-CMK (TEMP)(HC) Braeseke v. Board Of Prison Term et al, No. 2:2005cv00279 - Document 52 (E.D. Cal. 2011)

Court Description: ORDER denying 48 Respondent's Motion for Reconsideration and alternative Motion for Stay, signed by Judge Garland E. Burrell, Jr., on 1/12/11. (Kastilahn, A)

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-CMK (TEMP)(HC) Braeseke v. Board Of Prison Term et al Doc. 52 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 Barry Floyd Braeske, Petitioner, 10 v. 11 12 Michael Martel, 13 Respondent. ________________________________ ) ) ) ) ) ) ) ) ) ) 2:05-cv-00279-GEB-CMK ORDER DENYING RESPONDENT’S MOTION FOR RECONSIDERATION AND ALTERNATIVE REQUEST FOR STAY* 14 On 15 January 3, 2011, Respondent filed a “Motion for 16 Reconsideration; [or in the Alternative an] Application for a Stay of 17 the Court’s December 27, 2010 Order,” which granted Petitioner Braeske 18 (“Petitioner”)’s petition for writ of habeas corpus. (ECF No. 48.) 19 Respondent argues: The Board . . . conducted a parole consideration hearing for [Petitioner] on May 25, 2010 . . . [which] complies with In re Lawrence, 44 Cal. 4th 1181 (2008), upon which Hayward and Pearson are based. Thus, [Petitioner] has already received the remedy ordered by this Court . . . and his Petition should be dismissed as moot.” 20 21 22 23 24 (Resp’t Mot. (“Mot.”) 2:5-9, 3:19-20.) Respondent argues in the 25 alternative, should the Court find “that dismissal is not warranted,” a 26 stay “pending resolution of Respondent’s appeal” or “a temporary stay to 27 28 * argument. This matter is deemed suitable for decision without oral E.D. Cal. R. 230(g). 1 Dockets.Justia.com 1 give him the opportunity to seek a stay in the Ninth Circuit” is 2 “necessary and appropriate to preserve the status quo.” Id. at 2:10-19. 3 Respondent requested an “expedited ruling by January 10, 4 201[1] because the Court’s December 27, 2010 order requires the Board to 5 hold a new hearing for [Petitioner] within thirty days[, and Petitioner] 6 has been scheduled for a court-ordered hearing on January 20, 201[1].” 7 Id. at 2:20-22. 8 An order was filed on January 4, 2011, which requested 9 Petitioner to file a written response to Respondent’s motion no later 10 than January 7, 2011. (ECF No. 49.) Petitioner filed an opposition to 11 Respondent’s motion on January 7, 2011. (ECF No. 50.) 12 I. BACKGROUND 13 This action involves Petitioner’s application for a writ of 14 habeas corpus under 28 U.S.C. § 2254, in which he challenges a 2003 15 denial of parole. The matter was referred to a United States Magistrate 16 Judge under 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 17 The magistrate judge filed findings and recommendations on 18 September 30, 2010, which recommended the Petitioner’s application be 19 granted since “[o]ther than the circumstances of his commitment offense, 20 there is no evidence in the record to establish petitioner is a danger 21 to others.” (ECF No. 39 at 10:7-8.) Therefore, the magistrate judge 22 found the “decision that there was sufficient evidence of dangerousness 23 to deny petitioner parole [was] an unreasonable application of the ‘some 24 evidence’ standard and an unreasonable interpretation of the facts.” Id. 25 at 10:8-11. 26 The findings and recommendations provided notice to all 27 parties that any objections to the findings and recommendations were to 28 be filed within twenty-one days. Respondent filed timely objections. 2 1 (ECF No. 41.) After conducting a de novo review of the action, the 2 district 3 magistrate judge’s findings and recommendations “in full as to the 4 recommendation that Petitioner’s application for writ of habeas corpus 5 be 6 Respondent, inter alia, “to release petitioner within thirty days unless 7 a 8 provisions required by the Fourteenth Amendment of the United States 9 Constitution and identified in the September 30, 2010 findings and 10 11 judge granted.” new parole filed (ECF No. an Order 46.) suitability on The December December hearing is held 27, 27, in 2010 2010 adopting Order accordance the directed with the recommendations.” Id. at 2:6-9. II. MOTION FOR RECONSIDERATION 12 Respondent requests the Court “reconsider its [December 27, 13 2010 Order] and dismiss [Petitioner’s] Petition,” arguing Petitioner 14 “already received the remedy ordered by this Court” when the Board 15 conducted a “parole consideration hearing for [Petitioner] on May 25, 16 2010.” (Mot. 2:5-9.) Petitioner counters that Respondent did not make 17 the required showing that he is entitled to reconsideration, and “even 18 if [the] Court considers Respondent’s tardy proffer of further evidence, 19 it should deny the motion” because “Respondent has not provided [the] 20 Court with a record to determine the fairness of the Board’s 2010 21 decision.” (Pet’r Opp’n (“Opp’n”) 2:22-24, 3:11-16, 3:21-22, 3:28-4:4.) 22 “Absent ‘highly unusual circumstances,’ reconsideration of a 23 final judgment is appropriate only where (1) the court is presented with 24 newly-discovered evidence, (2) the court committed ‘clear error or the 25 initial decision was manifestly unjust,’ or (3) there is an intervening 26 change in the controlling law.” Calif. Dump Truck Owners Ass’n v. Davis, 27 302 F. Supp. 2d 1139, 1141 (E.D. Cal. 2002) (quoting School Dist. No. 28 3 1 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 2 1993). 3 Respondent does not address this standard in his moving 4 papers; nor has he made any showing under its criteria. However, even 5 assuming that the May 25, 2010 parole consideration hearing is “newly- 6 discovered evidence,” Respondent has not shown that reconsideration is 7 appropriate in this case because he has not provided a sufficient record 8 to determine if the 2010 hearing complied with the Court’s December 27, 9 2010 Order.1 See Sass v. Calif. Board of Prison Terms, 376 F. Supp. 2d 10 975, 978-79 (E.D. Cal. 2005) (stating that respondent’s assertion that 11 subsequent parole hearings mooted Petitioner’s application for writ of 12 habeas corpus incorrectly “assumes that all of the subsequent hearings 13 were conducted in accordance with federal law”); see also Jackson v. 14 Carey, No. 2:02-cv-0946 FCD KJN P, 2010 WL 27772656, at *2 (E.D. Cal. 15 July 13, 2010) (“Subsequent parole denials do not render this claim 16 moot. . . . [P]etitioner’s claim challenging the denial of parole 17 fall[s] within the ‘capable of repetition yet evading review’ exception 18 to mootness.”) (citation omitted). 19 Reconsideration is denied. 20 Therefore, Respondent’s Motion for III. MOTION FOR STAY 21 Respondent states he intends to file a notice of appeal 22 “[s]hould [his] Motion for Reconsideration be denied,” and argues “a 23 stay pending appeal is appropriate” since “the Respondent has a high 24 likelihood of success on the merits,” and “the Board will be irreparably 25 injured if it is forced to hold a new hearing under the parameters 26 27 28 1 The only evidence filed in support of Respondent’s Motion for Reconsideration is a transcript of the California Board of Parole Hearings’ Decision from the May 25, 2010 hearing. (Mot., Ex. 1.) 4 1 provided by the Court.” (Mot. 3:25-26, 4:13-16.) Petitioner rejoins that 2 Respondent “has failed to demonstrate that the relevant factors support 3 a stay of this Court’s order granting the writ, or even a temporary 4 stay.” (Opp’n 11:17-19.) 5 Rule 62(c) prescribes: “[w]hile an appeal is pending from an 6 interlocutory order or final judgment that grants, dissolves or denies 7 an injunction, the court may suspend, modify, restore, or grant an 8 injunction . . . ” However, a stay pending appeal “is not a matter of 9 right, even if irreparable injury might otherwise result.” Nken v. 10 Holder, 129 S. Ct. 1749, 1760 (2009). “It is instead an exercise of 11 judicial discretion, and the propriety of its issue is dependent upon 12 the circumstances of the particular case. 13 bears the burden of showing that the circumstances justify an exercise 14 of that discretion.” Id. at 1761 (quotation, citations and internal 15 brackets omitted). 16 17 The party requesting a stay The following factors should be considered in deciding whether to issue a stay pending appeal: 18 21 “(1) [W]hether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” 22 Golden Gate Restaurant Ass’n v. City and County of San Francisco, 512 23 F.3d 1112, 1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 24 770, 25 “employ[ing] two interrelated legal tests that represent the outer 26 reaches of a single continuum.” 19 20 776 (1987)). The Ninth Circuit applies these factors Id. at 1115 (quotation omitted). 27 28 5 by 1 At one end of the continuum, the moving party is required to show both a probability of success on the merits and the possibility of irreparable injury. . . . At the other end of the continuum, the moving party must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in its favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. 2 3 4 5 6 7 8 Id. at 1115-16 (quotations omitted). A. Likelihood of Success on the Merits 9 Respondent’s stay motion is premised upon four arguments: 1) 10 “the Court did not apply the . . . standard of federal habeas review 11 appropriately” 12 decision in Hayward[, which based] its holding on [In re] Lawrence, 13 which the California Supreme Court issued three and half years after it 14 denied [Petitioner’s] petition[;]” 2) even if federal law permits the 15 application of [In re] Lawrence to this case, “the Court . . . erred in 16 its application[;]” 3) Petitioner’s lack of parole plans in California 17 was a proper basis to deny his parole; and 4) “the state court decisions 18 [denying Petitioner’s applications for writs of habeas corpus] complied 19 with the Supreme Court’s holding [in Greenholtz] that federal due 20 process is satisfied by an opportunity to be heard and a statement of 21 reasons why the inmate was not found suitable for parole.” (Mot. 4:23- 22 25, 5:15-22, 5:25-28, 6:2-4, 6:14-16 (citations omitted).) by impermissibly relying upon “the Ninth Circuit’s 23 1) 24 The Ninth Circuit has rejected Respondent’s first and fourth 25 arguments, which concern the scope of a federal court’s habeas corpus 26 review under 28 U.S.C. § 2254(d). See Haggard v. Curry, --- F.3d ----, 27 2010 WL 4978842, at * 5 (9th Cir. 2010) (rejecting the state’s argument 28 that “the ‘some evidence’ requirement is a state-created procedure that Standard of Federal Habeas Review 6 1 . . . is not a procedural protection required under Greenholtz as a 2 matter of federal due process.”) (citation omitted); Pearson v. Muntz, 3 606 F.3d 606, 610 (9th Cir. 2010) (holding California right to parole 4 absent some evidence of current dangerousness is protected by federal 5 due process); McCollough v. Kane, --- F.3d ----, 2010 WL 5263140 (9th 6 Cir. 2010) (applying the California Supreme Court’s decision In re 7 Lawrence 8 likelihood of success, nor raised serious questions, on the merits of 9 these two arguments. retroactively). Therefore, Respondent has not shown a 10 2) 11 Respondent also argues that even if federal law permitted the 12 Court to apply In re Lawrence to the Board’s 2003 parole decision, the 13 Court “erred in its application” by not “address[ing] the severity of 14 [Petitioner’s] crime.” (Mot. 5:25-28.) Application of In re Lawrence 15 “For federal habeas review, parole decisions in California are 16 analyzed under the ‘some evidence’ standard set forth by the California 17 Supreme Court in Lawrence and Shaputis.” Lewis v. Schwarzenegger, No. 18 07-02465 CW, 2010 WL 3448570, at *6 (N.D. Cal. Aug. 31, 2010) (citing 19 Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2008). 20 “[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” 21 22 23 24 In 25 circumstances of the prisoner’s commitment offense may be relied upon as 26 a basis for denying parole. Id. at 1214. However, 27 28 re Lawrence, 44 Cal. 4th 1181, 1212 (2008). The aggravated [T]he aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s . . . 7 1 history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative of the statutory determination of a continuing threat to public safety. 2 3 4 5 Id. 6 circumstances of the commitment offense, when considered in light of 7 other facts in the record, are such that they continue to be predictive 8 of current dangerousness many years after commission of the offense.” 9 Id. at 1221. “This inquiry is . . . an individualized one, and cannot be at 1214. Therefore, “the relevant inquiry is whether the 10 undertaken 11 isolation, without consideration of the passage of time or the attendant 12 changes in the inmate's psychological or mental attitude.” Id. simply by examining the circumstances of the crime in 13 The Court conducted the individualized inquiry described in In 14 re Lawrence in this case when it concluded “there is no evidence in the 15 record to establish petitioner is a danger to others,” other than “the 16 circumstances of his commitment offense.” (ECF No. 39, 7:7-8, 8:7-23, 17 8:26-9:7, 9:8-15, 9:16-25, 10:7-8 (discussing Petitioner’s only past 18 criminal offense for shoplifting as a minor, parole plans in New Mexico, 19 “marketable employment skills,” disciplinary event in 1994, significant 20 self-help 21 Respondent has not shown a likelihood of success, nor raised serious 22 questions, on the merits of its argument that the Court incorrectly 23 applied In re Lawrence. 24 3) 25 Respondent also argues Petitioner’s “absence of parole plans 26 [in California] is a factor of unsuitability that supports the Board’s 27 decision to deny parole.” (Mot. 6:10-13.) efforts, and positive psychological report).) Therefore, Petitioner’s Lack of Parole Plans in California 28 8 1 2 3 4 5 6 7 In denying Petitioner parole in 2003, the Board relied in part on Petitioner’s parole plans, stating: The prisoner’s parole plans does [sic] lack some work. Well, the prisoner’s parole plans need to be worked on. He doesn’t have any parole plans in the State of California and he have [sic] not been accepted for an Interstate Transfer to [New] Mexico. And based on that, we would say that the prisoner’s parole plans are inadequate . . . . (Resp’t Answer, Ex. 2, at 36:1-7.) 8 In determining whether a life prisoner is suitable for parole, 9 the Board of Parole Hearings (“Board”) must consider all “relevant, 10 11 12 13 14 15 16 reliable information available,” including: [T]he circumstances of the prisoner’s social history; past and present mental state; past criminal history . . .; 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 . . . ; and any other information which bears on the prisoner's suitability for release. 15 Cal. Code Regs. § 2402(b). 17 Section 2402 sets forth a non-exhaustive list of factors that 18 the Board is to consider in evaluating parole suitability. 15 Cal. Code 19 Regs. § 2402(c),(d). Factors tending “to indicate suitability” for 20 parole include: “(8) Understanding and Plans for Future. The prisoner 21 has made realistic plans for release or has developed marketable skills 22 that can be put to use upon release.” 15 Cal. Code Regs. § 2402(d)(8). 23 “Lack of parole plans is not listed as a factor tending to show 24 unsuitability” 25 JVS(AJW), 2010 WL 2757132, at *12, n.14 (C.D. Cal. April 15, 2010). 26 “Indeed, the [relevant factor indicating suitability for parole] simply 27 requires ‘realistic plans for release’ or ‘marketable skills’ . . .” In 28 re Powell, 188 Cal. App. 4th 1530, 1543 (2010). for parole. Nicholson 9 v. Salazar, No. CV 06-5911- 1 The Board discussed Petitioner’s work history during his 2003 2 parole hearing. Petitioner indicated that he has obtained his GED and 3 completed some college courses while incarcerated. ((Resp’t Answer, Ex. 4 2, at 14:10-14, 17:20-23.) Prior to his incarceration, Petition worked 5 for Pacific Telephone in operator services, for PriMark Marketing 6 Company manufacturing label guns, and at a gas station. Id. at 14:19-25. 7 At 8 institution’s “maintenance repair crew,” and he had completed a number 9 of vocational programs, including “Electronic Technician . . . EEG 10 Technician, a record clerk, a canteen clerk . . . courses in [Complete 11 Business Oriented Language]” and “Mobile Air Conditioning Repair.” 12 at 17:6-11, 17:24-18:18. Two recent supervisors submitted positive work 13 “chronos,” which indicated Petitioner would be able to find work upon 14 his release. Id. at 20:16-22:7. The Board commended Petitioner for his 15 work history at the hearing, stating, “the panel is aware for a number 16 of years that you’ve been a very excellent worker. You’ve done just 17 about the same, just about anything you could to try to improve 18 yourself.” Id. at 22:9-14. the time of the parole hearing, Petitioner worked in the Id. 19 Petitioner also discussed his release plans with the Board 20 during the hearing. Petitioner had plans to live with Thomas and Agnes 21 Gibson 22 Petitioner met Mr. Gibson while incarcerated at San Quentin as a “M2 23 program” sponsor. Id. at 28:15-27. Petitioner planned on helping the 24 Gibsons on their ranch, while looking for work in town. Id. Mr. Gibson 25 submitted a letter to the Board documenting his support for Petitioner. 26 Id. at 27:4-28:13. on their cattle ranch in 27 28 10 New Mexico. Id. at 24:25-25:27. 1 At the time of the hearing, Petitioner made efforts to have 2 his parole transferred to New Mexico upon his release, but was informed 3 he could not do so until he had a set parole date. Id. at 26:1-27. The 4 Board is unopposed to Petitioner being transferred out-of-state. Id. at 5 39:13-19. 6 Based upon the above record, Respondent has not shown a 7 likelihood of success on the merits, or raised a serious question, that 8 Petitioner’s lack of parole plans in California constituted “some 9 evidence” that 10 Petitioner had 11 release. See In re Powell, 188 Cal. App. 4th at 1543 (“[T]o qualify as 12 ‘realistic’ a [release] plan need not be ironclad.”) (citation omitted). 13 Petitioner both Further, is a marketable the relevant current skills threat and inquiry a for to public “realistic” the Board safety. plan is for “an 14 individualized assessment of the continuing danger and risk to the 15 public safety posed by the inmate.” In re Lawrence, 44 Cal. 4th at 1227. 16 Application of the “some evidence” standard “requires more than rote 17 recitation of the relevant factors with no reasoning establishing a 18 rational nexus between those factors and . . . [a] determination of 19 current dangerousness.” Nestle v. Davison, No. CV 07-4331-CAS(OP), 2009 20 WL 2997225, at *8 (C.D. Cal. Sept. 11, 2009) (citing In re Shaputis, 44 21 Cal. 4th 1241, 1254 (2008).) Even if Petitioner’s lack of release plans 22 in California was a factor for the Board to consider, it “failed to 23 create [the required] nexus between [that factor] and whether Petitioner 24 is currently a danger to society.” Id. at *13. 25 B. Irreparable Injury / Comparison of Hardships / Public Interest 26 Since Respondent has failed to show a likelihood of success, 27 or raise a serious question, on the merits of any of his arguments, the 28 11 1 Court need not address the remaining factors. See Mount Graham Coalition 2 v. Thomas, 89 F.3d 554, 558 (9th Cir. 1996). 3 IV. CONCLUSION 4 For the stated reasons, Respondent’s Motion 5 Reconsideration and alternative Motion for Stay are DENIED. 6 Dated: January 12, 2011 7 8 9 GARLAND E. BURRELL, JR. United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 for

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