(HC) Sisco v. James D. Hartley, No. 1:2009cv01612 - Document 16 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge John M. Dixon, Jr. on 9/16/10: Recommending that the petition for writ of habeas corpus be GRANTED; and The Clerk of Court be directed to enter judgment for Petitioner re 1 , 2 Petition for Writ of Habeas Corpus filed by Leo Sisco; Objections to F&R due by 10/21/2010, Reply due ten (10) court days (+3 days if served by mail) after service of the objections.(Hellings, J)
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(HC) Sisco v. James D. Hartley Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LEO SISCO, 10 11 12 Petitioner, v. JAMES D. HARTLEY, 13 Respondent. ) ) ) ) ) ) ) ) ) ) 1:09-CV-01612 LJO JMD HC FINDINGS AND RECOMMENDATIONS REGARDING PETITION FOR WRIT OF HABEAS CORPUS THIRTY (30) DAY DEADLINE TO FILE OBJECTIONS 14 15 16 Leo Sisco (hereinafter “Petitioner”) is a prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. 28 U.S.C. § 2254. 17 PROCEDURAL HISTORY 18 Petitioner is currently in the custody of the California Department of Corrections and 19 Rehabilitation pursuant to a 1995 conviction for second degree murder. The trial court sentenced 20 Petitioner to a prison term of fifteen years to life. Petitioner is not currently challenging his 21 conviction; rather, the instant petition challenges the decision by the California Board of Parole 22 Hearings (the “Board”) to deny Petitioner parole. Petitioner appeared before the Board on November 23 1, 2006. 24 On February 22, 2008 Petitioner filed a petition for writ of habeas corpus with the Tulare 25 County Superior Court challenging the Board’s decision. The Superior Court issued a reasoned 26 opinion denying the petition on March 4, 2008. (Pet. Ex. A.) 27 28 Petitioner also filed petitions for writ of habeas corpus with the California Court of Appeal and the California Supreme Court. The California Court of Appeal and the California Supreme U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 Court issued summary denials of the petitions. (Pet. Exs. B, C.) 2 On September 10, 2009, Petitioner filed the instant federal petition for writ of habeas corpus. 3 Respondent filed an answer to the petition on March 8, 2010, to which Petitioner filed a traverse on 4 April 1, 2010.1 5 FACTUAL BACKGROUND 6 The Board incorporated into the record a summary of the offense taken from the probation 7 officer’s report. (Pet. Ex. D, Tr. Parole Hearing, at 15-16.) According to the probation officer’s 8 report, Steven Luis became involved in a physical altercation with the victim, Jason McAfee. (Id. at 9 16.) After Mr. McAfee bested Mr. Luis, Mr. McAfee walked away and was immediately confronted 10 by Rodney Rodriguez, a friend of Mr. Luis. (Id. at 17.) Mr. Rodriguez stated that he could kick Mr. 11 McAfee’s “ass” and asked the victim if he wanted to box. (Id.) Mr. McAfee raised his hands to 12 signal that he did not want to fight Mr. Rodriguez but Mr. Rodriguez and Petitioner removed their 13 shirts as if to prepare for a fight. (Id.) Mr. Rodriguez then struck Mr. McAfee with several blows to 14 the facial area, knocking Mr. McAfee unconscious. Mr. Rodriguez, Petitioner, and John Gregorich 15 proceeded to kick and beat Mr. McAfee as he laid unconscious. (Id. at 18.) Mr. McAfee died as a 16 result of a skull fracture sustained from blunt trauma to the head. 17 Petitioner did not discuss the commitment offense during the hearing. (Id. at 16.) The Board 18 incorporated into the record Petitioner’s written version of events contained in his Central File.2 (Id. 19 at 19-20.) In this version, Petitioner contends that he arrived during the physical altercation between 20 Mr. Luis and the victim and that while he removed his shirt, he did not participate in the attack on 21 Mr. McAfee. (Id. at 20-21.) 22 23 24 25 DISCUSSION I. Jurisdiction A person in custody pursuant to the judgment of a State court may petition a district court for relief by way of a writ of habeas corpus if the custody is in violation of the Constitution, laws, or 26 1 27 28 Respondent admits that the petition is timely and that Petitioner has exhausted his state remedies. (Resp’t Answer at 2:5-2:6.) 2 The Board failed to state when this written statement was drafted. U .S. D istrict C ourt E. D . C alifornia 2 1 treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 2 U.S. 362, 375 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by 3 the United States Constitution. Petitioner is currently incarcerated at Avenal State Prison, which is 4 located in Kings County. As Kings County falls within this judicial district, 28 U.S.C. § 84(b), the 5 Court has jurisdiction over Petitioner’s application for writ of habeas corpus. See 28 U.S.C. § 6 2241(d) (vesting concurrent jurisdiction over application for writ of habeas corpus to the district 7 court where the petitioner is currently in custody or the district court in which a State court convicted 8 and sentenced Petitioner if the State “contains two or more Federal judicial districts”). 9 II. 10 AEDPA Standard of Review On April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act of 11 1996 (“AEDPA”), which applies to all petitions for a writ of habeas corpus filed after the statute’s 12 enactment. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 13 (9th Cir. 1997). The instant petition was filed after the enactment of AEDPA and is consequently 14 governed by its provisions. See Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Thus, the petition 15 “may be granted only if [Petitioner] demonstrates that the state court decision denying relief was 16 ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as 17 determined by the Supreme Court of the United States.’” Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 18 2007) (quoting 28 U.S.C. § 2254(d)(1)), overruled in part on other grounds, Hayward v. Marshall, 19 603 F.3d 546, 555 (9th Cir. 2010) (en banc); see Lockyer, 538 U.S. at 70-71. 20 Title 28 of the United States Code, section 2254 remains the exclusive vehicle for 21 Petitioner’s habeas petition as Petitioner is in the custody pursuant to a state court judgment. See 22 Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-27 (9th Cir. 2006) overruled in part 23 on other grounds, Hayward, 603 F.3d at 555. As a threshold matter, this Court must “first decide 24 what constitutes ‘clearly established Federal law, as determined by the Supreme Court of the United 25 States.’” Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly 26 established Federal law,” this Court must look to the “holdings, as opposed to the dicta, of [the 27 Supreme Court’s] decisions as of the time of the relevant state-court decision.” Id. (quoting 28 Williams, 529 U.S. at 412). “In other words, ‘clearly established Federal law’ under § 2254(d)(1) is U .S. D istrict C ourt E. D . C alifornia 3 1 the governing legal principle or principles set forth by the Supreme Court at the time the state court 2 renders its decision.” Id. Finally, this Court must consider whether the state court’s decision was 3 “contrary to, or involved an unreasonable application of, clearly established Federal law.” Id. at 72 4 (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant 5 the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 6 question of law or if the state court decides a case differently than [the] Court has on a set of 7 materially indistinguishable facts.” Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. at 72. 8 “Under the ‘unreasonable application clause,’ a federal habeas court may grant the writ if the state 9 court identifies the correct governing legal principle from [the] Court's decisions but unreasonably 10 applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. “[A] federal 11 court may not issue the writ simply because the court concludes in its independent judgment that the 12 relevant state court decision applied clearly established federal law erroneously or incorrectly. 13 Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court making the 14 “unreasonable application” inquiry should ask whether the State court's application of clearly 15 established federal law was “objectively unreasonable.” Id. at 409. 16 Petitioner bears the burden of establishing that the state court’s decision is contrary to or 17 involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 18 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth 19 Circuit precedent remains relevant persuasive authority in determining whether a state court decision 20 is objectively unreasonable. Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003) (“While only the 21 Supreme Court’s precedents are binding on the Arizona court, and only those precedents need be 22 reasonably applied, we may look for guidance to circuit precedents”); Duhaime v. Ducharme, 200 23 F.3d 597, 600-01 (9th Cir. 1999) (“because of the 1996 AEDPA amendments, it can no longer 24 reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on 25 a federal Constitutional issue . . . This does not mean that Ninth Circuit caselaw is never relevant to a 26 habeas case after AEDPA. Our cases may be persuasive authority for purposes of determining 27 whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law, and 28 also may help us determine what law is ‘clearly established’”). Furthermore, the AEDPA requires U .S. D istrict C ourt E. D . C alifornia 4 1 that the Court give considerable deference to state court decisions. The state court’s factual findings 2 are presumed correct. 28 U.S.C. § 2254(e)(1). A federal habeas court is bound by a state’s 3 interpretation of its own laws. Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir. 2002). 4 The initial step in applying AEDPA’s standards is to “identify the state court decision that is 5 appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more 6 than one State court has adjudicated Petitioner’s claims, a federal habeas court analyzes the last 7 reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) for the presumption that 8 later unexplained orders, upholding a judgment or rejecting the same claim, rests upon the same 9 ground as the prior order). Thus, a federal habeas court looks through ambiguous or unexplained 10 state court decisions to the last reasoned decision to determine whether that decision was contrary to 11 or an unreasonable application of clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 12 1112-13 (9th Cir. 2003). Here, the Tulare County Superior Court, the California Court of Appeal, 13 and the California Supreme Court reached the merits of Petitioner’s claims. The California Supreme 14 Court and the California Court of Appeal’s decisions were summary denials. Thus, the Court looks 15 through those decisions to the last reasoned decision; namely, the decision by the Tulare County 16 Superior Court. See Nunnemaker, 501 U.S. at 804. 17 III. Review of Petitioner’s Claims 18 The petition for writ of habeas corpus contains a sole grounds for relief, contending that 19 Petitioner’s due process rights were violated by the Board’s denial of parole. (See Pet. at 6-19.) 20 The Court analyzes Petitioner’s due process claims in two steps: “the first asks whether there 21 exist[s] a liberty or property interest which has been interfered with by the State; the second 22 examines whether the procedures attendant upon that deprivation were constitutionally sufficient.’” 23 Sass, 461 F.3d at 1127. The United States Constitution does not, by itself, create a protected liberty 24 interest in a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). Respondent argues that 25 Petitioner does not have a federally protected liberty interest in parole. (Resp’t Answer at 2:8.) 26 Respondent further contends that even if Petitioner has a federally protected liberty interest in parole, 27 such protections do not encompass the application of the some evidence standard. (Id. at 3:9-3:10.) 28 Petitioner argues that the liberty interest vested in him by California’s parole statutes and regulations U .S. D istrict C ourt E. D . C alifornia 5 1 is afforded the protections of federal due process. (Pet’r’s Mem. P. & A. at 3-5.) Additionally, 2 Petitioner contends that the some evidence standard is clearly established Supreme Court precedent 3 pursuant to Superintendent v. Hill, 472 U.S. 445 (1985). 4 Petitioner’s reliance on Hill is misguided as the Ninth Circuit Court of Appeals expressly 5 rejected this contention in Hayward, distinguishing the holding in Hill which applied to good time 6 credits from decisions pertaining to parole denials. Hayward, 603 F.3d at 555-561. The Hayward 7 court recognized that “[i]f there is any right to release on parole, or to release in the absence of some 8 evidence of future dangerousness, it has to arise from substantive state law creating a right to 9 release.” Id. at 555. The Ninth Circuit further reiterated this principle, stating “[t]here is no general 10 federal constitutional ‘some evidence’ requirement for denial of parole, in the absence of state law 11 creating an enforceable right to parole.” Id. at 559. However, the Hayward court’s opinion 12 contained the consistent and continual caveat that state law may in fact give rise to federal protection 13 for those rights. The Ninth Circuit further elaborated, stating in a later decision, that “state created 14 rights may give rise to liberty interests that may be enforced as a matter of federal law.” Pearson v. 15 Muntz, 606 F.3d 606, 609 (9th Cir. 2010) (per curiam) (citing Wilkinson v. Austin, 545 U.S. 209, 221 16 (2005)). The Pearson court found that, “Hayward necessarily held that compliance with state 17 requirement is mandated by federal law, specifically the Due Process Clause” as “[t]he principle that 18 state law gives rise to liberty interests that may be enforced as a matter of federal law is long- 19 established.” Id. 20 Thus, the next question is whether California’s parole scheme gives rise to a liberty interest 21 enforced as a matter of federal law. The Ninth Circuit has definitively concluded that “California 22 has created a parole system that independently requires the enforcement of certain procedural and 23 substantive rights, including the right to parole absent ‘some evidence’ of current dangerousness.” 24 Id. at 611 (citing Hayward, 603 F.3d at 562); see also Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 25 2010) (noting that “California’s ‘some evidence’ requirement is a component of the liberty interest 26 created by the parole system of that state”). Consequently, the inquiry that a federal habeas court 27 must undertake in determining whether the denial of parole comports with the requirement of federal 28 due process is “whether the California judicial decision approving the governor’s [or parole board’s] U .S. D istrict C ourt E. D . C alifornia 6 1 decision rejecting parole was an ‘unreasonable application’ of the California ‘some evidence’ 2 requirement, or was ‘based on an unreasonable determination of the facts in light of the evidence.’” 3 Hayward, 603 F.3d at 563 (quoting 28 U.S.C. § 2254(d)(1)-(2)) (footnotes omitted). 4 In conducting this inquiry, the Ninth Circuit has observed that: 5 Under California law, “the paramount consideration for both the Board and the Governor” must be “whether the inmate currently poses a threat to public safety and thus may not be released on parole,”[citation], and “the facts relied upon by the Board or the Governor [must] support the ultimate decision that the inmate remains a threat to public safety. 6 7 8 Cooke, 606 F.3d at 1214 (quoting In re Lawrence, 44 Cal. 4th 1181, 1210, 1213 (2008)); see also 9 Cal. Code Regs. tit. 15, § 2402(a) (“[I]f in the judgment of the panel the prisoner will pose an 10 unreasonable risk of danger to society if released from prison,” the prisoner must be found unsuitable 11 and denied parole). The Lawrence court held that, “[t]he relevant determination for the Board and 12 the Governor is, and always has been, an individualized assessment of the continuing danger and risk 13 to public safety posed by the inmate.” In re Lawrence, 44 Cal. 4th at 1227 (noting that “mere 14 recitation of the circumstances of the commitment offense, absent articulation of a rational nexus 15 between those facts and current dangerousness, fails to provide the required “modicum of evidence” 16 of unsuitability”). In setting forth the standard for federal habeas courts, the Ninth Circuit reiterated 17 this principle, stating that “a reviewing court must consider ‘whether the identified facts are 18 probative to the central issue of current dangerousness when considered in light of the full record 19 before the Board or the Governor.’” Cooke, 606 F.3d at 1214 (emphasis in original) (quoting In re 20 Lawrence, 44 Cal. 4th at 1221). 21 A. 22 In light of the Ninth Circuit’s decisions discussed above, the inquiry now facing this Court is 23 whether the Tulare County Superior Court’s decision was an objectively unreasonable application of 24 the California some evidence standard. Initially, the Court notes that the Superior Court’s decision is 25 an amalgamation of quotations from the parole hearing transcript and case law that is entirely devoid 26 of any analysis. (See Pet. Ex. A.) Thus, the Court cannot decipher with any certainty what standard 27 the Superior Court is applying in its decision. The Superior Court’s superficial citation to Irons, 505 State Court Decision 28 U .S. D istrict C ourt E. D . C alifornia 7 1 F.3d at 851-52,3 suggests that the Superior Court knew the Board’s main inquiry was the inmate’s 2 current dangerousness and arguably that the Superior Court applied the some evidence of current 3 dangerousness standard.4 However, in the next paragraph, the Superior Court cites to In re 4 Bettencourt, 156 Cal. App. 4th 780 (2007), in which the California Court of Appeal applied a some 5 evidence of the suitability factors standard.5 Consequently, the Court finds that an independent 6 review of the record is required to determine if the state court decision was an objectively 7 unreasonable application of the California some evidence standard. See Delgado v. Lewis, 223 F.3d 8 976, 981-82 (9th Cir. 2000) (finding that where the court has “no basis other than the record for 9 knowing whether the state court correctly identified the governing legal principle or was extending 10 the principle into a new context,” an independent review of the record is required to ascertain 11 whether the state court decision was objectively unreasonable). 12 In finding Petitioner posed an unreasonable risk of danger to society if released, the Board 13 relied on the circumstances of the commitment offense, Petitioner’s misconduct while in prison, and 14 the psychological evaluation. (Pet. Ex. D at 64-68.) The Court examines each factor for evidence of 15 Petitioner’s current dangerousness. 16 \\\ 17 \\\ 18 \\\ 19 3 20 21 The Superior Court citation for Irons is incorrect as Irons v. Carey, 479 F.3d 658 (9th Cir. 2007), was superseded and amended by Irons v. Carey, 505 F.3d 846 (9th Cir. 2007). It is the later Irons decision from which the Superior Court quotes despite citing to the earlier Irons decision. 4 22 23 24 25 26 The quoted portion of Irons used by the Superior Court is no longer applicable law as focusing solely on the minimum elements of the commitment offense was rejected by the California Supreme Court in its sister opinion to Lawrence. See In re Shaputis, 44 Cal. 4th 1241, 1254-55 (2008) (stating that determination of inmate’s current dangerousness is not “dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense. Rather, the 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 commission of the offense”); see also In re Rozzo, 172 Cal. App. 4th 40, 53 (2009) (“[I]n the wake of Lawrence, it is clear that the fact that a prisoner’s commitment offense involved an act that exceeds the minimum required for conviction is not a sufficient basis for affirming a Governor’s reversal of a grant of parole.”). 5 27 28 If the Superior Court’s decision was derived using a some evidence of suitability factor standard, the decision would be an objectively unreasonable application of the California some evidence standard as the California Supreme Court stated “that current dangerousness (rather than the mere presence of a statutory unsuitability factor) is the focus of the parole decision.” In re Lawrence, 44 Cal.4th at 1210. U .S. D istrict C ourt E. D . C alifornia 8 1 2 1. Commitment Offense The Court does not find the commitment offense by itself to be reliable evidence of current 3 dangerousness. The offense was committed in 1994, over a decade prior to the parole hearing in 4 2006, and thus cannot by itself be probative of current dangerousness. See Cooke, 606 F.3d at 1216 5 (finding that circumstance of the commitment offense that occurred in 1991 “cannot, standing alone, 6 constitute the requisite evidence of current dangerousness” for a 2002 parole hearing). The 7 commitment offense can only constitute evidence of current dangerousness where something in the 8 petitioner’s “pre- or post-incarceration history, or current demeanor and mental state,” indicates that 9 the commitment offense remains probative to the petitioner’s current dangerousness. In re 10 11 Lawrence, 44 Cal. 4th at 1214. Nothing in Petitioner’s pre or post-incarceration history would permit reliance on Petitioner’s 12 commitment offense. As noted by the Board, Petitioner did not have a pre-incarceration record and 13 possessed a stable social history. (Pet. Ex. D at 21-22.) Similarly, Petitioner’s post-incarceration 14 record does not support the Board’s reliance on his commitment offense. Petitioner incurred only 15 one disciplinary infraction in 1996, eleven years prior to the hearing. (Pet. Ex. D at 28). The 16 disciplinary infraction was a non-violent infraction for disobeying an order relating to the number of 17 weights Petitioner had on his pile. (Pet. Ex. G at 7, 10; Pet. Ex. H at 2.) Further, Petitioner has 18 continuously participated in Alcoholics Anonymous. Petitioner has completed extensive self-help 19 programs, including over three hundred hours of anger management, and upgraded vocationally. The 20 Court can identify nothing in Petitioner’s post-conviction history that would render the commitment 21 offense reliable evidence of Petitioner’s current dangerousness. The Court’s examination of 22 Petitioner’s current demeanor or mental state provides a similar answer. The psychologist observed 23 that Petitioner “expresses remorse and empathy for the victim’s family” and that Petitioner’s “insight 24 appears quite good, despite his limited responsiveness on the Life Term Offense.”6 (Pet. Ex. G at 25 10.) Thus, the Court finds that the circumstance of the commitment offense is not probative of 26 Petitioner’s dangerousness. 27 6 28 The psychologist noted that Petitioner’s limited response stems from his attorney’s advice to not discuss the commitment offense. U .S. D istrict C ourt E. D . C alifornia 9 1 2. Disciplinary Record Post-Incarceration 2 As noted above, Petitioner received one disciplinary infraction a decade prior to the parole 3 hearing. The disciplinary infraction was a CDC 115 for disobeying an order.7 The Court does not 4 find the disciplinary infraction to constitute evidence of Petitioner’s current dangerousness. 5 Petitioner’s case is nearly indistinguishable from the circumstances confronting the Ninth Circuit in 6 Cooke, 606 F.3d at 1215. In Cooke, the Ninth Circuit examined whether two non-violent 7 disciplinary infractions that a habeas petitioner had incurred for disobeying prison rules and 8 regulations in the first year and a half of the his incarceration was probative of the petitioner’s 9 current dangerousness. The Cooke court found that these two minor non-violent disciplinary 10 infractions, “which occurred in 1992 and 1993, cannot reasonably be viewed as evidence that Cooke 11 posed an unreasonable risk to public safety in 2002, especially as he had been discipline-free for 12 nearly a decade.” Id. Similarly, Petitioner’s one non-violent disciplinary infraction in 1996, the first 13 year of his imprisonment, cannot be used as evidence of Petitioner’s current dangerousness where 14 Petitioner has been discipline free for the almost ten years leading up to his parole hearing in 2006. 15 16 3. Psychological Evaluation In the decision portion of the hearing, the Board deemed the psychological report, conducted 17 by Dr. Lille in September 2006, to be “not totally supportive of release” as there were “some, a few 18 issues that Dr. Lille addressed under the conclusion section.” (Pet. Ex. D at 65-66.) The Board 19 noted that Dr. Lille’s report classified the commitment offense as “an isolated incident of aggression 20 based on a review of the record.” (Id. at 66.) However, the Board relied on Dr. Lille’s concern that 21 there was limited information as a consequence of Petitioner’s refusal to discuss the commitment 22 offense pursuant to counsel’s advice. The Court finds the Board’s reliance on the psychological 23 report to be erroneous as the psychological report does not actually evidence current dangerousness. 24 The Court’s review of the psychological evaluation reveals that Dr. Lille did express concern 25 26 27 7 28 A CDC 115 documents misconduct believed to be a violation of law or otherwise not minor in nature. See Cal.Code Regs., tit. 15, § 3312(a)(3); In re Gray, 151 Cal.App.4th 379, 389 (2007). U .S. D istrict C ourt E. D . C alifornia 10 1 about Petitioner’s decision not to discuss the commitment offense on the advice of counsel.8 2 However, Dr. Lille’s concern does not by itself constitute evidence of current dangerousness as 3 difficulty reviewing the degree to which an inmate has insight is not actual evidence that the inmate 4 lacks insight. Utilizing Dr. Lille’s report as evidence of current dangerousness is severely 5 undermined by the conclusions Dr. Lille reached in his report. Under the assessment of 6 dangerousness section, Dr. Lille’s report classified Petitioner as being a low risk for future violence 7 based on both his history and background as well as Petitioner’s management of future risks. (Pet. 8 Ex. G at 12-13.) Under the conclusion section of report, Dr. Lille wrote, “[i]f released to the 9 community, there remains a minimal or low risk that he would be a danger to others in society based 10 on forensic actuarial data.” (Id. at 13) (emphasis in original). Dr. Lille further observed that, 11 “Predicting which individuals will remain violent is clearly difficult to ascertain without releasing 12 the individual back into society at some risk. In this case the risk appears as a low risk based on 13 historical factors and forensic/clinical data.” (Id.) (emphasis in original). Thus, the Court finds that 14 the psychological evaluation fails to present any actual evidence of current dangerousness. 15 The Court’s examination of the three factors relied upon by the Board reveals no reliable 16 evidence of Petitioner’s current dangerousness. Consequently, the Superior Court’s conclusion, that 17 there was some evidence to support the Board’s denial, was an objectively unreasonable application 18 of the California some evidence standard. 19 \\\ 20 \\\ 21 \\\ 22 8 23 24 25 26 27 28 The Court does not find that Dr. Lille’s consideration of Petitioner’s failure to talk about the commitment offense to be contradictory or violative of California’s statutes. California law specifically prohibits the Board from holding Petitioner’s refusal to discuss the crime against him in a parole consideration hearing. See In re Aguilar, 168 Cal. App. 4th 1479, 1491 (2008) (finding District Attorney’s opposition to parole was unpersuasive as the opposition contended that inmate must accept responsibility for the crime before he can be granted parole); see also Cal. Penal Code § 5011(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.”); Cal. Code Regs. tit. 15, § 2236 (“ 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.”) The Court does not read the statute to mean that a prison psychologist could not rely on Petitioner’s failure to discuss the crime. However, such a finding is irrelevant to the instant case as Dr. Lille’s report does not present any evidence of Petitioner’s current dangerousness despite the doctor’s concern about Petitioner’s failure to discuss the commitment offense. U .S. D istrict C ourt E. D . C alifornia 11 1 B. 2 The finding that the state court’s decision was objectively unreasonable does not end a Constitutional Violation 3 federal habeas court’s inquiry. See Butler v. Curry, 528 F.3d 624, 641 (9th Cir. 2008) (citing 28 4 U.S.C. § 2241(c)(3) in noting that a federal habeas court’s finding that state court’s decision is 5 contrary to established federal law does not end that court’s inquiry). Petitioner is only entitled to 6 habeas corpus relief if his due process rights were violated by a lack of evidence supporting the 7 Board’s denial of parole as a federal habeas court’s “power to grant the writ of habeas corpus to a 8 state inmate depends on his actually being ‘in custody in violation of the Constitution or laws . . . of 9 the United States.’” Id. Pursuant to the Court’s discussion above, there was no reliable evidence of 10 current dangerousness. Thus, Petitioner’s due process rights were violated and Petitioner is entitled 11 to habeas corpus relief. 12 C. 13 Petitioner argues that he is entitled to release with the credit toward his mandatory parole Appropriate Remedy 14 period for the time in which Petitioner has been unlawfully incarcerated. (Pet’r’s Mem. P. & A. at 15 15-16.) Respondent contends that the appropriate remedy for a violation of Petitioner’s due process 16 right is a new review by the Board, citing to Benny v. United States Parole Commission, 295 F.3d 17 977, 984-85 (9th Cir. 2002) in support of this contention.9 (Resp’t Answer at 4:18.) 18 Initially, the Court notes that “federal habeas courts have ‘broad discretion in conditioning a 19 judgment granting habeas relief’ and in ‘dispos[ing] of habeas corpus matters ‘as law and justice 20 require.’” Milot v. Haws, 628 F. Supp. 2d 1152, 1156 (C.D. Cal. 2009) (quoting Hilton v. Braunskill, 21 481 U.S. 770, 775 (1987)); see Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005) (stating that 22 federal courts “have a fair amount of flexibility in fashioning specific habeas relief”); see also 23 Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994) (noting that federal habeas court is vested 24 with the largest power to control and direct the form of judgment to be entered). More importantly, 25 9 26 27 28 The California Supreme Court recently accepted Respondent’s argument, finding that the appropriate remedy was a new parole hearing. See In re Prather, 50 Cal. 4th 238, 305-06 (2010). However, the Prather decision stems from Article III, section 3 of the California Constitution regarding separations of powers. As noted above, a federal court’s ability to fashion a remedy for a grant of habeas corpus is flexible and the Court can find no authority supporting the proposition that this discretion is limited by state law. U .S. D istrict C ourt E. D . C alifornia 12 1 the Court notes that Respondent’s argument was explicitly rejected by the Ninth Circuit in Pirtle v. 2 California Bd. of Prison Terms, 611 F.3d 1015, 1025 (9th Cir. 2010). In rejecting this argument, the 3 Ninth Circuit observed that: 4 5 6 7 The State argues that the district court's remedy was improper, and that the appropriate remedy would be to remand the case to the Board with instructions to hold another hearing. There is no merit to this argument. Federal courts have the latitude to resolve a habeas corpus petition “as law and justice require.” 28 U.S.C. § 2243. Ordering the release of a prisoner is well within the range of remedies available to federal habeas courts. “Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him.” 8 Id. (emphasis added) (quoting Fay v. Noia, 372 U.S. 391, 430-31 (1963), overruled on other 9 grounds by Wainwright v. Sykes, 433 U.S. 72 (1977)). 10 Several district courts in this jurisdiction have similarly rejected the remedy of a new parole 11 hearing in this situation. See Milot, 628 F. Supp. 2d at 1155-56 (rejected the assertion that the only 12 remedy available to a habeas petition challenging the denial of parole by the Board was a new parole 13 consideration hearing and noting that California courts have rejected the same argument); Ledesma v. 14 Marshall, 658 F. Supp. 2d 1155, 1187-88 (E.D. Cal. 2009) (stating “the Benny case involved delay in 15 holding a revocation hearing for a federal parolee rather than an evidentiary challenge to denial of 16 parole under California law. Ordering the BPH to re-assess the petitioner's current dangerousness 17 based on the same evidence this federal habeas court has deemed insufficient to sustain the 18 unsuitability finding would be a futile endeavor”). 19 Additionally, some courts have approved crediting an inmate for the time he has been 20 incarcerated after the violation of his constitutional rights. See McQuillion v. Duncan, 342 F.3d 21 1012, 1015 (9th Cir. 2003) (approving the practice of crediting unlawful time spent in custody 22 against a prisoner’s period of parole supervision); Cowans v. Marshall, 2010 WL 2931132, at *1 23 (9th Cir. 2010) (unpublished) (holding that district court did not abuse discretion in ordering 24 immediate release without serving a period of parole for habeas petitioner); see also Thompson v. 25 Carey, 2009 WL 453053, * 4-5 (E.D. Cal. 2009) (noting that “remedy extends not only to addressing 26 physical confinement in an institution, but also to addressing restrictions on liberty imposed as 27 conditions of release on parole.”), but cf. Rosenkrantz v. California Bd. of Prison Terms, 2010 WL 28 U .S. D istrict C ourt E. D . C alifornia 13 1 15131319, at *2-3 (C.D. Cal. 2010) (rejecting petitioner’s argument that he should be credited with 2 excess time he served in prison); Estrada v. Hartley, 2010 WL 3463572, at *2 (E.D. Cal. 2010) 3 (holding that petitioner was not entitled to credit against his indeterminate supervisory parole 4 period). Pursuant to existing Ninth Circuit authority, the Court recommends that Petitioner be 5 credited for the time he has unlawfully served as a result of the violation of his constitutional rights. 6 RECOMMENDATION 7 In accordance with the above, IT IS HEREBY RECOMMEND that: 8 1. The petition for writ of habeas corpus be GRANTED; 9 2. The Clerk of Court be directed to enter judgement for Petitioner; 10 3. Judgment be entered granting a writ of habeas corpus as follows: The Board shall find 11 Petitioner suitable for parole at a hearing to be held within thirty (30) days of the 12 order adopting this decision, unless new evidence of his conduct in prison or change 13 in mental status subsequent to the November 2006 parole hearing is introduced and is 14 sufficient to support a finding that Petitioner currently poses an unreasonable risk of 15 danger to society if released on parole. In the absence of any such new evidence 16 showing Petitioner’s current dangerousness, the Board shall calculate a prison term 17 and release date for Petitioner in accordance with California law. Further, if the 18 release date already has passed, Respondent shall, within ten (10) days of the Board's 19 hearing, release Petitioner from custody. With respect to his presumptive period of 20 parole, Petitioner is to be credited for any time that has lapsed since the release date 21 calculated by the Board or when a finding of suitability at the November 2006 parole 22 consideration hearing would have become final pursuant to California Penal Code 23 sections 3041(b) and 3041.2(a)), whichever is later. 24 This Findings and Recommendation is submitted to the Honorable Lawrence J. O’ Neill, 25 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 26 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. 27 Within thirty (30) days after being served with a copy, any party may file written objections with the 28 court and serve a copy on all parties. Such a document should be captioned “Objections to U .S. D istrict C ourt E. D . C alifornia 14 1 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and 2 filed within ten (10) court days (plus three days if served by mail) after service of the objections. 3 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The 4 parties are advised that failure to file objections within the specified time may waive the right to 5 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 IT IS SO ORDERED. 7 Dated: hlked6 September 16, 2010 /s/ John M. Dixon UNITED STATES MAGISTRATE JUDGE 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 15