(HC)Hyde v. Moore, No. 2:2009cv03240 - Document 14 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Timothy J. Bommer on 12/22/2010 RECOMMENDING that the 1 Petitioner's Application for writ of habeas corpus be denied. Referred to Judge Frank C. Damrell, Jr. Objections due within 21 days after being served with these findings and recommendations. (Donati, J)
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(HC)Hyde v. Moore Doc. 14 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 PAUL E. HYDE, 11 Petitioner, 12 vs. 13 No. CIV S-09-3240-FCD-TJB STEVE MOORE, 14 Respondent. 15 / 16 17 FINDINGS AND RECOMMENDATIONS I. INTRODUCTION Petitioner Paul E. Hyde is a state prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that 19 habeas relief be denied. 20 21 22 II. PROCEDURAL HISTORY Petitioner is currently serving a sentence of seven years to life. Pet’r’s Pet. 1, ECF No. 1;1 see also Hyde v. Moore, No. CIV S-08-1365-FCD-TJB, 2010 WL 4321606, at *1 (E.D. Cal. 23 24 25 26 1 The Case Management/Electronic Case Files (CM/ECF) docketing and file system is implemented, which allows the parties to electronically file pleadings and documents. For pleadings or documents submitted in paper format, the filing is scanned and stored electronically into the CM/ECF system, except for lodged documents. Each page of the electronic filing is numbered chronologically, whether or not the party numbered it. If the filing is lengthy, the 1 Dockets.Justia.com 1 Oct. 26, 2010). “In 1973, at age 19, in the Los Angeles County Superior Court [C]ase No. 2 A068239, [Petitioner] was convicted of first degree murder (§ 187; count 5), four counts of 3 robbery of the first degree (§ 211; counts 1, 2, 6 & 7), assault with a deadly weapon with the 4 intent to commit murder (former § 217; count 3), and assault by means of force likely to produce 5 great bodily injury and with a deadly weapon (§ 245, subd. (a)(1); count 4), each with the 6 personal use of a firearm (§ 12022.5).” Hyde, 2010 WL 4321606, at *1 (quoting In re Hyde, 154 7 Cal. App. 4th 1200, 1202, 65 Cal. Rptr. 3d 162 (2007)) (internal quotation marks omitted). In 8 the instant action, Petitioner challenges the decision by the California Board of Parole Hearings 9 (the “Board”) denying Petitioner parole. Petitioner appeared before the Board on April 19, 2007. 10 Dated August 16, 2007, Petitioner’s petition for writ of habeas corpus was filed in the 11 Los Angeles County Superior Court challenging the Board’s decision.2 See Resp’t’s Answer Ex. 12 1, ECF No. 10. In a decision dated October 29, 2007, the Superior Court issued a reasoned 13 decision denying parole. See Resp’t’s Answer Ex. 2. 14 On April 8, 2008, Petitioner sought relief in the California Court of Appeal, Second 15 Appellate District. See Resp’t’s Answer Ex. 3. On May 8, 2008, the California Court of Appeal 16 denied the petition without comment or citation. See Resp’t’s Answer Ex. 4. 17 On June 9, 2008, Petitioner sought relief in the California Supreme Court. See Resp’t’s 18 Answer Ex. 5. On December 17, 2008, the California Supreme Court denied the petition with 19 only a citation to People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 2d 259, 886 P.2d 1252 20 (1995). See Resp’t’s Ex. 6. 21 On November 20, 2009, Petitioner filed the instant federal petition for writ of habeas 22 23 24 25 26 document is divided into parts. Here, when a page number for a filed pleading or document is cited, the CM/ECF page number is used when available, which may not coincide with the page number that the parties used. 2 The Superior Court’s decision states Petitioner filed his state habeas petition on July 20, 2007, see Resp’t’s Answer Ex. 2, at 2, but the record in the instant case does not reflect that date. See Resp’t’s Answer Ex. 1. 2 1 corpus. See Pet’r’s Pet. Respondent filed an answer to the petition on October 22, 2010, see 2 Resp’t’s Answer, to which Petitioner filed a traverse on November 2, 2010. See Pet’r’s Traverse, 3 ECF No. 11. 4 5 III. FACTUAL BACKGROUND A. Commitment Offense3 6 The record reflects that on December 7, 1972, . . . Petitioner robbed William and Maureen Wilson at gunpoint at their bicycle shop. After taking the money from Mr. Wilson’s wallet, . . . Petitioner directed both victims into the bathroom and told them that if they did not wait five minutes before coming out, he would kill them. On December 9, 1972, . . . Petitioner robbed Leandra Lack, an attendant at a service station. . . . Petitioner ordered Ms. Lack to open a cash box and took the money from it. He then directed Ms. Lack to face the wall. As Ms. Lack tried to comply with . . . Petitioner’s orders, he shot her twice, hitting her once in her back and once in her leg. On January 8, 1973, . . . Petitioner shot and killed Rueben Holtzkener in a suspected armed robbery at Mr. Holtzkener’s shoe repair store. Mr. Holtzkener was shot once in the chest and once in the abdomen and it appeared that money was missing from the opened cash drawer. On January 9, 1973, . . . Petitioner and an accomplice robbed Juan Nieves and Jenny Charr at gunpoint at a fast food restaurant. He stole money from the cash register and fled. Finally, on January 10, 1973, . . . Petitioner robbed Larry Mendez at gunpoint at an ice cream shop and stole money from that cash register. Subsequent ballistics tests matched the bullets found in Ms. Lack and Mr. Holtzkener to a gun found in . . . Petitioner’s apartment and witnesses identified . . . Petitioner as the person who committed the other robberies. 7 8 9 10 11 12 13 14 15 16 17 18 Resp’t’s Answer Ex. 2, at 3. 19 B. April 19, 2007, Parole Hearing 20 On April 19, 2007, the Board held Petitioner’s “21st subsequent parole hearing.” Pet’r’s 21 Pet. Ex. K, pt. 2, at 6. For at least the past twenty years, Petitioner had the same attorney 22 representing him at parole hearings. Id. However, at the April 19, 2007, parole hearing, 23 3 24 25 26 These facts are from the Superior Court’s opinion issued on October 29, 2007. See Resp’t’s Answer Ex. 2, at 3. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, a determination of fact by the state court is presumed to be correct unless Petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). 3 1 Petitioner had a new attorney because the previous one was “deceased,” having been “murdered 2 in his driveway [on] January 29th, [2007,] . . . .” Id. Petitioner was “nervous” because previous 3 counsel “knew how [he] got to the place [he is] at now,” and if Petitioner “missed something,” 4 previous counsel “knew how to fill it in.” Id. at 7. 5 During the hearing, the Board added that “just for clarification,” it “incorporate[d] by 6 reference” the January 3, 2007, Superior Court decision by the Honorable Steven R. Van Sicklen, 7 which granted Petitioner habeas relief. Id. at 121; see Pet’r’s Pet. Ex. A, pt. 1, at 27-28; see also 8 Hyde, 2010 WL 4321606, at *1. In the January 3, 2007, decision, the Superior Court 9 “remand[ed] the order to the Board to reconsider its decision and to conduct a new hearing 10 within 45 days of service of this order to reconsider [Petitioner’s] suitability for parole . . . .” 11 Pet’r’s Pet. Ex. A, pt. 1, at 28. At the April 19, 2007, hearing, the Board stated “a writ of habeas 12 corpus is the reason that brings us all here today.” Pet’r’s Pet. Ex. K, pt. 1, at 121. 13 At the hearing, the Board discussed Petitioner’s background. Id. at 91. Petitioner is the 14 “third of six children.” Id. at 110. Petitioner was “born in Los Angeles, raised by both parents,” 15 and is “the only person in [his family] to have been arrested.” Id. Petitioner “complete[d] the 16 12th grade, but did not receive a diploma because [he] w[as] a few units short for graduation . . . 17 .” Id. For the last five months of high school, Petitioner “lived with [his] maternal grandmother 18 in Los Angeles.” Id. Petitioner’s mother stated “she sent [Petitioner] there for [his] own safety” 19 because Petitioner claimed he witnessed an arrest and “purported beating by police officers by a 20 youngster who later hung himself in jail.” Id. Petitioner also alleged “he was picked up by 21 police, beaten and threatened to keep his mouth shut,” but a “polygraph . . . showed deception.” 22 Id. Petitioner “worked part-time and full-time during the summer,” and did “various odds and 23 ends sorts of jobs.” Id. Petitioner “notes his family has always been close and supportive. He 24 continues to receive frequent family visits, phone calls or letters. He reports none of his 25 immediate family have substance abuse problems, major mental health problems or a criminal 26 record.” Pet’r’s Pet. Ex. G, pt. 1, at 48. Petitioner also has no history of drug or alcohol abuse, 4 1 Pet’r’s Pet. Ex. K, pt. 1, at 112-13, and no history of juvenile convictions. Pet’r’s Pet. Ex. G, pt. 2 1, at 50. 3 At the time of the commitment offense, Petitioner was unmarried. Petitioner has been 4 married twice since his incarceration. Pet’r’s Pet. Ex. K, pt. 1, at 112. “The first marriage was in 5 1977 and divorced in 1982,” with “[n]o children from that marriage.” Id. Petitioner was married 6 again in 1983, and had one child from that marriage, who was twenty-eight years old at the time 7 of the hearing. Id. 8 9 Petitioner performed well in prison. See, e.g., Pet’r’s Pet. Ex. G, pt. 1, at 48-50; see also, e.g., Pet’r’s Pet. Ex. K, pt. 1, at 127-31. Petitioner “has a lengthy documented history of 10 participation in educational and self-improvement activities.” Pet’r’s Pet. Ex. G, pt. 1, at 49; see 11 Pet’r’s Pet. Ex. K, pt. 1, at 129-30. In 1974, Petitioner received his high school diploma while 12 incarcerated, and “[s]ince then, he has taken many college courses.” Pet’r’s Pet. Ex. G, pt. 1, at 13 48. Petitioner had “exceptional work skills,” Pet’r’s Pet. Ex. K, pt. 1, at 134, and “consistently 14 received above average to exceptional job ratings by his supervisors.” Pet’r’s Pet. Ex. G, pt. 1, at 15 50. Petitioner was “confident” he could “obtain employment in the computer field, and that [he] 16 possess[ed] [p]lumbing, [e]lectronics, [g]lazing, [and] [p]ainting skills.” Pet’r’s Pet. Ex. K, pt. 1, 17 at 133. At the time of the hearing, Petitioner “had several offers [of employment] last year, 18 which still remain[ed] available.” Id. 19 20 21 22 23 24 25 26 After the Deputy District Attorney presented his closing arguments, the Board denied Petitioner parole for a period of one year. The Board explained: PRESIDING COMMISSIONER DAVIS: Okay. Without question, [Petitioner], the [Board] . . . takes nothing away from the work that you’ve done since 1991, that clearly you have amassed many, many positive things. However, these positive aspects of behavior do not outweigh the factors for unsuitability. This is a one-year denial. The [Board] will recommend that you remain disciplinary free, that . . . you continue to participate in self-help, that you participate in independent reading, which you clearly are doing already, and we would [re]commend to you that . . . the [Board] will accept short reports, two or three paragraphs indicating an understanding of what you have read, what effect it 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 has on you in terms of your particular situation. For example, in your case, maybe a greater understanding of what the specific triggers were that led to this situation, and that you can review the record itself and perhaps, if for no one else other than yourself, come to an understanding of what occurred and more . . . importantly[,] why it occurred. And the [Board] will be requesting a new psychological evaluation to be prepared under our new format prior to the next hearing. And Commissioner, you had some things you wanted to add. DEPUTY COMMISSIONER WEAVER: Yes. I would suggest to you, [Petitioner], that when you have a chance for an Olsen review, that you look through all the documents in your files even though they’re voluminous[.] . . . I believe there are four files, and that you take the time to ensure that the documents that are in there are correct and accurate. I also think in preparation for the next hearing -- and I know you’re capable of keeping good records by evidence of the folders that you have presented, I would also recommend and the [Board] would recommend that you look at the psych reports and the Board reports and make a record of discrepancies and things that you wish to have clarified once and for all so that the [Boards] have a better understanding when and if you told less than the truth and when you did tell the truth so that there’s an accurate record of what occurred or what you believe occurred. That’s all I have. PRESIDING COMMISSIONER DAVIS: All right. Thank you. All right. [Petitioner], we do wish you the best of luck. And we are adjourned. Pet’r’s Pet. Ex. K, pt. 2, at 52-54 (emphasis added). 17 C. State Court Decision 18 On October 29, 2007, the Superior Court found that some evidence supported the Board’s 19 20 21 22 23 24 25 26 decision and denied Petitioner’s habeas petition, stating, in relevant part: Petitioner challenges the Board’s April 19, 2007 decision denying parole. . . . Petitioner was denied parole for one year. The Board concluded that . . . Petitioner was unsuitable for parole and would pose an unreasonable risk of danger to society and a threat to public safety. The Board based its decision on several factors, including his commitment offenses and his early institutional behavior. The Court finds that there is some evidence to support the Board’s finding that there were multiple victims who were attacked, injured, or killed during the offense. Cal. Code Regs., tit. 15, § 2281, subd. (c)(1)(A). Seven total victims were attacked and made to fear for their lives, as . . . Petitioner robbed them at gunpoint. 6 1 Ms. Lack was seriously injured when . . . Petitioner shot her twice, hitting her in the back and leg. Additionally, . . . Petitioner shot Mr. Holtzkener to death, with one fatal shot to the chest and one shot to the abdomen. 2 3 The Court also finds that there is some evidence to support the Board’s findings that the commitment offenses were carried out in a dispassionate and calculated manner and that the Petitioner’s motive was very trivial in relation to the offenses. Cal. Code Regs., tit. 15, § 2281, subds. (c)(1)(D)4 and (c)(1)(E). . . . Petitioner armed himself with a gun and went to each place of business with the predetermined intent of robbing the clerks or attendants at gunpoint. In each instance, he stole money from either the victim’s wallet, or from the cash drawer or register at the store. Even after the shooting of Ms. Lack and the tragic death of Mr. Hotzkener, . . . Petitioner planned and committed an additional two robberies. These actions were planned, deliberate, dispassionate and calculated. Additionally, . . . Petitioner’s motive of obtaining the amount of rent his pay would not cover is extremely trivial in relation to robbing seven individuals at gunpoint, shooting and seriously injuring one victim, and shooting another victim to death. 4 5 6 7 8 9 10 11 12 Additionally, the Court finds that there is some evidence to support the Board’s finding that . . . Petitioner’s institutional behavior supports a finding of unsuitability. Cal. Code. Regs., tit. 15, § 2281, subd. (c)(6). Although . . . Petitioner has commendably avoided any serious discipline for 16 years, he had several serious 115 violations early in his incarceration. . . . Petitioner received a total of 14 serious 115s including one for inciting violence, one for fighting, and on[e] for possessing an inmate manufactured weapon, for which he also received a conviction. 13 14 15 16 17 The Board also considered the 2005 psychological report’s assessment that . . . Petitioner struggles to acknowledge his faults. While this factor may not justify a finding of unsuitability, the Board may properly consider it as a relevant determination of whether . . . Petitioner is suitable for parole. Cal. Code. Regs., tit. 15, § 2281(b). Additionally, the Board considered the opposition from the District Attorney. Although the District Attorney’s opposition to Petitioner’s release is not a factor on which the Board may rely to deny parole, the Board is required to consider such opposition. Cal. Penal Code § 3402. The Board’s consideration of the District Attorney’s concerns was not improper and was not the basis for denying parole. 18 19 20 21 22 23 24 4 25 26 The Superior Court probably meant to cite section 2281(c)(1)(B), which states: “The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder.” In contrast, section 2281(c)(1)(D) states: “The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.” 7 1 2 3 4 5 The Board also considered . . . Petitioner’s post-conviction gains, including his ability to remain discipline-free for 16 years; his participation in many self-help programs; the programs that he initiated while incarcerated, such as the victim awareness program, conflict resolution, and a walk-a-thon for breast-cancer; the high school diploma and college credits he earned; his exceptional work reports and many vocational skills he learned; as well as the many positive chronos he earned. However, they still concluded that . . . Petitioner would pose an unreasonable threat to public safety. Penal Code § 3041(b). 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 In light of the recent Court of Appeal decisions, the Court finds that there is some evidence to support the Board’s determination that because of the nature of his commitment offense and the behavioral problems early in his incarceration. While the commitment offense occurred over 34 years ago and the serious disciplines all occurred over 16 years ago, these factors constitute the “modicum of evidence” necessary to support a Board’s decision to deny parole. As indicated in [In re] Rosenkrantz, . . . [(2002)] 29 Cal.4th [616,] 677, [128 Cal. Rptr. 2d 104, 59 P.3d 174,] it is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence that demonstrates unsuitability for parole, as long as there is some evidence to support the finding of unsuitability. See, In re Jacobson (2007) 154 Cal.App.4th 849, 860[,] [65 Cal. Rptr. 3d 222]; and [In re] Hyde, [(2007)] 154 Cal.App.4th [1200,] 1213[,] [65 Cal. Rptr. 3d 162]. . . . Petitioner’s remaining arguments that the Board failed to comply with the Court’s January 3, 2007 order are without merit. The Board conducted a full hearing in compliance with the order and, as discussed above, the Board’s decision is supported by some evidence. Resp’t’s Answer Ex. 2, at 3-5. IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state 21 court can be granted only for violations of the Constitution or laws of the United States. 28 22 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. 23 Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). 24 This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, 25 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 26 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under 8 1 AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in 2 state court proceedings unless the state court’s adjudication of the claim: 3 4 5 6 (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. 7 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. 8 Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). 9 In applying AEDPA’s standards, the federal court must “identify the state court decision 10 that is appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). 11 “The relevant state court determination for purposes of AEDPA review is the last reasoned state 12 court decision.” Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). 13 “Where there has been one reasoned state judgment rejecting a federal claim, later unexplained 14 orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. 15 Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts 16 must conduct an independent review of the record to determine whether the state court clearly 17 erred in its application of controlling federal law, and whether the state court’s decision was 18 objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). “The 19 question under AEDPA is not whether a federal court believes the state court’s determination 20 was incorrect but whether that determination was unreasonable--a substantially higher 21 threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). 22 “When it is clear, however, that the state court has not decided an issue, we review that question 23 de novo.” Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 24 545 U.S. 374, 377 (2005)). 25 V. CLAIMS FOR REVIEW 26 The petition for writ of habeas corpus sets forth four grounds for relief, which are 9 1 identical to the grounds discussed in the previous findings and recommendations. Hyde, 2010 2 WL 4321606, at *10. First, Petitioner argues that the Board erred because of “continued reliance 3 on the commitment offense which will never change.” Pet’r’s Pet. pt. 1, at 6. Second, Petitioner 4 asserts he is entitled to parole because he served “beyond the maximum time contained in the 5 matrix.” Id. Third, Petitioner claims his due process rights were violated at the parole hearing. 6 Id. Fourth, Petitioner alleges there is “no evidence of current risk.” Id. For the following 7 reasons, Petitioner’s allegations lack merit. 8 A. Procedural Default and Exhaustion 9 The California Supreme Court denied Petitioner’s state habeas petition on procedural 10 grounds, with only a citation to People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 2d 259, 886 11 P.2d 1252 (1995). See Resp’t’s Answer Ex. 6. Arguably, Petitioner may have procedurally 12 defaulted his entire petition. However, Respondent only contends Petitioner failed to exhaust his 13 matrix argument in state court. Specifically, “Respondent admits that Petitioner exhausted his 14 state court remedies on his some evidence claim, and denies that Petitioner exhausted his state 15 court remedies to the extent they are interpreted more broadly to include systematic issues 16 beyond the 2007 parole hearing.” Resp’t’s Answer 2. Since Petitioner argues his due process 17 rights were also violated because his imprisonment “exceed[s] the maximum time contained in 18 the matrix,” Pet’r’s Pet. pt. 1, at 15, Respondent implies only that Petitioner failed to exhaust this 19 claim. 20 21 1. Legal Standard for Procedural Default and Exhaustion “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available 22 state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the ‘opportunity to pass upon 23 and correct’ alleged violations of prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 24 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)); see Rose v. Lundy, 25 455 U.S. 509, 522 (1982) (“[W]e hold that a district court must dismiss habeas petitions 26 containing both unexhausted and exhausted claims.”). “The state courts have been given a 10 1 sufficient opportunity to hear an issue when the petitioner has presented the state court with the 2 issue’s factual and legal basis.” Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (citing 3 Duncan, 513 U.S. at 365 (legal basis); Correll v. Stewart, 137 F.3d 1404, 1411-12 (9th Cir. 4 1998) (factual basis)). “A petitioner has satisfied the exhaustion requirement if: (1) he has 5 ‘fairly presented’ his federal claim to the highest state court with jurisdiction to consider it[;] . . . 6 or (2) he demonstrates that no state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 7 829 (9th Cir. 1996) (citations omitted). 8 9 Regardless of whether the claim was raised on direct appeal or in a post-conviction proceeding, the exhaustion doctrine requires that each claim be fairly presented to the state’s 10 highest court. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Although the exhaustion 11 doctrine requires only the presentation of each federal claim to the highest state court, the claims 12 must be presented in a posture that is acceptable under state procedural rules. See Sweet v. Cupp, 13 640 F.2d 233, 237-38 (9th Cir. 1981). An appeal or petition for post-conviction relief that is 14 denied by the state courts on procedural grounds, where other state remedies are still available, 15 does not exhaust the petitioner’s state remedies. See Pitchess v. Davis, 421 U.S. 482, 488 16 (1979); Sweet, 640 F.2d at 237-38. 17 A habeas petition is procedurally defaulted when the last reviewing state court dismissed 18 it for failure to comply with a state rule of procedure. Trest v. Cain, 522 U.S. 87, 88-90 (1997); 19 Lambright v. Stewart, 241 F.3d 1201, 1205 (9th Cir.2001). When the procedural rule is 20 independent of federal law and adequate to support the judgment, federal review of the claims is 21 barred unless the petitioner can demonstrate either cause for the default and actual prejudice 22 resulting from the alleged constitutional violations, or that failure to consider the claims will 23 result in a fundamental miscarriage of justice. Carter v. Giurbino, 385 F.3d 1194, 1196-97 (9th 24 Cir. 2004) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Procedural default is an 25 affirmative defense, and once the respondent has adequately pled the existence of independent 26 and adequate state procedural grounds, the burden to place that defense in issue shifts to the 11 1 petitioner. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). 2 3 2. Analysis of Procedural Default The last court to review Petitioner’s claims was the California Supreme Court, which 4 issued a one sentence denial of the petition, citing People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. 5 Rptr. 2d 259, 886 P.2d 1252 (1995). See Lodged Doc. 6. Under California law, a citation to 6 Duvall indicates that a petitioner has failed to state his claim with sufficient particularity for the 7 state court to examine the merits of the claim, and/or has failed to “include copies of reasonably 8 available documentary evidence supporting the claim, including pertinent portions of trial 9 transcripts and affidavits or declarations.” Duvall, 9 Cal. 4th at 474, 37 Cal. Rptr. 2d 259, 886 10 P.2d 1252. A failure to comply with this requirement is a pleading defect subject to cure by 11 amendment. 12 Here, Respondent has waived the affirmative defense of procedural default by failing to 13 raise it in the answer, and “[a] court . . . is not ‘required’ to raise the issue of procedural default 14 sua sponte.” Trest, 522 U.S. at 89; see Resp’t’s Answer 2 (“Respondent admits that Petitioner 15 exhausted his state court remedies on his some evidence claim, and denies that Petitioner 16 exhausted his state court remedies to the extent they are interpreted more broadly to include 17 systematic issues beyond the 2007 parole hearing.”). Rather, “a district court may raise the 18 defense of procedural default sua sponte if to do so serves the interests of justice, comity, 19 federalism, and judicial efficiency.” Windham v. Merkle, 163 F.3d 1092, 1100 (9th Cir. 1998) 20 (citation omitted). In the instant case, Petitioner’s state petition appears to satisfy the Duvall 21 pleading requirements, because it “both (i) states fully and with particularity the facts upon which 22 relief is sought . . . as well as (ii) includes copies of reasonably available documentary evidence 23 supporting the claim, including pertinent portions of trial transcripts and affidavits or 24 declarations.” Duvall, 9 Cal. 4th at 474, 37 Cal. Rptr. 2d 259, 886 P.2d 1252 (citations omitted). 25 Raising the issue of procedural default sua sponte here will not serve the interests of justice and 26 comity because the refusal by the California Supreme Court to consider the merits of Petitioner’s 12 1 claims does not appear to be supported by the record, and because Respondent has waived the 2 affirmative defense of procedural default. 3 3. Analysis of Exhaustion 4 Here, Petitioner raised the matrix argument in his state habeas petitions to the California 5 Court of Appeal and the California Supreme Court, but not in his state habeas petition to the 6 Superior Court. Compare Resp’t’s Answer Ex. 3, at 13, 19 (California Court of Appeal), and 7 Resp’t’s Answer Ex. 5, pt. A, at 13 (California Supreme Court), with Resp’t’s Answer Ex. 1 8 (Superior Court). “[T]he California Constitution provides that each of the three levels of state 9 courts -- Superior Courts, Courts of Appeal, and the Supreme Court -- has ‘original jurisdiction 10 in habeas corpus proceedings.’” Gaston v. Palmer, 387 F.3d 1004, 1010 (9th Cir. 2004) (quoting 11 Cal. Const. art. VI, § 10), amended for other reasons by 447 F.3d 1165 (9th Cir. 2006). A 12 California prisoner may file an original habeas petition in each of the three courts, and each court 13 may exercise its original jurisdiction. See, e.g., In re Clark, 5 Cal. 4th 750, 760-62, 21 Cal. Rptr. 14 2d 509, 855 P.2d 729 (1993) (noting petitioner’s first habeas application was filed in California 15 Supreme Court). Since Petitioner presented the matrix argument to the California Supreme 16 Court, “the highest state court with jurisdiction to consider it,” Johnson, 88 F.3d at 829, this 17 claim is exhausted. 18 Even if Petitioner’s claim is unexhausted, an application for a writ of habeas corpus may 19 be denied on the merits, notwithstanding the applicant’s failure to exhaust available state 20 remedies. 28 U.S.C. § 2254(b)(2). A federal court considering a habeas petition may deny an 21 unexhausted claim on the merits when it is perfectly clear that the claim is not “colorable.” 22 Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Here, Petitioner’s matrix argument also 23 fails on the merits, and this matter is now ready for decision. See infra Part V.C.2. 24 B. Legal Standard for Parole Denial 25 The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives 26 a person of life, liberty, or property without due process of law. A person alleging a due process 13 1 violation must first demonstrate that he or she was deprived of a protected liberty or property 2 interest, and then show that the procedures attendant upon the deprivation were not 3 constitutionally sufficient. Ky. Dep’t. of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989); 4 McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002). 5 1. Liberty Interest in Parole 6 A protected liberty interest may arise from either the Due Process Clause itself or from 7 state laws. Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution 8 does not, in and of itself, create for prisoners a protected liberty interest in the receipt of a parole 9 date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). The full panoply of rights afforded a 10 defendant in a criminal proceeding is not constitutionally mandated in the context of a parole 11 proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The Supreme 12 Court has held that a parole board’s procedures are constitutionally adequate if the inmate is 13 given an opportunity to be heard and a decision informing him of the reasons he did not qualify 14 for parole. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16 (1979). If a 15 state’s statutory parole scheme uses mandatory language, however, it “‘creates a presumption that 16 parole release will be granted’ when or unless certain designated findings are made,” thereby 17 giving rise to a constitutional liberty interest. McQuillion, 306 F.3d at 901 (quoting Greenholtz, 18 442 U.S. at 12). 19 Section 3041 of the California Penal Code sets forth the state’s legislative standards for 20 determining parole for life-sentenced prisoners. Subsection (a) provides that “[o]ne year prior to 21 the inmate’s minimum eligible parole release date a panel . . . shall again meet with the inmate 22 and shall normally set a parole release date . . . .” Subsection (b) provides an exception to the 23 regular and early setting of a life-sentenced individual’s term, if the Board determines “that the 24 gravity of the current convicted offense or offenses, or the timing and gravity of current or past 25 convicted offense or offenses, is such that consideration of the public safety requires a more 26 lengthy period of incarceration . . . .” Based on this statute, California state prisoners who have 14 1 been sentenced to prison with the possibility of parole have a clearly established, constitutionally 2 protected liberty interest in receipt of a parole release date. Allen, 482 U.S. at 377-78 (quoting 3 Greenholtz, 442 U.S. at 12); Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007) (citing Sass v. 4 Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006)); Biggs v. Terhune, 334 F.3d 910, 5 914 (9th Cir. 2003); McQuillion, 306 F.3d at 903. 6 7 2. Scope of Due Process Protection Additionally, as a matter of California state law, denial of parole to state inmates must be 8 supported by at least “some evidence” demonstrating future dangerousness. Hayward v. 9 Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (en banc) (citing In re Lawrence, 44 Cal. 4th 10 1181, 82 Cal. Rptr. 3d 169, 190 P.3d 535 (2008); In re Shaputis, 44 Cal. 4th 1241, 82 Cal. Rptr. 11 3d 213, 190 P.3d 573 (2008); In re Rosenkrantz, 29 Cal. 4th 616, 128 Cal. Rptr. 2d 104, 59 P.3d 12 174 (2002)). California’s “some evidence” requirement is a component of the liberty interest 13 created by the state’s parole system. Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). The 14 federal Due Process Clause requires, in turn, that California comply with its own “some 15 evidence” requirement. Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010) (per curiam). A 16 reviewing court such as this one must “decide whether the California judicial decision approving 17 the . . . decision rejecting parole was an ‘unreasonable application’ of the California ‘some 18 evidence’ requirement, or was ‘based on an unreasonable determination of the facts in light of 19 the evidence.’” Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(2)). 20 The analysis of whether some evidence supports the denial of parole to a California state 21 inmate is framed by the state’s statutes and regulations governing parole suitability 22 determinations. See Irons, 505 F.3d at 851. A reviewing court “must look to California law to 23 determine the findings that are necessary to deem [a petitioner] unsuitable for parole, and then 24 must review the record to determine whether the state court decision holding that these findings 25 were supported by ‘some evidence’ . . . constituted an unreasonable application of the ‘some 26 evidence’ principle.” Id. 15 1 2 3. California’s Parole Scheme The “ISL,” or “Indeterminate Sentence Law,” “refers to sections of the Penal Code and 3 other Codes as they were operative prior to July 1, 1977.” CAL. CODE REGS. tit. 15, § 4 2000(b)(59). Under the ISL, which was California’s pre-1977 sentencing regime, “almost all 5 convicted felons received indeterminate terms, often with short minimums and life maximums. 6 Within this broad range, the parole authority was given virtually unbridled statutory power to 7 determine and redetermine, after the actual commencement of the imprisonment, what length of 8 time, if any, such person shall be imprisoned,” and when to allow those prisoners to be released 9 on parole. In re Dannenberg, 34 Cal. 4th 1061, 1088, 23 Cal. Rptr. 3d 417, 104 P.3d 783 (2005) 10 (internal quotation marks omitted). An “ISL Prisoner” is “[a] person sentenced to prison for a 11 crime committed on or before June 30, 1977, who would have been sentenced pursuant to Penal 12 Code section 1170 if he had committed the crime on or after July 1, 1977.” CAL. CODE REGS. tit. 13 15, § 2000(b)(1); cf. CAL. PENAL CODE § 1170(a)(1) (declaring court should impose, with 14 specified discretion, “determinate sentences fixed by statute in proportion to the seriousness of 15 the offense as determined by the Legislature” (emphasis added)). Currently, parole consideration 16 criteria and guidelines for ISL prisoners are governed by title 15, sections 2315 et seq., of the 17 California Code of Regulations. 18 In the 1970s, California replaced its ISL system with a determinate sentencing scheme. 19 The “DSL,” or “Uniform Determinate Sentencing Act of 1976,” “refers to sections of the Penal 20 Code and other Codes as they became operative July 1, 1977.” CAL. CODE REGS. tit. 15, § 21 2000(b)(37). A “DSL Prisoner” is “[a] person sentenced to prison pursuant to Penal Code 22 section 1170 for a crime committed on or after July 1, 1977.” CAL. CODE REGS. tit. 15, § 23 2000(b)(2). Under section 2000(b)(2), “once an ISL prisoner has received a retroactively 24 calculated DSL release date[,] all rules applying to DSL prisoners apply to the ISL prisoner’s 25 DSL release date and parole.” 26 Here, as stated in the previous findings and recommendations, in 1973, Petitioner “was 16 1 convicted of first degree murder, four counts of robbery in the first degree, assault with a deadly 2 weapon with the intent to commit murder, and assault by means of force likely to produce great 3 bodily injury and with a deadly weapon, each with the personal use of a firearm.” Hyde, 2010 4 WL 4321606, at *12 (quoting In re Hyde, 154 Cal. App. 4th at 1202, 65 Cal. Rptr. 3d 162) 5 (internal quotation marks omitted). “The trial court sentenced [Petitioner] pursuant to the 6 Indeterminate Sentencing Law to a term of life for the count 5 first degree murder.” Id. (citation 7 and internal quotation marks omitted). Petitioner’s “1973 convictions predate the enactment of 8 the 1977 Determinate Sentencing Law.” Id. (citation and internal quotation marks omitted). 9 Further, Petitioner never “received a retroactively calculated DSL release date.” CAL. 10 CODE REGS. tit. 15, § 2000(b)(2). The Board and Superior Court both acknowledged 11 “[Petitioner’s] minimum parole eligibility date was January 13, 1980.” Lodged Doc. 2, at 2; see 12 Pet’r’s Pet. Ex. K, pt. 1, at 87. Section 2000(b)(2), which provides that “all rules applying to 13 DSL prisoners” apply to ISL prisoners who “received a retroactively calculated DSL release 14 date,” is irrelevant here. 15 Rather than applying sections 2315 et seq., for ISL prisoners, the Board and Superior 16 Court considered parole suitability and unsuitability factors for “life prisoners” under title 15, 17 section 2281 of the California Code of Regulations. See Resp’t’s Answer Ex. 2, at 2 (Superior 18 Court); Pet’r’s Pet. Ex. K, pt. 1, at 87 (Board). A “Life Prisoner” is “[a] prisoner serving a 19 sentence of life with the possibility of parole.” CAL. CODE REGS. tit. 15, § 2000(b)(3). The “Life 20 Prisoner” definition lists crimes for which “[l]ife sentences may be imposed,” id., including (A) 21 “[f]irst degree murder (Penal Code section 187);” and (B) “[s]econd degree murder (Penal Code 22 section 187) committed on or after November 8, 1978.” CAL. CODE REGS. tit. 15, § 23 2000(b)(3)(A)-(B) (emphasis added). Since a “Life Prisoner” includes prisoners convicted of 24 first degree murder with no time constrictions, Petitioner, who was convicted of first degree 25 murder, is a “Life Prisoner” under a strict interpretation of section 2000(b)(3)(A). Parole 26 guidelines for life prisoners under section 2281 appear to apply here. 17 1 But, new DSL regulations amended section 2281(c) (listing circumstances tending to 2 show unsuitability), meaning section 2281 applies to DSL, not ISL, prisoners. See Cal. Admin. 3 Reg. 79, No. 26 (June 28, 1979); see also In re Duarte, 143 Cal. App. 3d 943, 948-49, 193 Cal. 4 Rptr. 176 (1983); In re Seabock, 140 Cal. App. 3d at 38-39, 189 Cal. Rptr. 310 (1983). Sections 5 2315 et seq., for ISL prisoners, rather than section 2281 under the new DSL regulations, should 6 apply here because Petitioner’s 1973 convictions predate the enactment of the 1977 Determinate 7 Sentencing Law. However, in Connor v. Estelle, the Ninth Circuit held that applying DSL, rather 8 than ISL, suitability criteria does not violate due process because “ISL and DSL guidelines apply 9 identical criteria in determining parole suitability.” 981 F.2d 1032, 1034-35 (9th Cir. 1992) 10 (citing In re Duarte, 143 Cal. App. 3d at 951, 193 Cal. Rptr. 176 (1983)). For consistency 11 purposes, section 2281 is the legal standard recited here. 12 Title 15, section 2281 of the California Code of Regulations sets forth various factors to 13 be considered by the Board in its parole suitability findings for life prisoners. “All relevant, 14 reliable information available to the [Board] shall be considered in determining suitability for 15 parole.” CAL. CODE REGS. tit. 15, § 2281(b). This includes: 16 20 [T]he 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. 21 Id. The regulation also lists specific circumstances which tend to show suitability or unsuitability 22 for parole. Id. § 2281(c)-(d). 17 18 19 23 Under section 2281(c)(1), factors relating to a commitment offense tend to show 24 unsuitability for parole where (A) multiple victims were attacked, injured or killed; (B) the 25 offense was carried out in a dispassionate and calculated manner, such as an execution-style 26 murder; (C) the victim was abused, defiled or mutilated; (D) the offense was carried out in a 18 1 manner which demonstrates an exceptionally callous disregard for human suffering; or (E) the 2 motive for the crime is inexplicable or very trivial in relation to the offense. Id. § 2281(c)(1)(A)- 3 (E). 4 5 6 Other circumstances tending to indicate unsuitability include: (2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age. 7 8 9 10 11 (3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others. (4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim. (5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense. 12 13 14 15 16 17 18 (6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail. Id. § 2281(c)(2)-(6). Section 2281(d) sets forth circumstances tending to show suitability, which include: (1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims. (2) Stable Social History. The prisoner has experienced reasonably stable relationships with others. 19 20 21 (3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or the prisoner has given indications that he understands the nature and magnitude of the offense. 22 23 (4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress had built over a long period of time. 24 25 26 (5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization. 19 1 (6) Lack of Criminal History. The prisoner lacks any significant history of violent crime. 2 3 4 5 6 (7) Age. The prisoner’s present age reduces the probability of recidivism. (8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release. (9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release. 7 8 Id. § 2281(d)(1)-(9). 9 The overriding concern is public safety and the focus is on the inmate’s current 10 dangerousness. In re Lawrence, 44 Cal. 4th at 1205, 82 Cal. Rptr. 3d 169, 190 P.3d 535. Thus, 11 the proper articulation of the standard of review is not whether some evidence supports the stated 12 reasons for denying parole, but whether some evidence indicates that the inmate’s release would 13 unreasonably endanger public safety. In re Shaputis, 44 Cal. 4th at 1254, 82 Cal. Rptr. 3d 213, 14 190 P.3d 573. There must be a rational nexus between the facts relied upon and the ultimate 15 conclusion that the prisoner continues to be a threat to public safety. In re Lawrence, 44 Cal. 4th 16 at 1227, 82 Cal. Rptr. 3d 169, 190 P.3d 535. 17 C. Analysis of Parole Denial 18 1. Grounds One, Three and Four: Due Process and Some Evidence 19 Here, the state court decision appropriate for review is the Superior Court’s decision 20 because it is the “last reasoned state court decision.” Delgadillo, 527 F.3d at 925 (citations 21 omitted). Under AEDPA’s standards, the Superior Court properly held that “there is some 22 evidence” to show Petitioner’s current dangerousness. See Resp’t’s Answer Ex. 2, at 5. The 23 Superior Court considered Petitioner’s (1) commitment offenses; (2) institutional behavior; and 24 (3) 2005 psychological report. Id. at 3-5. 25 26 a. Commitment Offenses First, the Superior Court properly noted that the Board considered Petitioner’s 20 1 commitment offenses, among other factors, when denying parole. Id. The Board read into the 2 record the summary of Petitioner’s commitment offenses, taken from the probation officer’s 3 report and the November 2006 Board Report. Pet’r’s Pet. Ex. K, pt. 1, at 95-101. 4 5 The Board also read Petitioner’s first of two versions of the commitment offenses into the record: 6 [Petitioner] accepts total responsibility for the death of the victim and regrets the incident occurred. However, he claims he did not enter the store in order to rob the victim, but that he was trying to get away from some local youths who were pursuing him. The victim startled him and he turned and fired. He states that he never robbed him . . . but he did leave the premises immediately and made no attempt to aid the victim. He expresses remorse for the victim at this time. As of 9/27/2006, [Petitioner] continues to retain this statement as accurate. 7 8 9 10 11 Id. at 101-02. 12 Petitioner’s counsel expressed that Petitioner believed his “commitment offense was not 13 discussed” at the September 27, 2006, hearing, and the Board “simply took that statement . . . and 14 didn’t ask if [Petitioner] continued to agree with it.” Id. at 102, 107. The Board asked Petitioner 15 if he agreed with this statement, to which Petitioner’s counsel replied, “[Petitioner] is exercising 16 his right not to discuss the commitment offense and answering [the] question would obligate him 17 to do so.” Id. at 102. 18 19 20 21 22 23 24 25 The Board then read Petitioner’s second version of the commitment offenses into the record: [Petitioner] stated that the previous version was partially correct, however that they had misinterpreted his explanation in regard to how the victim was shot. [Petitioner] stated he was holding back the hammer of the gun when he was startled. The gun slipped and went off. He did not know Mrs. Lack had been shot. He heard her whimper and thought she was only frightened. He attempted to pull the hammer back again because he thought this was the way he was supposed to handle the gun. His hands were sweating and it slipped again. At this point Mrs. Lack was cowered in a corner. He did not know she had been hurt because if he had he would have helped her. He was interviewed on 9/22/2006 and he stated that this is still accurate as previously stated. 26 21 1 Id. at 107. Petitioner’s counsel, again, stated that the previous Board did not ask Petitioner if this 2 statement remained accurate. Id. The Board also questioned Petitioner how he made the “leap” 3 from “trying to make a living, working in a variety of different jobs, . . . to bringing a gun into a 4 business.” Id. at 114-15. Petitioner replied: 5 6 7 8 9 10 11 12 Again, without attempting to blame anyone else for my actions other than myself -- peer pressure. The influence of my friend who had done this many times and gotten away with it, who had a history of this, . . . he presented the idea. It fit right in with my sense of hyper-independence at the time, my inflated pride that would not allow me to go back to my family and ask for help, and they would have helped me, but I was too proud to go back to them and tell them that I had failed. I was a stubborn teenager trying to prove that I could make it on my own. And I had rationalized at the time that okay, I’ll take this money and then I’ll go give it back . . . when I get a job . . . . I told myself those sorts of stories to justify my actions. But . . . I went and I took what I needed to pay my rent, and when I didn’t have to pay rent, you know, nothing went on. And I kept trying to convince myself that one I got a steady job, you know, this type of activity would stop. 13 Id. at 115. The Board commented, “[O]ne would have thought that you would have had some 14 empathy for people who run [a] business because of your own experience in working as a store 15 clerk.” Id. at 114. 16 The record shows the Superior Court reasonably found “there were multiple victims who 17 were attacked, injured, or killed during the offenses[;]” “the commitment offenses were carried 18 out in a dispassionate and calculated manner[;]” and “Petitioner’s motive was very trivial in 19 relation to the offenses.” CAL. CODE REGS. tit. 15, § 2281(c)(1)(A), (B), (E). The Superior 20 Court reasonably held that the Board weighed the nature and gravity of Petitioner’s commitment 21 offenses when denying Petitioner parole. Id.; see id. § 2281(b). 22 23 b. Institutional Behavior Second, the Superior Court noted the Board properly considered Petitioner’s institutional 24 disciplinary record when denying parole. Resp’t’s Answer Ex. 2, at 4. The Board noted that 25 Petitioner had fourteen 115 violations,” including “[m]any of which involve violence.” Pet’r’s 26 Pet. Ex. K, pt. 1, at 146-47. The Board pointed out Petitioner had a violation “in 1991 for a 22 1 physical altercation and a fight;” “one for possession of an inmate manufactured weapon,” which 2 the Board “considered to be associated with violence;” and “one [in] 1986 for inciting others to 3 use force or violence.” Id. at 147. 4 5 6 7 8 9 10 11 12 13 14 15 The Board read into the record the offense summary for the possession of an inmate manufactured weapon: At approximately 11:25 a.m., [at the] California Men’s Medical Facility, C/O . . . P. Tidwell . . . observed [Petitioner] attempting to leave H-1 Housing Unit. As Officer Tidwell proceeded toward [Petitioner], she observed an inmate manufactured weapon in his right hand. Officer Tidwell activated her personal emergency alarm, and . . . [Petitioner] was stopped on the first floor corridor. Officer Greenfield talked [Petitioner] into relinquishing the weapon to him. Officer Greenfield passed the weapon over to Correctional Sergeant Hancock . . . . [Petitioner] was placed in mechanical restraints (handcuffs) and taken to Administrative Segregation. The inmate manufactured weapon (aluminum) was later measured to be approximately 15 and one half inches in length and one inch in width. It was sharpened on one end[,] with five inches on the other end wrapped in masking tape, forming a handle. This case was referred to the district attorney’s office for prosecution. [Petitioner] was also found guilty at the institutional level. On 3/2/1990, he was ordered by the CSR for a 10-month SHU term, . . . and on 8/31/1990, endorsed for an indeterminate SHU term at PBSP due to [Petitioner’s] history of SHU placement and continual negative behavior. 16 17 18 Id. at 109. The Board also read into the record Petitioner’s version of the event: [Petitioner] states he purposely displayed the weapon to draw [the] staff’s attention to problems which were ongoing at CMF. 19 20 Id. The Board commented that Petitioner was “obviously an intelligent man, and by 1989[,] 21 [Petitioner] had been in prison for a while.” Id. at 116. The Board elaborated that Petitioner 22 must have known the rules and ramifications, and Petitioner’s “explanation just strikes [the 23 Board] as incredible at a minimum that [he] would do something like that to draw . . . attention to 24 problems within the prison.” Id. 25 26 As discussed in depth in the previous findings and recommendation, the Board may consider Petitioner’s institutional history, including his conviction for an inmate manufactured 23 1 weapon, when denying parole. Hyde, 2010 WL 4321606, at *15-18; see also CAL. CODE REGS. 2 tit. 15, § 2281(c)(6). The Superior Court properly found that the Board reasonably weighed 3 Petitioner’s institutional disciplinary record against Petitioner when denying parole. See CAL. 4 CODE REGS. tit. 15, § 2402(b), (c)(6). 5 c. 2005 Psychological Report 6 Third, the Superior Court appropriately considered Petitioner’s 2005 psychological report 7 when assessing Petitioner’s current dangerousness. In Petitioner’s 2005 psychological report, Dr. 8 Patricia Miller wrote that Petitioner “continues to display difficulty acknowledging personal 9 faults and weaknesses.” Pet’r’s Pet. Ex. G, pt. 1, at 53. Dr. Miller referred to Petitioner’s 10 “comments such as ‘my thumb slipped’ and ‘my thumb slipped again’” to support this. Id. 11 When rendering its decision, the Board recommended that Petitioner “look at the psych reports 12 and the Board reports [to] make a record of discrepancies and things [he] wish[es] to have 13 clarified . . . .” Pet’r’s Pet. Ex. K, pt. 2, at 54. The Superior Court reasonably found that the 14 Board properly considered Petitioner’s 2005 psychological report when denying parole. CAL. 15 CODE REGS. tit. 15, § 2281(b). 16 In sum, the Superior Court reasonably concluded that “some evidence” indicates 17 Petitioner’s current dangerousness. See Resp’t’s Answer Ex. 2, at 2-6. The Superior Court’s 18 considered Petitioner’s (1) commitment offenses; (2) institutional behavior; and (3) 2005 19 psychological report. See id. These factors demonstrate a nexus between the facts in the record 20 regarding Petitioner’s commitment offenses and the ultimate conclusion that Petitioner still 21 posed a risk of danger or threat to the public. These factors also independently demonstrate some 22 evidence in the record that Petitioner was not suitable for parole. The Superior Court reasonably 23 concluded that the Board’s decision withstands the minimally stringent “some evidence” test and 24 has not violated Petitioner’s right to due process of law. 25 26 2. Grounds Two and Three: Due Process and Matrix Argument Petitioner argues that his imprisonment “exceed[s] the maximum time contained in the 24 1 matrix utilized in setting the term of imprisonment and violate[s] Due Process . . . .” Pet’r’s Pet. 2 pt. 1, at 15. California parole guidelines require setting a “base term for each life prisoner who is 3 found suitable for parole.” CAL. CODE REGS. tit. 15, § 2282(a). The “base term” is “established 4 by utilizing the appropriate matrix of base terms” provided in title 15, section 2282 of the 5 California Code of Regulations. Id. 6 To the extent Petitioner contends the Board violated state law or regulations, Petitioner is 7 not entitled to habeas relief. A federal court may grant habeas corpus relief “only on the ground 8 that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United 9 States.” 28 U.S.C. § 2254(a). Mere errors in the application of state law are not cognizable on 10 habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see generally Langford v. Day, 11 110 F.3d 1380, 1389 (9th Cir. 1996) (explaining federal petitioner may not “transform a state-law 12 issue into a federal one merely by asserting a violation of due process”), cert. denied, 522 U.S. 13 881 (1997). 14 In any event, Petitioner’s claim lacks merit under state law. Under California law, the 15 Board is not required to fix a base term until it finds an inmate suitable for parole. CAL. CODE 16 REGS. tit. 15, § 2282(a); see Irons v. Carey, 505 F.3d 846, 851 n.3 (9th Cir. 2007) (“A 17 ‘determination of an individual inmate’s suitability for parole under section 3041, subdivision (b) 18 [of the California Penal Code] must precede any effort to set a parole release date under the 19 uniform-term principles of section 3041, subdivision (a).’” (quoting In re Dannenberg, 34 Cal. 20 4th at 1079-80, 23 Cal. Rptr. 3d 417, 104 P.3d 783)); In re Stanworth, 33 Cal. 3d 176, 183, 654 21 P.2d 1311 (1982) (“Under both the 1976 and the current rules, a life prisoner must first be found 22 suitable for parole before a parole date is set.”); see also CAL. PENAL CODE § 3041(b) (The 23 Board “shall set a release date unless it determines that the gravity of the current convicted 24 offense or offenses, or the timing and gravity of current past convicted offense or offenses, is 25 such that consideration of the public safety requires a more lengthy period of incarceration for 26 this individual, and that a parole date, therefore, cannot be fixed at this meeting.”). Petitioner 25 1 was not found suitable for parole; the matrix did not need to be consulted. Additionally, 2 Petitioner’s claim that there was no evidence to deny him parole is unavailing. See supra Part 3 V.C.1. Petitioner is not entitled to habeas relief on this claim. 4 5 6 7 VI. CONCLUSION For the foregoing reasons, IT IS HEREBY RECOMMENDED that Petitioner’s application for writ of habeas corpus be DENIED. These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one 9 days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served and filed within seven days after service of the objections. Failure to file 13 objections within the specified time may waive the right to appeal the District Court’s order. 14 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 15 (9th Cir. 1991). In any objections he elects to file, Petitioner may address whether a certificate of 16 appealability should be issued in the event he elects to file an appeal from the judgment in this 17 /case. See Rule 11(a), Federal Rules Governing Section 2254 Cases (district court must issue or 18 deny certificate of appealability when it enters final order adverse to applicant). 19 20 21 22 DATED: December 22, 2010. 23 24 25 TIMOTHY J BOMMER UNITED STATES MAGISTRATE JUDGE 26 26