Walker v. Curry, No. 3:2007cv00147 - Document 13 (N.D. Cal. 2008)

Court Description: ORDER DENYING PETITION re 1 Petition for Writ of Habeas Corpus filed by William L. Walker. Signed by Judge William Alsup on 10/14/08. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 10/14/2008)
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Walker v. Curry Doc. 13 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 07-0147 WHA (PR) WILLIAM LEE WALKER, 11 For the Northern District of California United States District Court 10 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. B. CURRY, 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 parole denial. 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. DISCUSSION 22 23 24 A. STANDARD OF REVIEW A district court may not grant a petition challenging a state conviction or sentence on the 25 basis of a claim that was reviewed on the merits in state court unless the state court's 26 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an 27 unreasonable application of, clearly established Federal law, as determined by the Supreme 28 Court of the United States; or (2) resulted in a decision that was based on an unreasonable Dockets.Justia.com 1 determination of the facts in light of the evidence presented in the State court proceeding." 28 2 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of 3 law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong 4 applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 5 (2003). For the Northern District of California United States District Court 6 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 7 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 8 reached by [the Supreme] Court on a question of law or if the state court decides a case 9 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 10 Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application of” 11 Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies 12 the governing legal principle from the Supreme Court’s decisions but “unreasonably applies 13 that principle to the facts of the prisoner’s case.” Id. at 413. The federal court on habeas 14 review may not issue the writ “simply because that court concludes in its independent judgment 15 that the relevant state-court decision applied clearly established federal law erroneously or 16 incorrectly.” Id. at 411. Rather, the application must be “objectively unreasonable” to support 17 granting the writ. See id. at 409. 18 “Factual determinations by state courts are presumed correct absent clear and 19 convincing evidence to the contrary.” Miller-El, 537 U.S. at 340. This presumption is not 20 altered by the fact that the finding was made by a state court of appeals, rather than by a state 21 trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, 22 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and 23 convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory 24 assertions will not do. Id. 25 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination 26 will not be overturned on factual grounds unless objectively unreasonable in light of the 27 evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; see also Torres 28 v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). 2 1 When there is no reasoned opinion from the highest state court to consider the 2 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 501 3 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.2000). 4 B. 5 For the Northern District of California In 1990 a Riverside County jury convicted petitioner of second degree murder. He was 6 sentenced to fifteen years to life in prison. This petition is directed to his second denial of 7 parole, on September 30, 2005. Petitioner alleges that he has exhausted these parole claims by 8 way of state habeas petitions. 9 United States District Court ISSUES PRESENTED As grounds for federal habeas relief, petitioner asserts that: (1) his due process and equal 10 protection rights were violated when the parole board denied him individualized consideration, 11 but instead applied a pre-decided policy of not granting parole; (2) the evidence was not 12 sufficient to support the parole denial; and (3) the nature of petitioner’s offense did not 13 constitute some evidence. 14 Among other things, respondent contends that California prisoners have no liberty 15 interest in parole and that if they do, the only due process protections available are a right to be 16 heard and a right to be informed of the basis for the denial – that is, respondent contends there 17 is no due process right to have the result supported by sufficient evidence. Because these 18 contentions go to whether petitioner has any due process rights at all in connection with parole, 19 and if he does, what those rights are, they will addressed first. RESPONDENT’S CONTENTIONS 20 1. 21 The Fourteenth Amendment provides that no state may “deprive any person of life, 22 23 liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1. a. LIBERTY INTEREST 24 Respondent contends that California prisoners have no liberty interest in parole. 25 Respondent is incorrect that Sandin v. Conner, 515 U.S. 472 (1995), applies to parole decisions, 26 see Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003) (Sandin “does not affect the creation of 27 liberty interests in parole under Greenholtz and Allen.”), and, applying the correct analysis, the 28 California parole statute does create a liberty interest protected by due process, see McQuillion 3 1 v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (“California’s parole scheme gives rise to a 2 cognizable liberty interest in release on parole.”). Respondent’s claim to the contrary is without 3 merit. b. 4 For the Northern District of California United States District Court 5 DUE-PROCESS PROTECTIONS Respondent contends that even if California prisoners do have a liberty interest in 6 parole, the due process protections to which they are entitled by clearly-established Supreme 7 Court authority are limited to notice, an opportunity to be heard, and a statement of reasons for 8 denial. That is, he contends there is no due process right to have the decision supported by 9 “some evidence.” This position, however, has been rejected by the Ninth Circuit, which has 10 held that the Supreme Court has clearly established that a parole board’s decision deprives a 11 prisoner of due process if the board’s decision is not supported by "some evidence in the 12 record", or is "otherwise arbitrary." Irons v. Carey, 479 F.3d 658, 662 (9th Cir. 2007) (applying 13 "some evidence" standard used for disciplinary hearings as outlined in Superintendent v. Hill, 14 472 U.S. 445-455 (1985)); McQuillion, 306 F.3d at 904 (same). The evidence underlying the 15 Board’s decision must also have "some indicia of reliability." McQuillion, 306 F.3d at 904; 16 Biggs, 334 F.3d at 915. The some evidence standard identified in Hill is clearly established 17 federal law in the parole context for purposes of § 2254(d). See Sass, 461 F.3d at 1128-1129. 18 2. 19 PETITIONER’S CLAIMS a. “SOME EVIDENCE” CLAIM Both the second and third issues listed above have been consolidated in the discussion 20 21 of this issue. Petitioner contends that denial of parole was not supported by sufficient evidence 22 to meet due process standards. Parole decisions violate due process if they are not supported by 23 “some evidence.” Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 24 2006). 25 Ascertaining whether the some evidence standard is met "does not require examination 26 of the entire record, independent assessment of the credibility of witnesses, or weighing of the 27 evidence. Instead, the relevant question is whether there is any evidence in the record that 28 could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455; Sass, 4 1 461 F.3d at 1128. The some evidence standard is minimal, and assures that "the record is not so 2 devoid of evidence that the findings of the disciplinary board were without support or otherwise 3 arbitrary." Sass, 461 F.3d at 1129 (quoting Hill, 472 U.S. at 457). 4 It is now established under California law that the task of the Board of Parole Hearings 5 and the governor is to determine whether the prisoner would be a danger to society if he or she 6 were paroled. See In. re Lawrence, 44 Cal. 4th 1181 (2008). The constitutional “some 7 evidence” requirement therefore is that there be some evidence that the prisoner would be such 8 a danger, not that there be some evidence of one or more of the factors that the regulations list 9 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 10 The Board’s decision here was supported by evidence that the commitment offense was 11 an execution-style crime (Exh. E at 73); petitioner’s angry outburst at the hearing, indicating a 12 lack of self-control (id. at 28-30); and his tendency to minimize the crime (id. at 15-29). 13 Contrary to petitioner’s contention, there is no authority that the conviction offense itself cannot 14 properly be used as evidence going to whether a prisoner can safely be released, and indeed 15 common-sense suggests that it often will be among the best evidence, depending on the nature 16 of the crime and the time that has passed since it was committed. There was “some evidence” 17 to support the result. 18 19 Because there was no constitutional violation, the state courts’ denial of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority. 20 21 22 b. INDIVIDUALIZED CONSIDERATION Petitioner contends that his due process rights were violated by the Board’s failure to 23 afford him “individualized consideration” – he contends that the Board has a “no parole “policy 24 for prisoners serving life sentences. The record shows that the Board reviewed the evidence 25 extensively and discussed it with petitioner and his attorney (Exh. E 12-76). The Board’s 26 decision sets out the facts it relied upon in finding him not suitable for parole (id. at 85-92). 27 Both these factors tend to negate the accusation of bias, and petitioner has not provided any 28 evidence that would show otherwise. The state courts’ rejection of this claim was not contrary 5 1 to, nor an unreasonable application of, clearly-established Supreme Court authority. 2 CONCLUSION 3 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file. 4 IT IS SO ORDERED. 5 Dated: October 14 , 2008. 6 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\WHA\HC.07\WALKER0147.RUL.wpd 6 For the Northern District of California United States District Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7