(HC) Rosales v. California Board of Paole Hearings, et al., No. 2:2007cv00168 - Document 35 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge James P. Hutton on 3/25/2011 RECOMMENDING that Ptnr's 1 application for writ of habeas corpus be denied. Referred to Judge Robert H. Whaley. Objections to F&R due within 14 days. (Zignago, K.)

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(HC) Rosales v. California Board of Paole Hearings, et al. Doc. 35 1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 DANNY SAUL ROSALES, 5 Petitioner, 6 v. 7 8 CALIFORNIA BOARD OF PAROLE HEARINGS, et al, 9 10 Respondant. 11 12 13 14 I. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) NO. 2:07-CV-168-RHW-JPH REPORT AND RECOMMENDATION RE: PETITION FOR WRIT OF HABEAS CORPUS Factual History On January 14, 1979, Barbara Romero, Lilia Vasquez, Olivia de 15 la Rosa and Alice de la Rosa were with five other women at 16 Vasquez’s home. 17 at about 10:00 p.m., and exited the house to find Petitioner 18 standing near Vasquez’s van, with the driver’s door ajar. 19 Ex. 4 14:14-22. 20 was missing and asked Petitioner what he was doing. 21 14:24-26. 22 the house. 23 Pet. Ex. 4 14:8-13. The group heard dogs barking Pet. Vasquez looked in the vehicle to see if anything Pet. Ex. 4 She then shut the vehicle’s door and returned inside Pet. Ex. 4 14:27-15:2. Alice de la Rosa arrived at the home several minutes later, 24 and saw Petitioner loitering in the area. 25 four women went outside to confront Petitioner; two held his 26 shoulders while a third checked his pockets, and found an item 27 they believed to be from Romero’s vehicle. 28 At this time, the women lifted Petitioner’s shirt, and discovered Pet. Ex. 4 15:2-5. The Pet. Ex. 4 15:6-13. Report and Recommendation re: Petition for Writ of Habeas Corpus - 1 Dockets.Justia.com 1 a knife in the waistband of his pants. Pet. Ex. 4 15:14-17. One 2 of the women yelled for someone to call the police. 3 15:20-21. 4 in the chest, abdomen, and arms, killing Romero and injuring the 5 other three. 6 Petitioner that evening at around 11:30, they recovered a 13-inch 7 buck knife, as well as blood-stained clothing previously reported 8 as being worn by Petitioner. 9 Petitioner pled guilty on October 15, 1980 to second degree murder Pet. Ex. 4 Petitioner then used the knife to stab all four women, Pet. Ex. 4 15:26-16:18. When police located Pet. Ex. 4 16:24-17:16. 10 and three counts of assault with intent to commit murder. 11 1:22-23. 12 murder count, with concurrent determinate sentences of seven years 13 to run for each of the assault counts. 14 additional one-year sentence was imposed but stayed, pursuant to 15 California Penal Code Section 12022(b), because Petitioner used “a 16 deadly or dangerous weapon in the commission of a felony.” 17 1:25-2:1. 18 II. 19 Pet. He was sentenced to 15-years-to-life in prison for the Pet. 1:24-25. An Pet. Procedural History Petitioner was eligible for parole after serving ten years of 20 his sentence. Pet. 2:7-8. His first parole suitability hearing 21 took place in May 1989, and parole was denied. 22 California Board of Prison Terms (“the Board”) continued to deny 23 Petitioner parole at every subsequent hearing, the last of which 24 took place on February 17, 2005, and denied parole for three 25 years. 26 its 2005 decision that Petitioner was unsuitable for parole 27 because he “would pose an unreasonable risk of danger to society 28 or a threat to public safety if released from prison.” Pet. 2:10-2:11; Pet. Ex. 4 79:8-9. Report and Recommendation re: Petition for Writ of Habeas Corpus - 2 Pet. 2:8-10. The The Board concluded in Pet. Ex. 4 1 76:8-11. 2 “especially cruel and callous manner” in which the crimes were 3 committed, the “inexplicable” motive for the crimes and their 4 “very trivial” relationship to the offense, the lack of any 5 “major” criminal history for Petitioner, and his “unstable social 6 history” of using drugs and alcohol. 7 20, 77:7-8, 77:9-11. 8 9 The Board announced its decision was based on the Pet. Ex. 4 76:11-12, 76:18- Petitioner filed a habeas petition with the California Supreme Court on June 14, 2006, which was summarily denied on 10 January 24, 2007. 11 Petitioner has exhausted his available state court remedies, and 12 that this petition was timely filed. 13 Ans. 4:24. 14 custody at California State Prison, Solano, in Vacaville, 15 California. 16 17 18 Pet. 2:12-13; Pet. 2:15-16. Both sides admit Pet. 2:12-13; Ans. 4:20-21; As of the filing to this court, Petitioner was in Pet. 1:20-21. Petitioner claims he is being held unlawfully on the following grounds: 21 Petitioner’s rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the Board determined that he was unsuitable for parole in the absence of evidentiary support in the record and a rational connection between its findings and conclusions; 22 2. Petitioner’s rights to due process of law under 19 20 1. 25 the Fifth and Fourteenth Amendments to the United States Constitution were violated when the Board determined that he was unsuitable for parole based on his failure to meet conditions which the evidence before the Board demonstrated have already been met; 26 3. Petitioner’s rights to due process of law under 23 24 27 28 the Fifth and Fourteenth Amendments to the United States Constitution were also violated when the Board, in finding petitioner unsuitable for parole, did not engage in individualized decision Report and Recommendation re: Petition for Writ of Habeas Corpus - 3 1 making, but merely implemented an unwritten policy of blanket denial of parole for virtually every prisoner who had been given an indeterminate life sentence for murder; 2 3 4. Petitioner’s right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution was violated when the Board subjected him to a pro forma parole hearing in which he could not demonstrate his suitability for parole; and 4 5 6 5. Petitioner’s 7 12 right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and his rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the Board, in imposing an effective life sentence without parole upon Petitioner, took from him the benefit for which he had bargained when he entered his guilty plea, although the state maintained this benefit for which it had bargained. 13 Pet. 3:1-4, 9:12-15, 12:17-21, 14:16-18, 15:11-16. 8 9 10 11 14 15 III. Discussion Petitioner’s claims fall into two categories: first, that 16 the Board violated his right to due process when it found him 17 unsuitable for parole; and second, that his continued imprisonment 18 as a result of the denial constituted cruel and unusual 19 punishment. 20 sufficient” procedures in his parole hearing and there is no right 21 to a premature release date for life-maximum prisoners in the 22 State of California, it is recommended that the petition be 23 denied. 24 A. 25 Petitioner claims his due process rights were violated when Because Petitioner was afforded “constitutionally Due Process 26 the Board denied him parole, thereby entitling him to a writ of 27 habeas corpus. 28 judgment may apply to a district court for a writ of habeas corpus A prisoner in custody as a result of a state court Report and Recommendation re: Petition for Writ of Habeas Corpus - 4 1 only on the grounds that his custody violates the Constitution or 2 the laws or treaties of the United States. 3 When a prisoner’s confinement is not violative of federal law, 4 however, a federal court is not at liberty to issue such a writ. 5 Wilson v. Corcoran, 131 S. Ct. 13, 14 (2010). 6 province of a federal habeas court to reexamine state-court 7 determinations on state-law questions.” 8 U.S. 62, 67-68 (1991). 9 grant habeas relief on the basis of errors of state law. 28 U.S.C. § 2254(a). “It is not the Estelle v. McGuire, 502 Federal courts are therefore unable to This 10 court may only grant Petitioner’s writ if the California Supreme 11 Court erred in summarily denying the original petition because 12 Petitioner’s confinement violates federal law or the 13 Constitution—not because his confinement violates State law. 14 When a prisoner such as Petitioner claims he is entitled to a 15 writ because his due process rights have been violated, the 16 inquiry is two-part: 17 of an existing liberty of property interest,” and if so, (2) 18 Whether the State’s procedures were “constitutionally sufficient.” 19 Swarthout v. Cooke, --- U.S. ----, 131 S. Ct. 859, 861 (2011). 20 a threshold issue, in order to entertain Petitioner’s application 21 for habeas relief, there must be an established liberty interest 22 in parole. 23 parole” exists, and States are not bound to offer parole to their 24 respective prisoners, States may adopt statutes creating such a 25 liberty interest that is entitled to due process protection. 26 at 861; Board of Pardons v. Allen, 482 U.S. 369, 371 (1987). 27 28 (1) Whether the prisoner has been “deprived As While no “federal constitutional liberty interest in Id. It is reasonable to interpret Supreme Court jurisprudence as finding that California law creates a liberty interest in parole Report and Recommendation re: Petition for Writ of Habeas Corpus - 5 1 when the State’s parole standards have been met. 2 Cooke at 861. 3 therefore State-created and not guaranteed by the Constitution or 4 “laws or treaties of the United States,” and habeas relief may be 5 granted only if the procedures mandated by federal due process 6 were not present at Petitioner’s parole suitability hearing. 7 at 862. 8 Swarthout v. The interest at issue in Petitioner’s case is Id. Where a State has created a liberty interest in parole, as 9 California has done, the only constitutionally-required process is 10 the “opportunity [for the prisoner] to be heard,” and if parole is 11 denied, for the prisoner to be informed “in what respect he falls 12 short of qualifying for parole.” 13 Penal and Correctional Complex, 442 U.S. 1, 16 (1979). 14 Petitioner’s 2005 parole hearing, he was advised of his right to 15 appear, and elected not to do so. 16 conclusion of the hearing, the Board stated its reasons for 17 denying the parole request. 18 thereby afforded all of the due process procedures 19 constitutionally guaranteed to him in order to protect his liberty 20 interest, making the State’s procedures “constitutionally 21 sufficient.” 22 Greenholtz v. Inmates of Neb. Pet. Ex. 4 5:5-5:7. Pet. Ex. 4 76:5-81:5. In At the Petitioner was Petitioner proffers that California’s requirement of “some 23 evidence” to support a conclusion of parole unsuitability is a 24 component of the liberty interest in parole, and an absence of 25 “some evidence” supporting the Board’s decision equates to a 26 violation of due process. 27 Petitioner’s claims of infringement are evidentiary—whether the 28 Board had adequate factual support to deny his request for parole. Id. at 1; Pet. 9:1-11. Report and Recommendation re: Petition for Writ of Habeas Corpus - 6 The bases of 1 Such claims are beyond the scope of this court’s inquiry, because 2 the Supreme Court has never found the California “some evidence” 3 requirement to be a substantive federal requirement, and “[a] 4 finding that there is no evidence in the record supporting a 5 parole denial is irrelevant unless there is a federal right at 6 stake, as required by § 2254(a).” 7 determine whether the procedures required by the Constitution are 8 applied, while State courts must determine whether they are 9 applied properly. 10 Id. at 3. Federal courts must Id. at 3. Greenholtz, the controlling case law where the “federal right 11 at stake” is due process protection of a State-created liberty 12 interest in parole, restricted analysis to whether 13 constitutionally-mandated procedures were present in parole 14 proceedings—i.e., whether the defendant was given the opportunity 15 to be heard and informed as to why parole was denied—but did not 16 address the issue of whether the evidence used during those 17 proceedings supported the conclusions drawn therein. 18 The “some evidence” requirement is a requirement under California 19 State, not federal, law; regardless of whether there was “some 20 evidence” supporting the Board’s decision at Petitioner’s hearing, 21 a “mere error of state law” does not precipitate a denial of due 22 process. 23 Petitioner’s 2005 hearing were “constitutionally sufficient;” it 24 is irrelevant whether or not the evidence on the record supported 25 the conclusions reached in those proceedings, because this court 26 does not review for errors in the application of State law, 27 including whether or not “some evidence” supported the Board’s 28 decision. Swarthout v. Cooke at 862. Id. at 3. The procedures in Any finding to the contrary would require federal Report and Recommendation re: Petition for Writ of Habeas Corpus - 7 1 courts to review the manner in which States apply their own 2 procedures and laws in cases concerning liberty or property 3 interests. Id. at 863. 4 Although it is unnecessary to address the “some evidence” 5 requirement, circumstances the Board may evaluate that tend to 6 show "some evidence" include: 7 commitment offense, a previous record of violence, an unstable 8 social history, sadistic sexual offenses, a history of severe 9 mental problems related to the offense, and serious misconduct in "the aggravated nature of the 10 jail." Pirtle v. Cal. Board of Prison Terms, 611 F.3d 1015, 1021 11 (9th Cir. 2010) (citing Cal. Code Regs., tit. 15, § 12 2402(c)). Petitioner stabbed four unarmed women, killing one, and 13 was subject to discipline in prison for manufacturing alcohol and 14 other offenses. Pet. Ex. 4 16:2-18, 59:23-24, 3:12-16. There 15 existed "some evidence" on which the Board could base its decision 16 to deny Petitioner parole. 17 Petitioner additionally alleges that the Board did not 18 evaluate his parole suitability on an individual basis, but 19 instead operated under a policy that denied parole to virtually 20 every prisoner serving an indeterminate life sentence, thereby 21 violating his due process rights. 22 evidence to support this claim, it must be denied. 23 Because Petitioner offers no It has been accepted that under Governors Wilson and Davis, 24 the State of California “disregarded regulations ensuring fair 25 suitability hearings and instead operated under a sub rosa policy 26 that all murderers be found unsuitable for parole.” 27 Marshall, 431 F. Supp. 2d 1038, 1048 (N.D. Cal. 2006) (citing 28 Coleman, 96-0783 LKK PAN, slip op. at 3). Report and Recommendation re: Petition for Writ of Habeas Corpus - 8 Martin v. When the petitioner 1 in Coleman offered testimony from former Board Commissioners that 2 the no-parole policy was enforced by “(1) appointing Board members 3 less likely to grant parole and more willing to disregard their 4 statutory duty; (2) removing Board members more likely to grant 5 parole; (3) reviewing decisions finding a prisoner suitable and 6 setting a new hearing before a different panel; (4) scheduling 7 rescission hearings for prisoners who had been granted a parole 8 date; (5) re-hearing favorable rescission proceedings and hand- 9 picking panels to ensure the desired outcome; (6) panel members 10 agreeing upon an outcome in advance of the hearing; and (7) 11 gubernatorial reversal of favorable parole decisions,” it was 12 determined that inmates’ constitutional rights were violated, 13 because they were denied the right “to be heard by an impartial 14 decision-maker.” 15 slip op. at 3). 16 and continued by Governor Davis, who served from 1999 until 2003. 17 Id. at 1048. 18 Id. at 1048-49 (citing Coleman, 96-0783 LKK PAN, This policy was established by Governor Wilson Petitioner’s parole hearing took place in 2005, after Davis 19 ceased to act as Governor. 20 1048. 21 individualized decision-making, by offering evidence 22 representative of the Board’s procedures between 1999 and 2003—not 23 2005. 24 that during Petitioner’s hearing, after Governor Davis left 25 office, there existed a “sub rosa policy” of denying parole; as 26 such, Petitioner’s claim should be denied. 27 28 Pet. 2:10-11; Martin v. Marshall at Petitioner attempts to support his claim that he was denied Pet. Ex. 6, 7, 8, 9. There has been no evidence proffered Because Petitioner’s liberty interest in parole is not a federal one, he was afforded “constitutionally sufficient” Report and Recommendation re: Petition for Writ of Habeas Corpus - 9 1 procedures by having the opportunity to be heard and receiving 2 articulated findings as to why he was denied parole, and he 3 provided no evidence to support his claim that parole was denied 4 as a result of a sub rosa policy by the Board to deny parole to 5 those serving indeterminate life sentences, his right to due 6 process under the Fifth and Fourteenth Amendments was not 7 violated. 8 B. Cruel and Unusual Punishment 9 Petitioner claims that the Board subjected him to cruel and 10 unusual punishment, violating his Eighth and Fourteenth Amendment 11 rights, when it denied his application for parole. 12 is no federal right to parole, the petition does not pass section 13 2254(a) muster. 14 2254(a). 15 receiving parole where parole standards have been met, there is no 16 absolute right to be paroled. 17 Because there Swarthout v. Cook at 862; see 28 U.S.C. § While California has created a liberty interest in See Swarthout v. Cooke at 862. As determined by the California Supreme Court, the cruel and 18 unusual punishment clause “does not require the Board . . . to set 19 premature release dates for current life-maximum prisoners who, it 20 believes, present public safety risks.” 21 4th 1061, 1098 (2005). 22 life when he pled guilty to second degree murder and three counts 23 of assault with intent to commit murder. 24 “life-maximum” prisoner, Petitioner is not entitled to a premature 25 release date if the Board determines he poses a present risk to 26 public safety. 27 the Board found Petitioner was “not suitable” for parole, as his 28 release “would pose an unreasonable risk of danger to society or a In re Dannenberg, 34 Cal. Petitioner was sentenced to 15-years-to- Pet. 1:22-1:24. See Dannenberg, 34 Cal. 4th at 1098. Report and Recommendation re: Petition for Writ of Habeas Corpus - 10 As a Indeed, 1 threat to public safety.” 2 Petitioner posed a present risk to public safety, the Board’s 3 denial of Petitioner’s request for parole did not constitute cruel 4 and unusual punishment, thereby not violating the Eighth or 5 Fourteenth Amendments. 6 IV. 7 Pet. Ex. 4 76:9-11. In concluding that Conclusion Petitioner’s due process right under the Fifth and Fourteenth 8 Amendments and his right to be free from cruel and unusual 9 punishment under the Eighth and Fourteenth Amendments have not 10 been infringed, because he was given “constitutionally sufficient” 11 procedures to protect his State-created liberty interest in 12 parole, there is no evidence of a sub rosa policy to deny parole 13 to prisoners serving indeterminate life sentences, and the 14 California Board of Prison Terms is not required to release life- 15 maximum prisoners before the expiration of their sentences. 16 Accordingly, Petitioner’s application for writ of habeas corpus 17 should be DENIED. 18 Certificate of Appealability, because Petitioner has not made the 19 requisite showing of a denial of a constitutional right. 20 U.S.C. § 2253(c)(2). 21 V. This court will subsequently not recommend a 28 Recommendation In accordance with the foregoing, IT IS RECOMMENDED that the 22 23 court issue an order approving and adopting this report and 24 recommendation. 25 VI. 26 Objections Any party may object to a magistrate judge's proposed findings, 27 recommendations or 28 service copy with a report within thereof. fourteen Such Report and Recommendation re: Petition for Writ of Habeas Corpus - 11 party (14) days shall following file written 1 objections with the Clerk of the Court and serve objections on all 2 parties, specifically identifying the portions to which objection is 3 being made, and the basis therefor. 4 shall be filed within fourteen (14) days after receipt of the 5 objection. 6 additional time after certain kinds of service. Any response to the objection Attention is directed to FED . R. CIV . P. 6(d), which adds 7 A district judge will make a de novo determination of those 8 portions to which objection is made and may accept, reject, or 9 modify the magistrate judge's determination. The judge need not 10 conduct a new hearing or hear arguments and may consider the 11 magistrate judge's record and make an independent determination 12 thereon. 13 additional evidence, or may recommit the matter to the magistrate 14 judge with instructions. United States v. Howell, 231 F.3d 615, 621 15 (9th Cir. 2000); 28 U.S.C. § 636(b)(1)(B) and (C), FED . R. CIV . P. 72; 16 LMR 4, Local Rules for the Eastern District of Washington. The judge may, but is not required to, accept or consider 17 A magistrate judge's recommendation cannot be appealed to a 18 court of appeals; only the district judge's order or judgment can be 19 appealed. 20 The District Court Executive is directed to file this Report 21 and Recommendation and provide 22 copies to the parties referring district judge. 23 24 25 26 DATED this 25 day of March, 2011. s/ James P. Hutton JAMES P. HUTTON UNITED STATES MAGISTRATE JUDGE 27 28 Report and Recommendation re: Petition for Writ of Habeas Corpus - 12 and the

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