Bankston v. Curry, No. 3:2007cv01819 - Document 50 (N.D. Cal. 2010)

Court Description: ORDER Denying Habeas Relief. Signed by Judge Charles R. Breyer on 3/30/2010. (crblc3, COURT STAFF) (Filed on 3/30/2010)
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Bankston v. Curry Doc. 50 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 ORDER DENYING HABEAS CORPUS PETITION Petitioner, 13 14 No. C 07-1819 CRB LEWIS DALE BANKSTON, v. BEN CURRY, Warden, 15 Respondent. / 16 17 Petitioner Lewis Dale Bankston (“Bankston”) has filed a petition for habeas corpus, 18 challenging the California Board of Prison Terms’ (“the Board”) determination that he was 19 unsuitable for parole. For the reasons discussed below, this Court finds that the Board’s 20 decision was supported by “some evidence.” Accordingly, Bankston’s petition for habeas 21 corpus is DENIED. FACTUAL AND PROCEDURAL BACKGROUND 22 23 24 A. The Commitment Offense On the night of October 8, 1985, Bankston’s fiancée was killed by a single gunshot to 25 the head. The shooting occurred shortly after Bankston and his fiancée had retired to his 26 bedroom, after having spent the evening with neighbors. 27 28 Bankston maintained at the time, and continues to maintain, that the shooting was an accident. Though he claims to have only a vague memory of the night of the murder, he alleges that the night transpired as follows: When the couple entered his bedroom, Bankston 1 placed what he thought was an unloaded revolver on the headboard of his waterbed. He and 2 his fiancée then began to “maneuver” on the bed. These maneuvers jostled the headboard, 3 which caused the gun to fall. Upon impact with the bed, the gun discharged, killing the 4 victim. Bankston picked the gun up after it discharged and left the room, without stopping to 5 clean his hands or otherwise conceal evidence of a crime. He then ran to the neighbors to 6 seek their help and call the authorities. United States District Court For the Northern District of California 7 Bankston’s account, however, was not supported by physical evidence from the scene. 8 Extensive testing of the headboard and bed clothing failed to reveal any gunpowder residue, 9 indicating that the gun had not discharged while in contact with either surface. Moreover, a 10 forensic expert testified at Bankston’s trial that Bankston’s revolver had to have been fired 11 by a pull of the trigger and could not have discharged in the manner Bankston described. 12 Bloodstains at the scene also undermined Bankston’s story. Such stains were found 13 inside the bathroom door and on the doorjamb, signaling that Bankston had entered the 14 bathroom after the shooting. The victim’s blood was also found in a groove at the base of 15 two bullets that had been placed on the headboard. This fact ran counter to Bankston’s 16 contention that he had unloaded the weapon before the shooting. It also suggested that 17 Bankston had wiped blood off of the bullets before placing them on the headboard, another 18 indication that Bankston had attempted to cover-up the crime. 19 Though he testified at trial, Bankston was unable to provide an explanation for this 20 contradictory physical evidence. Nor has he done so in the years since the night of the 21 shooting. 22 Following a trial at which Bankston’s story and the above evidence was presented, a 23 jury convicted Bankston of second-degree murder. He was subsequently sentenced to a term 24 of fifteen years to life with a two year consecutive enhancement for use of a firearm. He 25 began his sentence on May 8, 1986. 26 27 28 2 1 Procedural Background 2 1. 3 Bankston’s initial parole hearing occurred on March 3, 1996, almost ten years after he Bankston’s Initial Parole Hearings 4 was first incarcerated. Though the Board commended Bankston for his “disciplinary-free 5 behavior”, it concluded that he was unsuitable for parole at the time. In support of this 6 determination, the Board cited the “especially atrocious, cruel and callous manner” in which 7 Bankston’s crime was committed, the fact that he had programmed in a limited manner while 8 in prison, and the fact that he had not participated in sufficient “self-help and therapy 9 programming.” The Board further concluded that Bankston needed “therapy in order to face, 10 United States District Court For the Northern District of California B. 11 discuss, understand and cope with stress in a nondestructive manner.” In May 1999, the Board denied Bankston parole for a second time. Again the Board 12 identified the callousness of Bankston’s crime and his insufficient participation in “beneficial 13 self-help and therapy programming” as evidence of Bankston’s unsuitability for parole. 14 Among other things, it recommended that Bankston “participate in available self-help and 15 therapy programming.” 16 Bankston’s third parole hearing, in August 2002, likewise resulted in the denial of 17 parole. The Board again emphasized the callousness of Bankston’s offense, including the 18 fact that the “motive for the crime was inexplicable and very trivial.” It also concluded, as it 19 previously had, that Bankston had failed to participate in adequate self-help or therapy. 20 In addition to these justifications, the Board explicitly cited, for the first time, 21 Bankston’s lack of insight into his crime as a ground for its denial of parole. This lack of 22 insight was evidenced by Bankston’s continued assertion that the shooting was an accident 23 and that he had not fired the murder weapon. It was also supported, in the Board’s view, by 24 the report of pscychologist Steven Terrini. Although Terrini, like several previous 25 psychologists, had concluded that Bankston posed a low risk to the community, the Board 26 noted that his report indicated that Bankston had shown only “some insight into his 27 commitment offense.” 28 3 1 2 “participate in therapy in order to face, discuss, understand and cope with stress in a 3 nondestructive manner.” 4 2. 5 Following this third denial of parole, Bankston filed a petition for habeas corpus in 6 California Superior Court, arguing that the Board’s decision was arbitrary and capricious. 7 The Court agreed with Bankston, and, in December 2004, granted his petition. 8 9 United States District Court For the Northern District of California After announcing its decision, the Board again recommended that Bankston Bankston’s First State Habeas Petition The Court found the Board’s 2002 decision lacking in several respects. First, the court concluded that the Board’s determination that Bankston had committed his crime in an 10 especially callous manner was in error because the Board had failed to “weigh Bankston’s 11 conduct against other instances of the same crime or crimes” before making that 12 determination.1 Second, the court found no support in the record for the Board’s conclusion 13 that Terrini’s report was not totally supportive of release. The court likewise found no 14 support in the record for the Board’s conclusion that Bankston needed additional therapy. 15 The court noted, specifically, that Terrini and previous psychologists had given Bankston a 16 clean bill of mental health. 17 To remedy these errors, the court ordered the Board to hold a new parole hearing. 18 The court further instructed the Board that, in reaching its next decision, it had to “consider 19 Bankston’s psychological profile as a factor favoring his application for a parole date unless 20 a new psychological evaluation supports a different conclusion.” The court also required the 21 Board to “consider Bankston’s work history, education, volunteer work, and disciple [sic] 22 free incarceration as factors supporting his application for parole.” 23 3. 24 On March 23, 2005, the Board held the hearing ordered by the court. That hearing 25 The March 23, 2005 Parole Hearing and its result are the subject of the petition now pending before this Court. 26 27 1 Subsequent to the Superior Court’s decision granting Bankston habeas relief, the California Supreme Court held, in In re Dannenburg, 34 Cal. 4th 1061 (2005), that the Board 28 need not compare the potential parolee’s crime to other similar crimes in order to determine whether the crime was carried out in an especially callous manner. Id. at 1098. 4 United States District Court For the Northern District of California 1 At the March 2005 hearing, the Board heard testimony from Bankston and several 2 members of the victim’s family. The Board also read into evidence a psychological report 3 authored by Dr. Steven Walker, who had examined Bankston on January 6, 2005. Walker, 4 like his predecessors, considered Bankston to present a relatively “low risk of future 5 violence.” He noted, however, that Bankston “remains adamant that the killing of his 6 girlfriend was a horrible accident.” Because of Bankston’s “denial of events as reportedly 7 transpired,” Walker raised his estimate of Bankston’s current risk of future violence from 8 “low” to “low to moderately low.” Walker also opined that “[o]ngoing education, and 9 involvement in self-help, self study (bibliotherapy), or introspective treatments groups (if 10 available to life term inmates without mental health issues) is encouraged, but his group 11 treatment should not be considered mandatory.” 12 At the end of the hearing, the Board again denied parole. The Board began its report 13 of the decision by noting that, as instructed by the California Superior Court, it had 14 considered Bankston’s work history, his education, his volunteer work, and his discipline- 15 free incarceration as factors supporting his parole. It also found that Bankston had solid 16 parole plans. 17 Notwithstanding these positive findings, the Board concluded that Bankston was “not 18 yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to 19 public safety,” for several reasons. 20 First, the Board again found that Bankston had committed the offense in an 21 “exceptionally callous” manner. As evidence of the callousness of the offense, the Board 22 cited the fact that the victim “was in a position of trust with Mr. Bankston” and the fact that 23 the motive for the crime, the victim’s threat to break up with Bankston, was “very trivial.” 24 Next, the Board averred that Bankston had “programmed in a limited manner while 25 incarcerated” and had “not sufficiently participated in beneficial self-help.” With respect to 26 his programming, Bankston had failed to provide a previously requested copy of his diploma 27 and had not supplied documentation of his participation in as a woodworker in a furniture 28 making program. Regarding self-help, the Board noted that Bankston’s “most recent self5 1 help” was a four hour video in July of 2002 and that most of his self-help consisted of his 2 participation in programs to help juveniles in the early 1990s. Bankston had not engaged in 3 self-help or therapy directed at his ability to deal with stress in a non-destructive manner. 4 5 sufficient “insight” into his crime. Specifically, the Board found that it was “just simply . . . 6 contradictory that Mr. Bankston could have good insight when his explanation of this offense 7 is contrary to the physical evidence of this offense.” 8 9 United States District Court For the Northern District of California Third, the Board concluded that Bankston was unsuitable for parole because he lacked Finally, the Board noted that members of the victim’s family and a fearful witness opposed a finding of suitability. 10 Based on the above findings, the Board denied parole for three years and 11 recommended that Bankston “remain disciplinary free; if and when available, upgrade 12 vocationally and educationally; also, in lieu of that, provide documentation of his high school 13 graduation and his vocational skills; and to participate in self-help where and when 14 available.” One Commissioner, speaking separately, recommended to Bankston that he seek 15 out self-help that specifically “address[es] your relationships with women.” 16 4. Bankston’s Motion for Contempt 17 Following the Board’s decision, Bankston filed a motion in California Superior Court 18 asking the court to hold the Board in contempt. In Bankston’s view, the Board had violated 19 the Superior Court’s habeas order by, among other things, failing to consider Bankston’s 20 psychological profile, his education, his work history and his volunteer work as factors 21 favoring parole. 22 The court denied Bankston’s contempt motion, finding that Bankston “ha[d] not 23 established that the Board was in willful violation of the Court’s order.” The denial was 24 subsequently affirmed on appeal. 25 5. The Current Habeas Petition 26 Having failed to secure an order holding the Board in contempt for its March 2005 27 decision denying parole, Bankston filed a habeas petition in California Superior Court in 28 which he challenged the decision directly. This time around the Superior Court denied 6 United States District Court For the Northern District of California 1 Bankston’s petition, concluding that “some evidence” supported the Board’s denial of parole. 2 The California Court of Appeal summarily affirmed the Superior Court’s decision in July 3 2007, as did the California Supreme Court in May 2008. Bankston thereafter filed the 4 petition now pending before this Court. 5 LEGAL STANDARD 6 Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a 7 district court may not grant a writ of habeas corpus unless it finds that the state court’s 8 adjudication on the merits was either (1) “contrary to, or involved an unreasonable 9 application of, clearly established federal law, as determined by the Supreme Court of the 10 United States” or (2) “based on an unreasonable determination of the facts in light of the 11 evidence presented in the State Court proceeding.” 28 U.S.C. § 2254(d)(1-2). 12 “California Penal Code section 3041 vests [Bankston] and all other California 13 prisoners whose sentences provide for the possibility of parole with a constitutionally 14 protected liberty interest in the receipt of a parole release date, a liberty interest that is 15 protected by the procedural safeguards of the Due Process Clause.” Irons v. Carey, 505 F.3d 16 846, 850 (9th Cir. 2007) (citations omitted). At the time that Bankston’s state habeas petition 17 was before the state courts, “the Supreme Court had clearly established that a parole board’s 18 decision deprives a prisoner of due process with respect to this interest if the board’s decision 19 is not supported by ‘some evidence in the record.’” Id. (citing Superintendent v. Hill, 472 20 U.S. 445, 457 (1985)); see also Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir. 2003) (“In the 21 parole context, the requirements of due process are satisfied if ‘some evidence’ supports the 22 decision [to deny parole].”).2 23 24 Moreover, when this court evaluates whether a parole board’s decision was supported by “some evidence” in a habeas case, the Court’s “analysis is framed by the statutes and 25 2 26 27 28 The State argues that use of the “some evidence” standard in the parole context is not clearly established Supreme Court law for AEDPA purposes. The Ninth Circuit expressly rejected this argument in Sass v. Calif. Bd. of Prison Terms, 461 F.3d 1123, 1129 (9th Cir. 2006) (“We therefore reject the state’s contention that the some evidence standard is not clearly established in the parole context.”), and has adhered to this view in subsequent cases. See, e.g., Irons, 505 F.3d at 850-851. Though the State maintains that the Ninth Circuit is reconsidering this holding, it has not yet done so and this Court is therefore bound by it. 7 1 regulations governing parole suitability determinations in the relevant state.” Id. at 851. 2 “Accordingly, here [this Court] must look to California law to determine the findings that are 3 necessary to deem a prisoner unsuitable for parole, and then must review the record in order 4 to determine whether the state court decision holding that these findings were supported by 5 ‘some evidence’” was a reasonable application of the “some evidence” standard. Id. DISCUSSION 6 Under California law, “a life prisoner shall be found unsuitable for and denied parole United States District Court For the Northern District of California 7 8 if in the judgment of the [Board] the prisoner will impose an unreasonable risk of danger to 9 society if released from prison.” In re Dannenburg, 34 Cal.4th at 1080 (quoting Cal. Code of 10 Regs., tit. 15 § 2402(a)). The Board decides whether a prisoner is too dangerous to be 11 suitable for parole by weighing factors “tending to show unsuitability” for parole, as set forth 12 in Cal. Code Regs., tit. 15 § 2402(c), against factors “tending to show suitability,” as set forth 13 in Cal. Code Regs., tit. 15 § 2402(d). For habeas purposes, the test, however, is not whether 14 “some evidence” supports a particular factor or factors indicating unsuitability, but rather 15 whether “some evidence” supports the Board’s ultimate conclusion that “a parolee’s release 16 unreasonably endangers public safety.” See In re Lee, 143 Cal. App. 4th 1400, 1408-09 17 (2006); Dannenburg, 156 Cal. 4th at 1400. 18 A. 19 The Board’s March 2005 Unsuitability Determination As an initial matter, it is undisputed that several factors “tending to show suitability” 20 exist in Bankston’s case. See Cal. Code Regs., tit. 15 § 2402(d). Bankston’s “institutional 21 behavior” has been exemplary. § 2402(d)(9). He has no juvenile record or other criminal 22 history. § 2402(d)(1)& (6). He also has “realistic plans for release.” § 2402(d)(8). These 23 plans include a regular income, substantial savings and a residence which he owns. 24 Bankston also appears to have maintained “reasonably stable relationships with others,” 25 including his parents, a son, and a girlfriend. § 2402(d)(2). 26 27 At Bankston’s 2005 parole hearing, the Board recognized many of these positive factors. It nonetheless concluded that “currently the positive aspects of [Bankston’s] 28 8 1 behavior do not outweigh the factors of unsuitablility.” It is this conclusion that Bankston 2 now challenges. United States District Court For the Northern District of California 3 The Board provided four reasons why it considered Bankston unsuitable for parole, 4 despite the various factors weighing in his favor. Those reasons were: (1) the “exceptionally 5 callous” nature of the commitment offense; (2) Bankston’s failure to participate in sufficient 6 programming and beneficial self-help; (3) Bankston’s lack of insight into his crime; and (4) 7 statements from the victim’s family members opposing parole. As explained below, this 8 Court finds that the Board’s second and third justifications for denying parole are supported 9 by the record and provide “some evidence” that Bankston poses an unreasonable risk of 10 danger to society. Accordingly, the Board’s decision did not result in a denial of due 11 process. 12 Bankston devotes the bulk of his petition to a challenge to the Board’s first finding – 13 i.e., that the especially cruel and callous manner in which the commitment offense occurred 14 indicates that Bankston currently poses an unreasonable risk of danger the public. Bankston 15 argues both that the crime was not “especially cruel,” and, even assuming it was, the passage 16 of significant time has negated the relevance of the commitment offense as a measure of 17 Bankston’s current dangerousness. 18 Whether the circumstances of Bankston’s commitment offense, standing alone, 19 provide “some evidence” of his current dangerousness is a close question. Section 20 2402(c)(1), which defines the first unsuitability factor, states that a parolee may be unsuitable 21 if he committed his offense “in an especially heinous, atrocious or cruel manner.” The 22 provision then provides a list of five factors that the Board must consider in determining 23 whether the offense was committed in an “especially heinous, atrocious or cruel manner.” 24 Here, the Board relied on two of those factors: § 2402(c)(1)(D)(“The offense was carried out 25 in a manner which demonstrates an exceptionally callous disregard for human suffering.”) 26 and § 2402(c)(1)(E)(“The motive for the crime is inexplicable or very trivial in relation to the 27 offense”). 28 9 1 2 Bankston committed his offense with an “exceptionally callous disregard for human 3 suffering.” The only evidence that the Board cites in support of its “exceptionally callous” 4 finding is that Bankston’s victim was “in a vulnerable position” because she “was in a 5 position of trust with Mr. Bankston.” This situation, however, exists every time the murder 6 victim is a close relative or friend of the murderer. While the murder of a loved one is 7 undoubtedly callous, the close relationship between the victim and the murder does not 8 render the murder per se “exceptionally callous.” See, e.g., In re Smith, 114 Cal. App. 4th 9 343 (husband’s murder of his wife was not “exceptionally callous”). 10 United States District Court For the Northern District of California The Court agrees with Bankston that the record does not support a finding that Moreover, under California law, a crime that manifests an “exceptionally callous 11 disregard for human suffering” is one where the killer “tormented, terrorized, or injured the 12 victim; or . . . gratuitously increased or unnecessarily prolonged [the victim’s] pain and 13 suffering.” In re Smith, 114 Cal. App. 4th at 367; see also In re Van Houten, 116 Cal. App. 14 4th 339, 351 (2004) (murder was committed in an “exceptionally callous” manner where the 15 killer stabbed the victim repeatedly with a knife and a bayonet and the victim was made 16 aware that her husband was suffering a similar fate); In re Dannenburg, 34 Cal.4th at 1095 17 (finding that murderer demonstrated an “exceptionally callous disregard for human 18 suffering” where he “struck multiple blows to his wife’s head with a pipe wrench” and then 19 placed her head in water until she drowned). 20 Here, there is no evidence that Bankston tortured or tormented his victim or otherwise 21 prolonged her suffering. As in In re Smith, the physical evidence established that Bankston’s 22 victim died instantly of a single gunshot wound to the head. 114 Cal. App. 4th at 367 23 (husband’s murder of his wife was not “exceptionally callous” where he shot her in the head 24 and she died “instantly”); see also In re Scott, 119 Cal. App 4th 871, 891 (2004) (holding 25 that there was no evidence to support an “exceptionally callous” finding where killer shot 26 victim once in the head and once in the thigh). In short, there is no evidence in the record 27 that supports a finding that Bankston committed his crime in a “manner which demonstrates 28 an exceptionally callous disregard for human suffering.” 10 1 2 to evidence presented at trial, the murder was precipitated by the victim’s threat to break-up 3 with Bankston. Bankston argues that a “breakup . . . motive [is] more commonplace than 4 rare or trivial.” But it is precisely the commonplace nature of the situation – the potential 5 end of a romantic relationship – that renders Bankston extremely violent reaction troubling. 6 In fact, Bankston maintains that he is currently engaged and plans to get married upon his 7 release. It is therefore possible that Bankston may find himself again in the situation that led 8 to the offense. 9 United States District Court For the Northern District of California It is true, however, that the motive for Bankston’s crime was fairly trivial. According In sum, the Board’s conclusion that the manner in which Bankston committed his 10 offense provides evidence of his unsuitability for parole is supported only by the trivial 11 nature of the motive which triggered the offense. It is far from clear to this Court that a 12 trivial motive, without more, would provide “some evidence” that Bankston currently poses 13 an unreasonable danger to the public. Bankston’s offense occurred almost twenty years 14 before the March 2005 parole hearing. As both the Ninth Circuit and the California courts 15 have recognized, a parole Board’s “continued reliance . . . on an unchanging factor, [such as] 16 the circumstance of the offense . . ., runs contrary to the rehabilitative goals espoused by the 17 prison system and could result in a due process violation.” Biggs v. Terhune, 334 F.3d 910, 18 917 (9th Cir. 2003); In re Scott, 133 Cal. App. 4th 573, 595 (2005) (“[T]he predictive value 19 of the commitment offense may be very questionable after a long period of time.”). 20 Crucially, the Board did not, however, rely solely on the nature of Bankston’s 21 commitment offense in finding him unsuitable for parole. Rather, it also found that Bankston 22 posed an unreasonable risk of danger to the community because he lacked insight into his 23 crime and failed to participate in adequate self-help and programming while prison. These 24 later findings were supported by the record. Moreover, this Court finds that the combination 25 of Bankston’s lack of insight, his failure to engage in adequate self-help, and the 26 commonplace motive for his crime provides “some evidence” for the Board’s conclusion that 27 he currently poses an unreasonable risk of danger to society if released. 28 11 United States District Court For the Northern District of California 1 Though Bankston acknowledges that the crime was his “fault,” he has steadfastly 2 maintained that the murder was a horrible accident, that he did not fire the weapon that killed 3 his fiancée, and that he did not attempt to cover-up the crime. These contentions, of course, 4 run directly counter to the physical evidence recovered the scene. That evidence includes the 5 lack of gunpowder residue on Bankston’s headboard or bedsheets, the fact that the gun could 6 not have fired without the trigger being pulled, and the presence of bloodstains inside the 7 bathroom and on the base of two bullets found on the headboard. Perhaps not surprisingly, 8 Bankston has been unable to produce a plausible explanation for the abundant physical 9 evidence that contradicts his story. Under California law, Bankston’s ongoing refusal to 10 acknowledge or adequately explain the circumstances of the crime alone provide some 11 evidence to support the Board’s conclusion that Bankston poses an unreasonable risk of 12 danger to the community. See In re McClendon, 113 Cal. App. 4th 315, 322 (2003) (holding 13 that the prisoner’s adherence to a version of events that ran counter to the overwhelming 14 evidence provided “some evidence” of his continuing dangerousness). 15 The Board’s concerns about Bankston’s lack of insight find additional support in Dr. 16 Walker’s psychological profile. In that profile, Dr. Walker expressly states that he elevated 17 his assessment of Bankston’s risk of future violence – albeit from “low” only to “low to 18 moderately low” – precisely because of “[Bankston’s] denial of events as reportedly 19 transpired.” The Board was therefore not alone in considering Bankston’s lack of insight as 20 factor that increases the likelihood that he will engage in violence if released. 21 Bankston argues that it was improper for the Board to rely on his lack of insight 22 because, under California law, the Board cannot require an “admission of guilt” as a 23 prerequisite to granting parole. Cal. Penal Code § 5011. California courts have held, 24 however, that the Board may consider a lack of insight as a factor weighing against parole 25 without violating § 5011 if the prisoner’s version of events is “physically impossible [or] 26 strain[s] credulity such that his denial of an intentional killing [is] delusional, dishonest, or 27 irrational.” See In re Palermo, 171 Cal.App.4th 1096, 1112 (2009) (citing In re Shaputis, 44 28 Cal. 4th 1241 (2008) and In re McClendon, 113 App. 4th 315 (2003)). As noted by the Board 12 United States District Court For the Northern District of California 1 and discussed above, Bankston’s version of events is completely contrary to the physical 2 evidence, and, at least according to the state’s forensic expert, “physically impossible.” 3 Bankston has likewise been unable to plausibly explain the contradictory evidence. As a 4 result, Bankston’s account “strains credulity such that his denial of an intentional killing [is] 5 delusional, dishonest, or irrational.” Id. The Board therefore did not violate § 5011’s 6 prohibition against requiring an admission of guilty when it considered Bankston’s lack of 7 insight as a factor weighing against his suitability for parole. 8 In addition to a lack of insight, Bankston’s failure to participate in adequate 9 programming and self-help also provides some evidence of his current dangerousness. At 10 each of the three parole hearings that took place prior to the one at issue in this case, the 11 Board recommended that he engage in additional self-help and therapy. The Board 12 emphasized, in particular, that Bankston seek out help in “understand[ing] and cop[ing] with 13 stress in a nondestructive manner.” Yet Bankston has continually failed to do so. He has 14 worked successfully in the prison shop as a woodworker for a very long time. He also 15 participated in the early 1990s in two programs targeting at-risk youths. But he has 16 consistently failed, despite repeated advice from the Board, to engage in programming or 17 therapy that target his ability to deal with stress or the circumstances of his crime. Though 18 Bankston contends that such programs are not available (a dubious assertion in the Board’s 19 view), he has not engaged even in self-study. Moreover, aside from Bankston’s work in the 20 woodshop, the record indicates that he has engaged in almost no self-help or other 21 programming since the early 1990s, fifteen years before the parole hearing at issue in this 22 case. In short, although Bankston has engaged in some programming and self-help, he has 23 not participated in programs that target his ability to deal with stress in a reasonable manner 24 and has not participated in any significant self-help, including self-study, in many years. 25 This nonparticipation provided the Board with additional evidence that he would pose a 26 danger to society if released. See Van Houten, 116 Cal. App. 4th at 355 (holding that the 27 parolee’s “lack of insight into her participation in a horrendous crime, as well as her recent 28 13 1 nonparticipation in self-help programs,” provided “some evidence” in support of a parole 2 denial). 3 4 At the end of his report, Walker stated that “[o]ngoing education, and involvement in self- 5 help, self study (bibliotherapy), or introspective treatment groups (if available to life term 6 inmates wihtout mental health issues) is encouraged.” Thus, Walker too felt that additional 7 therapy would be beneficial for Bankston, even though he, like other state psychologists, 8 considered Bankston to present a relatively low risk of danger to the public. 9 United States District Court For the Northern District of California Bankston’s need for self-help is also supported by the opinion of psychologist Walker. To summarize: Bankston’s lack of sufficient insight into his crime and his failure to 10 participate in adequate self-help provide “some evidence” that he poses an unreasonable risk 11 of danger to the community. Given that the circumstance which precipitated Bankston’s 12 crime – i.e., a threatened breakup – is not at all uncommon and that Bankston may very well 13 find himself in that situation in the future, his lack of insight and self-help is particularly 14 troubling. This Court therefore concludes that the California state courts did not 15 unreasonably apply the “some evidence” standard in denying Bankston habeas petition. 16 2. Bankston’s Additional Arguments 17 Bankston raises three additional challenges to the Board’s determination that he is 18 unsuitable for parole. First, he maintains that Cal. Code Regs., tit. 15, § 2402(c)(1), which 19 provides that a prisoner may be found unsuitable for parole if the Board determines that he 20 committed his offense in an “especially heinous, atrocious or cruel manner,” is 21 unconstitutionally vague. As a result, Bankston maintains, the Board’s reliance on § 22 2402(c)(1) in denying him parole was improper. 23 This Court need not address this argument. As explained above, Bankston’s lack of 24 insight and failure to participate in self-help provide “some evidence” of his current risk to 25 society. Therefore, even if the Board’s reliance on the manner in which Bankston committed 26 his offense was erroneous, for whatever reason, the Board’s conclusion that he was 27 unsuitable for parole did not violate Bankston’s due process rights. See Biggs, 334 F.3d at 28 915-16 (finding no constitutional violation even though “many of the conclusions reached 14 United States District Court For the Northern District of California 1 and factors relied on by the Board were devoid of evidentiary basis” because “some 2 evidence” nonetheless supported the Board’s decision that the prisoner was unsuitable for 3 parole). 4 Next, Bankston argues that the California Supreme Court’s holding in In re 5 Dannenburg, in which the Court provided guidance on what crimes qualify as “especially 6 heinous” under § 2402(c)(1) and upon which the Board relied in Bankston’s case, was an 7 impermissible “retroactive judicial enlargement” of a criminal statute. This argument is moot 8 for the same reason as the previous one. Evidence of Bankston’s lack of insight and 9 nonparticipation in self-help supported the Board’s unsuitability finding, even if its 10 determination that Bankston had committed his crime in an “especially heinous, atrocious or 11 cruel manner” was in error. See Biggs, 334 F.3d at 915-16. 12 Finally, Bankston asserts that the Board’s denial of parole “offends the rules 13 announced by the United States Supreme Court” in Apprendi v. New Jersey, 530 U.S. 466 14 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and Cunningham v. California, 127 15 S.Ct. 856 (2007). Specifically, Bankston maintains that the Board’s “findings that support 16 the denial of parole suitability act as both a literal and effective” augmentation of Bankston’s 17 sentence and therefore must be decided by a jury. See Apprendi, 530 U.S. at 490 (holding 18 that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime 19 beyond the prescribed statutory maximum must be submitted to a jury”). 20 Bankston’s argument is without merit. First of all, the Board’s unsuitability finding 21 did not “increase[] the penalty for [Bankston’s] crime beyond the statutory maximum.” 22 Apprendi, 530 U.S. at 490. Bankston’s sentence both before and after the 2005 parole 23 hearing was the same: life with the possibility of parole. In any event, the Ninth Circuit has 24 held that “[t]here is no right to a jury for . . . post-conviction determinations,” such as parole. 25 See United States v. Huerta-Pimental, 445 F.3d 1220, 1225 (9th Cir. 2006) (citing Morrissey 26 v. Brewer, 408 U.S. 471, 480-88 (1972)). Bankston’s argument that he had a right to a jury 27 in his parole hearing therefore fails. 28 15 CONCLUSION 1 2 For the reasons discussed above, the Court finds that “some evidence” supported the 3 Board’s conclusion that Bankston would pose an unreasonable risk of danger to society if 4 released from prison. The state court therefore did not apply Supreme Court law in an 5 unreasonable manner when it denied Bankston’s habeas petition. Accordingly, Bankston’s 6 federal habeas petition is also DENIED. 7 IT IS SO ORDERED. 8 9 United States District Court For the Northern District of California 10 Dated: March 30, 2010 CHARLES R. BREYER UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\CRBALL\2007\1819\Order re habeas 16