(HC) Shelmire v. Sisto et al, No. 2:2007cv01758 - Document 14 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 9/14/2010 recommending that petitioner's petition for a writ of habeas corpus be denied and that all pending requests/motions be denied as moot re 1 Petition for Writ of Habeas Corpus filed by Terry Shelmire. Referred to Judge John A. Mendez. Objections to F&R due w/in 14 days. (Matson, R)
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(HC) Shelmire v. Sisto et al Doc. 14 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TERRY SHELMIRE, 12 No. CIV S-07-1758-JAM-CMK-P Petitioner, 13 vs. 14 D.K. SISTO, et al., 15 FINDINGS AND RECOMMENDATIONS Respondents. 16 / 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2006 denial of parole 19 decision. Pending before the court are: Petitioner’s petition for writ of habeas corpus (Doc. 1), 20 Respondent’s response to the petition (Doc. 7), Petitioner’s traverse (Doc. 8), Petitioner’s 21 supplemental brief (Doc. 10), and Respondent’s supplemental brief (Doc. 11).1 22 23 24 25 26 1 The supplemental briefs were filed pursuant to the court’s request that each party file a brief discussing the effect, if any, the original Ninth Circuit panel decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), would have on this case. The panel decision in Hayward was thereafter vacated, and the case was heard en banc. Therefore, the relevant case, as discussed below is the en banc opinion, 603 F.3d 546 (9th Cir. 2010). 1 Dockets.Justia.com 1 2 I. BACKGROUND Petitioner is serving an indeterminate life sentence for a conviction of first-degree 3 murder. Petitioner appeared at a parole suitability hearing in June 2006, at which time he was 4 represented by counsel. In denying parole, the Board of Prison Terms (“Board”) noted the 5 following: (1) the facts of the commitment offense; (2) inadequate self-help programming; and 6 (3) a less than supportive psychological evaluation. 7 As to the commitment offense, the Board stated: 8 The offense was carried out in an especially cruel and callous manner. The offense was carried out in a dispassionate and calculated manner. The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. The motive for the crime was inexplicable and incredibly trivial in relation to the offense. These conclusions are drawn from the statement of facts which were read into the record from the probation officer’s report at Pages 2 and 3, and I will note that the inmate, after fighting with his wife and being told to leave, followed her three blocks from the apartment, leaving his child, a toddler, at home alone while he followed his wife and shot her in the middle of the street six times. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Board next noted Petitioner’s institutional programing, stating: The prisoner has, although you have programmed remarkably since the last Board hearing, this Panel does not believe that you have participated sufficiently in beneficial self-help at this time. The Board then discussed Petitioner’s psychological report as follows: Additionally, the psychological report, which is dated March 21st, 2006, authored by John T. Rouse - - Dr. John T. Rouse is not totally supportive of release in that at Page 4, Dr. Rouse states that “indeed he is much more introspective than he appears to have been some five years ago.” This shows the Panel that there is still room for growth. Dr. Rouse continues that in his opinion the inmate’s risk of dangerousness in the wider community is much less than it was at the time of his life crime and is likely to be average for those inmates who have committed similar offenses and have been successfully paroled. It needs to be lower. Finally, the Board further addressed Petitioner’s self-help programing, stating: Mr. Shelmire, the Panel believes that you have started along the path of rehabilitation and have made a very significant start, particularly in [the] last four years between the last Board of Parole hearing and now. You have shown us that you are on the right path with the self-help you have completed. Your work with the Tawheed project in particular is clearly 2 1 8 helping you work on achieving an understanding of what you’ve done and what kind of person you want to become. You appear to be grasping empathy and compassion in a step toward insight and remorse. We don’t think you’re there yet, however. The Panel makes the following findings. The prisoner needs further therapy in order to face, discuss, understand and cope with stress in a non-destructive manner. Until additional progress is made, the prisoner continues to be unpredictable and a threat to others. The prisoner’s gains are recent, and he must demonstrate an ability to maintain gains over an extended period of time. Nevertheless, the prisoner should be commended for having absolutely no discipline at all while he has been in prison, completing an abundance of positive programming and showing initiative in development of a relationship workshop for inmates and exceptional work evaluations in PIA optical law. However, these positive aspects of his behavior do not outweigh the factors of unsuitability at this time. 9 Petitioner challenged the decision with a petition for writ of habeas corpus filed in 2 3 4 5 6 7 10 11 12 13 the Merced County Superior Court. In denying relief, the court stated: [T]he Board, in reaching it’s decision, specifically found the parolee (petitioner) would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Board also found that the offense was carried out in an especially cruel and callous manner and in a calculated manner that demonstrated an exceptionally callous disregard for human suffering. 14 15 The Court also denied Petitioner’s claims that his crime cannot be considered particularly 16 egregious in the context of a first degree murder. The California Court of Appeals and California 17 Supreme Court both summarily denied relief. 18 II. STANDARDS OF REVIEW 19 Because this action was filed after April 26, 1996, the provisions of the 20 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are presumptively 21 applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. 22 (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA 23 does not, however, apply in all circumstances. When it is clear that a state court has not reached 24 the merits of a petitioner’s claim, because it was not raised in state court or because the court 25 denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal 26 habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 3 1 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach 2 petitioner’s claim under its “re-litigation rule”); see also Killian v. Poole, 282 F.3d 1204, 1208 3 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on 4 perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the 5 evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing 6 petition de novo where state court had issued a ruling on the merits of a related claim, but not the 7 claim alleged by petitioner). When the state court does not reach the merits of a claim, 8 “concerns about comity and federalism . . . do not exist.” Pirtle, 313 F. 3d at 1167. 9 Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is 10 not available for any claim decided on the merits in state court proceedings unless the state 11 court’s adjudication of the claim: 12 13 14 15 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 16 Under § 2254(d)(1), federal habeas relief is available only where the state court’s decision is 17 “contrary to” or represents an “unreasonable application of” clearly established law. Under both 18 standards, “clearly established law” means those holdings of the United States Supreme Court as 19 of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) 20 (citing Williams, 529 U.S. at 412) . “What matters are the holdings of the Supreme Court, not 21 the holdings of lower federal courts.” Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en 22 banc). Supreme Court precedent is not clearly established law, and therefore federal habeas 23 relief is unavailable, unless it “squarely addresses” an issue. See Moses v. Payne, 555 F.3d 742, 24 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S. Ct. 743, 746 (2008)). 25 For federal law to be clearly established, the Supreme Court must provide a “categorical answer” 26 to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a 4 1 state court’s decision that a defendant was not prejudiced by spectators’ conduct at trial was not 2 contrary to, or an unreasonable application of, the Supreme Court’s test for determining prejudice 3 created by state conduct at trial because the Court had never applied the test to spectators’ 4 conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court’s 5 holdings. See Carey, 549 U.S. at 74. 6 In Williams v. Taylor, 529 U.S. 362 (2000) (O’Connor, J., concurring, garnering a 7 majority of the Court), the United States Supreme Court explained these different standards. A 8 state court decision is “contrary to” Supreme Court precedent if it is opposite to that reached by 9 the Supreme Court on the same question of law, or if the state court decides the case differently 10 than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state 11 court decision is also “contrary to” established law if it applies a rule which contradicts the 12 governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate 13 that Supreme Court precedent requires a contrary outcome because the state court applied the 14 wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme 15 Court cases to the facts of a particular case is not reviewed under the “contrary to” standard. See 16 id. at 406. If a state court decision is “contrary to” clearly established law, it is reviewed to 17 determine first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040, 18 1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which 19 case federal habeas relief is warranted. See id. If the error was not structural, the final question 20 is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id. 21 State court decisions are reviewed under the far more deferential “unreasonable 22 application of” standard where it identifies the correct legal rule from Supreme Court cases, but 23 unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S. 24 510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested 25 that federal habeas relief may be available under this standard where the state court either 26 unreasonably extends a legal principle to a new context where it should not apply, or 5 1 unreasonably refuses to extend that principle to a new context where it should apply. See 2 Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court 3 decision is not an “unreasonable application of” controlling law simply because it is an erroneous 4 or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63, 5 75-76 (2003). An “unreasonable application of” controlling law cannot necessarily be found 6 even where the federal habeas court concludes that the state court decision is clearly erroneous. 7 See Lockyer, 538 U.S. at 75-76. This is because “[t]he gloss of clear error fails to give proper 8 deference to state courts by conflating error (even clear error) with unreasonableness.” Id. at 75. 9 As with state court decisions which are “contrary to” established federal law, where a state court 10 decision is an “unreasonable application of” controlling law, federal habeas relief is nonetheless 11 unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6. 12 13 III. DISCUSSION Petitioner argues that the Board’s decision was not based on some evidence of his 14 dangerousness, but rather was arbitrary, and the decision extended his sentence beyond the 15 statutory maximum. Specifically, he argues: (1) the commitment offense is not relevant, reliable 16 evidence that Petitioner is currently a danger to society; (2) the commitment offense was not 17 particularly egregious; and (3) the Board failed to properly consider favorable evidence 18 indicating low public safety threat. Respondents argue: (1) petitioner does not have a federally 19 protected liberty interest in parole; (2) petitioner received all the process he was due because he 20 was provided notice of the hearing and an opportunity to be heard; and (3) even if the “some 21 evidence” standard applies, the factors cited by the state court meet this standard. In addition, 22 they argue Petitioner’s sentencing claims are state law matters and are without merit. 23 In Hayward v. Marshall, the Ninth Circuit sitting en banc held that there is no 24 federal stand-alone substantive due process right to parole. See 603 F.3d 546, 555 (9th Cir. 25 2010) (en banc). Any substantive due process interest in parole arises solely from state law 26 creating the right. See id. The Ninth Circuit overruled its prior decisions in Biggs v. Terhune, 6 1 334 F.3d 910, 915 (9th Cir. 2003), Sass v. Bd. of Prison Terms, 461 F.3d 1123 (9th Cir. 2006), 2 and Irons v. Carey, 505 F.3946, 851 (9th Cir. 2007), “[t]o the extent [they]. . . might be read to 3 imply that there is a federal constitutional right regardless of whether state law entitles the 4 prisoner to release . . . .” Hayward, 603 F.3d at 555. 5 Turning to whether California’s parole scheme creates any substantive due 6 process rights, the Ninth Circuit stated: “Although the due process clause does not, by itself, 7 entitle a prisoner to parole in the absence of some evidence of future dangerousness, state law 8 may supply a predicate for that conclusion.” Id. at 561. The court then discussed California law, 9 including the California Supreme Court’s decisions in In re Lawrence, 44 Cal.4th 1181 (2008), 10 and In re Shaputis, 44 Cal.4th 1241 (2008), and noted that “as a matter of state law, ‘some 11 evidence’ of future dangerousness is indeed a state sine qua non for denial of parole in 12 California.” Id. at 562. The court then provided the following instructions for resolving parole 13 claims in the context of AEDPA: 14 17 Since the “some evidence” requirement applies without regard to whether the United States Constitution requires it, we in this case, and courts in this circuit facing the same issue in the future, need only decide whether the California judicial decision approving the . . . decision rejecting parole was an “unreasonable application” of the California “some evidence” requirement, or was “based on an unreasonable determination of the facts in light of the evidence.” 18 Id. 15 16 19 The en banc court concluded that Hayward had properly been denied parole because the nature of 20 the commitment offense combined with an unfavorable psychological evaluation provided “some 21 evidence” under California law of future dangerousness. See id. 22 Interpreting the en banc decision in Hayward, the Ninth Circuit in Person v. 23 Muntz stated: “By holding that a federal habeas court may review the reasonableness of the state 24 court’s application of the ‘some evidence’ rule, Hayward, necessarily held that compliance with 25 the state requirement is mandated by federal law, specifically the Due Process Clause.” 606 F.3d 26 606, 609 (9th Cir. 2010) (per curiam). The court observed that “[t]he principle that state law 7 1 gives rise to liberty interests that may be enforced as a matter of federal law is long-established.” 2 Id. 3 As has been clearly stated by the Ninth Circuit, California law provides the 4 contours of the substantive due process right to parole at issue in this case. Under California law, 5 one year prior to an inmate’s minimum eligible parole release date, the Board will set a date for 6 an eligibility hearing. See Cal. Penal Code § 3041(a). A release date shall be set unless release 7 currently poses an unreasonable risk of danger to society. See Cal. Penal Code § 3041(b). The 8 paramount concern in determining parole suitability in California is public safety. See In re 9 Dannenberg, 34 Cal.4th 1061 (2005). This requires an assessment of the inmate’s current 10 dangerousness. See In re Lawrence, 44 Cal.4th at 1205. Such an assessment requires more than 11 “rote recitation of the relevant factors with no reasoning establishing a rational nexus between 12 those factors and the necessary basis for the ultimate decision – the determination of current 13 dangerousness.” Id. at 1210. 14 California regulations set forth various circumstances which tend to show 15 suitability and others which tend to show unsuitability. See Cal. Code Regs., tit 15 § 2402(c)-(d). 16 Under § 2402(c), circumstances tending to show unsuitability include: (1) the facts of the 17 commitment offense, where the offense was committed in an especially heinous, atrocious, or 18 cruel manner; (2) the prisoner’s previous record of violence; (3) a history of unstable 19 relationships with others; (4) commission of sadistic sexual offenses; (5) a lengthy history of 20 severe mental problems related to the offense; and (6) serious misconduct while in prison. 21 Circumstances tending to show suitability include: (1) lack of a juvenile record; (2) reasonably 22 stable relationships with others; (3) the prisoner has shown remorse; (4) lack of significant 23 history of violent crimes; (5) realistic plans for release; and (6) participation in institutional 24 activities indicating an enhanced ability to function within the law upon release. See Cal. Code 25 Regs., tit. 15 § 2402(d). The regulations are designed to guide the Board's assessment regarding 26 whether the inmate poses an “unreasonable risk of danger to society if released from prison,” and 8 1 thus whether he or she is suitable for parole. In re Lawrence, 44 Cal.4th at 1202. There must be 2 a rational nexus between the facts cited by the Board and the ultimate conclusion on 3 dangerousness. See id. at 1227. 4 Regarding reliance on the facts of the commitment offense, the denial of parole 5 may be predicated on the commitment offense only where the Board can point to factors beyond 6 the minimum elements of the crime that demonstrate that, at the time of the suitability hearing, 7 the inmate will present an unreasonable risk of danger to society if released. See In re 8 Dannenberg, 34 Cal.4th at 1071. While the Board cannot require an inmate to admit guilt in 9 order to be found suitable for parole, see Cal. Penal Code § 5011(b); 15 Cal Code Regs., tit. 15, 10 § 2236, the Board must consider the inmate’s past and present attitude toward the crime and any 11 lack of remorse or understanding of the nature and magnitude of the offense, see 15 Cal. Code 12 Regs., tit. 15, §§ 2402(b), 2402(d)(3). “Lack of insight” is probative of unsuitability only to the 13 extent that it is both demonstrably shown by the record and rationally indicative of the inmate’s 14 current dangerousness. See In re Calderon, 184 Cal. App. 4th 670, 690 (2010). 15 In light of the precedents outlined above the court concludes that petitioner has a 16 protected liberty interest in parole arising from state law. The court also concludes that the 17 contours of the substantive guarantee required to protect that liberty interest are defined by state 18 law and that under California law parole may not be denied unless there is “some evidence” of 19 the inmate’s dangerousness at the time of the parole eligibility hearing. Respondents’ arguments 20 to the contrary are rejected. 21 Applying the “some evidence” standard to the facts of this case, the court finds 22 that the state court’s decision was neither an unreasonable application of that test nor based on an 23 unreasonable determination of the facts. In making this finding, the court notes that the Board 24 observed that Petitioner’s institutional behavior had been good and that his parole plans were 25 good, even going so far as to commend him on his behavior. Aside from the immutable factors 26 concerning the commitment offense, the Board largely relied on Petitioner’s recent gains in self9 1 help programming, noting a majority of Petitioner’s programming had been accomplished in the 2 last four years since the prior parole hearing. The Board again commended him on his hard 3 work, but found the advancements had been too recent to demonstrate an ability to maintain over 4 an extended period of time. In addition, the Board relied on the psychological report of Dr. 5 Rouse. While positive overall, as the Board found, the report only rated Petitioner’s risk of 6 dangerousness in the community as average. The Board found that risk assessment needs to be 7 lower prior to Petitioner being granted parole. The court finds reliance on Petitioner’s recent 8 programming and the marginally supportive psychological report proper. Petitioner has not 9 offered any evidence or argument that the Board’s finding that he only recently advanced in 10 programming was inaccurate. There is a reasonable nexus between Petitioner’s failure to take 11 advantage of rehabilitative programming prior to that, and a likelihood that petitioner will re- 12 offend if released on parole. In addition, failure to obtain a fully favorable psychological report 13 finding Petitioner’s risk assessment to be low, supports the Board’s decision that Petitioner poses 14 an unreasonable risk of danger. 15 Petitioner also argues the Board’s decision to deny him a parole date effectively 16 increased his sentence, a decision that requires the facts to be established by a jury and by proof 17 beyond a reasonable doubt. He basis this argument on state parole matrix, and argues his 18 sentence falls withing the middle term which is 28 years. Once his post-conviction credits are 19 applied, his term would be reduced to 21 years, the amount of time he has already served. 20 Plaintiff was sentenced to an indeterminate term of 25 years to life. To the extent 21 he cites Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and U.S. v. Booker, 543 U.S. 220, 22 235 (2005), as support for his sentencing argument, the undersigned finds those cases do not 23 support his argument. Petitioner is not directly challenging his sentence or the jury findings. 24 Instead, he is challenging a parole determination decision. He provides no authority for his 25 position that he has served beyond his maximum sentence of life imprisonment, nor that the 26 failure to set a parole date somehow extends his life sentence beyond the maximum. Even the 10 1 state authority Petitioner cites, In re Dannenberg, fails to support his position. See 104 P.3d 783, 2 791 (Cal. 2005) (noting that noncapital murderers remain subject to indeterminate sentences, and 3 such indeterminate sentences may serve up to life in prison). Indeed, the California Supreme 4 Court, in applying the matrix Petitioner cites to, found that the first step is for the Board to 5 determine if the prisoner is suitable for a parole release date, and only if the Board finds a 6 prisoner so suitable does the matrix apply to determine a specific appropriate release date. See 7 id. Here, the Board determined Petitioner was not suitable for a parole release date at the time of 8 his hearing. Therefore, there was no reason for the Board to continue to the next step and 9 determine a proper release date based on the matrix, and Petitioner’s argument to the contrary is 10 unpersuasive. 11 IV. CONCLUSION 12 Based on the foregoing, the undersigned recommends that Petitioner’s petition for 13 a writ of habeas corpus (Doc. 1) be denied and that all pending requests/motions be denied as 14 moot. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court. Responses to objections shall be filed within 14 days after service of 19 objections. Failure to file objections within the specified time may waive the right to appeal. 20 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 23 24 DATED: September 14, 2010 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 25 26 11