(HC) Munro v. Subia, No. 2:2007cv01404 - Document 29 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John L. Weinberg on 09/01/09 recommending that the Petition be denied and this action dismissed with prejudice re 1 Petition filed by James Michael Munro. Matter referred to Judge Lasik. Objections to F and R's are due within 20 days.(Streeter, J)
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(HC) Munro v. Subia Doc. 29 01 02 03 04 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 05 06 07 JAMES MICHAEL MUNRO, 08 09 10 11 ) ) Petitioner, ) ) v. ) ) R. SUBIA, Warden, et al., ) ) Respondents. ) ____________________________________ ) CASE NO. 2:07-cv-01404-RSL-JLW REPORT AND RECOMMENDATION ON MERITS OF PETITION 12 13 I. SUMMARY 14 Petitioner James Michael Munro is currently incarcerated at the Mule Creek State 15 Prison in Ione, California. He pled guilty to second degree murder in Los Angeles County 16 Superior Court in 1981, and was sentenced to fifteen-years-to-life with the possibility of 17 parole. He has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging 18 the 2005 denial of parole by the Board of Parole Hearings of the State of California (the 19 “Board”).1 Petitioner also filed three motions seeking a court order staying future parole 20 hearings, board reports, and mental health evaluations pending resolution of his case, which 21 22 this Court construed as motions for preliminary injunctive relief. (See Dockets 3, 10, 11, and 1 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 ON MERITS OF PETITION -1 Dockets.Justia.com 01 27.) This Court denied petitioner’s motions on April 24, 2009, adopting a Report and 02 Recommendation dated February 23, 2009. (See Dkts. 27 and 28.) Respondent has filed an 03 answer to the petition together with relevant portions of the state court record, and petitioner 04 has filed a reply to the answer. (See Dkts. 15 and 18.) Thus, the briefing is now complete and 05 this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing 06 of the parties, recommends the petition be denied and this action be dismissed with prejudice. 07 II. 08 The Los Angeles County Superior Court set forth the following relevant facts: 09 Petitioner is serving a [fifteen-years-to-life] term for seconddegree murder. The record reflects the victim, Steven Wells, was an [eighteen-year-old] at the time of the commitment offense. Wells was hitchhiking when he was picked up by petitioner and his crime partner, William Bonnen. Petitioner and Bonnen took Wells to Bonnen’s house and tied him to a chair. At first, petitioner merely watched from the door of the room while Bonnen hit Wells and stole his money. Eventually, petitioner helped by holding the victim’s legs while Bonnen proceeded to strangle Wells to death. Then petitioner and Bonnen disposed of the body. 10 11 12 13 14 BACKGROUND 15 (Dkt. 15, Exhibit B at 2.) 16 Petitioner pled guilty to one count of second degree murder in Los Angeles County 17 Superior Court, and his minimum eligible parole date was set for April 24, 1989. (See Dkt. 1, 18 Ex. B at 1.2) The parole denial which is the subject of this petition took place after a parole 19 hearing held on February 9, 2005. (See id.) This was petitioner’s sixth subsequent and 20 seventh overall parole consideration hearing. (See id. at 31.) As of the date of the 2005 21 22 2 Petitioner failed to label the exhibits to his petition. The Court will therefore refer to the California Supreme Court Order attached to his petition as “Exhibit A,” and the 2005 parole hearing transcript as “Exhibit B.” REPORT AND RECOMMENDATION ON MERITS OF PETITION -2 01 parole hearing, petitioner was forty-three-years-old, and had been in custody for 02 approximately twenty-three years. (See id. at 11.) 03 After denial of his 2005 application, petitioner filed habeas corpus petitions in the Los 04 Angeles County Superior Court, California Court of Appeal, and California Supreme Court. 05 (See Dkt. 15, Exs. A, C, and E.) Those petitions were unsuccessful. (See id., Exs. B, D, and 06 F.) This federal habeas petition followed. Petitioner contends the 2005 denial by the Board 07 violated his Fifth and Fourteenth Amendment Due Process rights. Thus, petitioner does not 08 challenge the validity of his conviction, but instead challenges the Board’s 2005 decision 09 finding him unsuitable for parole. 10 III. STANDARD OF REVIEW 11 The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this 12 petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 13 320, 326-27 (1997). Because petitioner is in custody of the California Department of 14 Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive 15 vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. 16 denied, 543 U.S. 991 (2004) (providing that § 2254 is “the exclusive vehicle for a habeas 17 petition by a state prisoner in custody pursuant to a state court judgment, even when the 18 petitioner is not challenging his underlying state court conviction.”). Under AEDPA, a habeas 19 petition may not be granted with respect to any claim adjudicated on the merits in state court 20 unless petitioner demonstrates that the highest state court decision rejecting his petition was 21 either “contrary to, or involved an unreasonable application of, clearly established Federal 22 law, as determined by the Supreme Court of the United States,” or “was based on an REPORT AND RECOMMENDATION ON MERITS OF PETITION -3 01 unreasonable determination of the facts in light of the evidence presented in the State court 02 proceeding.” 28 U.S.C. § 2254(d)(1) and (2). 03 As a threshold matter, this Court must ascertain whether relevant federal law was 04 “clearly established” at the time of the state court’s decision. To make this determination, the 05 Court may only consider the holdings, as opposed to dicta, of the United States Supreme 06 Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit 07 precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 08 09 331 F.3d 1062, 1069 (9th Cir. 2003). The Court must then determine whether the state court’s decision was “contrary to, or 10 involved an unreasonable application of, clearly established Federal law.” See Lockyer v. 11 Andrade, 538 U.S. 63, 71 (2003). “Under the ‘contrary to’ clause, a federal habeas court may 12 grant the writ if the state court arrives at a conclusion opposite to that reached by [the 13 Supreme] Court on a question of law or if the state court decides a case differently than [the] 14 Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13. 15 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the 16 state court identifies the correct governing legal principle from [the] Court’s decisions but 17 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. At all 18 times, a federal habeas court must keep in mind that it “may not issue the writ simply because 19 [it] concludes in its independent judgment that the relevant state-court decision applied clearly 20 established federal law erroneously or incorrectly. Rather that application must also be 21 [objectively] unreasonable.” Id. at 411. 22 REPORT AND RECOMMENDATION ON MERITS OF PETITION -4 01 In each case, the petitioner has the burden of establishing that the state court decision 02 was contrary to, or involved an unreasonable application of, clearly established federal law. 03 See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine 04 whether the petitioner has met this burden, a federal habeas court looks to the last reasoned 05 state court decision because subsequent unexplained orders upholding that judgment are 06 presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 07 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). 08 Finally, AEDPA requires federal courts to give considerable deference to state court 09 decisions, and state courts’ factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). 10 Federal courts are also bound by a state’s interpretation of its own laws. See Murtishaw v. 11 Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 12 (9th Cir. 1993)). 13 IV. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS 14 A. Due Process Right to be Released on Parole 15 Under the Fifth and Fourteenth Amendments to the United States Constitution, the 16 government is prohibited from depriving an inmate of life, liberty or property without the due 17 process of law. U.S. Const. amends. V, XIV. A prisoner’s due process claim must be 18 analyzed in two steps: the first asks whether the state has interfered with a constitutionally 19 protected liberty or property interest of the prisoner, and the second asks whether the 20 procedures accompanying that interference were constitutionally sufficient. Ky. Dep’t of 21 Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 22 1123, 1127 (9th Cir. 2006). REPORT AND RECOMMENDATION ON MERITS OF PETITION -5 01 Accordingly, our first inquiry is whether petitioner has a constitutionally protected 02 liberty interest in parole. The Supreme Court articulated the governing rule in this area in 03 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 482 04 U.S. 369 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying 05 “the ‘clearly established’ framework of Greenholtz and Allen” to California’s parole scheme). 06 The Court in Greenholtz determined that although there is no constitutional right to be 07 conditionally released on parole, if a state’s statutory scheme employs mandatory language 08 that creates a presumption that parole release will be granted if certain designated findings are 09 made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 10 12; Allen, 482 U.S. at 377-78. 11 As discussed infra, California statutes and regulations afford a prisoner serving an 12 indeterminate life sentence an expectation of parole unless, in the judgment of the parole 13 authority, he “will pose an unreasonable risk of danger to society if released from prison.” 14 Title 15 Cal. Code Regs., § 2402(a). The Ninth Circuit has therefore held that “California’s 15 parole scheme gives rise to a cognizable liberty interest in release on parole.” McQuillion, 16 306 F.3d at 902. To similar effect, Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) held 17 that California Penal Code § 3041 vests all “prisoners whose sentences provide for the 18 possibility of parole with a constitutionally protected liberty interest in the receipt of a parole 19 release date, a liberty interest that is protected by the procedural safeguards of the Due 20 Process Clause.” This “liberty interest is created, not upon the grant of a parole date, but 21 upon the incarceration of the inmate.” Biggs v. Terhune, 334 F.3d 910, 915 (2003). See also 22 Sass, 461 F.3d at 1127. REPORT AND RECOMMENDATION ON MERITS OF PETITION -6 01 Because the Board’s denial of parole interfered with petitioner’s constitutionally- 02 protected liberty interest, this Court must proceed to the second step in the procedural due 03 process analysis and determine whether the procedures accompanying that interference were 04 constitutionally sufficient. “[T]he Supreme Court [has] clearly established that a parole 05 board’s decision deprives a prisoner of due process with respect to this interest if the board’s 06 decision is not supported by ‘some evidence in the record.’” Irons, 505 F.3d at 851 (citing 07 Superintendent v. Hill, 472 U.S. 445, 457 (1985) (holding the “some evidence” standard 08 applies in prison disciplinary proceedings)). The “some evidence” standard requires this 09 Court to determine “whether there is any evidence in the record that could support the 10 conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56. Although Hill 11 involved the accumulation of good time credits rather than release on parole, later cases have 12 held that the same constitutional principles apply in the parole context because both situations 13 directly affect the duration of the prison term. See e.g., Jancsek v. Or. Bd. of Parole, 833 F.2d 14 1389, 1390 (9th Cir. 1987) (adopting the “some evidence” standard set forth by the Supreme 15 Court in Hill in the parole context); Sass, 461 F.3d at 1128-29 (holding the same); Biggs, 334 16 F.3d at 915 (holding the same); McQuillion, 306 F.3d at 904 (holding the same). 17 “The fundamental fairness guaranteed by the Due Process Clause does not require 18 courts to set aside decisions of prison administrators that have some basis in fact,” however. 19 Hill, 472 U.S. at 456. Similarly, the “some evidence” standard is not an invitation to examine 20 the entire record, independently assess witnesses’ credibility, or re-weigh the evidence. Id. at 21 455. Instead, it is there to ensure that an inmate’s loss of parole was not arbitrarily imposed. 22 See id. at 454. The Court in Hill added an exclamation point to the limited scope of federal REPORT AND RECOMMENDATION ON MERITS OF PETITION -7 01 habeas review when it upheld the finding of the prison administrators despite the Court’s 02 characterization of the supporting evidence as “meager.” See id. at 457. 03 B. California’s Statutory and Regulatory Scheme 04 In order to determine whether “some evidence” supported the Board’s decision with 05 respect to petitioner, this Court must consider the California statutes and regulations that 06 govern the Board’s decision-making. See Biggs, 334 F.3d at 915. Under California law, the 07 Board is authorized to set release dates and grant parole for inmates with indeterminate 08 sentences. See Cal. Penal Code § 3040 and 5075, et seq. Section 3041(a) requires the Board 09 to meet with each inmate one year before the expiration of his minimum sentence and 10 normally set a release date in a manner that will provide uniform terms for offenses of similar 11 gravity and magnitude with respect to their threat to the public, as well as comply with 12 applicable sentencing rules. Subsection (b) of this section requires that the Board set a release 13 date “unless it determines that the gravity of current convicted offense or offenses, or the 14 timing and gravity of current or past convicted offense or offenses, is such that consideration 15 of the public safety requires a more lengthy period of incarceration.” Id., § 3041(b). Pursuant 16 to the mandate of § 3041(a), the Board must “establish criteria for the setting of parole release 17 dates” which take into account the number of victims of the offense as well as other factors in 18 mitigation or aggravation of the crime. The Board has therefore promulgated regulations 19 setting forth the guidelines it must follow when determining parole suitability. See 15 CCR 20 § 2402, et seq. 21 Accordingly, the Board is guided by the following regulations in making a 22 determination whether a prisoner is suitable for parole: REPORT AND RECOMMENDATION ON MERITS OF PETITION -8 01 02 (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 pose an unreasonable risk of danger to society if released from prison. 03 04 05 06 07 08 (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. 09 15 CCR § 2402(a) and (b). Subsections (c) and (d) also set forth suitability and unsuitability 10 factors to further assist the Board in analyzing whether an inmate should be granted parole, 11 although “the importance attached to any circumstance or combination of circumstances in a 12 particular case is left to the judgment of the panel.” 15 CCR § 2402(c). 13 In examining its own statutory and regulatory framework, the California Supreme 14 Court in In re Lawrence recently held that the proper inquiry for a reviewing court is 15 “whether some evidence supports the decision of the Board … that the inmate constitutes a 16 current threat to public safety, and not merely whether some evidence confirms the existence 17 of certain factual findings.” Id., 44 Cal.4th 1181, 1212 (2008). The court also asserted that 18 the Board’s decision must demonstrate “an individualized consideration of the specified 19 criteria, but “[i]t is not the existence or nonexistence of suitability or unsuitability factors that 20 forms the crux of the parole decision; the significant circumstance is how those factors 21 interrelate to support a conclusion of current dangerousness to the public.” Id. at 1204-05, 22 1212. As long as the evidence underlying the Board’s decision has “some indicia of REPORT AND RECOMMENDATION ON MERITS OF PETITION -9 01 reliability,” parole has not been arbitrarily denied. See Jancsek, 833 F.2d at 1390. As the 02 California courts have continually noted, the Board’s discretion in parole release matters is 03 very broad. See Lawrence, 44 Cal.4th at 1204. Thus, the penal code, corresponding 04 regulations, and California law clearly establish that the fundamental consideration in parole 05 decisions is public safety and an assessment of a prisoner’s current dangerousness. See id., at 06 1205-06. 07 C. Summary of Governing Principles 08 By virtue of California law, petitioner has a constitutional liberty interest in release on 09 parole. The parole authorities may decline to set a parole date only upon a finding that 10 petitioner’s release would present an unreasonable present risk of danger to society if he is 11 released from prison. Where the parole authorities deny release, based upon an adverse 12 finding on that issue, the role of a federal habeas court is narrowly limited. It must deny relief 13 if there is “some evidence” in the record to support the parole authority’s finding of present 14 dangerousness. The penal code, corresponding regulations, and California law clearly support 15 this definition of the issues. 16 V. PARTIES’ CONTENTIONS 17 Petitioner contends that the Board violated his federal due process rights by finding 18 him unsuitable for parole without “some evidence” that he poses an unreasonable risk of 19 danger to society if released from prison. (See Dkt. 1 at 3-6.) Specifically, petitioner claims 20 the Board improperly relied upon immutable facts, such as the nature of the commitment 21 offense, to deny him parole. (See id.) Petitioner asserts that the Board “violated petitioner’s 22 [right to] equal protection and … due process rights when they used confidential information REPORT AND RECOMMENDATION ON MERITS OF PETITION -10 01 to deny petitioner parole” during the hearing. (See id. at 8.) He also claims that he received 02 ineffective assistance of counsel at his parole hearing, and that the Board violated his plea 03 agreement. (See id. at 8-9.) Finally, petitioner contends that his “continued incarceration has 04 essentially converted petitioner’s sentence of 15 to life with the possibility of parole to life in 05 prison without the possibility of parole,” in violation of the Ex Post Facto Clause. (See id. at 06 9.) Respondent claims that petitioner does not have a constitutionally protected liberty 07 08 interest in being released on parole, that the “some evidence” standard is inapplicable in this 09 context, and that even if he does have a protected liberty interest, the Board adequately 10 predicated its denial of parole on “some evidence.” (See Dkt. 15 at 3-7.) Accordingly, 11 respondent argues that petitioner’s constitutional rights were not violated by the Board’s 2005 12 decision, and the Los Angeles County Superior Court’s Order upholding the Board’s 2005 13 parole denial was not an unreasonable application of clearly established federal law. (See id. 14 at 7-9.) 15 VI. ANALYSIS OF RECORD IN THIS CASE 16 A. State Court Proceedings 17 After the Los Angeles County Superior Court denied his habeas petition, petitioner 18 filed habeas petitions in the California Court of Appeal and California Supreme Court. (See 19 id., Exs. B, C and E.) Both petitions were summarily denied. (See id., Exs. D and F.) 20 Petitioner’s habeas petition was timely, and he properly exhausted each of his claims before 21 22 REPORT AND RECOMMENDATION ON MERITS OF PETITION -11 01 the California Supreme Court.3 (See Dkt. 1 at 3-10; Dkt. 15, Ex. E at 3-7.) This Court 02 reviews the Los Angeles County Superior Court’s Order upholding the Board’s decision to 03 determine whether it meets the deferential AEDPA standards, as it is the last reasoned state 04 court decision. See Ylst, 501 U.S. at 803-04. 05 B. 06 The Board based its decision that petitioner was unsuitable for parole primarily upon Petitioner’s Due Process Claim 07 his commitment offense, but also cited his unstable social history, unfavorable psychiatric 08 evaluations, insufficient participation in self-help programming, insufficient parole plans, 09 opposition by law enforcement and the victim’s surviving family members, and a confidential 10 letter opposing petitioner’s release on parole. (See Dkt. 1, Ex. B at 73-79.) The Board’s 11 findings tracked the applicable unsuitability and suitability factors listed in § 2402(b), (c) and 12 (d) of title 15 of the California Code of Regulations. After considering all reliable evidence in 13 the record, the Board concluded that evidence of petitioner’s positive behavior in prison did 14 not outweigh evidence of his unsuitability for parole. (See id. at 76.) 15 The Board primarily relied upon the circumstances of petitioner’s commitment offense 16 to find him unsuitable for parole. (See id. at 73-74.) It asserted that “this was a horrific 17 crime. This was the murder of an 18 year old boy who was abused, tied up, abused, and 18 robbed before he was murdered in a horrible way. Had to have been absolutely terrifying … a 19 horrible death for him.” (See id. at 73.) The Board found that the offense “was carried out in 20 3 Respondent asserts that “[t]o the extent that this Petitioner alleges that his punishment is 21 disproportional to his crime, or that he was entitled to a term fixing hearing in or about 1977, the claim is not timely under 28 U.S.C. § 2244(d)(1).” (See Dkt. 15 at 2.) It is unclear to the Court, however, which of 22 petitioner’s claims respondent is referencing. Because respondent also “admit[ted] the Petition is timely under 28 U.S.C. § 2244(d)(1) and that the Petitioner is not subject to any other procedural bar,” the Court will turn to the merits of the petition. (See id.) REPORT AND RECOMMENDATION ON MERITS OF PETITION -12 01 a very cruel manner. Certainly the victim was abused during the offense. And it was carried 02 out in a manner that demonstrates an exceptionally callous disregard for human suffering.” 03 (See id.) In addition, the “motive for the crime was inexplicable, absolutely inexplicable.” 04 (See id. at 73-74.) See also 15 CCR § 2402(c)(1)(C), (D), and (E). Once the victim was dead, 05 “his body was just disposed of like so much garbage.” (See Dkt. 1, Ex. B at 73.) The 06 circumstances surrounding petitioner’s commitment offense therefore provides “some 07 evidence” to support the Board’s conclusion that petitioner would present an unreasonable 08 risk of danger to society if released from prison. 09 The second unsuitability factor relied upon by the Board was petitioner’s unstable 10 social history, which is defined as a “history of unstable or tumultuous relationships with 11 others.” (See id. at 74.) See also 15 CCR § 2402(c)(3). The Board based its finding upon 12 evidence that petitioner dropped out of school in the tenth grade, ran away from home on 13 several occasions, and was “[committed] by his parents to a psychiatric hospital for a year.” 14 (See Dkt. 1, Ex. B at 5, 20, and 74.) In addition, petitioner’s relationships with his two sisters 15 and adoptive father have been troubled, as demonstrated by their refusal to have any contact 16 with petitioner for years at a time. (See id. at 53-54; Dkt. 15, Ex. B at 3.) Thus, there was 17 “some evidence” in the record to support the Board’s finding that petitioner has an unstable 18 social history. 19 The third and fourth factors relied upon by the Board to deny parole were petitioner’s 20 unfavorable psychiatric evaluations and insufficient participation in beneficial self-help 21 programming. (See Dkt. 1, Ex. B at 74.) Petitioner’s most recent psychiatric evaluation, 22 which was conducted on July 29, 2004, asserted that petitioner would pose a “moderate risk REPORT AND RECOMMENDATION ON MERITS OF PETITION -13 01 for re-offense if discharged to the free community.” (Id.) The psychiatrist commented that 02 “[t]he two things that were remarkable about the interview with Mr. Munro were his apparent 03 lack of true empathy and the amount that he deviated from the truth. Throughout the 04 interview, there seemed to be a disconnect where true emotion might have been expected and 05 where crying was expressed.” (Id.) During the hearing, the Board also noted that a past 06 psychiatrists found that petitioner “has not psychologically distanced himself fully from [his 07 crime partner, serial killer] Bonnen. [Petitioner] commented that Bonnen gave him, quote, 08 instructions of who to murder, end of quote, e.g. profiling of potential victims when he is 09 released ... [and petitioner] presented this information as if it were a proud achievement.” (Id. 10 at 47-48.) Furthermore, the psychiatrist observed that “[t]he inmate appears to center his life 11 around his crime as a famous serial killer, thereby mentally keeping his association with 12 Bonnen alive.” (Id. at 48.) 13 The Board also found that petitioner “has programmed in a limited manner … and has 14 not yet sufficiently participated in beneficial self-help programs while he’s been 15 incarcerated.” (Id. at 74.) Specifically, “[a]part from the Veteran’s Support Group, there 16 really hasn’t been any self-help [completed by petitioner] in recent years.” (Id. at 77.) The 17 Board also noted that psychiatrists have diagnosed petitioner with an alcohol dependence 18 problem that has not been adequately addressed with self-help programming during his 19 incarceration. (See id. at 74-75.) Based upon petitioner’s unfavorable psychiatric evaluations 20 and insufficient self-help programming, there was “some evidence” in the record to support 21 the Board’s finding that petitioner “[needs] a longer period of [psychiatric] observation and 22 evaluation and treatment … and needs additional time to gain [self-help] programming.” (Id. REPORT AND RECOMMENDATION ON MERITS OF PETITION -14 01 at 76-77.) 02 The fifth factor relied upon by the Board was petitioner’s insufficient parole plans. 03 See 15 CCR § 2402(d)(8) (providing that a prisoner’s “realistic plans for release or 04 [development of] marketable skills that can be put to use upon release” constitutes a factor 05 indicating suitability for release on parole). The Board noted that petitioner “has parole plans 06 to Michigan, where his wife is, and she has offered a home and also assistance in helping him 07 find work. However, he doesn’t have any plans for work at this time.” (See Dkt. 1, Ex. B at 08 75.) Petitioner also lacks parole plans in California. (See id.) Contrary to petitioner’s 09 representation to the panel that he completed vocational training programs that would enable 10 him to obtain employment, the Board’s review of petitioner’s central file revealed that the 11 trades petitioner “claimed to have completed, according to the documents … were only 12 sometimes a couple months in progress.” (Id. at 78.) Although petitioner’s lack of firm 13 parole plans, considered alone, might be an insufficient basis to deny him a parole date, when 14 combined with the Board’s findings regarding other unsuitability factors, it provides “some 15 evidence” to support the Board’s conclusion that petitioner is unsuitable for parole. See 15 16 CCR § 2402(b) (“Circumstances which taken alone may not firmly establish unsuitability for 17 parole may contribute to a pattern which results in a finding of unsuitability.”). 18 The sixth factor considered by the Board was opposition to petitioner’s release on 19 parole by the Los Angeles County District Attorney and the victim’s surviving family 20 members. (See Dkt. 1, Ex. B at 75.) In making its suitability determination, the Board must 21 “take into account all pertinent information and input about the particular case from the 22 inmate’s victims, the officials familiar with his or her criminal background, and other REPORT AND RECOMMENDATION ON MERITS OF PETITION -15 01 members of the public who have an interest in the grant or denial of parole to this prisoner.” 02 In re Dannenberg, 34 Cal.4th 1061, 1086 (2005). California law affords a deceased victim’s 03 next of kin or immediate family members the opportunity to make a statement at the 04 prisoner’s parole hearing. See 15 CCR § 2029. In addition, a prosecutor may attend a parole 05 hearing to represent “the interests of the people,” and may “comment on the facts of the case 06 and present an opinion about the appropriate disposition.” See Cal. Penal Code § 3041.7; 15 07 CCR § 2030. See also Rosenkrantz v. Marshall, 444 F. Supp. 2d 1063, 1080 n.14 (C.D. Cal. 08 2006) (noting that in the absence of other reliable evidence of unsuitability in the record, 09 opposition by law enforcement based upon the nature of the commitment offense does not 10 constitute “some evidence” to support parole denial). Because the Board relied upon other 11 reliable evidence of petitioner’s unsuitability for parole, in addition to its consideration of 12 opposition by law enforcement and the victim’s surviving family members, its finding that 13 petitioner would present an unreasonable risk of danger to society if released on parole was 14 not arbitrary and capricious. 15 Finally, the Board considered a confidential letter opposing petitioner’s release during 16 the hearing. Specifically, the Board informed petitioner that “there is a confidential fearful 17 letter that we did consider that contained information that we felt supported a finding of 18 unsuitability at this time.” (See Dkt. 1, Ex. B at 75.) The Board further described the letter as 19 “a very small handwritten letter, of a fearful person, family, [opposing petitioner’s] release.” 20 (See id. at 49.) 21 Petitioner’s argument that the Board “violated petitioner’s [right to] equal protection 22 and … due process rights when they used confidential information to deny petitioner parole” REPORT AND RECOMMENDATION ON MERITS OF PETITION -16 01 is unavailing. (See Dkt. 1 at 8.) California law does not afford petitioner the right to review 02 information that has been designated as “confidential,” even though the panel considered it 03 when determining whether petitioner was suitable for parole. See 15 CCR § 2447. The 04 relevant California regulations provide that “[n]o decision [by the Board] shall be based upon 05 information that is not available to the prisoner unless the information has been designated 06 confidential under the rules of the department and is necessary to the decision.” Id., § 2235. 07 Thus, a prisoner may only “review nonconfidential documents in the department central file,” 08 and must appeal pursuant to department procedures if he is dissatisfied with the level of 09 disclosure he received. Id., § 2447. There is nothing in the record to suggest petitioner filed 10 such an appeal. The confidential letter was therefore properly considered by the Board during 11 the hearing. 12 Contrary to petitioner’s argument that the Board failed to consider or give appropriate 13 weight to the parole suitability rules which favored petitioner, the Board acknowledged that 14 petitioner “does not have a history of criminal conduct.” (See Dkt. 1, Ex. B at 74.) The 15 Board commended petitioner for completing the classes necessary to graduate from high 16 school. (See id. at 76.) It also took note of the fact that petitioner has “done a lot of different 17 jobs. In fact, the federal reports go into great detail about the different jobs that you took … 18 [for] brief periods of time. And your work product was good.” (Id. at 78-79.) It is therefore 19 an inaccurate characterization of the record to say that the Board failed to provide petitioner 20 with an individualized consideration of all relevant factors, and only relied upon the 21 immutable facts of the commitment offense to find him unsuitable for parole. (See Dkt. 1 at 22 5-6.) As mentioned above, the Board has broad discretion to determine how suitability and REPORT AND RECOMMENDATION ON MERITS OF PETITION -17 01 unsuitability factors interrelate to support its conclusion of current dangerousness to the 02 public. See Lawrence, 44 Cal.4th at 1212. Despite petitioner’s recent gains, the Board 03 determined that he remains an unreasonable risk of danger to society if released on parole, 04 and these findings were supported by “some evidence” in the record. (See Dkt. 1, Ex. B at 73 05 and 76.) 06 C. Petitioner’s Ineffective Assistance Claim 07 Petitioner alleges that he received ineffective assistance of counsel during his parole 08 hearing because his attorney failed to object to the Board’s consideration of confidential 09 information, or otherwise represent petitioner’s interests during the hearing. (See Dkt. 1 at 8.) 10 Petitioner asserts that “because of [the attorney’s] actions and behavior with the panel 11 members and [the attorney’s] failure to tell petitioner they were going to use confidential 12 information” during the hearing, the Board denied petitioner a parole date. (Id.) 13 Petitioner’s arguments are unavailing, because the U.S. Constitution does not afford 14 petitioner a right to counsel in the context of parole board hearings. “[T]he protections of the 15 Sixth Amendment right to counsel do not extend to either state collateral proceedings or 16 federal habeas corpus proceedings.” Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). 17 The Ninth Circuit has asserted that “since the setting of a minimum term is not part of the 18 criminal prosecution, the full panoply of rights due a defendant in such a proceeding is not 19 constitutionally mandated....” Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 20 1987); Jancsek, 833 F.2d at 1390. Because petitioner’s constitutional rights were met during 21 his 2005 parole hearing, his ineffective assistance claim should be denied. 22 REPORT AND RECOMMENDATION ON MERITS OF PETITION -18 01 D. Petitioner’s Ex Post Facto Claim 02 Petitioner also claims that the Board’s consideration of the immutable circumstances 03 of his commitment offense to deny parole “essentially [converted petitioner’s] sentence of 15 04 to life with the possibility of parole to life in prison without the possibility of parole.” (See 05 Dkt. 1 at 6 and 9.) Specifically, he asserts that “because the BPH continues to deny 06 [petitioner] parole based on [his] crime and the circumstances of his crime … [petitioner] has 07 no hope for ever obtaining parole except perhaps [if a panel] in the future will arbitrarily hold 08 that the circumstances were not that serious….” (Id. at 6.) This Court construes petitioner’s 09 argument as a claim that the Board’s denial violated his right to be free from ex post facto 10 laws, because petitioner contends that the Board has imposed a more severe penalty in place 11 of his indeterminate life sentence. (See id. at 9.) 12 Petitioner’s claim fails for multiple reasons. First, Article I of the United States 13 Constitution provides that neither Congress nor any state shall pass an ex post facto law. U.S. 14 Const. Art. I, § 9, cl. 3, Art. I, §10, cl. 1. Hence, the Ex Post Facto Clause, by definition, 15 applies to the Legislative Branch, not to the courts or an administrative body, such as the 16 Board of Parole Hearings. See Rogers v. Tennessee, 532 U.S. 451, 460 (2001) (holding “[t]he 17 Ex Post Facto Clause, by its own terms, does not apply to courts”); Marks v. United States, 18 430 U.S. 188, 191 (1977) (holding “[t]he Ex Post Facto Clause is a limitation upon the 19 powers of the Legislature, and does not of its own force apply to the Judicial Branch of 20 government.”) (citations omitted)); Lagrand v. Stewart, 133 F.3d 1253, 1260 (9th Cir.) 21 (holding “[t]he Ex Post Facto Clause does not apply to court decisions construing statutes.”), 22 cert. denied, 525 U.S. 971 (1998). REPORT AND RECOMMENDATION ON MERITS OF PETITION -19 01 Moreover, the Board has not increased petitioner’s punishment. The Ex Post Facto 02 Clause prohibits the retrospective application of criminal statutes that change the definition of 03 a crime or enhance the punishment for a criminal offense. See Collins v. Youngblood, 497 04 U.S. 37, 41 (1990) (“Although the Latin phrase ‘ex post facto’ literally encompasses any law 05 passed ‘after the fact,’ it has long been recognized ... that the constitutional prohibition on ex 06 post facto laws applies only to penal statutes which disadvantage the offender affected by 07 them.”) Petitioner was sentenced to a term of fifteen-years-to-life. While petitioner might 08 have hoped or expected to be released sooner, the Board’s decision to deny him a parole 09 release date because he would present an unreasonable risk of danger to society has not 10 enhanced or otherwise “converted” his punishment. Accordingly, the Board’s decision 11 denying petitioner a parole release date did not violate the Ex Post Facto Clause, and 12 petitioner’s claim should be denied. 13 E. Petitioner’s Plea Agreement Claim 14 Petitioner asserts that the Board “continues to violate … his plea bargain.” (Dkt. 1 at 15 9.) He claims that as a result of this violation, “the court must by law order petitioner’s 16 release … and must not deviate from it.” (Id.) Petitioner fails to explain how the Board 17 violated the terms of his plea agreement or cite any authority to support his contention, 18 however. As a result, petitioner has failed to state a cognizable claim for relief. 19 To the extent petitioner may have believed the negotiated plea agreement included 20 language that guaranteed him actual release on parole, he has failed to demonstrate that such 21 language existed. The possibility of parole is not equivalent to a finding of suitability, and 22 under state law (as it existed when he was sentenced and as it exists now) an inmate must be REPORT AND RECOMMENDATION ON MERITS OF PETITION -20 01 found suitable by the Board before his release date is set. Petitioner’s sentence was based on 02 a plea agreement of fifteen-years-to-life with the possibility of parole. Thus, petitioner has 03 received the parole considerations to which he was entitled under that agreement and 04 sentence, and the Board’s determination that petitioner was unsuitable for parole at the 2005 05 hearing did not violate petitioner’s plea agreement. 06 Petitioner has therefore failed to satisfy his burden of showing he is entitled to the 07 issuance of the writ. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (holding that it 08 is petitioner’s burden to show he is in custody in violation of the Constitution). Accordingly, 09 I recommend this Court find that no violation of petitioner’s plea agreement occurred as a 10 result of the Board’s denial of petitioner’s application for parole. 11 F. Los Angeles County Superior Court Decision 12 In a reasoned decision denying petitioner’s request for habeas relief, the Los Angeles 13 County Superior Court asserted that “[h]aving independently reviewed the record, giving 14 deference to the broad discretion of the [Board] in parole matters, the Court concludes that the 15 record contains ‘some evidence’ to support the Board’s findings that petitioner is unsuitable 16 for parole.” (Dkt. 15, Ex. B at 1.) After summarizing the Board’s findings, as well as the 17 applicable suitability and unsuitability factors, the superior court concluded that the facts of 18 the offense constitute “some evidence” that the crime “demonstrated an exceptionally callous 19 disregard for human suffering.” (See id. at 1-2.) In addition, the superior court found that 20 there was “some evidence” to support the Board’s finding that petitioner’s motive was 21 inexplicable, because the Board could reasonably doubt petitioner’s contention that he 22 participated in the crime out of his fear of his crime partner because petitioner “stayed with REPORT AND RECOMMENDATION ON MERITS OF PETITION -21 01 [crime partner] Bonnen for ten full days after the crime before finally leaving the state.” (Id. 02 at 2-3.) The superior court also found “some evidence” in the record to support the Board’s 03 finding that petitioner has an unstable social history. (See id. at 3.) 04 Finally, the superior court found that “[p]etitioner’s argument that the use of 05 confidential information without disclosure violated his rights is without merit,” because a 06 prisoner may only review nonconfidential documents in the department central file. (See id.) 07 Even in the absence of the confidential letter, “there is sufficient independent evidence to 08 support the Board’s finding of unsuitability.” (Id.) Accordingly, the superior court denied the 09 habeas petition. 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 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 Los Angeles County Superior Court’s Order 22 upholding the Board’s decision was not contrary to, or an unreasonable application of, clearly REPORT AND RECOMMENDATION ON MERITS OF PETITION -22 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 1st day of September, 2009. 13 A 14 15 JOHN L. WEINBERG United States Magistrate Judge 16 17 18 19 20 21 22 REPORT AND RECOMMENDATION ON MERITS OF PETITION -23
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