Edwards v. Kane, No. 3:2005cv02323 - Document 27 (N.D. Cal. 2008)

Court Description: ORDER DENYING HABEAS PETITION. Signed by Judge William Alsup on 9/24/08. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 9/25/2008)
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Edwards v. Kane Doc. 27 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 Petitioner, 12 13 No. C 05-2323 WHA (PR) CORNELIUS EDWARDS, 11 For the Northern District of California United States District Court 10 ORDER DENYING HABEAS PETITION vs. ANTHONY P. KANE, Warden, 14 Respondent. / 15 16 17 This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. 2254. The petition is directed to a denial of parole by the governor. 18 The court ordered respondent to show cause why the writ should not be granted. 19 Respondent has filed an answer and a memorandum of points and authorities in support of it, 20 and has lodged exhibits with the court. Petitioner has responded with a traverse. For the 21 reasons set forth below, the petition is DENIED. BACKGROUND 22 Petitioner was convicted of second degree murder in 1987. He received a sentence of 23 24 fifteen years to life in prison. In 2003 the Board of Prison Terms determined that he was 25 suitable for parole and gave him a parole date, but the governor reversed that determination. He 26 exhausted the sole claim remaining in the case by way of state habeas petitions. 27 /// 28 /// Dockets.Justia.com 1 2 DISCUSSION I. A district court may not grant a petition challenging a state conviction or sentence on the For the Northern District of California 3 United States District Court STANDARD OF REVIEW 4 basis of a claim that was reviewed on the merits in state court unless the state court's 5 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an 6 unreasonable application of, clearly established Federal law, as determined by the Supreme 7 Court of the United States; or (2) resulted in a decision that was based on an unreasonable 8 determination of the facts in light of the evidence presented in the State court proceeding." 28 9 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of 10 law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong 11 applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 12 (2003). 13 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 14 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 15 reached by [the Supreme] Court on a question of law or if the state court decides a case 16 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 17 Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application of” 18 Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies 19 the governing legal principle from the Supreme Court’s decisions but “unreasonably applies 20 that principle to the facts of the prisoner’s case.” Id. at 413. The federal court on habeas 21 review may not issue the writ “simply because that court concludes in its independent judgment 22 that the relevant state-court decision applied clearly established federal law erroneously or 23 incorrectly.” Id. at 411. Rather, the application must be “objectively unreasonable” to support 24 granting the writ. See id. at 409. 25 “Factual determinations by state courts are presumed correct absent clear and 26 convincing evidence to the contrary.” Miller-El, 537 U.S. at 340. This presumption is not 27 altered by the fact that the finding was made by a state court of appeals, rather than by a state 28 trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, 2 1 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and 2 convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory 3 assertions will not do. Id. For the Northern District of California United States District Court 4 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination 5 will not be overturned on factual grounds unless objectively unreasonable in light of the 6 evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; see also Torres 7 v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). 8 When there is no reasoned opinion from the highest state court to consider the 9 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 501 10 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.2000). 11 II. 12 ISSUES PRESENTED Petitioner contends that the governor violated his due process rights in finding him 13 unsuitable for parole based on facts that are more than ten years old. In his answer respondent 14 contends, among other things, that California prisoners have no liberty interest in parole and 15 that if they do, the only due process protections available are a right to be heard and a right to 16 be informed of the basis for the denial – that is, respondent contends there is no due process 17 right to have the result supported by sufficient evidence. Because these contentions go to 18 whether petitioner has any due process rights at all in connection with parole, and if he does, 19 what those rights are, they will addressed first. 20 21 22 23 A. Respondent’s Contentions 1. Liberty Interest The Fourteenth Amendment provides that no state may “deprive any person of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1. 24 In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 25 (1979), the Supreme Court found that the inmates had a liberty interest in discretionary parole 26 that was protected by the Due Process Clause. The right was created by the “expectancy of 27 release provided in [the Nebraska parole statute.]” That statute provided that the parole board 28 “shall order” release of eligible inmates unless that release would have certain negative impacts. 3 1 Id. at 11–12. The Supreme Court returned to the issue in Board of Pardons v. Allen, 482 U.S. 2 369 (1987). There it held that a similar liberty interest was created even though the parole 3 board had great discretion. Id. at 381. For parole decisions, this mode of analysis survived the 4 Supreme Court’s later rejection of it for prison disciplinary decisions in Sandin v. Conner, 515 5 U.S. 472 (1995). Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003) (Sandin “does not affect 6 the creation of liberty interests in parole under Greenholtz and Allen.”). For the Northern District of California United States District Court 7 While there is "no constitutional or inherent right of a convicted person to be 8 conditionally released before the expiration of a valid sentence," Greenholtz v. Inmates of 9 Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979), a state's statutory parole scheme, if it 10 uses mandatory language, may create a presumption that parole release will be granted when or 11 unless certain designated findings are made, and thereby give rise to a constitutionally protected 12 liberty interest, see Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (Montana parole 13 statute providing that board "shall" release prisoner, subject to certain restrictions, creates due 14 process liberty interest in release on parole); Greenholtz, 442 U.S. at 11-12 (Nebraska parole 15 statute providing that board "shall" release prisoner, subject to certain restrictions, creates due 16 process liberty interest in release on parole). In such a case, a prisoner has liberty interest in 17 parole that cannot be denied without adequate procedural due process protections. See Allen, 18 482 U.S. at 373-81; Greenholtz, 442 U.S. at 11-16. 19 Respondent contends that California law does not create a liberty interest in parole. But 20 California’s parole scheme uses mandatory language and is similar to the schemes in Allen and 21 Greenholtz which the Supreme Court held gave rise to a protected liberty interest in release on 22 parole. In California, the panel or board "shall set a release date unless it determines that the 23 gravity of the current convicted offense or offenses, or the timing and gravity of current or past 24 convicted offense or offenses, is such that consideration of the public safety requires a more 25 lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be 26 fixed at this meeting." Cal. Penal Code § 3041(b). Under the clearly established framework of 27 Allen and Greenholtz, “California’s parole scheme gives rise to a cognizable liberty interest in 28 release on parole.” McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). The scheme 4 1 requires that parole release be granted unless the statutorily defined determination (that 2 considerations of public safety forbid it) is made. Ibid.; Biggs v. Terhune, 334 F.3d 910, 915-16 3 (9th Cir. 2003) (finding initial refusal to set parole date for prisoner with fifteen-to-life sentence 4 implicated prisoner’s liberty interest). In sum, the structure of California's parole scheme -- 5 with its mandatory language and substantive predicates – gives rise to a federally protected 6 liberty interest in parole such that an inmate has a federal right to due process in parole 7 proceedings. See Sass v. California Bd. of Prison Terms, 461 F.3d 1127-28 (2006). 8 9 For the Northern District of California United States District Court 10 Respondent’s argument as to liberty interest is without merit. 2. Due-Process Protections Respondent contends that even if California prisoners do have a liberty interest in 11 parole, the due process protections to which they are entitled by clearly-established Supreme 12 Court authority are limited to an opportunity to be heard and a statement of reasons for denial. 13 That is, he contends there is no due process right to have the decision supported by “some 14 evidence.” This position, however, has been rejected by the Ninth Circuit, which has held that 15 the Supreme Court has clearly established that a parole board’s decision deprives a prisoner of 16 due process if the board’s decision is not supported by "some evidence in the record", or is 17 "otherwise arbitrary." Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007) (applying "some 18 evidence" standard used for disciplinary hearings as outlined in Superintendent v. Hill, 472 U.S. 19 445-455 (1985)); McQuillion, 306 F.3d at 904 (same). The evidence underlying the Board’s 20 decision must also have "some indicia of reliability." McQuillion, 306 F.3d at 904; Biggs, 334 21 F.3d at 915. The some evidence standard identified in Hill is clearly established federal law in 22 the parole context for purposes of § 2254(d). See Sass, 461 F.3d at 1128-1129. 23 California law adds a layer of review by giving the governor the power to review the 24 parole board's decision and to affirm, modify or reverse the decision, but only on the basis of 25 the same factors the parole authority is required to consider. Cal. Penal Code § 3041.2; Cal. 26 Const. art. V, § 8(b). The California Supreme Court has determined, as a matter of state law, 27 that the governor's decision must also satisfy the "some evidence" standard. In re Rosenkrantz, 28 29 Cal. 4th 616, 676-77 (Cal. 2002). Because the governor's review is an extension of the 5 1 parole consideration process and the parole decision does not become final until such review 2 has occurred (or the time for it has passed), and in the absence of any argument from respondent 3 distinguishing the governor’s decision from that of the Board for purposes of the “some 4 evidence” standard, the court concludes that due process requires that a denial of parole, 5 whether by the Board or the governor, be supported by at least “some evidence.” 6 B. 7 As ground for federal habeas relief, petitioner contends that his due process rights were For the Northern District of California United States District Court 8 Petitioner’s Claim violated when the governor denied parole without “some evidence” to support the denial. 9 Ascertaining whether the some evidence standard is met "does not require examination 10 of the entire record, independent assessment of the credibility of witnesses, or weighing of the 11 evidence. Instead, the relevant question is whether there is any evidence in the record that 12 could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455; Sass, 13 461 F.3d at 1128. The some evidence standard is minimal, and assures that "the record is not so 14 devoid of evidence that the findings of the disciplinary board were without support or otherwise 15 arbitrary." Sass, 461 F.3d at 1129 (quoting Hill, 472 U.S. at 457). 16 In several recent cases the Ninth Circuit has discussed whether the “some evidence” 17 standard can be satisfied by evidence of the nature of the commitment offense and prior 18 offenses. In Biggs, the court explained that the some evidence standard may be considered in 19 light of the Board’s decisions over time. Biggs, 334 F.3d at 916-917. The court reasoned that 20 "[t]he Parole Board’s decision is one of ‘equity’ and requires a careful balancing and 21 assessment of the factors considered . . . A continued reliance in the future on an unchanging 22 factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the 23 rehabilitative goals espoused by the prison system and could result in a due process violation." 24 Id. Although the Biggs court upheld the initial denial of a parole release date based solely on 25 the nature of the crime and the prisoner’s conduct before incarceration, the court cautioned that 26 "[o]ver time, however, should Biggs continue to demonstrate exemplary behavior and evidence 27 of rehabilitation, denying him a parole date simply because of the nature of his offense would 28 raise serious questions involving his liberty interest." Id. at 916. 6 For the Northern District of California United States District Court 1 The Sass court criticized the decision in Biggs: "Under AEDPA it is not our function to 2 speculate about how future parole hearings could proceed." Sass, 461 F.3d at 1129. Sass 3 determined that it is not a due process violation per se if the Board determines parole suitability 4 based solely on the unchanging factors of the commitment offense and prior offenses. Id. 5 (prisoner’s commitment offenses in combination with prior offenses amounted to some 6 evidence to support the Board’s denial of parole). However, Sass does not dispute the argument 7 in Biggs that, over time, a commitment offense may be less probative of a prisoner’s current 8 threat to the public safety. 9 In Irons the Ninth Circuit emphasized the continuing vitality of Biggs, but concluded 10 that relief for Irons was precluded by Sass. See Irons, 505 F.3d at 852-54. The Ninth Circuit 11 explained that all of the cases in which it previously held that denying parole based solely on 12 the commitment offense comported with due process were ones in which the prisoner had not 13 yet served the minimum years required by the sentence. Id.. Also, noting that the parole board 14 in Sass and Irons appeared to give little or no weight to evidence of the prisoner’s 15 rehabilitation, the Ninth Circuit stressed its hope that "the Board will come to recognize that in 16 some cases, indefinite detention based solely on an inmate’s commitment offense, regardless of 17 the extent of his rehabilitation, will at some point violate due process, given the liberty interest 18 in parole that flows from relevant California statutes." Id. (citing Biggs, 334 F.3d at 917). Even 19 so, the Ninth Circuit has not set a standard as to when a complete reliance on unchanging 20 circumstances would amount to a due process violation. 21 22 23 24 25 26 27 28 As to the offense itself, the governor relied on the facts recited by the court of appeal on direct review, which follow: [D]uring the evening on February 1, 1987, Wardell Jackson was at the home of his friend, Carline Baines. Twice during that evening, Darryl Bradley visited. On the first occasion, he had a pistol in his hand and was with Ronald Hosey. Approximately 25 to 30 minutes after Bradley first left, appellant arrived. “Somebody told [appellant] something to [the] effect” that Bradley had been by earlier looking for him. Appellant, Jackson and others present at Baines’ house sat in the kitchen talking and smoking cocaine. Appellant got up quite af few times and looked out a window. Appellant stated that if Bradley came back, appellant may have “to take him.” Later that evening, Bradley and Hosey returned to Baines’ house. [f/n 1. When Bradley and Hosey returned, Jackson did not see a gun.] When Bradley 7 1 and Hosey entered the kitchen, Bradley and appellant began to shout. Jackson saw appellant move his hand to his belt where his gun was located. Bradley called appellant a punk. Bradley and appellant were within a couple of feet of each other and Bradley was advancing upon appellant. [f/n 2. Jackson testified that he could not remember for sure that he told Detective Bernardo Lovato that he saw Bradley advancing on appellant.] Less than two seconds after Jackson saw appellant reach for his gun, Jackson turned to leave and heard a gunshot. Bradley died as a result of a gunshot would to the head fired at a maximum of 12 inches from the point of entry. 2 3 4 5 6 (Ans., Exh. 11 (opinion of court of appeal) at 3.) For the Northern District of California United States District Court 7 The governor’s reversal of the Board’s grant of parole was based on the heinous nature 8 of the offense, petitioner’s lengthy criminal record prior to the offense, his prison disciplinary 9 violations prior to 1996, and the weakness of his parole plans (Exh. 4 at 1-2). As to the 10 disciplinary reports, the governor noted that “[e]ven a life sentence for murder did not help Mr. 11 Bradley [sic1] control his behavior as demonstrated by the five prison disciplinary rule 12 violations he received.” (Id. at 2). As to parole plans, the governor said: “Mr. Edwards has 13 shaky parole plans that need development including either an offer of employment or a firm 14 plan. Mr. Edwards states that he wants to be an entrepreneur, but he must have a job first. It is 15 clear from his discussion of his drug dealing that he considered himself a businessman at the 16 time of the offense. I have grave concern that with a family to care for and no job, Mr. 17 Edwards will slip back into the only business he knows.” (Ibid.) In his summary, the governor 18 said: “Mr. Edwards is unquestionably an intelligent and ambitious man who has made 19 significant strides in leaving behind a life of crime. He committed a heinous crime, however, 20 which followed years of unremitting criminal behavior. More years of misconduct followed in 21 prison. Mr. Edwards needs more time to prove he can maintain his gains and more definite 22 parole plans before he can safely be released.” (Ibid.) 23 It is now established under California law that the task of the Board of Parole Hearings 24 and the governor is to determine whether the prisoner would be a danger to society if he or she 25 were paroled. See In. re Lawrence, 44 Cal. 4th 1181 (2008). The constitutional “some 26 evidence” requirement therefore is that there be some evidence that the prisoner would be such 27 28 1 This is a typographical error. Bradley was the victim. 8 1 a danger, not that there be some evidence of one or more of the factors that the regulations list 2 as factors to be considered in deciding whether to grant parole. Id. at 1205-06. For the Northern District of California United States District Court 3 Although petitioner disagrees strongly with the governor’s characterization of some of 4 these facts, for the most part he does not dispute the facts themselves. For instance, there is no 5 doubt he did lack a job offer, although he contends correctly that he was very successful in 6 vocational training and that he should be able to earn a living (Exh. 3 at 40-41, 65-66). It also is 7 undisputed that he had serious disciplinary violations after coming to prison, the last being in 8 1996 (id. at 40). Combined with the violent nature of the offense and the undoubted criminal 9 life-style petitioner led at the time of the offense, this supports the governor’s position that 10 petitioner had not turned over a new leaf prior to 1996. The governor’s decision here was in 11 2003, however, so petitioner had been well-behaved for seven years at the time of the decision. 12 Whether this was long enough that it no longer suggests petitioner is a threat to society is 13 quintessentially a matter of discretion, subject only to the constitutional “some evidence” 14 requirement. This is a very close case, but although the disciplinary offenses were old enough 15 that they were of marginal value, the Court cannot say that the state courts were unreasonable in 16 deciding that “some evidence” supported the governor’s decision, given the commitment 17 offense and the violent drug-dealer life-style that gave rise to it, the disciplinary violations, and 18 the lack of a firm job offer.2 The petition will be denied. 19 CONCLUSION 20 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file. 21 IT IS SO ORDERED. 22 Dated: September 24 , 2008. 23 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 24 25 26 G:\PRO-SE\WHA\HC.05\EDWARDS323.RUL.wpd 27 Petitioner has pending in this court a habeas petition directed to another reversal of the parole board by the governor, this one in 2007. 2 28 9