(HC) Thompson v. Sisto, No. 2:2007cv02577 - Document 19 (E.D. Cal. 2010)
Court Description: ORDER signed by Judge William B. Shubb on 4/12/10 REJECTING 17 FINDINGS AND RECOMMENDATIONS. Petitioner's 1 Petition for a writ of habeas corpus is hereby DENIED. CASE CLOSED. (Donati, J)
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(HC) Thompson v. Sisto Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 FRANK THOMPSON, 12 NO. CIV. 2:07-2577 WBS JFM Petitioner, 13 ORDER v. 14 D.K. SISTO, Warden, 15 Respondent. / 16 17 ----oo0oo---18 19 Petitioner Frank Thompson filed this petition for writ 20 of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge the 21 denial of his parole in 2005. 22 Local Rule 302(c)(17), petitioner’s writ was referred to a United 23 States Magistrate Judge. 24 recommended that the court grant petitioner’s writ and direct 25 respondents to release petitioner on parole forthwith. 26 Respondent filed timely objections, and the court now reviews the 27 Magistrate Judge’s Findings and Recommendations de novo. 28 U.S.C. § 636(b)(1)(c); Fed. R. Civ. P. 72(b)(2)-(3). Pursuant to § 636(b)(1)(B) and On March 5, 2010, the Magistrate Judge 28 1 Dockets.Justia.com 1 I. Factual and Procedural Background 2 On August 6, 1979, petitioner was sentenced to life 3 imprisonment without the possibility of parole after having been 4 convicted of two counts of first-degree murder, two counts of 5 robbery, and one count of burglary. 6 Am. Pet. Ex. H.) 7 a concurrent sentence of twenty-five years to life after having 8 been convicted of two counts of conspiracy with overt acts, one 9 count of attempted murder while using a firearm, and one count of (Answer Ex. A at 3-4; First The following day, petitioner was sentenced to 10 attempted escape while using a firearm. (Answer Ex. A at 1-2; 11 First Am. Pet. Ex. A at 79:5-7.) 12 California Court of Appeal for the Fourth Appellate District held 13 that petitioner’s life sentence must be reduced to life 14 imprisonment with the possibility of parole because petitioner 15 was under the age of eighteen at the time he committed the 16 capital offenses. 17 for two counts of first-degree murder, two counts of robbery, and 18 one count of burglary was thus reduced to life imprisonment with 19 the possibility of parole on July 5, 1988. 20 4.) On September 10, 1987, the (First Am. Pet. Ex. H.) Petitioner’s sentence (Answer Ex. A at 3- Petitioner’s conviction for first-degree murder, 21 22 robbery, and burglary resulted from his actions on November 1, 23 1978 when he was seventeen years old. 24 fifteen-year-old brother, robbed a market in Helendale, 25 California and murdered the two individuals working in the market 26 by slashing one of the victim’s throats and beating the other to 27 death. 28 months later when petitioner was in custody and being transported Petitioner, with his (First Am. Pet. Ex. A at 91:16-24, Ex. L at 2.) 2 Five 1 to court, petitioner obtained control of the gun belonging to the 2 deputy sheriff who was driving the transport van and attempted to 3 shoot the deputy and escape. 4 serving his concurrent sentences on August 16, 1979. 5 at ¶ 1.A.) 6 (Id. Ex. L at 2.) Petitioner began (Id. Ex. I The parole board held the Parole Consideration Hearing 7 at issue in this writ on October 26, 2005 and found that 8 petitioner was not suitable for parole. 9 filed a writ of habeas corpus with the San Bernardino Superior (Id. Ex. A.) Petitioner 10 Court, and the superior court denied his writ in a reasoned 11 opinion. 12 Appellate District summarily affirmed the Superior Court’s denial 13 of petitioner’s writ. 14 judicial remedies, petitioner filed the instant writ in federal 15 court on November 28, 2007. 16 the Magistrate Judge concluded that, given petitioner’s “in- 17 prison rehabilitation and exemplary behavior,” the parole board’s 18 “reliance on the unchanging facts of the commitment offenses to 19 deny petitioner parole” violated his right to due process and 20 thus recommended that the court grant petitioner’s writ and 21 direct respondents to release petitioner on parole forthwith. 22 (Findings & Recommendations at 22:4-12.) 23 II. 24 (Id. Ex. L.) The Court of Appeal for the Fourth (Id. Ex. M.) Having exhausted his state In his Findings and Recommendations, Analysis A. California’s Parole Scheme 25 “California Penal Code section 3041 vests . . . all [] 26 California prisoners whose sentences provide for the possibility 27 of parole with a constitutionally protected liberty interest in 28 the receipt of a parole release date, a liberty interest that is 3 1 protected by the procedural safeguards of the Due Process 2 Clause.” 3 Pursuant to the Antiterrorism and Effective Death Penalty Act of 4 1996, a federal court cannot grant habeas relief to a state 5 prisoner challenging the denial of his parole unless the decision 6 by the state court was “contrary to, or involved an unreasonable 7 application of, clearly established Federal law, as determined by 8 the Supreme Court of the United States” or “was based on an 9 unreasonable determination of the facts in light of the evidence Irons II v. Carey, 505 F.3d 846, 850 (9th Cir. 2007). 10 presented in the State court proceeding.” 11 2254(d)(1)-(2). 12 decision was contrary to, or an unreasonable application of, 13 clearly established federal law, a federal court looks to the 14 last reasoned state court decision addressing the merits of the 15 petitioner’s claim. 16 (9th Cir. 2004). 17 28 U.S.C. § In determining whether the state court’s Robinson v. Ignacio, 360 F.3d 1044, 1055 It is clearly established by the Supreme Court “that a 18 parole board’s decision deprives a prisoner of due process with 19 respect to this interest if the board’s decision is not supported 20 by ‘some evidence in the record,’ or is ‘otherwise arbitrary.’” 21 Irons II, 505 F.3d at 851 (internal citations omitted).1 22 some evidence standard is minimally stringent, such that a 23 decision will be upheld if there is any evidence in the record “The 24 25 26 27 28 1 Respondent argues that application of the “some evidence” standard is not clearly established in the parole context because the Supreme Court has not expressly applied this standard to parole decisions. The Ninth Circuit has rejected this position. See, e.g., Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006). 4 1 that could support the conclusion reached by the [] board.” 2 Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994) (internal 3 quotation marks omitted). 4 petitioner’s parole, the court must therefore “look to California 5 law to determine the findings that are necessary to deem a 6 prisoner unsuitable for parole, and then must review the record 7 in order to determine whether the state court decision holding 8 that these findings were supported by ‘some evidence’ in 9 [petitioner’s] case constituted an unreasonable application of In reviewing the denial of 10 the ‘some evidence’ principle . . . .” 11 851. 12 Irons II, 505 F.3d at Under California law, the parole board is required to 13 set a release date for an inmate serving an indeterminate 14 sentence who is eligible for parole unless the parole board 15 “concludes, on relevant grounds with support in the evidence, 16 that the grant of a parole date is premature for reasons of 17 public safety.” 18 Cal. Penal Code § 3041(a)-(b); Cal. Code Regs. tit. 15, § 19 2402(a). 20 parole, the parole board is instructed to consider 21 22 23 24 25 26 In re Dannenberg, 34 Cal. 4th 1061, 1071 (2005); In determining whether an inmate is suitable for [a]ll relevant, reliable information available[,] . . . includ[ing] 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. 27 28 Cal. Code Regs. tit. 15, § 2402(b). 5 Overall, “the core 1 determination” in deciding whether an inmate is suitable for 2 parole “involves an assessment of an inmate’s current 3 dangerousness” to the public if released, and the parole board 4 must “identify and weigh only the factors relevant to predicting 5 ‘whether the inmate will be able to live in society without 6 committing additional antisocial acts.’” 7 4th 1181, 1205-06 (2008). In re Lawrence, 44 Cal. The California Code of Regulations for Parole 8 9 Consideration Criteria and Guidelines (“regulations”)2 lay out 10 factors for the parole board to consider that “are designed to 11 guide an assessment of the inmate’s threat to society, if 12 released.” 13 identify circumstances tending to show unsuitability for release 14 as whether the prisoner 1) “committed the offense in an 15 especially heinous, atrocious or cruel manner,” such as attacking 16 multiple victims, abusing the victim, carrying out the crime in a 17 manner that “demonstrates an exceptionally callous disregard for 18 human suffering,” or having a trivial motive for the crime; 2) 19 has a previous record of violence; 3) “has a history of unstable 20 or tumultuous relationships with others”; 4) committed a sadistic 21 sexual offense; 5) “has a lengthy history of severe mental 22 problems related to the offense”; or 6) “has engaged in serious Id. at 1206 (emphasis omitted). The regulations 23 2 24 25 26 27 28 The regulations regarding suitability for parole discussed herein are those applicable to murders and attempted murders that occurred on or after November 8, 1978. Petitioner committed murder on November 1, 1978 and attempted murder on April 2, 1979 (First. Am. Pet. Ex. L at 2), thus would be subject to the pre- and post-November 8, 1978 regulations. Because the “suitability criteria are the same” for murders or attempted murders committed before or after November 8, 1978, the court will simply cite to the post-November 8, 1978 regulations regarding parole. See Cal. Code Regs. tit. 15, § 2400. 6 1 misconduct in prison or jail.” 2 Cal. Code Regs. tit. 15, § 2402(c)(1)-(6). 3 The regulations also identify circumstances that tend 4 to show suitability for release, including whether the prisoner 5 1) does not have a violent juvenile record; 2) “has experienced 6 reasonably stable relationships with others”; 3) has “performed 7 acts which tend to indicate the presence of remorse; 4) 8 “committed his crime as the result of significant stress in his 9 life, especially if the stress has built over a long period of 10 time”; 5) suffers from “Battered Woman Syndrome”; 6) “lacks any 11 significant history of violent crime”; 7) has a reduced 12 probability of recidivism based on his present age; 8) “has made 13 realistic plans for release or has developed marketable skills 14 that can be put to use upon release”; or 9) has engaged in 15 institutional activities that “indicate an enhanced ability to 16 function within the law upon release.” 17 18 B. Id. § 2402(d)(1)-(9). Denial of Petitioner’s Parole In concluding that petitioner was not suitable for 19 parole, the parole board gave significant weight to the 20 circumstances of petitioner’s commitment offense, explaining, 21 22 23 24 25 [T]hese offenses were carried out in especially cruel and callous manner. Multiple victims were attacked and two were killed in the same and separate incidents. The victims were abused, defiled during the course of the offense. The offense was carried out in a manner which demonstrated an exceptionally callous disregard for human suffering. And the motive for the crime was either inexplicable or very trivial, depending upon which circumstance you wish to look at. 26 (First Am. Pet. Ex. A at 90:24-91:9.) 27 reasoned that petitioner was not deterred after committing and 28 being arrested for the murders, as he later committed the 7 The parole board further 1 additional offense of attempted murder while in custody. (Id. 2 Ex. A at 91:9-16.) 3 unsuitability for parole, the parole board also discussed 4 petitioner’s absconding from probation before committing the 5 offenses, the numerous disciplinary citations he received during 6 his incarceration, and the District Attorney and Sheriff’s Office 7 opposition to petitioner’s parole. 8 7.) As circumstances suggesting petitioner’s (Id. Ex. A at 92:14-25, 94:3- As circumstances suggesting suitability for parole, the 9 10 parole board discussed how petitioner had demonstrated a “turn 11 around” in his behavior in prison, favorable information in 12 petitioner’s psychological reports, petitioner’s work while in 13 prison, petitioner’s support network, including his wife and 14 teenage daughter, and his positive parole plans. 15 92:26-93:3, 93:21-25, 94:11-14.) 16 (Id. Ex. A at In denying petitioner’s writ, the Superior Court 17 identified the correct legal standards and explained that the 18 parole board “engaged in the weighing process of the factors of 19 suitability against the factors of unsuitability and found that 20 the unsuitability factors outweighed the former.” 21 2.) 22 board evaluated, the Superior Court ultimately concluded that 23 “there was more than some evidence to support the denial of 24 suitability for parole on the basis of the conduct of the 25 Petitioner in the commission of the crimes.” 26 27 28 (Id. Ex. L at After identifying the various considerations the parole C. (Id. Ex. L at 4.) Consideration of Biggs, Sass, and Irons II Relying on dicta recently developed in Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003), Sass, 461 F.3d 1123, and 8 1 Irons II, 505 F.3d 846, the Magistrate Judge recommended that the 2 court grant petitioner’s writ. 3 a twenty-five years to life sentence and was denied parole after 4 serving fourteen years of his sentence. 5 The only ground for denying parole that the Ninth Circuit found 6 the evidence supported was the “gravity of the offense” and the 7 inmate’s “conduct prior to imprisonment.” 8 it upheld the denial of Biggs’s writ, the court noted, 9 10 11 12 13 In Biggs, the inmate was serving Biggs, 334 F.3d at 912. Id. at 916. Although Over time, however, should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of Biggs’ offense and prior conduct would raise serious questions involving his liberty interest in parole. . . . A continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation. 14 15 16 Id. at 916-17 (internal citations omitted). Three years later in Sass, the inmate, who had served 17 eight years of his fifteen years to life sentence, relied on this 18 language from Biggs to challenge the denial of his parole. 19 461 F.3d at 1125-26. 20 Sass parole based solely on the “immutable behavioral evidence” 21 from “the gravity of his convicted offenses in combination with 22 his prior offenses.” 23 evidence” standard was satisfied, the Ninth Circuit emphasized 24 that Biggs suggested only that “‘continued reliance in the future 25 on an unchanging factor . . . could result in a due process 26 violation.’” 27 28 Sass, Similar to Biggs, the parole board denied Id. at 1129. In holding that the “some Id. (citing Biggs, 334 F.3d at 917). Less than a year later in Irons II, the Ninth Circuit returned to the “warning set forth” in Biggs. 9 Irons II, 505 F.3d 1 at 850 n.1. In Irons II, the inmate had served sixteen years of 2 his seventeen years to life sentence and was denied parole based 3 solely on the immutable nature of his commitment offense. 4 849. 5 noted that in Biggs, Sass, and the case before it, “the 6 petitioners had not served the minimum number of years to which 7 they had been sentenced at the time of the challenged parole 8 denial by the Board.” 9 parameters of its dicta from Biggs, the court stated, “All we Id. at In upholding the denial of Irons’s writ, the Ninth Circuit Id. at 853. In further defining the 10 held in those cases and all we hold today, therefore, is that, 11 given the particular circumstances of the offenses in these 12 cases, due process was not violated when these prisoners were 13 deemed unsuitable for parole prior to the expiration of their 14 minimum terms.” 15 Id. at 853-54 (emphasis added). Irons II thus suggests that the due process concerns 16 raised in Biggs are not implicated--or at least are not 17 implicated to the same extent--when inmates are deemed unsuitable 18 for parole based solely on immutable pre-incarceration 19 considerations “prior to the expiration of their minimum terms.” 20 Id. 21 his 2005 parole hearing, thus he had served the minimum sentence 22 on his second sentence for conspiracy with overt acts, attempted 23 murder, and attempted escape. 24 first-degree murder, robbery, and burglary, was for life and did 25 not have a minimum number of years. 26 serving the minimum term of a sentence is relevant to the 27 “warning” raised in Biggs, it is questionable whether such 28 concerns are implicated when an inmate is serving a life sentence Here, petitioner had served twenty-six years at the time of His first sentence, however, for 10 As Irons II suggests that 1 without a minimum term.3 2 In turning to the dicta in Biggs, Sass, and Irons II, 3 the Magistrate Judge mistakenly concluded that petitioner was 4 serving two concurrent sentences for twenty-five years to life 5 and had thus served the minimum terms of both sentences. 6 Specifically, the Magistrate Judge recounted that, based on 7 petitioner’s minority when he committed the first-degree murder, 8 robbery, and burglary, the state appellate court ordered that 9 petitioner’s sentence be reduced from life without the 10 possibility of parole to twenty-five years to life with the 11 possibility of parole. 12 The state appellate court’s decision and the resulting First 13 Amended Judgement of Commitment to State Prison, however, show 14 that petitioner’s sentence for first-degree murder, robbery, and 15 burglary was reduced from life without the possibility of parole 16 to life with the possibility of parole. 17 H (“We therefore order petitioner’s sentence be reduced to life 18 imprisonment with possibility of parole, the only alternative 19 sentence authorized by the 1977 Penal Code section 190, under (Findings & Recommendations at 1:25-2:2.) (See First Am. Pet. Ex. 20 21 22 23 24 25 26 27 28 3 The court does not mean to suggest that serving the minimum term of a sentence is a qualitative metamorphosis that determines when an inmate can prevail under Biggs. As Irons II made clear, whether an inmate is suitable for parole is a factspecific inquiry that does not turn on a fact as technical as having served twenty-four versus twenty-six years of a sentence with a minimum term of twenty-five years. See id. at 853-54; see also Biggs, 334 F.3d at 916-17 (“We must be ever cognizant that ‘“[d]ue [p]rocess is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.”’” (quoting Lankford v. Idaho, 500 U.S. 110, 121 (1991) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 163 (1951) (Frankfurter, J., concurring)))) (alteration in Biggs). 11 1 which petitioner was sentenced.”); Answer Ex. A at 3.)4 2 of Irons II, it is therefore unlikely that petitioner’s denial of 3 parole comes within the due process concerns raised in Biggs 4 because he is serving a life sentence without a minimum term. 5 In light In addition to the fact that petitioner’s first 6 sentence did not have a minimum number of years, petitioner’s 7 situation is further distinguishable from Biggs, Sass, and Irons 8 II because the parole board’s determination that petitioner was 9 not suitable for parole did not rest solely on the nature of his 10 commitment offenses or other immutable pre-incarceration 11 considerations. 12 petitioner’s first offense involving the murders of the two 13 market employees was “extremely aggravated” and “carried out in 14 [an] especially cruel and callous manner” and that his second 15 offense “demonstrate[s] an escalating pattern of criminal 16 behavior,” the parole board also relied on petitioner’s behavior 17 in prison to conclude he was not suitable for parole. 18 19 Although the parole board emphasized that Specifically, between 1979 and 1993, petitioner received twenty-three CDC Form 115 disciplinary citations, which 20 4 21 22 23 24 25 26 27 28 The Magistrate Judge’s confusion about the duration of petitioner’s first sentence is understandable given the inconsistencies in the record about the duration of that sentence. For example, the Life Prisoner Evaluation for petitioner from November 1996 states that petitioner’s sentence is “25 years to life” for convictions for first-degree murder, use of deadly force, robbery, and burglary (First Am. Pet. Ex. J ¶ I.A), but his Life Prisoner Evaluation for his 2005 parole hearing described his sentence as “Original sentence was Life Without Possibility of Parole. The sentence overturned by the court of appeals he was given a term of Life.” (Id. Ex. I ¶ I.A.) Petitioner has also represented in his First Amended Petition, and the state Superior Court also appears to have been of the understanding, that petitioner’s first sentence was reduced to twenty-five years to life. (Id. at 4:3-4, Ex. L at 2.) 12 1 are citations for conduct that “is believed to be a violation of 2 law or is not minor in nature.” 3 3312(a)(3). 4 September 9, 1979, for an altercation; (2) October 26, 1979, for 5 possession of a weapon; (3) June 5, 1980, for possession of 6 alcohol; (4) June 23, 1980, for force and violence; (5) July 25, 7 1980, for possession of pruno; (6) February 1, 1982, for force 8 and violence and stabbing assault; (7) September 6, 1982, for an 9 altercation; (8) November 9, 1982, for possession of alcohol; (9) Cal. Code Regs. tit. 15, § Petitioner received Form 115 citations on (1) 10 February 23, 1983, for threatening staff (spitting and threats); 11 (10) July 21, 1983, for possession of pruno; (11) September 18, 12 1983, for disobeying a direct order; (12) October 12, 1983, for 13 force and violence; (13) November 9, 1983, for destruction of 14 state property; (14) December 9, 1983, for self-mutilation; (15) 15 April 7, 1984, for force and violence (stabbing assault); (16) 16 April 20, 1985, for assault on an inmate; (17) June 29, 1985, for 17 destruction of state property; (18) May 2, 1986, for 18 self-mutilation; (19) January 9, 1988, for possession of 19 marijuana; (20) January 9, 1988, for threatening staff; (21) 20 February 28, 1989, for threatening staff / possession / being 21 under the influence of pruno; (22) June 12, 1992, for 22 manufacturing alcohol; and (23) April 11, 1993, for stimulants 23 and sedatives (alcohol). 24 (First Am. Pet. Ex. C at 1.) When rendering its decision, the parole board 25 unequivocally identified petitioner’s behavior in prison as one 26 of the considerations leading to its decision that he was not 27 suitable for parole: 28 And then, in your case, we believe that because of the 13 1 2 3 enormity of the crimes and because of the period of your institutional behavior, that additional time is needed. And in a separate decision, we conclude that for those same factors relating to the enormity of the crime and the period of disciplinary conduct, we believe a threeyear period is necessary . . . . 4 5 (Id. Ex. A at 93:12-20 (emphasis added); see also id. Ex. A at 6 92:20-25 (“Upon your entry into the institution, it took awhile 7 for things to turn around. 8 history was complete with numerous disciplinary actions, counted 9 21 115’s in total, your last one being in April 1992.”).) 10 The (indiscernible) incarceration As the parole board continued its explanation, 11 petitioner’s attorney inquired and confirmed that petitioner’s 12 post-conviction behavior was one of the considerations supporting 13 its decision: 14 15 16 17 18 19 20 21 22 23 24 PRESIDING COMMISSIONER FARMER: . . . You and your Attorney have worked to prepare a presentation to demonstrate that you have changed and you have done many good things to indicate that is true, but you also have an egregious period or egregious misconduct. And in order for us to recommend to the parole board, and to the Governor, and to the society at large, that you are in fact what you say, we need to have an extensive period of time of demonstration of that behavior. ATTORNEY MUSGROVE: Is that -- I’m sorry for interrupting, Mr. Farmer, but is that egregious conduct, is that based on the crime or is that based on postconviction conduct, the 115’s? PRESIDING COMMISSIONER FARMER: Post-conviction conduct to the time of the transformation. ATTORNEY MUSGROVE: Okay. PRESIDING COMMISSIONER FARMER: His history is those crimes. It is also his initial conduct within the institution. ATTORNEY MUSGROVE: I understand. They are both being considered. PRESIDING COMMISSIONER FARMER: Yes, they are. 25 26 27 28 (Id. Ex. A at 94:19-95:18.) In contrast to the twenty-three Form 115 citations petitioner incurred during fourteen of the twenty-six years he 14 1 had served as of his 2005 hearing, the petitioners in Biggs, 2 Sass, and Irons II had nearly perfect behavior in prison. 3 Ninth Circuit described Biggs, who had “received his sole 4 disciplinary violation for failing to follow instructions,” as a 5 “model inmate.” 6 possessing “an essentially unblemished record of conduct in 7 prison” and had received “only two minor disciplinary notices,” 8 one for speaking too loud on the phone and the other for 9 participating in a work stoppage. Sass, 461 F.3d at 1130, 1130 10 n.2 (Reinhardt, J., dissenting). Irons’s behavior in prison was 11 similar: “Throughout his confinement, [Irons’s] conduct has been 12 exemplary. 13 custody status, indicating that prison officials see him as a low 14 threat. 15 he received any C.D.C. 128A written disciplinary charges.” 16 II, 505 F.3d at 849. 17 Biggs, 334 F.3d at 912. The Sass was described as From 1988 to the present he has maintained ‘Medium A’ He has not engaged in further acts of violence, nor has Irons As previously discussed, the Ninth Circuit’s “warning” 18 in Biggs, Sass, and Irons II is expressly limited to denials of 19 parole based solely on a petitioner’s commitment offense: 20 21 22 We hope that the Board will come to recognize that in some cases, indefinite detention based solely on an inmate’s commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process, given the liberty interest in parole that flows from the relevant California statutes. 23 24 Id. at 854 (citing Biggs, 334 F.3d at 917) (emphasis added). 25 this case, the parole board’s decision that petitioner was not 26 suitable for parole thus does not come within the due process 27 concerns the Ninth Circuit warned against in Biggs, Sass, and 28 Irons II because the parole board did not rely exclusively on 15 In 1 2 petitioner’s commitment offenses. With the Ninth Circuit’s dicta in Biggs, Sass, and 3 Irons II in mind, there may be a point at which the parole 4 board’s continued reliance on petitioner’s Form 115 citations 5 from 1979 to 1993 to deny his parole may give rise to a due 6 process violation because, like his commitment offenses, his 7 conduct during that period is “immutable behavioral evidence.” 8 It has not, however, reached that point. 9 citations illustrates a consistent pattern of violent and Petitioner’s record of 10 antisocial conduct for more than half of the time he was 11 incarcerated. 12 conduct and was disciplinary free for the twelve years of 13 incarceration before his hearing, the nature of petitioner’s 14 commitment offenses, his conduct before incarceration, and the 15 fourteen years of consistently troubled behavior in prison serve 16 as “some evidence” supporting the conclusion that twelve years 17 after fourteen years of bad behavior and petitioner’s commitment 18 offenses is simply not enough to find that he no longer presents 19 a threat to society. Although petitioner appears to have improved his 20 With the exception of Hayward v. Marshall, 512 F.3d 536 21 (9th Cir. 2008), which is no longer citable precedent because the 22 Ninth Circuit decided to rehear the case en banc, the Ninth 23 Circuit has yet to rely on Biggs, Sass, and Irons II to conclude 24 that exclusive reliance on immutable pre-conviction 25 considerations did not constitute “some evidence” supporting the 26 denial of parole. 27 inmate with exemplary prison behavior and unequivocal indicators 28 of rehabilitation may successfully rely on Biggs, Sass, and Irons While this court does not question that an 16 1 II, petitioner’s circumstances do not invoke such due process 2 concerns. 3 extremely brutal murders and attempted to commit a third murder 4 while in custody. 5 violent behavior and a lack of rehabilitation for fourteen years. 6 While the twelve years proceeding petitioner’s 2005 parole 7 hearing give some suggestion that his behavior has improved with 8 age, it is not sufficient to vitiate the pattern of behavior he 9 demonstrated for fifteen years. The evidence shows that petitioner committed two Once in prison, he continued to demonstrate Accordingly, the court will deny 10 petitioner’s writ because the state court was not unreasonable in 11 concluding that “some evidence” supports the parole board’s 12 decision. 13 D. 14 Appropriate Remedy Notwithstanding the fact that the state court 15 reasonably concluded that “some evidence” supports the parole 16 board’s decision, the court notes that, even if it concluded 17 otherwise, ordering petitioner released forthwith would not be 18 the appropriate remedy in this case. 19 an indeterminate sentence in California involves two distinct 20 steps. 21 is suitable for parole. 22 (“The panel shall first determine whether the life prisoner is 23 suitable for release on parole.”); see also Cal. Penal Code § 24 3041(b) (“The panel or the board, sitting en banc, shall set a 25 release date unless it determines . . . the public safety 26 requires a more lengthy period of incarceration for this 27 individual, and that a parole date, therefore, cannot be fixed at 28 this meeting.”); In re Dannenberg, 34 Cal. 4th at 1079-80. Paroling an inmate serving First, the parole board must determine whether the inmate See Cal. Code Regs. tit. 15, § 2402(a) 17 If 1 the parole board determines that an inmate is not suitable for 2 parole, the parole board’s inquiry ends until the inmate’s next 3 parole hearing. 4 If, however, the parole board determines the inmate is 5 suitable for parole, then the parole board must set a release 6 date “in a manner that will provide uniform terms for offenses of 7 similar gravity and magnitude with respect to their threat to the 8 public, and that will comply with the sentencing rules that the 9 Judicial Council may issue and any sentencing information 10 relevant to the setting of parole release dates.” 11 Code § 3041(a). 12 board uses a bi-axial matrix to calculate a release date so that 13 the date ensures sentencing uniformity among similar crimes and 14 accounts for aggravating and mitigating circumstances. 15 Dannenberg, 34 Cal. 4th at 1079. 16 Cal. Penal Under the parole board’s regulations, the parole In re When the parole board finds that an inmate is not 17 suitable for parole, it does not address the appropriate release 18 date for the inmate and the mandatory considerations from the 19 second step are thus not evaluated. 20 petitioner released forthwith without remanding to the parole 21 board for a determination of the appropriate release date would 22 therefore circumvent California’s effort to ensure sentencing 23 uniformity. 24 dissenting on other grounds). 25 board’s finding that an inmate is not suitable for parole, “a 26 writ would simply require that the Board set a parole date for 27 him pursuant to the procedures set forth in its regulations.” 28 Id. at 1132 (Reinhardt, J., dissenting on other grounds); cf. Id. at 1080. Ordering See Sass, 461 F.3d at 1132 (Reinhardt, J., Thus, when reviewing a parole 18 1 McQuillion v. Duncan, 342 F.3d 1012, 1014-15 (9th Cir. 2003) 2 (affirming district court’s immediate release of petitioner when 3 the parole board had previously set a release date that had since 4 passed and the court found that “some evidence” did not support 5 the parole board’s subsequent decision to rescind the release 6 date). 7 Furthermore, under California’s parole scheme, once a 8 parole board has determined that a prisoner is suitable for 9 parole and sets a parole date, “the parole date of a life . . . 10 prisoner may be postponed or rescinded for good cause at a 11 rescission hearing.” 12 regulations further provide that “Department staff shall report 13 to the Board at the central office calendar conduct which may 14 result in rescission proceedings” and, upon receipt of such 15 information, the “Board shall determine whether to initiate 16 rescission proceedings.” 17 Cal. Code Regs. tit. 15, § 2450. The Id. § 2451. As examples of conduct that “must be reported to the 18 Board,” section 2451 identifies “Disciplinary Conduct,” including 19 “conduct which seriously disrupts institutional routine, or which 20 strongly indicates that the prisoner is not ready for release . . 21 . .” 22 reporting for “[a]ny prisoner whose mental state deteriorates to 23 the point that there is a substantial likelihood that the 24 prisoner would pose a danger to himself or others when released.” 25 Id. § 2451(b). 26 Id. § 2451(a)(13). Section 2451 also identifies mandatory Here, respondent has submitted petitioner’s November 27 2008 Psychological Evaluation, which raises several issues that 28 prison staff would likely have been required to report to the 19 1 parole board and could have resulted in the parole board setting 2 a recession hearing if petitioner had been granted parole in 3 2005. 4 Form 115 citations since his 2005 hearing. 5 Ex. A at 4.) 6 disrespecting staff, but was administratively reduced to a Form 7 128-A citation, the disciplinary citation for “minor misconduct.” 8 (Id.); Cal. Code Regs. tit. 15, § 3312(a)(2). 9 issued on January 10, 2008 for “Refusing to Work.” 10 The evaluation indicates that petitioner has received two (Resp’t’s Objections The first was issued on January 5, 2007 for The second was (Resp’t’s Objections Ex. A at 4.) The evaluation also indicates that petitioner’s 11 12 continued participation in AA and NA was recommended by the 13 examining psychologist in 2005, but that petitioner had since 14 reduced his attendance in “AA or NA self-help activities without 15 any reported replacement to help him avoid a return to substances 16 in the face of future pressures.” 17 further notes that petitioner “apparently self-referred” himself 18 to Mental Health Services on June 28, 2006, resulting in the 19 following note: “I’m having trouble with my time. 20 28 years and I have 3 life sentences. 21 board, but that is depressing. 22 10 days ago -- no it’s not a suicide attempt -- no I don’t want 23 CCCMS.” 24 clear and the examining psychologist indicated he discovered the 25 note after his exam and therefore did not discuss it with 26 petitioner, the note raises the possibility that petitioner used 27 heroin on at least one occasion since his 2005 hearing. 28 (Id. Ex. A at 3.) (Id. Ex. A at 12-13.) It I’ve been down Ya [sic] I go to the I accidentally OD on heroin about Although the note is not entirely (Id.) Lastly, the evaluation concludes that petitioner 20 1 “represents a moderate to high risk of future general recidivism, 2 including potential violence,” which is an increase from the 3 finding during his exams in 2005 that he represented a low and a 4 low to moderate risk of recidivism. 5 Pet. Ex. B at 5, Ex. K at 10.) 6 (Id. Ex. A at 15; First Am. Releasing petitioner despite evidence that he may 7 present a current risk to the public directly conflicts with the 8 purpose of California’s parole scheme. 9 Cal. at 1205-06. See In re Lawrence, 44 Therefore, even if the state court was 10 unreasonable in finding that the parole board’s decision 11 satisfied the “some evidence” standard, the parole board should 12 also have the opportunity to determine whether petitioner’s 13 entitlement to parole would have, in essence, been rescinded 14 based on his conduct after the 2005 hearing. 15 IT IS THEREFORE ORDERED the Magistrate Judge’s Findings 16 and Recommendations filed March 5, 2010 are rejected, and 17 petitioner’s petition for a writ of habeas corpus is hereby 18 DENIED. 19 DATED: April 12, 2010 20 21 22 23 24 25 26 27 28 21
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