Love v. Curry, No. 3:2007cv01160 - Document 10 (N.D. Cal. 2008)

Court Description: ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS, ***Civil Case Terminated.. Signed by Judge Vaughn R. Walker on 11/7/2008. (Attachments: # 1 Certificate of Service)(tl, COURT STAFF) (Filed on 11/7/2008)
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Love v. Curry Doc. 10 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 TODD R LOVE, 13 Petitioner, 14 v 15 BEN CURRY, Warden, 16 Respondent. 17 ) ) ) ) ) ) ) ) ) ) No C 07–1160 VRW (PR) ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS 18 19 Petitioner Todd R Love, a state prisoner 20 incarcerated at the Correctional Training Facility in 21 Soledad, California seeks a writ of habeas corpus under 28 22 USC section 2254 challenging the California Board of Parole 23 Hearings' ("board") February 15, 2005 decision to deny him 24 parole. 25 Per order filed on July 27, 2007, the court 26 (Jenkins, J) found petitioner's claim that the board 27 violated his due process and equal protection rights 28 colorable under section 2254, when liberally construed, and 1 ordered respondent to show why a writ of habeas corpus 2 should not be granted. 3 petitioner has filed a traverse. Respondent has filed an answer and 4 5 I 6 On June 20, 1993, petitioner fatally shot his 7 sister's boyfriend. 8 after petitioner and the victim had been drinking beer and 9 began to fight physically. Doc #7, Ex 4. Id. The shooting occurred During a break in the 10 fight, petitioner retrieved a gun from his bedroom and shot 11 the victim twice. 12 recording of a 911 emergency call which had recorded 13 petitioner's repeated statements that he was going to kill 14 the victim and the actual shots being fired. 15 Id. At trial, the prosecution played a Id. On November 9, 1993, petitioner was convicted of 16 first degree murder and use of a firearm to commit the 17 crime. 18 motion for a new trial and modification of the verdict. 19 Id. 20 reduced the jury verdict to second degree murder. 21 Petitioner was sentenced to a prison term of 18 years-to- 22 life: 15 years-to-life on the murder charge and an 23 additional 3 year term for the use of a firearm during the 24 offense. 25 26 Cal Penal Code §§ 187, 12022.5. The trial judge denied the new trial motion, but Id. Id. On February 15, 2005, petitioner appeared before the board for his first parole consideration hearing. 27 28 Petitioner filed a 2 Doc 1 #7, Ex 3. 2 parole. 3 Ex 3). The board found petitioner unsuitable for 4 ("PAROLE DENIED TWO YEARS") Hr'g Tr at 73 (Doc #7, Petitioner unsuccessfully challenged the board's 5 decision in the state superior, appellate and supreme 6 courts. 7 Supreme Court summarily denied petitioner's petition for 8 review. 9 followed. Doc #1. On December 13, 2006, the California This federal petition for a writ of habeas corpus 10 11 12 II The Antiterrorism and Effective Death Penalty Act 13 of 1996 ("AEDPA"), codified under 28 USC section 2254, 14 provides "the exclusive vehicle for a habeas petition by a 15 state prisoner in custody pursuant to a state court 16 judgment, even when the [p]etitioner is not challenging his 17 underlying state court conviction." 18 F3d 1002, 1009-10 (9th Cir 2004). 19 may entertain a petition for habeas relief on behalf of a 20 California state inmate "only on the ground that he is in 21 custody in violation of the Constitution or laws or 22 treaties of the United States." 23 White v Lambert, 370 Under AEDPA, this court 28 USC section 2254(a). The writ may not be granted unless the state 24 court's adjudication of any claim on the merits: "(1) 25 resulted in a decision that was contrary to, or involved an 26 unreasonable application of, clearly established Federal 27 28 3 1 law, as determined by the Supreme Court of the United 2 States; or (2) resulted in a decision that was based on an 3 unreasonable determination of the facts in light of the 4 evidence presented in the State court proceeding." 5 § 2254(d). 6 relief will not be granted "simply because [this] court 7 concludes in its independent judgment that the relevant 8 state-court decision applied clearly established federal 9 law erroneously or incorrectly. Under this deferential standard, federal habeas 10 must also be unreasonable." 11 411 (2000). 12 28 USC Rather, that application Williams v Taylor, 529 US 362, While circuit law may provide persuasive 13 authority in determining whether the state court made an 14 unreasonable application of Supreme Court precedent, the 15 only definitive source of clearly established federal law 16 under 28 USC section 2254(d) rests in the holdings (as 17 opposed to the dicta) of the Supreme Court as of the time 18 of the state court decision. 19 331 F3d 1062, 1069 (9th Cir 2003). Id at 412; Clark v Murphy, 20 21 III 22 Petitioner seeks federal habeas corpus relief 23 from the board's February 15, 2005 decision finding him 24 unsuitable for parole and denying him a subsequent hearing 25 for two years on the ground that the decision does not 26 comport with due process and equal protection. 27 28 4 Petitioner 1 argues that the board's decision was arbitrary because he 2 was not provided with individualized consideration and that 3 the decision was not supported by some evidence in the 4 record. 5 process because his right to a parole hearing with the 6 board one year prior to his minimum eligible parole release 7 date was not timely satisfied. Petitioner also argues that he was denied due 8 9 A 10 Under California law, prisoners serving 11 indeterminate life sentences, like petitioner, become 12 eligible for parole after serving minimum terms of 13 confinement required by statute. 14 4th 1061, 1069-70 (2005). 15 parole scheme provides that the board "shall set a release 16 date unless it determines that the gravity of the current 17 convicted offense or offenses, or the timing and gravity of 18 current or past convicted offense or offenses, is such that 19 consideration of the public safety requires a more lengthy 20 period of incarceration." 21 Regardless of the length of the time served, "a life 22 prisoner shall be found unsuitable for and denied parole if 23 in the judgment of the panel the prisoner will pose an 24 unreasonable risk of danger to society if released from 25 prison." 26 determination, the board must consider various factors, At that point, California's Cal Penal Code § 3041(b). Cal Code Regs tit 15, § 2402(a). 27 28 In re Dannenberg, 34 Cal 5 In making this 1 including the prisoner's social history, past criminal 2 history, and base and other commitment offense, including 3 behavior before, during and after the crime. 4 Regs tit 15, § 2402(b) - (d). 5 See Cal Code California's parole scheme "gives rise to a 6 cognizable liberty interest in release on parole which 7 cannot be denied without adequate procedural due process 8 protections." 9 F3d 1123, 1128 (9th Cir 2006); McQuillion v Duncan, 306 F3d Sass v California Bd of Prison Terms, 461 10 895, 902 (9th Cir 2002). 11 release date has not been set for the inmate because "[t]he 12 liberty interest is created, not upon the grant of a parole 13 date, but upon the incarceration of the inmate." 14 Terhune, 334, F3d 910, 914-15 (9th Cir 2003). 15 It matters not that a parole Biggs v Petitioner's due process rights require that 16 "some evidence" support the board's decision finding him 17 unsuitable for parole. 18 evidence" standard is deferential, but ensures that "the 19 record is not so devoid of evidence that the findings of 20 [the board] were without support or otherwise arbitrary." 21 Superintendent v Hill, 472 US 445, 457 (1985). 22 whether this requirement is satisfied "does not require 23 examination of the entire record, independent assessment of 24 the credibility of witnesses, or weighing of the evidence." 25 Id at 455-56. 26 Sass, 461 F3d at 1125. Determining Due process also requires that the evidence 27 28 This "some 6 1 underlying the parole board's decision have some indicia of 2 reliability. 3 904. 4 afforded an opportunity to appear before, and present 5 evidence to, the board. 6 F2d 1396, 1399 (9th Cir 1987). 7 determination of parole unsuitability is to satisfy due 8 process, there must be some evidence with some indicia of 9 reliability, to support the decision. 10 Biggs, 334 F3d at 915; McQuillion, 306 F3d at Relevant to this inquiry is whether the prisoner was See Pedro v Oregon Parole Bd, 825 If the board's Rosas v Nielsen, 428 F3d 1229, 1232 (9th Cir 2005). 11 12 13 B Petitioner claims that the board's finding that 14 he was unsuitable for parole is not supported by any 15 evidence in the record or an individualized consideration 16 of his circumstances. 17 found three circumstances tending to show unsuitability for 18 parole and that these circumstances formed the basis for 19 its conclusion that petitioner posed "an unreasonable risk 20 of danger to society and a threat to public safety if 21 released from prison." 22 tit 15, § 2402(a) (stating that a prisoner determined to be 23 an unreasonable risk to society shall be denied parole). 24 The record also shows that the board afforded petitioner 25 and his counsel an opportunity to speak and present 26 petitioner's case at the hearing, gave them time to review But the record shows that the board Hr'g Tr at 69; see Cal Code Regs 27 28 7 1 petitioner's central file, allowed them to present relevant 2 documents and provided them with a reasoned decision in 3 denying parole. 4 Hr'g Tr at 7-8. First, the board examined the commitment offense 5 and found that the offense "was carried out in an 6 especially callous, cruel manner. 7 dispassionate * * * [showing] a callous disregard for 8 another human being." 9 the "motive for the crime was inexplicable or very Id at 69. The offense was The board also noted that 10 trivial." 11 (E) (listing callous disregard for human suffering and 12 trivial motive as factors tending to show unsuitability for 13 parole). 14 the offense was committed when petitioner was drinking beer 15 and that the provocation for the shooting was a fistfight. 16 Hr'g Tr at 69. 17 district attorney in opposition to parole and the 18 transcript of the 911 call during which the petitioner 19 repeatedly stated his intent to kill the victim as 20 particularly "powerful" in compelling it's decision to deny 21 parole at this time. 22 Id; see Cal Code Regs tit 15, § 2401(c)(1)(D) - The board drew its conclusion from the fact that The board cited the letter written by the Id at 72. Second, the board cited four disciplinary write- 23 ups as a factor in its decision to deny parole. 24 ups were issued between 1994 and 1997 and concerned: (1) 25 entering an unauthorized cell; (2) manufacturing alcohol in 26 a cell; (3) willful resistance; and (4) refusing a direct 27 28 8 The write- 1 order. 2 of the hearing, petitioner had been "disciplinary free for 3 almost six and a half years, so he appears to be smoothing 4 it out." 5 not outweigh the other factors contributing to petitioner’s 6 parole denial. 7 Doc #7, Ex 8. The board noted that, as of the time Hr'g Tr at 70-71. But, in its judgment, this did Id. Third, and related, is that the board determined 8 that petitioner "had not sufficiently participated in 9 substance abuse programs." Id at 70. Specifically, the 10 board found that petitioner "needs to continue to 11 participate in programs that would enable him to be able to 12 face, discuss, understand and cope with stress in a non- 13 destructive manner." 14 the vocational and rehabilitative strides he had made, the 15 board noted that, as yet, he had not "completed the 16 necessary programming which is essential to his 17 adjustment." 18 Id. While commending petitioner on Id. The board considered other factors tending to 19 support suitability for parole including: petitioner's 20 favorable psychological evaluation which indicated a 21 reduced level of dangerousness and that he was on the right 22 track; that he had been discipline free for over six years; 23 that he had support from family who would help him with his 24 residential and employment plans; and his participation in 25 vocational courses. 26 that these factors showed that petitioner was making Hr'g Tr at 70-71. 27 28 9 The board found 1 progress, but that these positive aspects did not "outweigh 2 the fact of his unsuitability." 3 Hr'g Tr at 71. The state superior court affirmed the decision of 4 the board. 5 considerations and concluded that the board based its 6 determination of unsuitability for parole on some evidence. 7 Doc #7, Ex 10. 8 disciplinary write-ups during his state prison confinement, 9 and further that petitioner had not sufficiently The superior court examined the board's This evidence included the "four serious 10 participated in substance abuse programs." 11 Tr at 70, 72) (internal quotations omitted). 12 superior court agreed that the gravity of the crime and its 13 surrounding facts justified further incarceration. 14 The state appellate and supreme courts summarily denied 15 petitioner's request for habeas corpus relief. Id (citing Hr'g Further, the Id. 16 17 18 1 The state courts' rejection of petitioner's due 19 process claim was not contrary to, nor did it involve an 20 unreasonable application of clearly established federal 21 law, and it was not based on an unreasonable determination 22 of the facts. 23 See 28 USC § 2254(d). The record shows that the board had some reliable 24 evidence to support its finding of unsuitability. 25 this was petitioner's first parole hearing, the 26 circumstances surrounding the murder, which suggested a 27 28 10 Because 1 callous disregard for human suffering as well as a trivial 2 motive were particularly relevant to the board's decision. 3 Accord Irons v Carey, 505 F3d 846, 850 (9th Cir 2007) 4 (upholding denial of parole based solely on gravity of 5 offense). 6 served the minimum 18 year determinate part of his 7 sentence. 8 commitment offense where petitioner has not yet served the 9 minimum number of years required by his sentence will It is also relevant that petitioner had not yet See id at 853 (denial of parole based on 10 generally comport with due process). 11 previous disciplinary write-ups and a finding that 12 petitioner had not sufficiently participated in substance 13 abuse programs reasonably contributed to the board's 14 determination that he was unsuitable for parole. 15 474 US at 455-56. 16 In addition, the See Hill, The board's detailed findings rebut petitioner's 17 allegation that the board did not afford him individualized 18 consideration and that its decision was mere boilerplate. 19 While lauding his recent vocational and behavioral gains, 20 the board reasonably concluded that petitioner was not yet 21 suitable for parole. 22 "reweigh the evidence." 23 Cir 1994). It is not up to this court to Powell v Gomez, 33 F3d 39, 42 (9th 24 25 26 2 Petitioner's invocation of equal protection does 27 28 11 1 not form a basis for federal habeas relief either. 2 equal protection challenge under the Fourteenth Amendment 3 requires allegations that parole statutes distinguish 4 between categories of criminal offenders. 5 are reviewed under a rational basis test because prisoners 6 are not a suspect class and there is no fundamental 7 constitutional right to parole. 8 F3d 1053, 1054 (9th Cir 1999) (Nevada legislature did not 9 lack a rational basis for requiring more scrutiny of sexual 10 offenders in parole matters than other classes of criminals 11 due to heightened recidivism concerns). 12 An These statutes See Glauner v Miller, 184 Petitioner vaguely alleges that prisoners 13 sentenced to life terms are routinely denied parole and 14 that this constitutes a violation of due process and equal 15 protection. 16 provided ample justification for its denial of parole. 17 There is a rational basis supporting the weight given to 18 petitioner's commitment offense, especially at an initial 19 parole hearing. 20 decision was arbitrary or based solely on petitioner's 21 status as a life-term prisoner. But the record makes clear that the board There is no evidence that the board's 22 23 24 C Petitioner seeks federal habeas relief on the 25 ground that his parole hearing was less than one year prior 26 to his minimum eligible parole date, in violation of 27 28 12 1 California Penal Code section 3041(a). 2 The record shows that petitioner's parole 3 consideration hearing was conducted on February 15, 2005, 4 five months prior to his minimum eligible parole date. 5 surprisingly, the California superior court denied 6 petitioner's claim, noting that the hearing "was conducted 7 well in advance of his minimum eligible parole release 8 date." 9 Not Doc #7, Ex 10 at 1. Petitioner is not entitled to federal habeas 10 relief for alleged violations of state law. 11 McGuire, 502 US 62, 67-68 (1991). 12 bound by the superior court's interpretation of state law. 13 See Bradshaw v Richey, 546 US 74, 76 (2005). See Estelle v Moreover, this court is 14 15 16 17 18 19 IV For the reasons set forth above, the petition for a writ of habeas corpus is DENIED. The clerk shall enter judgment in favor of respondent and close the file. 20 21 SO ORDERED. 22 23 24 VAUGHN R WALKER United States District Chief Judge 25 26 27 28 13