Vo v. Curry, No. 3:2007cv02305 - Document 8 (N.D. Cal. 2008)

Court Description: ORDER DENYING PETITION re 1 Petition for Writ of Habeas Corpus filed by Ut Chi Vo. Signed by Judge William Alsup on 10/14/8. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 10/14/2008)
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Vo v. Curry Doc. 8 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 07-2305 WHA (PR) UT CHI VO, 11 For the Northern District of California United States District Court 10 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. BEN 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 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. 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 For the Northern District of California United States District Court 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. ISSUES PRESENTED 5 Petitioner was convicted of second degree murder in 1985. He received a sentence of 6 fifteen years to life in prison. In this petition he challenges the 2005 decision by the Board of 7 Parole Hearings (“Board”) finding him unsuitable for parole. 8 As grounds for federal habeas relief, petitioner asserts that his due process rights were 9 violated by the Board’s use of a “some evidence” standard of proof, and by the finding that he 10 was unsuitable for parole when there was no evidence except the offense of conviction to 11 support that result. Among other things, respondent contends in response that California 12 prisoner have no liberty interest in parole and that if they do, the only due process protections 13 available are a right to be heard and a right to be informed of the basis for the denial – that is, 14 respondent contends there is no due process right to have the result supported by sufficient 15 evidence. Because these contentions go to whether petitioner has any due process rights at all 16 in connection with parole, and if he does, what those rights are, they will addressed first. 17 1. 18 The Fourteenth Amendment provides that no state may “deprive any person of life, 19 RESPONDENT’S CONTENTIONS liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1. 20 a. LIBERTY INTEREST 21 Respondent contends that California prisoners have no liberty interest in parole. 22 Respondent is incorrect that Sandin v. Conner, 515 U.S. 472 (1995), applies to parole decisions, 23 see Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003) (Sandin “does not affect the creation of 24 liberty interests in parole under Greenholtz and Allen.”), and, applying the correct analysis, the 25 California parole statute does create a liberty interest protected by due process, see McQuillion 26 v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (“California’s parole scheme gives rise to a 27 cognizable liberty interest in release on parole.”). Respondent’s claim to the contrary is without 28 merit. 3 1 For the Northern District of California United States District Court 2 b. DUE-PROCESS PROTECTIONS Respondent contends that even if California prisoners do have a liberty interest in 3 parole, the due process protections to which they are entitled by clearly-established Supreme 4 Court authority are limited to notice, an opportunity to be heard, and a statement of reasons for 5 denial. That is, he contends there is no due process right to have the decision supported by 6 “some evidence.” This position, however, has been rejected by the Ninth Circuit, which has 7 held that the Supreme Court has clearly established that a parole board’s decision deprives a 8 prisoner of due process if the board’s decision is not supported by "some evidence in the 9 record", or is "otherwise arbitrary." Irons v. Carey, 479 F.3d 658, 662 (9th Cir. 2007) (applying 10 "some evidence" standard used for disciplinary hearings as outlined in Superintendent v. Hill, 11 472 U.S. 445-455 (1985)); McQuillion, 306 F.3d at 904 (same). The evidence underlying the 12 Board’s decision must also have "some indicia of reliability." McQuillion, 306 F.3d at 904; 13 Biggs, 334 F.3d at 915. The some evidence standard identified in Hill is clearly established 14 federal law in the parole context for purposes of § 2254(d). See Sass, 461 F.3d at 1128-1129. 15 16 17 2. PETITIONER’S CLAIMS a. STANDARD OF DECISION Petitioner appears to believe that the Board used the “some evidence” standard at the 18 initial decision-making level, when its proper place is as a review standard. There is no 19 evidence of this, so the claim fails. The state courts’ rejection of this claim was not contrary to, 20 or an unreasonable application of, clearly-established Supreme Court authority. 21 22 b. “SOME EVIDENCE” In his second issue petitioner contends that there was no evidence that he currently is a 23 threat to public safety. As a matter of due process a parole denial must be supported by at least 24 “some evidence.” See McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002) 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 For the Northern District of California United States District Court 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. 10 Part of petitioner’s argument on this claim is that his offense, being twenty years old at 11 the time of the hearing, could no longer be “some evidence” that he was a threat to society. It 12 may be that after a sufficient passage of time some offenses cease to have any evidentiary value 13 in deciding whether the offender would be a danger to society if released. See Biggs v. 14 Terhune, 334 F.3d 910, 916-17 (9th Cir. 2003). This issue need not be decided here, however, 15 because parole was not denied solely because of the commitment offense. 16 The evidence supporting the denial included evidence that petitioner still does not 17 understand why he committed the offense, and perhaps that he killed the victim because he 18 “loved her so much,” both of which support the Board’s conclusion that petitioner lacks the sort 19 of insight into the offense that might help him avoid trouble in the future (Exh. 3 at 23, 66-67); 20 that he lacked a confirmation letter from the brother with whom he hoped to live if paroled (id. 21 at 29); that he has not completed any vocational training programs in prison, and although he 22 hoped to obtain work repairing stoves and microwave ovens, he had no experience doing so (id. 23 at 32-33); and that he has failed to work on getting his GED, despite having had twenty years to 24 do so and having had a previous panel recommend that he do so (id. at 36). As the Board noted, 25 petitioner’s lack of insight into the wellspring of his crime suggests that he might be a danger to 26 anyone who entered into a romantic relationship with him (id. at 66-67), and the other factors 27 listed above suggest that he might have problems finding a place to live and supporting himself, 28 problems that might lead to a reversion to crime. 5 1 Because the evidence recited above constitutes “some evidence” to support the denial, 2 there was no due process violation. Because there was no constitutional violation, the 3 rejections of these claims by the state courts were not contrary to, or an unreasonable 4 application of, clearly-established United States Supreme Court authority. 5 CONCLUSION 6 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file. 7 IT IS SO ORDERED. 8 Dated: October 14 , 2008. 9 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 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\VO2305.RUL.wpd 6