Walker v. Curry, No. 3:2007cv00644 - Document 7 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Maxine M. Chesney on December 18, 2009. (mmcsec, COURT STAFF) (Filed on 12/18/2009)
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Walker v. Curry Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 EUGENE WALKER, 11 Petitioner, 12 13 14 vs. BEN CURRY, Warden, Respondent. No. C 07-0644 MMC (PR) ) ) ) ) ) ) ) ) ) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 15 16 INTRODUCTION 17 On January 31, 2007, petitioner Eugene Walker, a California state prisoner 18 proceeding pro se, filed, pursuant to 28 U.S.C. § 2254, the above-titled petition for a writ 19 of habeas corpus. For the reasons stated herein, the petition is hereby DENIED. 20 21 BACKGROUND In 1981, petitioner and his accomplices assaulted and robbed four victims near a 22 housing project, using knives, sticks, and a gun. (Ans. Ex. 5 at 10.) The incident resulted 23 in the death of victim Jesus Garcia. (Id. Ex. 7 at 1.) In 1982, pursuant to a plea 24 agreement, petitioner pleaded guilty to one count of second degree murder and was 25 sentenced to fifteen years to life in prison; additionally, petitioner pleaded guilty to one 26 count of felony burglary in an unrelated case, for which he was sentenced to four years in 27 prison, to be served concurrently with his indeterminate life sentence. (Id. Ex. 3 at 2-3.) 28 In January 2005, the Board found petitioner unsuitable for parole, on the ground he 1 Dockets.Justia.com 1 “would pose an unreasonable risk of danger to society or a threat to public safety if 2 released from prison.” (Ans. Ex. 5 at 54.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 In reaching its decision, the Board accepted the following facts taken from petitioner’s 2001 probation report: On 11/26/1981 at approximately 2:30 a.m. victim [Jesus] Garcia was in a car with his brother Nasario Garcia . . . and two friends. Lorendo Leora . . . and Alfons Alfredo Gonzales . . . . The car had run out of gas in an area of Olympic Boulevard near [the] Estrada Housing Project. At that location, they were assailed by a group of young men described as Latinos and one black who used knives, sticks, and a gun to assault everyone in the car. All the victims was [sic] pulled from the car and were beaten and robbed. Victim Gonzales surrendered his wallet containing 200 dollars, and two of the group then tried to stab him. He managed to flee. As he was running, he heard two shots fired and heard bullets hit the ground next to him and heard someone yell out, if you come back to your car, we’ll kill you. He sustained superficial abrasions to the abdomen. Victim [Nasario] Garcia stated that he was pulled out of the car by two members of the group and stabbed in the back. He surrendered his wallet containing 180 dollars, as well as a woman’s wristwatch. He received treatment for multiple lacerations, a stab wound to the face, extremities, and abdomen. Victim Leora . . . confirmed that his wallet containing 80 dollars was taken. He was hit across the face with a stick. After he fell to the ground, he was beaten and kicked. One of the assailants jumped on him, trying to break his leg. He was treated for multiple contusions to his face, a fractured nose, and badly sprained ankle. Victim Jesus Garcia was stabbed at the scene and died as a result of multiple stab wounds to the chest, one which severed an artery and one which penetrated his heart. Investigation revealed that [petitioner], Johnny, Lumpy, Guhardo, and Frankie, Sleepy, Castro, members of the BNE gang and the Estrada Housing Project gang, committed the robbery and murder. Investigating officers of the Hollenbeck Station noted that [petitioner], the only adult in the group, was the instigator in the murder and robbery. 19 (Id. at 10–12.) Although petitioner admitted participating in the robbery and assault, he 20 denied having stabbed or shot anyone and denied being involved in the murder. (Id. at 21 12-14.) 22 At the parole hearing, the Board reviewed petitioner’s record, including the 23 circumstances of his commitment offense, his criminal history, and his behavior in prison. 24 With respect to the commitment offense, the Board found the crime to be of the kind that 25 would “shock the conscience of any people.” (Id. at 54.) The Board noted that multiple 26 victims not only were “attacked” but also “abused,” and that the crime was carried out in 27 a “dispassionate and calculated manner” and demonstrated a “total callous disregard for 28 2 1 2 one’s fellow man.” (Id. at 54–55.) The Board also reviewed petitioner’s criminal history. Petitioner was first arrested 3 at sixteen; his juvenile criminal history includes arrests for receiving stolen property, 4 burglary, robbery, and grand theft, and he was declared a ward of the court. The robbery, 5 as the Board noted, was of a 24-year old boy, who, while lying on the ground, was 6 reportedly kicked in the head by petitioner. (Id. at 16.) The commitment offense and a 7 conviction for burglary comprise his adult criminal history. (Id. at 16; Ex. 7 at 3-4.) 8 The Board also examined petitioner’s behavior in prison. The Board noted that 9 petitioner had committed many disciplinary infractions, (id. at 25), ranging from petty 10 violations, such as failure to report to work, to more serious offenses, such as assaulting 11 an inmate and destruction of state property (id. Ex. 7 at 11–12), but also acknowledged 12 that those disciplinary problems had occurred at a time when petitioner was young and 13 immature (id. Ex. 5 at 32), and that petitioner had no disciplinary actions for the 14 preceding seven years (id. at 31). The Board made note of petitioner’s accomplishments 15 in various inmate programs, including self-help programs, and noted in particular 16 petitioner’s successful involvement with the Straight Life program, in which petitioner 17 was working with at-risk youth. (Id. at 26, 29-31.) Petitioner’s latest psychological 18 report, as the Board noted, also was positive; the report assessed petitioner’s potential for 19 violence as “no more than the average citizen in the community,” and further found 20 petitioner had “learned lessons that many citizens in the community haven’t learned,” and 21 thus, petitioner’s “potential for violence [might] be even less than the average citizen.” 22 (Id. at 32.) 23 After a full hearing, during which all of the above evidence was considered, the 24 Board found petitioner unsuitable for parole. (Id. at 54.) In response to the Board’s 25 decision, petitioner filed state habeas petitions, later denied, in the Los Angeles Superior 26 Court, California Court of Appeal, and California Supreme Court. (Id. Ex. 12, 14, 16.) 27 28 In 2007, petitioner filed the instant federal habeas petition, alleging that (1) the Board violated his right to due process because the decision to deny him parole was not 3 1 based on “some evidence,” but rather was based on the unchanging facts of his 2 commitment offense,1 and (2) the Board violated his plea agreement, and thus his right to 3 due process, by denying him parole. DISCUSSION 4 5 6 A. Standard of Review This Court may entertain a petition for a writ of habeas corpus “in behalf of a 7 person in custody pursuant to the judgment of a State court only on the ground that he is 8 in custody in violation of the Constitution or laws or treaties of the United States.” 28 9 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). 10 A district court may not grant a petition challenging a state conviction or sentence 11 on the basis of a claim that was reviewed on the merits in state court unless the state 12 court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or 13 involved an unreasonable application of, clearly established Federal law, as determined 14 by the Supreme Court of the United States; or (2) resulted in a decision that was based on 15 an unreasonable determination of the facts in light of the evidence presented in the State 16 court proceeding.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412–13 17 (2000). A federal court must presume the correctness of the state court’s factual findings. 18 28 U.S.C. § 2254 (e)(1). Habeas relief is warranted only if the constitutional error at 19 issue had a “substantial and injurious effect or influence in determining the jury’s 20 verdict.” Penry v. Johnson, 532 U.S. 782, 795 (2001) (internal quotation and citation 21 omitted). 22 The state court decision implicated by 2254(d) is the “last reasoned decision” of 23 the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991); Barker v. 24 Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2005). Where there is no reasoned opinion 25 from the highest state court to have considered the petitioner’s claims, the district court 26 looks to the last reasoned state court opinion, which, in this instance, is the opinion of the 27 28 1 This claim is encompassed by Claims 1 and 2 of the petition. 4 1 Los Angeles Superior Court. (Ans. Ex. 12); see Nunnemaker, 501 U.S. at 801–06; 2 Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). 3 B. Petitioner’s Claims 4 1. Sufficiency of Evidence 5 Petitioner claims the Board violated his due process rights by denying him parole 6 without “some evidence” to support the decision. The superior court rejected the claim, 7 finding there was some evidence to support the Board’s decision, in particular, the facts 8 of the commitment offense, petitioner’s institutional misconduct, petitioner’s unstable 9 social history and his criminal history, which record reflected a pattern of violence and, as 10 the Board noted, a “fail[ure] to profit from society’s previous attempts to correct [his] 11 criminality.” (See Ans. Ex. 12; Ex. 5 at 54–57.) 12 A denial of parole complies with due process provided there is “some evidence” to 13 support the parole board’s decision. A parole board’s decision deprives a prisoner of due 14 process if such decision is not supported by “some evidence in the record,” or is 15 otherwise “arbitrary.” See Superintendent v. Hill, 472 U.S. 445, 454–55 (1985); Sass v. 16 California Bd. of Prison Terms, 461 F.3d 1123, 1129 (9th Cir. 2006). Additionally, the 17 evidence underlying the parole board’s decision must have “some indicia of reliability.” 18 See McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002). Accordingly, if a parole 19 board’s determination with respect to parole suitability is to satisfy due process, such 20 determination must be supported by some evidence having some indicia of reliability. 21 Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005). 22 Additionally, in assessing whether there is “some evidence” to support the Board’s 23 denial of parole, this Court must consider the regulations that guide the Board in making 24 its parole suitability determinations. Pursuant to such regulations, “[t]he panel shall first 25 determine whether the life prisoner is suitable for release on parole[;] [r]egardless of the 26 length of time served, a life prisoner shall be found unsuitable for and denied parole if in 27 the judgment of the panel the prisoner will pose an unreasonable risk of danger to society 28 if released from prison.” 15 Cal. Code Regs. § 2402(a). The regulations enumerate 5 1 various circumstances tending to indicate whether or not an inmate is suitable for parole. 2 Id., § 2402(c)–(d).2 One circumstance tending to show an inmate’s unsuitability is that 3 the crime was committed in an “especially heinous, atrocious or cruel manner.” Id., 4 § 2402(c). Two factors that the parole authority may consider in determining whether 5 such a circumstance exists are whether “[t]he offense was carried out in a manner that 6 demonstrates an exceptionally callous disregard for human suffering,” and whether “[t]he 7 motive for the crime is inexplicable or very trivial in relation to the offense.” Id., 8 § 2402(c)(1)(D) & (E). In addition to these factors, the Board is to consider “all relevant, 9 reliable information available.” Id., § 2402(b). 10 It is now established under California law that the task of the Board is to determine 11 whether the prisoner would be a danger to society if he or she were paroled. See In re 12 Lawrence, 44 Cal. 4th 1181 (2008). Consequently, the constitutional “some evidence” 13 requirement is that there exists some evidence that the prisoner constitutes such a danger, 14 not simply that there exists some evidence of one or more of the factors listed in the 15 regulations as considerations appropriate to the parole determination. Id. at 1205–06. 16 In that regard, however, a parole authority’s continued reliance on the 17 circumstances of the commitment offense as the sole basis for denying parole can, over 18 time, raise due process concerns. See Biggs v. Terhune, 334 F.3d 910, 916 (9th Cir. 19 2003). “[I]n some cases, indefinite detention based solely on an inmate’s commitment 20 offense, regardless of the extent of his rehabilitation, will at some point violate due 21 22 23 24 25 26 27 28 2 The circumstances tending to show an inmate’s unsuitability are: (1) the commitment offense was committed in an “especially heinous, atrocious or cruel manner;” (2) previous record of violence; (3) unstable social history; (4) sadistic sexual offenses; (5) psychological factors such as a “lengthy history of severe mental problems related to the offense;” and (6) prison misconduct. 15 Cal. Code Regs. § 2402(c). The circumstances tending to show suitability are: (1) no juvenile record; (2) stable social history; (3) signs of remorse; (4) commitment offense was committed as a result of stress which built up over time; (5) Battered Woman Syndrome; (6) lack of criminal history; (7) age is such that it reduces the possibility of recidivism; (8) plans for future including development of marketable skills; and (9) institutional activities that indicate ability to function within the law. Id. § 2402(d). 6 1 process, given the liberty interest in parole that flows from the relevant California 2 statutes.” Irons v. Carey, 505 F.3d 846, 854 (9th Cir. 2007). 3 Here, the Court cannot find the state court was unreasonable in concluding there is 4 some evidence to support the Board’s decision that petitioner would pose a danger to 5 society if released. The record contains evidence to support the Board’s finding, 6 including the circumstances of the commitment offense, petitioner’s criminal history, and 7 his prison disciplinary infractions. 8 9 First, evidence exists to support the Board’s determination that the circumstances of the commitment offense indicated petitioner presented a risk of danger to society if 10 released. The record contains evidence that the commitment offense was committed in an 11 “especially heinous, atrocious or cruel manner,” a circumstance tending to show parole 12 unsuitability, see 15 Cal. Code Regs. § 2402(c), in that the offense would “shock the 13 conscience of any person,” and was “carried out in a dispassionate and calculated 14 manner” . . . . and “in a manner that demonstrate[d] a total callous disregard for one’s 15 fellow man.” (Ans. Ex. 5 at 54–55.) In particular, petitioner and his accomplices 16 targeted a group of stranded victims and attacked them with knives, sticks, and a gun. 17 Significantly, even after the victims complied with petitioner and his accomplices’ 18 demands for money, the vicious attack continued, resulting in the death of Jesus Garcia, 19 as well as serious injury to other victims. Under such circumstances, the Board’s 20 description of the offense as “dispassionate” and a “total callous disregard for one’s 21 fellow man” is not unreasonable. While at some point, the circumstances of the 22 commitment offense may cease to have probative value, they constitute, at present, some 23 evidence of petitioner’s dangerousness. 24 Moreover, petitioner’s institutional behavior and his criminal history constitute 25 additional evidence of petitioner’s unsuitability for parole. While in prison, petitioner 26 committed at least thirty disciplinary infractions. (Ans. Ex. 7.) Prior to his current 27 incarceration, petitioner had acquired a substantial criminal history, including violent 28 offenses. Because the Board relied on such additional evidence, petitioner’s claim that 7 1 the Board’s decision violated his right to due process by relying solely on the unchanging 2 circumstances of the commitment offense is without merit. 3 Accordingly, petitioner is not entitled to habeas relief on this claim. 4 2. 5 Petitioner claims respondent, by denying him parole, violated his rights under his Plea Agreement 6 plea agreement. (Pet. at 24.) The plea agreement, petitioner contends, promised 7 petitioner he would be released on parole if he “met the suitability criteria, [and] served 8 sufficient time per the Board of Prison Terms Matrix.” (Id. at 25.) 9 “[D]ue process rights conferred by the federal constitution allow [a defendant] to 10 enforce the terms of [his] plea agreement.” Brown v. Poole, 337 F.3d 1155, 1159 (9th 11 Cir. 2003). Plea agreements are construed using the ordinary rules of contract 12 interpretation. See id. at 1159. “[W]hen a plea rests in any significant degree on a 13 promise or agreement of the prosecutor, so that it can be said to be a part of the 14 inducement or consideration, such promise must be fulfilled.” See Santobello v. New 15 York, 404 U.S. 257, 262 (1971); see also Brown, 337 F.3d at 1159 (holding prosecutor’s 16 promise, specifically, that petitioner would be released on parole after serving half the 17 minimum sentence discipline-free, was binding). 18 Here, petitioner’s claims are without merit. Because the Board found petitioner 19 unsuitable for parole, the first of the provisions of the plea agreement on which petitioner 20 relies was not implicated, and therefore respondent did not violate its terms. Moreover, 21 the Board is under no duty to apply the sentencing matrix once it has determined a 22 prisoner is unsuitable for parole. In Re Dannenberg, 34 Cal. 4th 1069, 1071 (2005). 23 24 25 Accordingly, petitioner is not entitled to habeas relief on this claim. CONCLUSION Because the record contains some evidence to support the Board’s determination 26 that petitioner would present an unreasonable risk of danger to society if released, and 27 because petitioner has made an insufficient showing as to his entitlement to relief on his 28 other claims, the Court finds the state court’s determination was neither contrary to nor an 8 1 unreasonable application of clearly established Supreme Court precedent, nor can the 2 Court say it was based on an unreasonable determination of the facts. 3 Accordingly, the petition for a writ of habeas corpus is hereby DENIED. 4 The Clerk shall enter judgment in favor of respondent and close the file. 5 IT IS SO ORDERED. 6 DATED: December 18, 2009 MAXINE M. CHESNEY United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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