a juvenile conviction for burglary and an 9 adult conviction for battery. See Petition, Exhibit 1 at 21-22. The superior court’s determination 10 11 that there was some evidence to support this finding was reasonable. Finally, the Board determined that Petitioner’s continued violent criminal behavior during 12 incarceration further indicated he remained a current risk of danger to the community. 15 Cal. 13 Code Regs. § 2402(c)(6). The Board noted that Petitioner had received three negative counseling 14 chronos (“CDC 128") during his incarceration, with the most recent being in 2003 for misuse of 15 state property. Of greater significance, however, were the five six serious rules violations (“CDC 16 115”) he sustained during his incarceration. The most recent occurred in 2001 for delaying count, 17 but the prior violations were for very violent behavior. In 1995, he was found guilty of fighting. 18 Also in 1995, he stabbed a fellow inmate. In 1994, he committed an assault and battery on an 19 inmate. And in 1993, he committed another stabbing. The Board concluded Petitioner’s 20 disciplinary problems showed he still posed an unreasonable risk of danger to the public if 21 released. The superior court found some evidence supported this finding, given that the violence 22 was extreme and committed after the underlying murder offense. The superior court’s conclusion 23 is not unreasonable. 24 The Board also considered the positive factors favoring parole release. Petitioner’s 25 psychological report was somewhat favorable, although the psychologist expressed concern that 26 Petitioner had an anti-social behavior disorder that was improving. The Board also found 27 Petitioner had viable parole plans. The Board commended Petitioner for having obtained five 28 different vocations. Petitioner was also successfully continuing his education, having been placed 8 1 on the Dean’s List for a semester. The Board also commended Petitioner for his extensive self- 2 help programming. Nevertheless, the Board found Petitioner’s gains were recent and needed to 3 be sustained over some time before the Board could conclude he no longer posed an 4 unreasonable risk of danger to the public, given his extremely violent past. The state court 5 finding that some evidence supported this determination was not unreasonable. 6 Petitioner’s various other arguments are without merit. As discussed above, the Board 7 gave Petitioner individualized consideration by reviewing, inter alia, the commitment offense, 8 Petitioner’s history, his conduct while in prison, his psychological report, his programming, his 9 vocational training, and his continuing education. In addition, the superior court properly 10 determined that Petitioner’s accomplice’s actions could be considered in its determination of the 11 facts of the case and Petitioner’s own culpability. Petitioner also argues that the Board’s 12 continuing reliance on the unchanging circumstances of the underlying offense violates his due 13 process rights. In Biggs v. Terhune, 334 F.3d 910, 916-17 (9th Cir.2003), the Ninth Circuit stated 14 that “[a] continued reliance in the future on an unchanging factor, the circumstance of the offense 15 and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the 16 prison system and could result in a due process violation.” As discussed above, however, the 17 circumstances of the offense, while significant, were not the only reasons for the Board’s 18 decision. The Board found Petitioner’s prior criminal history and especially his serious 19 disciplinary problems to be of great weight in concluding Petitioner would pose an unreasonable 20 danger to public safety should he be presently released. 21 In light of the above, it cannot be said that the state court resolution of Petitioner’s claims 22 “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 23 established Federal law, as determined by the Supreme Court of the United States” or “resulted 24 in a decision that was based on an unreasonable determination of the facts in light of the evidence 25 presented in the State Court proceeding.” 28 U.S.C. § 2254(d). 26 RECOMMENDATION 27 Based on the foregoing, it is HEREBY RECOMMENDED that: 28 1. The petition for writ of habeas corpus be DENIED; and 9 1 2. Judgment be entered in favor of Respondent. 2 This Findings and Recommendations is submitted to the assigned United States District 3 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of 4 the Local Rules of Practice for the United States District Court, Eastern District of California. 5 Within thirty (30) days after being served with a copy, any party may file written objections with 6 the court and serve a copy on all parties. Such a document should be captioned “Objections to 7 Magistrate Judge’s Findings and Recommendations.” Replies to the objections shall be served 8 and filed within ten (10) court days (plus three days if served by mail) after service of the 9 objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 10 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time 11 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 12 Cir. 1991). 13 14 15 IT IS SO ORDERED. Dated: 6i0kij August 26, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
