Ruiz v. Horel et al, No. 3:2007cv04804 - Document 35 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS. Signed by Judge Jeffrey S. White on 9/28/10. (jjoS, COURT STAFF) (Filed on 9/28/2010)
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Ruiz v. Horel et al Doc. 35 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 GEORGE RUIZ, Petitioner, 10 11 12 13 vs. ROBERT HOREL, WARDEN, Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. C 07-4804 JSW (PR) ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS (Docket Nos. 27, 30) 15 INTRODUCTION 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner George Ruiz, a prisoner of the State of California currently incarcerated at Pelican Bay State Prison in Crescent City, California, filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the Board of Parole Hearings (“BPH”) denial of parole during parole suitability proceedings in 2006. This Court ordered Respondent to show cause why a writ should not issue. Respondent filed an answer, memorandum and exhibits in support thereof. After Respondent had answered, the United States District Court for the Ninth Circuit decided Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), in which a number of important issues involving parole habeas cases had been raised. In consequence, the Court ordered the parities to provide supplemental briefs addressing the impact of Hayward on this case, which Petitioner and Respondent have done (docket nos. 33, 34). Petitioner’s motion for an extension of time is GRANTED (docket no. 30). Dockets.Justia.com 1 Petitioner has also filed a motion to compel discovery, which is DENIED for the 2 reasons set forth below (docket no. 27). After careful consideration of the record and the 3 submissions of Petitioner and Respondent, the petition is denied on the merits. 4 5 BACKGROUND According to the petition, Petitioner was convicted by a San Diego County 6 Superior Court jury of robbery and kidnapping. In 1981, Petitioner was sentenced to 7 eight years plus seven years-to-life in state prison. In this habeas action, Petitioner does 8 not challenge his conviction, but instead challenges the execution of his sentence. 9 Petitioner alleges that after his seventh parole suitability hearing in 2006, the BPT found 10 him unsuitable for parole, in violation of his federal constitutional rights. He alleges that 11 he has exhausted state judicial remedies as to all of the claims raised in his federal 12 petition. 13 Petitioner’s minimum parole eligibility date was June 3, 1993. (Answer Exhibit 14 D, Subsequent Parole Consideration Hearing, at 1.) In this habeas action, Petitioner does 15 not challenge his conviction or sentence, but instead alleges that his due process rights 16 were violated by the denial of parole by BPH during a subsequent parole suitability 17 hearing on May 9, 2006 and by the BPH’s policy which requires that he “debrief” in 18 order to be found eligible for parole. 19 At the hearing, the BPH relied upon the account of Petitioner’s commitment 20 offenses from an earlier hearing. Id. at 9. The following summary of the life crime is 21 taken from the Probation Officer’s Report at Petitioner’s Superior Court sentencing 22 which is contained in Petitioner’s Life Prisoner Evaluation from the 2005 Hearing. 23 (Answer, Exhibit C at 2.) The summary contained in the report is as follows: 24 25 26 27 28 On 12/02/80, at 1915 hours, Bruce Peckham, age 25, the victim, exited “The Village Store” at 1145 Rosecrans Blvd., San Diego, CA and got into his vehicle. A Hispanic male, later identified as the Defendant, G. Ruiz, approached the vehicle from the driver’s side and pointed a handgun through the open window at Peckham’s head and said “you look at me, and I’m going to blow you away.” Ruiz ordered Peckham out of his vehicle and said, “let’s go into the store. We’re going to rob the place. Do what 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 you’re told and no one will get hurt.” After walking into the store with a handgun held on Peckham, Ruiz told the two clerks to empty the cash register into a paper bag. Ruiz also told one of the clerks to put four cartons of cigarettes into another bag and place it on the counter. Ruiz took the two bags and left the store wtih Peckham still at gunpoint. Once outside, Peckham was told to look down Addison Street to the west, and not to look back. Ruiz began running east. Peckham looked back towards where he heard Ruiz running and saw Ruiz get into the passenger side of a small sedan and depart northward. . . .The handgun was described as nickel-plated, semi-automatic, with a large frame.” Id. The panel at the hearing also gave Petitioner an opportunity to give his own version of events of the kidnapping and robbery conviction. Petitioner testified, “I was waiting around. I was pretty upset. I needed money for rent and for my methadone that I was on. And, I seen this place and it looked pretty quiet, be no trouble, so I went in there and robbed it.” When Petitioner failed to mention the victim, the Presiding Commissioner asked how the victim had become involved with Petitioner’s robbery. Petitioner testified “I seen him talking with those people in there, so – and when I talked to him he said they were his friends, so I just took him back in the store.” Id. at 10. The BPH panel also considered Petitioner’s extensive prior criminal history. The presiding commissioner asked Petitioner whether “a lot o your arrests and convictions had to do with substances?” and Petitioner responded that they were due to his being “a heroin addict.” Id. at 12. The Presiding Commissioner noted that there were also prior convictions for “burglary and robbery and shoplifting.” Id. Petitioner discussed his history of drug addiction, commencing with alcohol use at 14, through his incarceration on the life crime which occurred when he was “about 36, 37.” Id. at 13. The BPH panel considered Petitioner’s social history, including that he dropped out of school in 10th grade and that he has several children. Id. at 14. The Presiding Commissioner discussed Petitioner’s parole plans. Petitioner 25 testified that he had plans to live with his adult daughter Julia Montoya and work in a 26 real estate office doing unskilled labor. Id. at 15-16. He also has a second letter of 27 support and offer of residence from his son’s ex-wife, who hopes to continue the bond of 28 3 1 Petitioner with his grandchildren. 2 The Board considered Petitioner’s programming and disciplinary record while 3 incarcerated, including that since his prior hearing in 2003, Petitioner remained in the 4 Pelican Bay security housing unit (“SHU”) based on his validation as a gang member. In 5 that facility, Petitioner has access to very limited programming. Since the prior hearing, 6 he was involved in no vocational work, group activities, psychiatric treatment or 7 discipline, but Petitioner did participate in a personal reading program, through which he 8 read several self-help books. Id. at 19-20. 9 Petitioner’s most recent vocational programming was an auto body and fender 10 program that he completed in 1980. Id. Petitioner has not held a job since 1982. Id. at 11 22. Petitioner has not obtained a GED while in prison. Id. at 23. He testified that he has 12 to improve his reading to get a GED. Id. Petitioner has a limited disciplinary record, 13 including no serious rules violations since 1986 and only one recent disciplinary in 14 February, 2001, for going on a hunger strike. Id. at 25. 15 In discussing his many years in the SHU, Petitioner brought up with the panel that 16 he does not want to “debrief” to get out of the SHU. Id. at 27. Deputy Commissioner 17 Harmon asked Petitioner about his gang validation dating back to the 1970s and about an 18 upcoming “inactive status” review scheduled for 2007. Id. He also asked Petitioner 19 about his gang validation in 2003, where “they used 10 of 19 documents to validate you 20 again as a member” of the Mexican Mafia. Id. at 28. Petitioner denied ever having 21 been a gang member and professed a lack of knowledge of why he was found to be a 22 gang member at the 2003 proceeding, although he testified that “I’ve hung with them at 23 Old Folsom, San Quentin.” Id. at 29. 24 Petitioner was questioned about whether he has considered completing self-help 25 programs while he is in the SHU, “like anger management or anything else that’s video, 26 like some of the other guys are doing?” Petitioner responded, “Yeah, I’ve read books on 27 28 4 1 anger management, but they’re all the same.” Id. at 33. Deputy Commissioner Harmon 2 questioned Petitioner about whether he’d considered the “Success from the Inside Out” 3 series of a life skills program. Id. at 34-35. 4 Deputy Commissioner Harmon asked Petitioner whether he knew the name of his 5 victims and Petitioner replied that he did not remember his full name. Id. at 38. 6 asked his current thought about the victims, Petitioner stated, “I kind of feel sorry for 7 them that I put them through that. At the time I wasn’t thinking. . .I was hurting them. 8 That’s all.” Id. at 39. 9 When The San Diego District Attorney’s sent a letter opposing Petitioner’s parole, based 10 on his lack of remorse and his status as a validated gang member, which has resulted in 11 his failure to upgrade vocationally and educationally. The letter in opposition stated that 12 as a result, Petitioner remains an unreasonable risk to society. Id. at 40-41. 13 After a recess to consider the evidence, the BPH found that Petitioner was not yet 14 suitable for parole and would pose an unreasonable risk of danger to society or a threat 15 to public safety if released from prison. Id. at 46. The Presiding Commissioner stressed 16 that Petitioner is unable to program and doesn’t have a lot of things in place that he 17 would need in order for the Board to be comfortable that Petitioner would “do well once 18 you were released from prison.” Id. Presiding Commissioner specifically stated that 19 with regard to Petitioner’s testimony about not wanting to debrief, 20 21 22 23 “I certainly can understand why you wouldn’t want to, and I would never ask you to do something like that. I do hope though that you’ll be able to become inactive – get an inactive status. . .so that you can get into a lower custody and institution where you can start to program.” Id. at 47. The Board urged Petitioner in the meantime, to try to obtain a “GED express”, 24 and to do his best to get some books to work on personal reading on his own. Id. 25 Board also suggested that Petitioner needs to gain some work skills, and may benefit 26 from contacting social security, to establish whether he will have any benefits available 27 to support him upon his release as well as to attempt to work on some self-help programs 28 5 The 1 2 that are available to him through reading and video. Id. at 48-49. Petitioner challenged the Board’s decision in Santa Diego County Superior Court, 3 which denied his claims in a reasoned opinion issued on October 11, 2006. (Answer, 4 Exhibit F.) The Superior Court noted that Petitioner’s status as a validated gang member 5 and his SHU placement has resulted in his inability “to upgrade both vocationally and 6 educationally.” The court noted that the BPH had found Petitioner an unreasonable risk 7 of danger to society because he lacked job skills and appropriate and strong parole plans. 8 The Superior Court noted that judicial review of the BPH’s decision is limited to a 9 determination of whether the factual basis for the decision is supported by some 10 evidence in the record that has some indicia of reliability. Id. (Citing In Re Rosenkrantz, 11 29 Cal.4th 616 (2002), In Re Scott, 133 Cal.4th 573 2005, and In Re Dannenberg, 34 12 Cal.4th 1061 (2005).) The Superior Court found there was some evidence to support the 13 Board’s decision finding Petitioner unsuitable for parole based on the commitment 14 offense, Petitioner’s lack of expressed remorse or concern for his victims, as well as his 15 lack of education and marketable skills, which make him an unreasonable safety risk if 16 released on parole. 17 The California Court of Appeal for the Fourth Appellate District denied 18 Petitioner’s claims in a reasoned opinion issued on February 27, 2007. Answer, Exhibit 19 G. The appellate court noted Petitioner’s extensive criminal history, history of substance 20 abuse issues, his lack of a high school diploma and minimal work history, as well as 21 Petitioner’s independent reading of substance abuse related books and application to a 22 GED program. Further, the Court of Appeal discussed that Petitioner’s SHU housing 23 designation prevents him from being able to address his lack of adequate programming, 24 stating that in order for his SHU designation to change, Petitioner “must either be 25 debriefed or be inactive in the gang for an extended period.” Id. at 4. The opinion 26 specified that Petitioner “recently requested and received an Inactive Gang Status 27 28 6 1 review; however, his gang membership was re-validated and his administrative appeals 2 of that decision were unsuccessful.” Id. The court specified that Petitioner was not 3 challenging his gang status in the instant petition, specifying that such a challenge to the 4 conditions of confinement must be brought in the proper jurisdiction. The appellate 5 court noted that the Board found Petitioner a danger to the public based on his limited 6 prison programming and job skills and also considered the San Diego District Attorney’s 7 opposition to parole. The Court of Appeal found there was “some evidence” in the 8 record to support the Board’s decision, based on the relevant factors specified by statute 9 and regulation. Id. at 5-6 (Citing In Re Rosenkrantz 29 Cal.4th 616, 658 (2002)). The 10 Court further found that there was no evidence that the Board has a blanket policy of 11 denying parole to SHU inmates, finding “[t]o the contrary, the record reflects that the 12 Board carefully considered Ruiz’s individual circumstances in assessing his suitability 13 for parole[]” and advised Petitioner of self-help programming other SHU inmates have 14 used that may help Petitioner improve his chances for parole. The California Supreme 15 Court summarily denied Petitioner’s habeas petition on August 29, 2007 (Answer, Ex. 16 H.) Thereafter, Petitioner filed the instant federal petition for a writ of habeas corpus on 17 September 18, 2007. 18 19 20 DISCUSSION A. Standard of Review The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified 21 under 28 U.S.C. § 2254, provides “the exclusive vehicle for a habeas petition by a state 22 prisoner in custody pursuant to a state court judgment, even when the petitioner is not 23 challenging his underlying state court conviction.” White v. Lambert, 370 F.3d 1002, 24 1009-10 (9th Cir. 2004). Under AEDPA, this Court may entertain a petition for habeas 25 relief on behalf of a California state inmate “only on the ground that he is in custody in 26 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 27 28 7 1 § 2254(a). 2 The writ may not be granted unless the state court’s adjudication of any claim on 3 the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable 4 application of, clearly established Federal law, as determined by the Supreme Court of 5 the United States; or (2) resulted in a decision that was based on an unreasonable 6 determination of the facts in light of the evidence presented in the State court 7 proceeding.” 28 U.S.C. § 2254(d). Under this deferential standard, federal habeas relief 8 will not be granted “simply because [this] court concludes in its independent judgment 9 that the relevant state-court decision applied clearly established federal law erroneously 10 or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 11 529 U.S. 362, 411 (2000). 12 While circuit law may provide persuasive authority in determining whether the 13 state court made an unreasonable application of Supreme Court precedent, the only 14 definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the 15 holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court 16 decision. Williams, 529 U.S. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 17 2003). 18 In determining whether the state court’s decision is contrary to, or involved an 19 unreasonable application of, clearly established federal law, a federal court looks to the 20 decision of the highest state court to address the merits of a petitioner’s claim in a 21 reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000). If the 22 state court only considered state law, the federal court must ask whether state law, as 23 explained by the state court, is “contrary to” clearly established governing federal law. 24 See, e.g., Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001); Hernandez v. Small, 25 282 F.3d 1132, 1141 (9th Cir. 2002) (state court applied correct controlling authority 26 when it relied on state court case that quoted Supreme Court for proposition squarely in 27 28 8 1 accord with controlling authority). If the state court, relying on state law, correctly 2 identified the governing federal legal rules, the federal court must ask whether the state 3 court applied them unreasonably to the facts. See Lockhart, 250 F.3d at 1232. 4 Section 2254(d) applies to a habeas petition from a state prisoner challenging the 5 denial of parole. See Hayward v. Marshall, 603 F.3d 546, 563 (9th Cir. 2010) (en banc); 6 Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-27 (9th Cir. 2006). 7 B. 8 9 Legal Claims and Analysis Petitioner claims that the BPH denied him parole based on a policy to find “SHU lifers” unsuitable for parole and requiring such prisoners to debrief in order to be 10 released. Petitioner also claims that his due process rights were violated by BPH’s 11 finding of unsuitability for parole based on “some evidence.” 12 1. 13 California’s parole scheme provides that the BPH “shall set a release date unless 14 it determines that the gravity of the current convicted offense or offenses, or the timing 15 and gravity of current or past convicted offense or offenses, is such that consideration of 16 the public safety requires a more lengthy period of incarceration for this individual, and 17 that a parole date, therefore, cannot be fixed at this meeting.” Cal. Penal Code § 18 3041(b). A BPH panel meets with an inmate one year before the prisoner's minimum 19 eligible release date “and shall normally set a parole release date. . . . The release date 20 shall be set in a manner that will provide uniform terms for offenses of similar gravity 21 and magnitude in respect to their threat to the public, and that will comply with the 22 sentencing rules that the Judicial Council may issue and any sentencing information 23 relevant to the setting of parole release dates.” Cal. Penal Code § 3041(a). 24 State Law Standards for Parole in California Under the regulations applicable to Petitioner, a parole date shall be denied if the 25 prisoner is found to be unsuitable under § 2281(c) and shall be set if the prisoner is found 26 to be suitable under § 2281(d). 15 Cal. Code Regs. § 2280. “The panel shall first 27 28 9 1 determine whether a prisoner is suitable for release on parole. Regardless of the length 2 of time served, a life prisoner shall be found unsuitable for and denied parole if in the 3 judgment of the panel the prisoner will pose an unreasonable risk of danger to society if 4 released from prison.” 15 Cal. Code Regs. § 2281(a). The panel may consider all 5 relevant and reliable information available to it. 15 Cal. Code Regs. § 2281(b). 6 In making this determination, the BPH considers an expansive list of factors 7 including: the prisoner’s social history, the commitment offense and prior criminal 8 history, his behavior before, during and after the crime and “any other information which 9 bears on the prisoner’s suitability for release.” See Cal. Code Regs. tit. 15, § 2281(b) – 10 (d). The regulations specifically include as factors tending to support unsuitability for 11 parole: whether the commitment offense was committed in an especially heinous, 12 atrocious or cruel manner; a prisoner’s previous record of violence; an unstable social 13 history; psychological factors; and institutional behavior. Cal. Code Regs. tit. 15, § 14 2281(c). The regulations specifically include as factors tending to support suitability for 15 parole: no juvenile record; stable social history; signs of remorse; stress-related 16 motivation for the crime; lack of criminal history; age; understanding and plans for the 17 future; and institutional behavior. Cal. Code Regs. tit. 15, § 2281(d). 18 The California Supreme Court case of In re Lawrence, 44 Cal.4th 1181 (2008), 19 clarified what California law requires the parole board to find in order to deny parole: 20 The board must find only that the prisoner is a current threat to public safety, not that 21 some of the specific factors in the regulations have or have not been established. Id. at 22 1212. This means that the “some evidence” test is whether there is “some evidence” that 23 the prisoner is a threat, not whether there is “some evidence” to support particular 24 secondary findings of the parole board, for instance that the prisoner needs more time for 25 rehabilitation. Id. 26 California law states that “the nature of the prisoner’s offense, alone, can 27 28 10 1 constitute a sufficient basis for denying parole.” In re Rosenkrantz, 29 Cal. 4th 616, 682 2 (2002). However, where “that offense is both temporally remote and mitigated by 3 circumstances indicating the conduct is unlikely to recur, the immutable circumstance 4 that the commitment offense involved aggravated conduct does not provide ‘some 5 evidence’ inevitably supporting the ultimate decision that the inmate remains a threat to 6 public safety.” Lawrence, 44 Cal. 4th at 1191 (emphasis in original). 7 2. 8 The U. S. Constitution's Due Process Clause does not itself provide state prisoners 9 with a federal right to release on parole. Hayward, 603 F.3d at 561. The substantive law Federal Habeas Relief on Parole Denial Claims 10 of a state might create a right to release on parole, however. See id. at 555, 559. 11 Although Hayward purported not to reach the question whether a California's substantive 12 law created a federally protected liberty interest, see id. at 562, later cases from the Ninth 13 Circuit have said or assumed it does. See Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 14 2010) (“state-created rights may give rise to liberty interests that may be enforced as a 15 matter of federal law. . . . By holding that a federal habeas court may review the 16 reasonableness of the state court's application of the California ‘some evidence’ rule, 17 Hayward necessarily held that compliance with the state requirement is mandated by 18 federal law, specifically the Due Process Clause.”); Cooke v. Solis, 606 F.3d 1206, 1213 19 (9th Cir. 2010) (“In Hayward, we held that due process challenges to California courts’ 20 application of the ‘some evidence’ requirement are cognizable on federal habeas review 21 under AEDPA”); id. (“we must examine the nature and scope of the federally 22 enforceable liberty interest created by California's ‘some evidence’ requirement”); see 23 also Pirtle v. California Board of Prison Terms, 611 F.3d 1015, 1020 (9th Cir. 2010) 24 (“‘California’s parole scheme gives rise to a cognizable liberty interest in release on 25 parole.’ McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir 2002). That liberty interest 26 encompasses the state-created requirement that a parole decision must be supported by 27 28 11 1 ‘some evidence’ of current dangerousness. Hayward [603 F.3d at 562-63.]") Hayward’s 2 application and these later cases make it clear that in the Ninth Circuit there is federal 3 habeas relief available under §2254 for California prisoners denied parole without 4 sufficient evidence, although it now appears that the emphasis has shifted from § 5 2254(d)(1) to § 2254(d)(2). 6 A federal district court reviewing a California parole decision “must determine 7 ‘whether the California judicial decision approving the governor's [or the Board's] 8 decision rejecting parole was an ‘unreasonable application’ of the California ‘some 9 evidence’ requirement, or was ‘based on an unreasonable determination of the facts in 10 light of the evidence.’” Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 11 2254(d)(1)-(2)). That requirement was summarized in Hayward as follows: 12 As a matter of California law, “the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety.” There must be “some evidence” of such a threat, and an aggravated offense “does not, in every case, provide evidence that the inmate is a current threat to public safety.” The prisoner’s aggravated offense does not establish current dangerousness “unless the record also establishes that something in the prisoner’s pre- or post- incarceration history, or his or her current demeanor and mental state” supports the inference of dangerousness. Thus, in California, the offense of conviction may be considered, but the consideration must address the determining factor, “a current threat to public safety.” 13 14 15 16 17 18 Hayward, 603 F.3d at 562 (footnotes omitted) (quoting Lawrence, 44 Cal. 4th. at 1210, 19 1213-14); see also Cooke, 606 F.3d at 1214 (describing California’s “some evidence” 20 requirement). 21 When a federal court considers a habeas case directed to a parole decision, the 22 “necessary subsidiary findings” and the “ultimate ‘some evidence’ findings” by the state 23 courts are factual findings – and thus are reviewed by the federal court under 28 U.S.C. § 24 2254(d)(2) for whether the decision was “based on an unreasonable determination of the 25 facts in light of the evidence.” Cooke, 606 F.3d at 1216 (citing Hayward, 603 F.3d at 26 563). 27 28 12 1 3. Analysis of Petitioner’s Claim 2 The Board and state courts reasonably concluded that there was “some evidence” 3 of current dangerousness which resulted from Petitioner’s serious criminal and drug 4 abuse history, lack of prison education, work experience and participation in vocational 5 or group programming, as well as opposition from the San Diego District Attorney’s 6 office, notwithstanding the positive aspects of Petitioner’s rehabilitation, specifically, his 7 lack of any recent serious disciplinary findings while incarcerated in the SHU. The 8 California Court of Appeal found that there was some evidence in the record to support 9 the Board’s decision, based on the BPH’s consideration of relevant criteria in the record. 10 Examining the proper criteria, including the record of the crime and Petitioner’s conduct 11 before and after the offense, the Board properly considered factors under which 12 Petitioner was found a “continuing threat to public safety,” see Lawrence, 44 Cal. 4th at 13 1214. 14 The state courts properly considered the Board’s determination of Petitioner’s 15 current dangerousness and found there was some evidence of current dangerousness 16 based on his criminal history, lack of job skills and programming and his gang 17 membership. The Board had discussed with Petitioner his re-validation as a gang 18 member and noted that the 2003 gang validation had been supported by 10 of 19 pieces 19 of evidence. The Fourth District Court of Appeal noted that Petitioner had recently 20 received an “inactive status” review and had been found to be an active gang member. 21 The appellate court noted that Petitioner did not challenge that finding in the petition 22 before the court, but noted that Petitioner has the ability to challenge that determination 23 in the appropriate venue. Petitioner’s status as a validated gang member is relevant 24 evidence for the parole suitability determination which allows the Board to consider 25 “institutional behavior.” 15 C.C.R. § 2281(c)(6). See, e.g., Wilkinson v. Austin, 545 U.S. 26 209, 227 (2005) (discussing the state’s legitimate interest in “prison security, [which is] 27 28 13 1 imperiled by the brutal reality of prison gangs[.]”) While Petitioner also challenges what 2 he contends is an anti-parole policy for “SHU lifers”, there is no question that evidence 3 of validated gang membership constitutes evidence of a potential parole candidate’s 4 danger to the public. Id. 5 The state courts, in upholding the Board’s decision, reasonably applied 6 California’s “some evidence” requirement and reasonably determined the facts in light of 7 the evidence in the record. See Hayward, 603 F.3d at 563. Therefore, the state courts’ 8 denial of Petitioner’s federal due process claims was neither contrary to nor an 9 unreasonable application of federal law, and petitioner is not entitled to habeas relief on 10 his petition 11 4. 12 Petitioner also argues that his rights were violated by BPH’s policy of denying SHU/Debriefing Claim 13 parole to “SHU lifers” who refuse to debrief. As a preliminary matter, the state court’s 14 factual finding that there was no evidence that Petitioner was denied parole based on a 15 blanket policy to deny SHU inmates parole is entitled to deference. The Court of Appeal 16 found that the evidence in the record established that the Board carefully considered 17 Petitioner’s individual circumstances in assessing his suitability for parole and that 18 finding is accorded deference here. The hearing transcript reflects that, after considering 19 the appropriate guidelines, the Board had ample reason to find Petitioner unsuitable for 20 parole wholly unrelated to his professed refusal to debrief. Petitioner’s claim here fails 21 because Petitioner has not established that his parole was denied based on a failure to 22 debrief. 23 Moreover, Petitioner’s claim fails because he fails to state a claim for relief. 24 While he states in the petition that he challenges a policy to deny “SHU lifers” parole, a 25 habeas petition under 28 U.S.C. § 2254(d) challenges the circumstances of an 26 individual’s detention “pursuant to the judgment of a State court only on the ground that 27 28 14 1 he is in custody in violation of the Constitution or laws or treaties of the United States.” 2 28 U.S.C. § 2254(a). This habeas petition challenges only Petitioner’s detention as a 3 result of the denial of suitability at his subsequent parole consideration hearing. 4 Although Petitioner casts his claim as a challenge to a BPH “blanket policy” requiring 5 him to debrief to get out of the SHU, the evidence before the Board and state courts here 6 established that Petitioner remains in the SHU at Pelican Bay State Prison as a 7 “validated” prison gang member, whose gang status was established at a 2003 8 proceeding using 10 documents and was apparently “re-validated” in 2007. Exhibit D at 9 31-33. As the Commissioner pointed out during Petitioner’s hearing, an alternative to 10 debriefing for a validated gang member to get out of the SHU, is to “get an inactive 11 status.” Id. at 50. The 2007 Court of Appeal decision further notes that Petitioner was 12 re-validated as a gang member based on a “recent” inactive status review and his 13 administrative appeals of that finding were unsuccessful. Exhibit G at 4. 14 Petitioner may be able to challenge his gang validation. See, e.g., Bruce v. Ylst, 15 351 F.3d 1283, 1287-88 (9th Cir. 2003). However, where he has been recently validated 16 as a gang member and the Board and state courts have properly relied on that and on his 17 institutional behavior, lack of programming, education, and job prospects in denying him 18 parole as an unreasonable public safety risk, Petitioner cannot establish entitlement to 19 relief on the basis of a claim that he has been denied parole due to a “blanket policy” of 20 denying parole to “SHU lifers.” Therefore, habeas relief is unwarranted on this claim. 21 22 PETITIONERS MOTIONS TO COMPEL DISCOVERY Petitioner moves to compel discovery of certain documents he seeks to establish 23 his claim. Good cause for discovery under Rule 6(a) is shown “‘where specific 24 allegations before the court show reason to believe that the petitioner may, if the facts 25 are fully developed, be able to demonstrate that he is . . . entitled to relief . . .’” Id. at 26 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)); Pham v. Terhune, 400 27 28 15 1 F.3d 740, 743 (9th Cir. 2005). However, based on the evidence before the Court, 2 Petitioner’s individual claim to relief under a purported blanket policy of denying parole 3 to “SHU lifers” fails to state a claim for relief and has been DENIED on the merits. 4 Therefore, the motion to compel discovery is DENIED as moot (docket no. 27). 5 6 CERTIFICATE OF APPEALABILITY A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a 7 case in which "reasonable jurists would find the district court’s assessment of the 8 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 9 (2000). Jurists of reason would not find debatable or wrong that the decision that the 10 state court reasonably applied California’s “some evidence” requirement in upholding 11 the denial of parole, and reasonably determined the facts in light of the evidence 12 presented. See Hayward, 603 F.3d at 562-63. 13 14 15 16 17 18 19 CONCLUSION 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. IT IS SO ORDERED. DATED: September 28, 2010 JEFFREY S. WHITE United States District Judge 20 21 22 23 24 25 26 27 UNITED STATES DISTRICT COURT 28 FOR THE 1 NORTHERN DISTRICT OF CALIFORNIA 2 3 4 GEORGE RUIZ, Plaintiff, 5 6 7 8 Case Number: CV07-04804 JSW CERTIFICATE OF SERVICE v. ROBERT HOREL et al, Defendant. / 9 10 11 12 13 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on September 28, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 14 15 17 George Ruiz B82089 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95532 18 Dated: September 28, 2010 16 19 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk 20 21 22 23 24 25 26 27 28 17
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