Greenwood v. Ayers, No. 3:2006cv05377 - Document 14 (N.D. Cal. 2008)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS re 1 Case Transferred In - District Transfer, filed by George G. Greenwood. Signed by Judge William Alsup on 10/13/08. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 10/14/2008)
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Greenwood v. Ayers Doc. 14 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 06-5377 WHA (PR) GEORGE G. GREENWOOD, 11 For the Northern District of California United States District Court 10 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS vs. R. AYERS, 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 denial of parole. 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. STATEMENT 22 In 1984, petitioner was sentenced to twenty-five years to life in state prison pursuant to 23 24 his conviction for first degree murder. In 2005, the California Board of Prison Terms (the 25 “Board”) found him unsuitable for parole for a third time. He contends that he has exhausted 26 these claims by way of state habeas petitions, all of which were denied. 27 /// 28 /// DISCUSSION 1 2 A. 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. Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination For the Northern District of California United States District Court 4 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 B. ISSUES PRESENTED 12 Petitioner contends that (1) the denial of parole violates his state created liberty interest 13 in release on parole; (2) the Board violated his right to due process because the denial of parole 14 was based on the unchanging facts of his commitment offense; (3) the regulations upon which 15 the denial of parole relied were too vague; and (4) the denial of parole was arbitrary and 16 capricious, in violation of his right to due process. 17 Among other things, respondent contends that California prisoner have no liberty 18 interest in parole and that if they do, the only due process protections available are a right to be 19 heard and a right to be informed of the basis for the denial – that is, respondent contends there 20 is no due process right to have the result supported by sufficient evidence. Because these 21 contentions go to whether petitioner has any due process rights at all in connection with parole, 22 and if he does, what those rights are, they will addressed first. 23 1. 24 The Fourteenth Amendment provides that no state may “deprive any person of life, 25 26 RESPONDENT’S CONTENTIONS liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1. a. LIBERTY INTEREST 27 Respondent contends that California prisoners have no liberty interest in parole. 28 Respondent is incorrect that Sandin v. Conner, 515 U.S. 472 (1995), applies to parole decisions, 3 1 see Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003) (Sandin “does not affect the creation of 2 liberty interests in parole under Greenholtz and Allen.”), and, applying the correct analysis, the 3 California parole statute does create a liberty interest protected by due process, see McQuillion 4 v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (“California’s parole scheme gives rise to a 5 cognizable liberty interest in release on parole.”). Respondent’s claim to the contrary is without 6 merit. 7 8 For the Northern District of California United States District Court 9 b. DUE-PROCESS PROTECTIONS Respondent contends that even if California prisoners do have a liberty interest in parole, the due process protections to which they are entitled by clearly-established Supreme 10 Court authority are limited to notice, an opportunity to be heard, and a statement of reasons for 11 denial. That is, he contends there is no due process right to have the decision supported by 12 “some evidence.” This position, however, has been rejected by the Ninth Circuit, which has 13 held that the Supreme Court has clearly established that a parole board’s decision deprives a 14 prisoner of due process if the board’s decision is not supported by "some evidence in the 15 record", or is "otherwise arbitrary." Irons v. Carey, 479 F.3d 658, 662 (9th Cir. 2007) (applying 16 "some evidence" standard used for disciplinary hearings as outlined in Superintendent v. Hill, 17 472 U.S. 445-455 (1985)); McQuillion, 306 F.3d at 904 (same). The evidence underlying the 18 Board’s decision must also have "some indicia of reliability." McQuillion, 306 F.3d at 904; 19 Biggs, 334 F.3d at 915. The some evidence standard identified in Hill is clearly established 20 federal law in the parole context for purposes of § 2254(d). See Sass, 461 F.3d at 1128-1129. 21 22 23 2. PETITIONER’S CLAIMS a. LIBERTY INTEREST Petitioner’s first issue is a claim that California prisoners have a liberty interest in 24 parole. As discussed above, this is correct, but it is not a basis for habeas relief in itself. As a 25 claim for relief, it is without merit. 26 b. “BIGGS CLAIM” 27 In a line of relatively recent cases the Ninth Circuit has discussed the constitutionality of 28 denying parole when the only basis for denial is the circumstances of the offense. See Hayward 4 1 v. Marshall, 512 F.3d 536, (9th cir. 2008); Irons v. Carey, 505 F.3d 846, 852-54 (9th Cir. 2 2007); Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1129 (9th Cir. 2006); Biggs v. 3 Terhune, 334 F.3d 910, 915-17 (9th Cir. 2003). In Biggs the court said that it might violate due process if the Board were to continue to For the Northern District of California United States District Court 4 5 deny parole to a prisoner because of the facts of his or her offense and in the face of evidence of 6 rehabilitation. 334 F.3d at 916-17. No legal rationale for this statement was provided, and it 7 was unclear whether the court was suggesting that the continued denial of parole would be a 8 new sort of due process violation or whether it was simply expressing the thought that with the 9 passage of time the nature of the offense could cease to be “some evidence” that the prisoner 10 would be a danger if paroled.1 This ambiguity was helpfully cleared up in Irons, where the 11 court clearly treated a “some evidence” claim as different from a “Biggs claim.” Irons, 505 12 F.3d at 853-54. It appears, putting together the brief discussions in Biggs and Irons, that the 13 court meant that at some point denial of parole based on long-ago and unchangeable factors, 14 when overwhelmed with positive evidence of rehabilitation, would be fundamentally unfair and 15 violate due process. 16 As the dissenters from denial of rehearing en banc in Irons point out, in the Ninth 17 Circuit what otherwise might be dictum is controlling authority if the issue was presented and 18 decided, even if not strictly “necessary” to the decision. Irons v. Carey, 506 F.3d 951, 952 (9th 19 Cir. 2007) (dissent from denial of rehearing en banc) (citing and discussing Barapind v. 20 Enomoto, 400 F.3d 744, 751 n. 8 (9th Cir.2005)). Depending on whether the discussion of 21 dictum in the dissent from denial of rehearing en banc in Irons is correct, it thus may be that the 22 Ninth Circuit has recognized that due process right, which for convenience will be referred to in 23 this opinion as a “Biggs claim.” Here, petitioner’s second issue is a “Biggs claim,” in that he 24 contends that simply using the circumstances of his offense as grounds for denial for the third 25 26 27 28 The Supreme Court has clearly established that a parole board’s decision deprives a prisoner of due process if the board’s decision is not supported by “some evidence in the record,” or is “otherwise arbitrary.” Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1129 (9th Cir. 2006) (adopting “some evidence” standard for disciplinary hearings outlined in Superintendent v. Hill, 472 U.S. 445, 454-55 (1985). 1 5 For the Northern District of California United States District Court 1 time violates due process, separate from his “some evidence” claim, which is issue four, below. 2 Petitioner has failed to establish the predicate for his Biggs claim. For one thing, a third 3 denial based on the circumstances of the crime does not amount to the sort of repeated denials 4 which the Biggs court suggested might violate due process. For another, petitioner’s parole was 5 not denied solely because of the circumstances of his offense, but also because of his 6 subsequent minimization of the offense, his receipt of a serious rule violation report within the 7 five years prior to the hearing and his receipt of a “counseling memo” since his last parole 8 hearing, his need for a longer period of self-help programming, and the psychological report 9 (Exh. at 72-84). 10 And finally, assuming for purposes of this discussion that Biggs and Irons recognized an 11 abstract due process right not to have parole repeatedly denied on the basis of the facts of one’s 12 crime and in the face of extensive evidence of rehabilitation, and also assuming arguendo that 13 the right was violated in petitioner’s case, petitioner still cannot obtain relief on this theory, 14 because as there is no clearly-established United States Supreme Court authority recognizing a 15 “Biggs claim.” The state courts’ rulings therefore could not be contrary to, or an unreasonable 16 application of, clearly-established Supreme Court authority. 17 18 19 20 c. REGULATIONS Petitioner contends that the parole regulations are “intolerably vague,” so as to violate due process. Greenwood argues that the parole regulation's phrase "especially heinous, atrocious, or 21 cruel" is unconstitutionally vague. He fails to acknowledge that the language following this 22 phrase provides a list of five factors to consider when determining whether a crime is especially 23 "heinous, atrocious or cruel," including the presence of multiple victims, the abuse or mutilation 24 of the victim and a trivial motive for the crime. See 15 Cal. Code Regs. § 2402(c)(1)(A)-(E). 25 The term "especially heinous, atrocious, or cruel," as further limited by five detailed 26 factors/sub-definitions, is not constitutionally vague. Cf. Arave v. Creech, 507 U.S. 463, 470- 27 78 (1993) (Idaho death penalty statute citing as an aggravating factor crimes carried out in an 28 "utter disregard for human life" was not impermissibly vague because limiting construction had 6 For the Northern District of California United States District Court 1 been adopted which defined factor as those crimes demonstrating "the utmost disregard for 2 human life, i.e., the cold-blooded pitiless slayer"). "The Due Process Clause does not require 3 the same precision in the drafting of parole release statutes as is required in the drafting of penal 4 laws." Hess v. Board of Parole and Post-Prison Supervision, 514 F.3d 909, 913-14 (9th Cir. 5 2008). Not only was the regulation not impermissibly vague on its face, Greenwood cannot 6 seriously assert an as-applied challenge because his activity fit squarely within one of the listed 7 factors to be considered in determining whether the offense was committed in an especially 8 heinous, atrocious or cruel manner: “the motive for the crime is inexplicable or very trivial in 9 relation to the offense.” Cal. Code Regs., tit. 15 § 2402(c)(1). Greenwood killed the victim in 10 the course of attempting to lift his wallet, a classic trivial motive. The state courts' rejection of 11 Greenwood's claim was not an objectively unreasonable application of clearly established 12 Supreme Court precedent. See 28 U.S.C. § 2254(d). 13 14 15 d. “Some Evidence” Claim Petitioner contends that denial of parole was arbitrary because there was no evidence in the record that he would be a danger to society if paroled. 16 Ascertaining whether the some evidence standard is met "does not require examination 17 of the entire record, independent assessment of the credibility of witnesses, or weighing of the 18 evidence. Instead, the relevant question is whether there is any evidence in the record that 19 could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455; Sass, 20 461 F.3d at 1128. The some evidence standard is minimal, and assures that "the record is not so 21 devoid of evidence that the findings of the disciplinary board were without support or otherwise 22 arbitrary." Sass, 461 F.3d at 1129 (quoting Hill, 472 U.S. at 457). 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 a danger, not that there be some evidence of one or more of the factors that the regulations list 28 as factors to be considered in deciding whether to grant parole. Id. at 1205-06. 7 1 2 motive was the trivial one of pickpocketing (Exh. 3 at 9-12); his receipt of a serious rule 3 violation report about four and a half years before the hearing (id. at 48), his receipt of a 4 counseling memo for a minor rule violation since the last hearing (ibid.), and his continuing 5 tendency to minimize the crime (id. at 54). 6 not contrary to, or an unreasonable application of, clearly established Supreme Court authority. 8 CONCLUSION 9 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file. 11 For the Northern District of California Because there was no constitutional violation, the state courts’ denial of this claim was 7 10 United States District Court The evidence supporting the Board’s denial of a parole date included that petitioner’s 12 IT IS SO ORDERED. Dated: October 13 , 2008. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\WHA\HC.06\GREENWOOD5377.RUL.wpd 8