(HC) Kane v. Finn et al, No. 2:2007cv01120 - Document 19 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John L. Weinberg on 8/7/09 recommending that the petition be denied and this action be dismissed with prejudice. Objections due within 20 days after being served with this report and recommendations. (Duong, D)
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(HC) Kane v. Finn et al Doc. 19 01 02 03 04 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 05 06 07 MORGAN KANE, a.k.a. John Wetmore, 08 09 10 11 ) ) Petitioner, ) ) v. ) ) CLAUDE FINN, Warden, ) ) Respondent. ) ____________________________________ ) CASE NO. 2:07-cv-01120-RSL-JLW REPORT AND RECOMMENDATION 12 13 I. SUMMARY 14 Petitioner Morgan Kane, also known as John Wetmore,1 is currently incarcerated at 15 the Deuel Vocational Institution in Tracy, California. He pled guilty to one count of first 16 degree murder, two counts of forgery, and one count of attempted forgery in Fresno County 17 Superior Court on January 17, 1984, and was sentenced to twenty-seven-years-to-life with the 18 possibility of parole. (See Dkt. 1, Ex. A at 1-2.) He has filed a petition for writ of habeas 19 corpus under 28 U.S.C. § 2254 challenging the 2005 denial of parole by the Board of Parole 20 21 22 1 When petitioner was adopted, his name was changed from Morgan James Kane to John Wetmore. Petitioner legally changed it back to Morgan James Kane on October 26, 1990. (See Docket 1, Exhibit C3 at 1.) REPORT AND RECOMMENDATION -1 Dockets.Justia.com 01 Hearings of the State of California (the “Board”).2 Respondent has filed an answer to the 02 petition together with relevant portions of the state court record, and petitioner has filed a 03 traverse in response to the answer. The briefing is now complete and this matter is ripe for 04 review. The Court, having thoroughly reviewed the record and briefing of the parties, 05 recommends the petition be denied and this action be dismissed with prejudice. 06 II. 07 In July 1983, petitioner was involved in a failed attempt to cash a forged check BACKGROUND 08 at the First Interstate Bank of California on the account of Stanley John Kearns, 09 petitioner’s disabled step-father. (See Dkt. 1, Ex. B at 9; id., Ex. C3 at 8.) Petitioner 10 was also involved in cashing two forged checks in the amounts of $230 and $170 on 11 Mr. Kearns’ account. (See id., Ex. B at 9; id., Ex. C3 at 8.) Shortly after the forgeries, 12 petitioner was involved in the poisoning of Mr. Kearns, which resulted in his death. 13 (See id.) 14 Petitioner elected not to discuss the circumstances of the murder offense with 15 the panel during the 2005 hearing. (See id., Ex. B at 11.) As a result, the Board relied 16 upon a synopsis of the offense written by petitioner, and kept in his central file at the 17 prison. (See id. at 9.) Petitioner’s version of the crime is therefore as follows. 18 After returning home from work on July 13, 1983, petitioner discovered the 19 body of the victim, Mr. Kearns, on the living room floor of his house. (See id., Ex. B 20 at 9-10.) Petitioner claims that he had a strained relationship with the victim, who had 21 22 2 The Board of Parole Hearings replaced the Board of Prison Terms, which was abolished on July 1, 2005. See California Penal Code § 5075(a). REPORT AND RECOMMENDATION -2 01 been arrested on a prior occasion for hitting petitioner’s step-sister, Jackie. (See id. at 02 10.) Because of petitioner’s history of verbal and physical confrontation with the 03 victim, petitioner’s first thought when he discovered the body was to get it away from 04 his home. (See id.) He was attempting to put the body in a sleeping bag when his 05 wife, Sandra, arrived home from dropping their son at a friend’s house. (See id.) 06 Sandra told petitioner she had invited the victim over for dinner. (See id.) 07 Petitioner claims the victim, who trusted Sandra, had previously shown her a purchase 08 he had made of potassium cyanide in order “to settle scores with a number of people.” 09 (Id.) Sandra knew the victim carried asthma medication in capsule form. (See id.) 10 When the opportunity presented itself, she emptied asthma capsules and filled them 11 with potassium cyanide. (See id.) The victim took a capsule after dinner, just as 12 Sandra expected he would, although it surprised her when he quickly collapsed. (See 13 id. at 11.) She was unable to lift and conceal the body without assistance, which was 14 why she had left the body in the living room while she drove her son to a friend’s 15 house. (See id.) Petitioner did not attempt to explain Sandra’s motive for poisoning 16 the victim. 17 Petitioner and Sandra then worked together to conceal the crime. After placing 18 the body in the sleeping bag, they lifted it onto the bed of their pickup truck and drove 19 the body to a remote location in South Fresno to dispose of it. (See id.) When the 20 couple realized they had forgotten to bring a shovel to bury the body, they began to 21 argue, attracting the attention of a nearby homeowner. (See id.) After driving around 22 for a while, petitioner and his wife eventually dumped the body behind some crops in REPORT AND RECOMMENDATION -3 01 a field. (See id.) Petitioner placed a piece of paper with his name and number in the 02 victim’s wallet as someone to be notified “in case of emergency,” and petitioner and 03 Sandra were subsequently notified of the victim’s death. (See id.) The toxicology 04 report confirmed that cyanide was present in the victim’s blood at levels that could 05 cause death. (See Dkt. 12, Ex. D at 6.) 06 Contrary to petitioner’s account of the crime, the probation officer’s report 07 provides that petitioner, Jackie, and Sandra worked together as crime partners to cash 08 the forged checks drawn on the victim’s account, and poison the victim in order to 09 obtain the proceeds of his life insurance policy. (See id. at 3-4.) Jackie was the named 10 beneficiary of the victim’s policy. (See id. at 6; Dkt. 1, Ex. C3 at 8.) According to 11 Jackie, the victim was poisoned by Sandra and petitioner in order to help her obtain 12 the policy proceeds, and petitioner had told Jackie he expected to receive $33,000 of 13 her inheritance. (See Dkt. 12, Ex. D at 6.) 14 Petitioner pled guilty to one count of attempted forgery, two counts of forgery, and 15 one count of first degree murder in Fresno County Superior Court on January 17, 1984. (See 16 Dkt. 1, Ex. A at 1-2.) Petitioner’s minimum eligible parole date was set for April 8, 2000. 17 (See id., Ex. B at 1.) The parole denial which is the subject of this petition took place after a 18 parole hearing held on November 9, 2005. (See id.) This was petitioner’s third parole 19 consideration hearing. (See id., Exs. C1-C3.) Petitioner committed the offenses when he was 20 twenty-three years of age. (See id., Ex. C1 at 1.) As of the date of the 2005 parole hearing, 21 petitioner was fifty-one-years-old, and had been in custody for approximately twenty-one 22 years. (See id., Ex. B at 1; id., Ex. C3 at 1.) REPORT AND RECOMMENDATION -4 01 After denial of his 2005 application, petitioner filed habeas corpus petitions in the 02 Fresno County Superior Court, California Court of Appeal, and California Supreme Court. 03 (See id., Exs. G, I, and L.) Those petitions were unsuccessful. (See id., Exs. G, I, and L.) 04 This federal habeas petition followed. Petitioner contends the 2005 denial by the Board 05 violated his Fifth and Fourteenth Amendment Due Process rights. Thus, petitioner does not 06 challenge the validity of his conviction, but instead challenges the Board’s 2005 decision 07 finding him unsuitable for parole. 08 III. STANDARD OF REVIEW 09 The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this 10 petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 11 320, 326-27 (1997). Because petitioner is in custody of the California Department of 12 Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive 13 vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. 14 denied, 543 U.S. 991 (2004) (providing that § 2254 is “the exclusive vehicle for a habeas 15 petition by a state prisoner in custody pursuant to a state court judgment, even when the 16 petitioner is not challenging his underlying state court conviction.”). Under AEDPA, a habeas 17 petition may not be granted with respect to any claim adjudicated on the merits in state court 18 unless petitioner demonstrates that the highest state court decision rejecting his petition was 19 either “contrary to, or involved an unreasonable application of, clearly established Federal 20 law, as determined by the Supreme Court of the United States,” or “was based on an 21 unreasonable determination of the facts in light of the evidence presented in the State court 22 proceeding.” 28 U.S.C. § 2254(d)(1) and (2). REPORT AND RECOMMENDATION -5 01 As a threshold matter, this Court must ascertain whether relevant federal law was 02 “clearly established” at the time of the state court’s decision. To make this determination, the 03 Court may only consider the holdings, as opposed to dicta, of the United States Supreme 04 Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit 05 precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 06 07 331 F.3d 1062, 1069 (9th Cir. 2003). The Court must then determine whether the state court’s decision was “contrary to, or 08 involved an unreasonable application of, clearly established Federal law.” See Lockyer v. 09 Andrade, 538 U.S. 63, 71 (2003). “Under the ‘contrary to’ clause, a federal habeas court may 10 grant the writ if the state court arrives at a conclusion opposite to that reached by [the 11 Supreme] Court on a question of law or if the state court decides a case differently than [the] 12 Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13. 13 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the 14 state court identifies the correct governing legal principle from [the] Court’s decisions but 15 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. At all 16 times, a federal habeas court must keep in mind that it “may not issue the writ simply because 17 [it] concludes in its independent judgment that the relevant state-court decision applied clearly 18 established federal law erroneously or incorrectly. Rather that application must also be 19 [objectively] unreasonable.” Id. at 411. 20 In each case, the petitioner has the burden of establishing that the state court decision 21 was contrary to, or involved an unreasonable application of, clearly established federal law. 22 See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine REPORT AND RECOMMENDATION -6 01 whether the petitioner has met this burden, a federal habeas court looks to the last reasoned 02 state court decision because subsequent unexplained orders upholding that judgment are 03 presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). 05 Finally, AEDPA requires federal courts to give considerable deference to state court 06 decisions, and state courts’ factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). 07 Federal courts are also bound by a state’s interpretation of its own laws. See Murtishaw v. 08 Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 09 (9th Cir. 1993)). 10 IV. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS 11 A. Due Process Right to be Released on Parole 12 Under the Fifth and Fourteenth Amendments to the United States Constitution, the 13 government is prohibited from depriving an inmate of life, liberty or property without the due 14 process of law. U.S. Const. amends. V, XIV. A prisoner’s due process claim must be 15 analyzed in two steps: the first asks whether the state has interfered with a constitutionally 16 protected liberty or property interest of the prisoner, and the second asks whether the 17 procedures accompanying that interference were constitutionally sufficient. Ky. Dep’t of 18 Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 19 1123, 1127 (9th Cir. 2006). 20 Accordingly, our first inquiry is whether petitioner has a constitutionally protected 21 liberty interest in parole. The Supreme Court articulated the governing rule in this area in 22 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 482 REPORT AND RECOMMENDATION -7 01 U.S. 369 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying 02 “the ‘clearly established’ framework of Greenholtz and Allen” to California’s parole scheme). 03 The Court in Greenholtz determined that although there is no constitutional right to be 04 conditionally released on parole, if a state’s statutory scheme employs mandatory language 05 that creates a presumption that parole release will be granted if certain designated findings are 06 made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 07 12; Allen, 482 U.S. at 377-78. 08 As discussed infra, California statutes and regulations afford a prisoner serving an 09 indeterminate life sentence an expectation of parole unless, in the judgment of the parole 10 authority, he “will pose an unreasonable risk of danger to society if released from prison.” 11 Title 15 Cal. Code Regs., § 2402(a). The Ninth Circuit has therefore held that “California’s 12 parole scheme gives rise to a cognizable liberty interest in release on parole.” McQuillion, 13 306 F.3d at 902. To similar effect, Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) held 14 that California Penal Code § 3041 vests all “prisoners whose sentences provide for the 15 possibility of parole with a constitutionally protected liberty interest in the receipt of a parole 16 release date, a liberty interest that is protected by the procedural safeguards of the Due 17 Process Clause.” This “liberty interest is created, not upon the grant of a parole date, but 18 upon the incarceration of the inmate.” Biggs v. Terhune, 334 F.3d 910, 915 (2003). See also 19 Sass, 461 F.3d at 1127. 20 Because the Board’s denial of parole interfered with petitioner’s constitutionally- 21 protected liberty interest, this Court must proceed to the second step in the procedural due 22 process analysis and determine whether the procedures accompanying that interference were REPORT AND RECOMMENDATION -8 01 constitutionally sufficient. “[T]he Supreme Court [has] clearly established that a parole 02 board’s decision deprives a prisoner of due process with respect to this interest if the board’s 03 decision is not supported by ‘some evidence in the record.’” Irons, 505 F.3d at 851 (citing 04 Superintendent v. Hill, 472 U.S. 445, 457 (1985) (holding the “some evidence” standard 05 applies in prison disciplinary proceedings)). The “some evidence” standard requires this 06 Court to determine “whether there is any evidence in the record that could support the 07 conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56. Although Hill 08 involved the accumulation of good time credits rather than release on parole, later cases have 09 held that the same constitutional principles apply in the parole context because both situations 10 directly affect the duration of the prison term. See e.g., Jancsek v. Or. Bd. of Parole, 833 F.2d 11 1389, 1390 (9th Cir. 1987) (adopting the “some evidence” standard set forth by the Supreme 12 Court in Hill in the parole context); Sass, 461 F.3d at 1128-29 (holding the same); Biggs, 334 13 F.3d at 915 (holding the same); McQuillion, 306 F.3d at 904 (holding the same). 14 “The fundamental fairness guaranteed by the Due Process Clause does not require 15 courts to set aside decisions of prison administrators that have some basis in fact,” however. 16 Hill, 472 U.S. at 456. Similarly, the “some evidence” standard is not an invitation to examine 17 the entire record, independently assess witnesses’ credibility, or re-weigh the evidence. Id. at 18 455. Instead, it is there to ensure that an inmate’s loss of parole was not arbitrarily imposed. 19 See id. at 454. The Court in Hill added an exclamation point to the limited scope of federal 20 habeas review when it upheld the finding of the prison administrators despite the Court’s 21 characterization of the supporting evidence as “meager.” See id. at 457. 22 REPORT AND RECOMMENDATION -9 01 B. California’s Statutory and Regulatory Scheme 02 In order to determine whether “some evidence” supported the Board’s decision with 03 respect to petitioner, this Court must consider the California statutes and regulations that 04 govern the Board’s decision-making. See Biggs, 334 F.3d at 915. Under California law, the 05 Board is authorized to set release dates and grant parole for inmates with indeterminate 06 sentences. See Cal. Penal Code § 3040 and 5075, et seq. Section 3041(a) requires the Board 07 to meet with each inmate one year before the expiration of his minimum sentence and 08 normally set a release date in a manner that will provide uniform terms for offenses of similar 09 gravity and magnitude with respect to their threat to the public, as well as comply with 10 applicable sentencing rules. Subsection (b) of this section requires that the Board set a release 11 date “unless it determines that the gravity of current convicted offense or offenses, or the 12 timing and gravity of current or past convicted offense or offenses, is such that consideration 13 of the public safety requires a more lengthy period of incarceration.” Id., § 3041(b). Pursuant 14 to the mandate of § 3041(a), the Board must “establish criteria for the setting of parole release 15 dates” which take into account the number of victims of the offense as well as other factors in 16 mitigation or aggravation of the crime. The Board has therefore promulgated regulations 17 setting forth the guidelines it must follow when determining parole suitability. See 15 CCR 18 § 2402, et seq. 19 Accordingly, the Board is guided by the following regulations in making a 20 determination whether a prisoner is suitable for parole: 21 22 (a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will REPORT AND RECOMMENDATION -10 01 pose an unreasonable risk of danger to society if released from prison. 02 (b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner’s social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner’s suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability. 03 04 05 06 07 08 15 CCR § 2402(a) and (b). Subsections (c) and (d) also set forth suitability and unsuitability 09 factors to further assist the Board in analyzing whether an inmate should be granted parole, 10 although “the importance attached to any circumstance or combination of circumstances in a 11 particular case is left to the judgment of the panel.” 15 CCR § 2402(c). 12 In examining its own statutory and regulatory framework, the California Supreme 13 Court in In re Lawrence recently held that the proper inquiry for a reviewing court is 14 “whether some evidence supports the decision of the Board … that the inmate constitutes a 15 current threat to public safety, and not merely whether some evidence confirms the existence 16 of certain factual findings.” Id., 44 Cal.4th 1181, 1212 (2008). The court also asserted that 17 the Board’s decision must demonstrate “an individualized consideration of the specified 18 criteria, but “[i]t is not the existence or nonexistence of suitability or unsuitability factors that 19 forms the crux of the parole decision; the significant circumstance is how those factors 20 interrelate to support a conclusion of current dangerousness to the public.” Id. at 1204-05, 21 1212. As long as the evidence underlying the Board’s decision has “some indicia of 22 reliability,” parole has not been arbitrarily denied. See Jancsek, 833 F.2d at 1390. As the REPORT AND RECOMMENDATION -11 01 California courts have continually noted, the Board’s discretion in parole release matters is 02 very broad. See Lawrence, 44 Cal.4th at 1204. Thus, the penal code, corresponding 03 regulations, and California law clearly establish that the fundamental consideration in parole 04 decisions is public safety and an assessment of a prisoner’s current dangerousness. See id., at 05 1205-06. 06 C. Summary of Governing Principles 07 By virtue of California law, petitioner has a constitutional liberty interest in release on 08 parole. The parole authorities may decline to set a parole date only upon a finding that 09 petitioner’s release would present an unreasonable present risk of danger to society if he is 10 released from prison. Where the parole authorities deny release, based upon an adverse 11 finding on that issue, the role of a federal habeas court is narrowly limited. It must deny relief 12 if there is “some evidence” in the record to support the parole authority’s finding of present 13 dangerousness. The penal code, corresponding regulations, and California law clearly support 14 this definition of the issues. 15 V. PARTIES’ CONTENTIONS 16 Petitioner contends that the Board violated his state and federal due process rights by 17 finding him unsuitable for parole without some evidence that he poses an unreasonable risk of 18 danger to society if released from prison.3 (See Dkt. 1 at 24-45.) Specifically, he argues that 19 the Board erred by considering the immutable facts of the commitment offense, and failed to 20 consider evidence in the record indicating that petitioner was suitable for release on parole. 21 3 We do not reach petitioner’s claim that his state due process rights were violated, as state claims are not cognizable in a federal habeas petition. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (asserting that “it 22 is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). REPORT AND RECOMMENDATION -12 01 (See id. at 32 and 43-45.) Petitioner also argues that he has been imprisoned for a period of 02 time that is “constitutionally disproportionate to the commitment offense or offenses,” in 03 violation of his Eighth Amendment right to be free from cruel and unusual punishment. (See 04 id. at 21.) Finally, he contends that the Board’s reliance upon the circumstances of his 05 commitment offense “transforms an offense for which California provides eligibility for 06 parole into a de fact life imprisonment without the possibility of parole,” in violation of the Ex 07 Post Facto Clause of the United States Constitution. (See id. at 46-47.) Respondent claims that petitioner does not have a constitutionally protected liberty 08 09 interest in being released on parole, that the “some evidence” standard is inapplicable in this 10 context, and that even if he does have a protected liberty interest, the Board adequately 11 predicated its denial of parole on “some evidence.” (See Dkt. 12 at 5-11.) Accordingly, 12 respondent argues that petitioner’s due process rights were not violated by the Board’s 2005 13 decision, and the Fresno County Superior Court’s Order upholding the Board’s 2005 parole 14 denial was not an unreasonable application of clearly established federal law. (See id. at 1115 12.) 16 VI. ANALYSIS OF RECORD IN THIS CASE 17 A. State Court Proceedings 18 Petitioner’s habeas petitions filed in the California Court of Appeal and California 19 Supreme Court contained the same claims as his Fresno County Superior Court petition, and 20 both petitions were summarily denied. (See Dkt. 1, Exs. G, H, and L.) The parties agree that 21 petitioner has properly exhausted his state court remedies, and timely filed the instant petition. 22 (See Dkt. 1 at 14; Dkt. 12 at 3.) This Court reviews the Fresno County Superior Court’s REPORT AND RECOMMENDATION -13 01 Order upholding the Board’s decision to determine whether it meets the deferential AEDPA 02 standards, as it is the last reasoned state court decision. See Ylst, 501 U.S. at 803-04. 03 In a reasoned decision denying petitioner’s request for habeas relief, the Fresno 04 County Superior Court asserted that based upon its review of the record, “there is ‘some 05 evidence’ to support the parole decision in this case.” (See Dkt. 1, Ex. G at 1.) The superior 06 court found that the evidence “includes, but is not limited to, petitioner’s social history, his 07 criminal background, and the nature of the crime that resulted in his first-degree murder 08 conviction.” (Id.) It therefore concluded that further consideration of petitioner’s habeas 09 petition was not warranted. (See id. at 2.) 10 B. Petitioner’s Due Process Claim 11 The Board based its decision that petitioner was unsuitable for parole primarily upon 12 his commitment offense, but also cited his unstable social history, criminal record, failure to 13 profit from society’s previous attempts to correct his criminality, disciplinary history in 14 prison, insufficient participation in self-help programming, and law enforcement’s continued 15 opposition to petitioner’s release on parole. (See id., Ex. B at 65-72.) The Board’s findings 16 tracked the applicable unsuitability and suitability factors listed in § 2402(b), (c) and (d) of 17 title 15 of the California Code of Regulations. After considering all reliable evidence in the 18 record, the Board concluded that evidence of petitioner’s positive behavior in prison did not 19 outweigh evidence of his unsuitability for parole. (See id. at 65.) 20 The Board primarily relied upon the circumstances of petitioner’s commitment offense 21 to find petitioner unsuitable for parole. (See id. at 65-66.) The Board asserted that the murder 22 was cruel and callous, because “the victim was invited to dinner and poisoned.” (Id. at 65.) REPORT AND RECOMMENDATION -14 01 Specifically, what should have been “a very social event where people are sitting down, 02 exchanging food, and having a conversation” instead involved the victim being invited over to 03 petitioner’s house not knowing that “he was essentially loathed” there, and then poisoned to 04 death. (Id. at 65.) The Board found that the offense was “carried out in a dispassionate and or 05 calculated manner such as an execution style murder [because the] poison [had] been 06 purchased in advance, so any notion of spontaneity [or] of opportunity just doesn’t seem to 07 register with us.” (Id. at 66.) The murder was also “carried out in a manner which 08 demonstrates an exceptionally callous disregard for human suffering [because] … cyanide 09 poisoning is not a pretty way for anyone to die.” (Id.) In addition, the Board was not satisfied 10 by petitioner’s comments to the panel which “blame[d] his youth and recklessness” for the 11 offense, and it found petitioner’s motive to be inexplicable or very trivial. (Id.) See also 15 12 CCR § 2402(c)(1)(B), (D) and (E). Petitioner’s apparent motive was to obtain proceeds from 13 the victim’s life insurance policy. (See Dkt. 12, Ex. D at 6.) This in conjunction with the 14 circumstances surrounding petitioner’s commitment offense clearly provides “some evidence” 15 to support the Board’s conclusion that petitioner would present an unreasonable risk of danger 16 to society if released from prison. 17 The second unsuitability factor relied upon by the Board was petitioner’s unstable 18 social history. (See Dkt. 1, Ex. B at 66.) During the hearing, the Board discussed petitioner’s 19 history of relationships with others, and petitioner admitted, “I can’t say I really had good 20 relationships [prior to my incarceration].” (Id. at 12.) Before petitioner’s natural mother died 21 of alcoholism, she frequently placed him in orphanages or foster homes while she looked for 22 work. (See id. at 24.) When she placed petitioner with the Wetmores, she promised to return REPORT AND RECOMMENDATION -15 01 for him, but petitioner never heard from her again. (See id.) The Wetmores adopted 02 petitioner, but their relationship was “complex” and petitioner became an emancipated minor 03 at age sixteen shortly after Mrs. Wetmore died from cancer. (See id. at 25; id., Ex. C3 at 3.) 04 The only sibling with whom petitioner maintained a relationship was his step-sister Jackie, 05 one of petitioner’s crime partners during the instant offense. (See id., Ex. C3 at 4.) 06 Petitioner’s two marriages also ended in divorce, including his marriage to the second crime 07 partner, Sandra. (See id.; id., Ex. B. at 26-27.) In its decision, the Board especially 08 emphasized petitioner’s “long standing feud” with his step-father, the victim, which petitioner 09 described to the panel as “a power struggle” over Jackie. (See id., Ex. B at 12, 14-17, and 6610 67.) The Board’s finding that petitioner “has a history of unstable or tumultuous relationships 11 with others” was therefore supported by “some evidence.” See 15 CCR § 2402(c)(3). 12 The third and fourth factors relied upon by the Board were petitioner’s criminal record 13 and failure to profit from society’s previous attempts to correct his criminality. (See Dkt. 1, 14 Ex. B at 67.) Specifically, the Board noted during the hearing that petitioner had a substantial 15 record of prior criminal behavior, both as a juvenile and adult. (See id. at 18-24.) The Board 16 observed that petitioner’s initial encounter with law enforcement was for burglary, theft, and 17 forgery when he was fourteen-years-old. (See id. at 18.) A year later, petitioner stole a 18 wallet, and was found guilty of possessing a loaded firearm at a public school after he 19 concealed a loaded .38 caliber Smith & Wesson revolver in his locker. (See id.; Dkt. 12, Ex. 20 D at 7.) The same year, petitioner committed another burglary in a golf shop while carrying a 21 loaded rifle, and was removed from the Wetmores and placed in the Albany Hills School. 22 (See Dkt. 1, Ex. B at 20; Dkt. 12, Ex. D at 7.) He ran away that summer, in violation of his REPORT AND RECOMMENDATION -16 01 probation. (See Dkt. 1, Ex. B at 20; Dkt. 12, Ex. D at 7.) After he was apprehended, 02 petitioner was committed to the Fresno County Youth Center, where he escaped and was 03 caught joyriding in a stolen vehicle two days later. (See Dkt. 1, Ex. B at 21; Dkt. 12, Ex. D at 04 8.) Petitioner was next placed in the El Dorado Boys Home, where he violated probation on 05 two occasions by running away. (See Dkt. 1, Ex. B at 21; Dkt. 12, Ex. D. at 8.) After a stay 06 in the El Dorado County Juvenile Hall, petitioner was ultimately released to the Wetmores. 07 (See Dkt. 12, Ex. D at 8.) In May 1974, several years later, he committed a third burglary by 08 breaking into a private residence, ransacking the entire home, and removing guns, money, and 09 other valuables. (See id.) Thus, with the exception of the time petitioner spent serving as a 10 coroner in the Navy until 1975, petitioner was in trouble with the law on a consistent basis 11 from a young age. (See Dkt. 1, Ex. B at 22.) 12 According to the Board, petitioner’s adult criminal history includes two arrests for 13 grand theft of property in June 1978 and April 1982, but the charges were dismissed by the 14 prosecutor on both occasions. (See id. at 23.) Petitioner was also convicted of resisting a 15 public officer in June 1985, as well as obstructing and resisting a peace officer, two counts of 16 battery, and failure to appear in October 1984. (See id; Dkt. 12, Ex. D at 9.) Petitioner’s 17 substantial juvenile and adult criminal record, as well as his failure to profit from grants of 18 juvenile probation or juvenile camp, provides “some evidence” to support the Board’s finding 19 that petitioner would pose an unreasonable risk of danger to society if released on parole. 20 (See Dkt. 1, Ex. B at 67.) 21 The fifth factor relied upon by the Board was petitioner’s history of disciplinary 22 violations in prison. In its decision, the Board noted that petitioner “had one 128A in 1984 … REPORT AND RECOMMENDATION -17 01 [and] six 115’s, the last being in 1999.” (See id. at 38 and 69.) A “CDC 115” documents a 02 prisoner’s misconduct believed to be a violation of law or otherwise not minor in nature, 03 whereas a “CDC 128A” documents incidents of minor misconduct. See 15 CCR § 3312(a)(2) 04 and (3); In re Gray, 151 Cal.App.4th 379, 389 (2007). In this case, the CDC 115’s were 05 received for fighting with another inmate, jamming the key mechanism of a state-issued lock 06 on a cell door, falsification of a state document, quitting a work assignment, and self-inflicted 07 injuries. (See Dkt. 12, Ex. C3 at 5.) On June 21, 1999, petitioner received his most recent 08 CDC 115 for falsely reporting a felony crime to gain special consideration, although 09 petitioner denies that his report was false. (See Dkt. 1, Ex. B at 49-50.) Accordingly, there 10 was “some evidence” to support the Board’s conclusion that these infractions, combined with 11 other evidence of unsuitability, indicate that petitioner would present an unreasonable risk of 12 danger to society if released on parole. 13 The sixth factor relied upon by the Board was petitioner’s limited programming while 14 incarcerated. The Board found petitioner failed to benefit from a “balance” of self-help 15 programs. (See id. at 35-37 and 69.) Specifically, it asserted that although petitioner had 16 “done a tremendous job on the vocational working side, [he had not] done as good a job on 17 the balance behavior (sic) of the self-help side.” (Id.) Petitioner was encouraged to reflect 18 upon how he can manage his time in order to “find a better balance” of programs. (See id. at 19 69-70). The Board recommended several specific programs, such as “the parole 20 (indiscernible) prevention program. That’s offered here. You should [get] involve[d] in that. 21 There’s an anger management one for your self-help.” (Id. at 71.) Furthermore, contrary to 22 petitioner’s contention that the Board effectively required him to take part in A.A. by REPORT AND RECOMMENDATION -18 01 recommending additional self-help, the Board informed petitioner that he could participate in 02 self-help programs other than A.A. (Id. at 71-72; Dkt. 1 at 33-34.) 03 Petitioner argues that the Board erred by failing to “consider Petitioner’s job as an 04 Inmate Minister as a form of self-help,” and that if the Board had considered petitioner’s 05 religious activities at the prison, “it would not have found that Petitioner needs a ‘better 06 balance’ of self-help.” (Dkt. 1 at 32.) Before making a suitability determination, the Board 07 must consider “[a]ll relevant, reliable information available to the panel,” and there is no 08 indication that the Board failed to comply with this mandate. 15 CCR § 2402(b). In fact, 09 during the panel’s discussion of petitioner’s self-help activities, the Board asserted that “in 10 reviewing the record we’re going to indicate to you that you have programmed in a limited 11 manner while incarcerated. You haven’t sufficiently benefited from self-help.” (See Dkt. 1, 12 Ex. B at 69.) Although petitioner has engaged in numerous religious activities in order to 13 become a certified Druid or Wiccan minister, his participation in self-help programs 14 specifically designed to rehabilitate him or prevent future criminal acts has been minimal. 15 (See id., Exs. E and F.) Especially in light of petitioner’s past criminal history and 16 disciplinary violations in prison, the Board’s recommendation that petitioner pursue a 17 “balance” of self-help activities that will help combat criminal tendencies, such as anger 18 management, was reasonable. Regardless of whether the Board considered petitioner’s 19 Wiccan or Druid religious activities as a form of self-help or part of petitioner’s vocational 20 programming, the Board’s conclusion that more self-help was necessary before petitioner 21 would be suitable for parole was supported by “some evidence” in the record. 22 REPORT AND RECOMMENDATION -19 01 Finally, the Board considered the Fresno County District Attorney’s statement of 02 opposition to petitioner’s parole. (See id. at 70.) Pursuant to California Penal Code 03 Regulation § 3041.7, a prosecutor may attend a parole hearing to represent “the interests of 04 the people.” In the absence of other reliable evidence of unsuitability in the record, 05 opposition by law enforcement based upon the nature of the commitment offense does not 06 constitute “some evidence” to support parole denial. See Rosenkrantz v. Marshall, 444 F. 07 Supp. 2d 1063, 1080 n.14 (C.D. Cal. 2006) (providing that where a district attorney and 08 sheriff’s department opposed parole based solely upon the gravity of the commitment offense, 09 their opposition did not constitute “some evidence” because it was “merely cumulative” of the 10 Board’s findings regarding the offense). Because the Board relied upon other reliable 11 evidence of petitioner’s unsuitability for parole, however, its additional consideration of law 12 enforcement’s opposition was not arbitrary and capricious. See id. 13 Contrary to petitioner’s argument that the Board failed to consider or give appropriate 14 weight to the parole suitability rules which favored petitioner, the Board acknowledged that 15 petitioner expressed remorse about his role in the murder. (See Dkt. 1, Ex. B at 69.) See also 16 15 CCR § 2402(d)(13). The Board also praised petitioner’s “fine parole plans,” as well as the 17 “tremendous job” petitioner has done upgrading vocationally while incarcerated. (See Dkt. 1, 18 Ex. B at 69-70.) See also 15 CCR § 2402(d)(8). In addition, the Board asserted that 19 petitioner’s 2005 psychological report’s assessment that petitioner presents a low risk of 20 danger in the institution and community is “a very favorable sign.” (See Dkt. 1, Ex. B at 70.) 21 As mentioned above, the Board has broad discretion to determine how suitability and 22 unsuitability factors interrelate to support its conclusion of current dangerousness to the REPORT AND RECOMMENDATION -20 01 public. See Lawrence, 44 Cal.4th at 1212. Despite petitioner’s gains, the Board determined 02 that he remains an unreasonable risk of danger to society if released on parole, and these 03 findings were supported by “some evidence” in the record. (See Dkt. 1, Ex. B at 65.) 04 C. Petitioner’s Eighth Amendment Claim 05 Petitioner argues that the Board’s decision to deny him a parole release date 06 constitutes cruel and unusual punishment in violation of the Eighth Amendment because he 07 has been imprisoned for a period of time that is “constitutionally disproportionate to the 08 commitment offense or offenses.” (See Dkt. 1 at 21.) Petitioner cites no authority, however, 09 to support his contention that an indeterminate life sentence is a “constitutionally 10 disproportionate” sentence for a first-degree murder conviction. The United States Supreme 11 Court has held that a life sentence is constitutional, even for a non-violent property crime. 12 See Rummel v. Estelle, 445 U.S. 263, 274 (1980) (holding that “the length of the sentence 13 actually imposed is purely a matter of legislative prerogative”); Harmelin v. Michigan, 501 14 U.S. 957, 962-64 (1990). Accordingly, a life sentence for a first-degree murder such as that 15 committed by petitioner would not constitute cruel and unusual punishment. See Banks v. 16 Kramer, 2009 WL 256449 (E.D. Cal. 2009) (unpublished) (holding that the Board’s refusal to 17 release a prisoner who was sentenced to sixteen years-to-life for murder does not constitute 18 cruel and unusual punishment). Thus, the Board’s decision did not violate petitioner’s Eighth 19 Amendment right. 20 D. Petitioner’s Ex Post Facto Claim 21 Petitioner also claims that the Board’s consideration of the immutable circumstances 22 of his commitment offense to deny parole “transforms an offense for which California REPORT AND RECOMMENDATION -21 01 provides eligibility for parole into a de facto life imprisonment without the possibility of 02 parole.” (Dkt. 1 at 47.) Specifically, he asserts that “the potential for parole in this case is 03 remote to the point of non-existence….” (Id.) Petitioner claims he “will never receive parole 04 unless some future BPH panel chooses to disregard the facts of the crime.” (Id. at 46.) This 05 Court construes petitioner’s argument as a claim that the Board’s denial violated his right to 06 be free from ex post facto laws, because petitioner contends that the Board has imposed a 07 more severe penalty, a determine life sentence, in place of his indeterminate life sentence. 08 (See id. at 46-47.) Petitioner’s claim fails for multiple reasons. First, Article I of the United States 09 10 Constitution provides that neither Congress nor any state shall pass an ex post facto law. U.S. 11 Const. Art. I, § 9, cl. 3, Art. I, §10, cl. 1. Hence, the Ex Post Facto Clause, by definition, 12 applies to the Legislative Branch, not to the courts or an administrative body, such as the 13 Board of Parole Hearings. See Rogers v. Tennessee, 532 U.S. 451, 460 (2001) (holding “[t]he 14 Ex Post Facto Clause, by its own terms, does not apply to courts”); Marks v. United States, 15 430 U.S. 188, 191 (1977) (“The Ex Post Facto Clause is a limitation upon the powers of the 16 Legislature, and does not of its own force apply to the Judicial Branch of government.”) 17 (citations omitted)); Lagrand v. Stewart, 133 F.3d 1253, 1260 (9th Cir.) (“The Ex Post Facto 18 Clause does not apply to court decisions construing statutes.”), cert. denied, 525 U.S. 971 19 (1998). 20 Moreover, the Board has not increased petitioner’s punishment. The Ex Post Facto 21 Clause prohibits the retrospective application of criminal statutes that change the definition of 22 a crime or enhance the punishment for a criminal offense. See Collins v. Youngblood, 497 REPORT AND RECOMMENDATION -22 01 U.S. 37, 41 (1990) (“Although the Latin phrase ‘ex post facto’ literally encompasses any law 02 passed ‘after the fact,’ it has long been recognized ... that the constitutional prohibition on ex 03 post facto laws applies only to penal statutes which disadvantage the offender affected by 04 them.”) Petitioner was sentenced to a term of twenty-seven-years-to-life. While petitioner 05 might have expected to be released sooner, the Board’s decision to deny him a parole release 06 date because he would present an unreasonable risk of danger to society has not enhanced or 07 otherwise “transformed” his punishment. Accordingly, the Board’s decision denying 08 petitioner a parole release date did not violate the Ex Post Facto Clause, and petitioner’s claim 09 should be denied. 10 VII. CONCLUSION 11 As stated above, it is beyond the authority of a federal habeas court to determine 12 whether evidence of suitability outweighs the circumstances of the commitment offense, 13 together with any other reliable evidence of unsuitability for parole. The Board has broad 14 discretion to determine how suitability and unsuitability factors interrelate to support its 15 conclusion of current dangerousness to the public. See Lawrence, 44 Cal.4th at 1212. 16 Although the Board praised petitioner’s recent progress in prison, it determined that petitioner 17 remains an unreasonable risk of danger to society if released on parole. Because the state 18 court decision upholding the Board’s findings satisfies the “some evidence” standard, there is 19 no need to reach respondent’s argument that another standard applies. 20 Given the totality of the Board’s findings, there is “some evidence” that petitioner 21 currently poses a threat to public safety, and the Fresno County Superior Court’s Order 22 upholding the Board’s decision was not contrary to, or an unreasonable application of, clearly REPORT AND RECOMMENDATION -23 01 established federal law, or based on an unreasonable determination of facts. I therefore 02 recommend that the Court find that petitioner’s due process rights were not violated, and that 03 it deny his petition and dismiss this action with prejudice. 04 This Report and Recommendation is submitted to the United States District Judge 05 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days 06 after being served with this Report and Recommendation, any party may file written 07 objections with this Court and serve a copy on all parties. Such a document should be 08 captioned “Objections to Magistrate Judge’s Report and Recommendation.” Failure to file 09 objections within the specified time may waive the right to appeal the District Court’s Order. 10 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). A proposed order accompanies this 11 Report and Recommendation. 12 DATED this 7th day of August, 2009. 13 A 14 15 JOHN L. WEINBERG United States Magistrate Judge 16 17 18 19 20 21 22 REPORT AND RECOMMENDATION -24
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