Lujao v. California Board of Parole Hearings et al, No. 3:2007cv04900 - Document 6 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Vaughn R Walker on 5/1/2009. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 5/1/2009)
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Lujao v. California Board of Parole Hearings et al Doc. 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 11 12 Petitioner, 13 14 No C-07-4900 VRW (PR) SIMEON LUJAO, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v BEN CURRY, Warden 15 Respondent. 16 / 17 18 Petitioner Simeon Lujao, a state prisoner incarcerated at 19 the Correctional Training Facility in Soledad, California, seeks a 20 writ of habeas corpus under 28 USC § 2254 challenging the California 21 Board of Parole Hearings’ (“BPH”) September 5, 2006 decision to deny 22 him parole. 23 Per order filed on January 17, 2008, the court found 24 petitioner’s claim that BPH violated his due process rights, when 25 liberally construed, colorable under § 2254, and ordered respondent 26 to show cause why a writ of habeas corpus should not be granted. 27 Doc #3. 28 traverse. Respondent has filed an answer and petitioner has filed a Doc ## 4 & 5. Dockets.Justia.com 1 I 2 On February 6, 1988, at approximately 9:00 pm, petitioner 3 and his wife’s cousin, Arturo Vasaya, were passengers in a car 4 driving on highway 101 in San Benito county. 5 According to petitioner, the two men were discussing the politics of 6 their home country, the Philippines. 7 discussion, petitioner, who had been awake for two straight days, 8 became angry and stabbed Vasaya 11 times, killing him. Id. Doc #4-4 at 2. During the heated Id. 9 On August 30, 1988, petitioner was sentenced to 15 years 10 to life in state prison following his guilty plea to second degree 11 murder. 12 January 5, 1998. 13 Doc #4-2 at 2. His minimum eligible parole date was Doc #4-5 at 4. At four of petitioner’s parole suitability hearings held 14 in 1997, 1999, 2002 and 2004, BPH repeatedly recommended that 15 petitioner remain disciplinary free, upgrade vocationally and 16 educationally and participate in self-help and therapy. 17 Exs 4, 6, 7 & 9 at 45–46. 18 See Doc #1, On September 5, 2006, petitioner appeared before BPH for 19 his sixth parole suitability hearing. 20 hearing, BPH again found petitioner “was not suitable for parole and 21 would pose an unreasonable risk of danger to society or a threat to 22 public safety if released from prison.” 23 several reasons to support its decision, including: (1) the 24 callousness of the crime; (2) the vulnerability of the victim; (3) 25 petitioner’s failures to develop a marketable skill, upgrade 26 vocationally and participate in self-help and therapy; and (4) 27 28 2 Doc #4-5 at 2. Id at 32. At that BPH cited 1 petitioner’s lack of a realistic parole plan. 2 Petitioner’s parole was deferred for four years. 3 Id at 32–36. Id at 35. Petitioner unsuccessfully challenged BPH’s decision in the 4 state superior and appellate courts. 5 2007, the California Supreme Court summarily denied petitioner's 6 petition for review. 7 habeas corpus followed. Id at 5. Doc #1 at 4-5. On August 8, This federal petition for a writ of 8 9 II 10 The Antiterrorism and Effective Death Penalty Act of 1996 11 (“AEDPA”), codified under 28 USC § 2254, provides “the exclusive 12 vehicle for a habeas petition by a state prisoner in custody 13 pursuant to a state court judgment, even when the petitioner is not 14 challenging his underlying state court conviction.” 15 Lambert, 370 F3d 1002, 1009–10 (9th Cir 2004). 16 court may entertain a petition for habeas relief on behalf of a 17 California state inmate “only on the ground that he is in custody in 18 violation of the Constitution or laws or treaties of the United 19 States.” 20 White v Under AEDPA, this 28 USC § 2254(a). The writ may not be granted unless the state court’s 21 adjudication of any claim on the merits: 22 decision that was contrary to, or involved an unreasonable 23 application of, clearly established Federal law, as determined by 24 the Supreme Court of the United States; or (2) resulted in a 25 decision that was based on an unreasonable determination of the 26 facts in light of the evidence presented in the State court 27 28 3 “(1) resulted in a 1 proceeding.” 2 federal habeas relief will not be granted “simply because [this] 3 court concludes in its independent judgment that the relevant 4 state-court decision applied clearly established federal law 5 erroneously or incorrectly. 6 unreasonable.” 7 28 USC § 2254(d). Under this deferential standard, Rather, that application must also be Williams v Taylor, 529 US 362, 411 (2000). While circuit law may provide persuasive authority in 8 determining whether the state court made an unreasonable application 9 of Supreme Court precedent, the only definitive source of clearly 10 established federal law under 28 USC § 2254(d) rests in the holdings 11 (as opposed to the dicta) of the Supreme Court as of the time of the 12 state court decision. 13 F3d 1062, 1069 (9th Cir 2003). Williams, 529 US at 412; Clark v Murphy, 331 14 15 16 III Petitioner seeks federal habeas corpus relief from BPH’s 17 September 5, 2006 decision finding him unsuitable for parole and 18 denying him a subsequent hearing for four years on the ground that 19 the decision does not comport with due process. 20 petitioner argues that there is “no evidence that [he] is a current 21 threat to public safety.” 22 Petitioner adds that BPH’s decision finding him unsuitable for 23 parole violated his “plea agreement.” Specifically, Doc #1 at 6, emphasis in original. Id at 6. 24 25 26 A Under California law, prisoners serving indeterminate life 27 28 4 1 sentences, like petitioner, become eligible for parole after serving 2 minimum terms of confinement required by statute. 3 34 Cal 4th 1061, 1069-70 (2005). 4 scheme provides that the board “shall set a release date unless it 5 determines that the gravity of the current convicted offense or 6 offenses, or the timing and gravity of current or past convicted 7 offense or offenses, is such that consideration of the public safety 8 requires a more lengthy period of incarceration.” 9 3041(b). In re Dannenberg, At that point, California’s parole Cal Penal Code § Regardless of the length of the time served, “a life 10 prisoner shall be found unsuitable for and denied parole if in the 11 judgment of the panel the prisoner will pose an unreasonable risk of 12 danger to society if released from prison.” 13 2402(a). 14 various factors, including the prisoner’s social history, past 15 criminal history, and base and other commitment offense, including 16 behavior before, during and after the crime. 17 15, § 2402(b)–(d). 18 Cal Code Regs tit 15, § In making this determination, the board must consider See Cal Code Regs tit California’s parole scheme “gives rise to a cognizable 19 liberty interest in release on parole” that cannot be denied without 20 adequate procedural due process protections.” 21 of Prison Terms, 461 F3d 1123, 1128 (9th Cir 2006); McQuillion v 22 Duncan, 306 F3d 895, 902 (9th Cir 2002). 23 parole release date has not been set for the inmate because “[t]he 24 liberty interest is created, not upon the grant of a parole date, 25 but upon the incarceration of the inmate.” 26 F3d 910, 915 (9th Cir 2003). 27 28 5 Sass v California Bd It matters not that a Biggs v Terhune, 334, 1 Petitioner’s due process rights require that “some 2 evidence” support the board’s decision finding him unsuitable for 3 parole. 4 deferential, but ensures that “the record is not so devoid of 5 evidence that the findings of [the board] were without support or 6 otherwise arbitrary.” 7 (1985). 8 require examination of the entire record, independent assessment of 9 the credibility of witnesses, or weighing of the evidence.” Sass, 461 F3d at 1125. This “some evidence” standard is Superintendent v Hill, 472 US 445, 457 Determining whether this requirement is satisfied “does not Id at 10 455. 11 evidence in the record that could support the conclusion reached by 12 the disciplinary board.” 13 Rather, “the relevant question is whether there is any Id at 455–56. Due process also requires that the evidence underlying the 14 parole board’s decision have some indicium of reliability. 15 334 F3d at 915; McQuillion, 306 F3d at 904. 16 inquiry is whether the prisoner was afforded an opportunity to 17 appear before, and present evidence to, the board. 18 Oregon Parole Bd, 825 F2d 1396, 1399 (9th Cir 1987). 19 determination of parole unsuitability is to satisfy due process, 20 there must be some reliable evidence to support the decision. 21 v Nielsen, 428 F3d 1229, 1232 (9th Cir 2005). Biggs, Relevant to this See Pedro v If the board’s Rosas 22 23 B 24 Petitioner claims that BPH’s finding that he was 25 unsuitable for parole violated his due process rights because “there 26 27 28 6 1 was no evidence that petitioner is a current threat to public 2 safety” and because the unsuitability finding violated his plea 3 agreement. 4 mistaken on both counts. Doc #1 at 6, emphasis in original. Petitioner is 5 6 1 7 Regarding the alleged violation of his plea agreement, 8 petitioner relies on the following statements contained in the 9 August 29, 1988 probation report to support his argument: 10 * * * It is felt that [petitioner] should receive a sentence of 21 years in this matter so that he will serve a minimum of approximately seven years for his second degree murder conviction. Seven years is the average time served for people who commit such a crime and the defendant’s actions were neither more outrageous or [sic] more mitigated than the usual second degree murder. Therefore, it will be recommended that [petitioner] be sentenced to 21 years in prison. 11 12 13 14 15 16 Doc #1, Ex 1 at 8. 17 Philippines who came to the United States in 1986 when he was 39 18 years of age, “being a foreigner and totally unfamiliar with the 19 American judicial system, [he] was lead [sic] to expect that his 20 sentence would not exceed 21 years, minus conduct credits to reduce 21 the term.” 22 According to petitioner, a native of the Doc #1 at 6; Id, Ex 1 at 1 & 3–4. There is no evidence in the record suggesting the 23 existence of an enforceable plea agreement limiting petitioner’s 24 term of incarceration to 21 years. 25 indicates that following petitioner’s July 13, 1988 guilty plea to 26 second degree murder, the probation officer in his August 29, 1988 27 28 7 Rather, the record clearly 1 report merely “recommended that [petitioner] be sentenced to 21 2 years in prison.” 3 sentence after a criminal conviction, of course, is a matter left to 4 the sole discretion of the trial judge. 5 People v Navarro, 7 Cal 3d 248, 258 6 sentence and the exercise of sentencing discretion are fundamentally 7 and inherently judicial functions.”) 8 9 Doc #1, Ex 1 at 8, emphasis added. Imposing a See Cal Pen Code, § 12; (1972) (“t]he imposition of Further, the evidence in the record shows that petitioner originally faced a more serious charge of — and necessarily a 10 lengthier prison sentence for — first degree murder. 11 Prior to his trial date, on July 13, 1988, represented by counsel, 12 he pleaded guilty to a lesser charge of second degree murder. 13 4-2 at 2. 14 length of his prison sentence is regrettable, the record shows that 15 he was represented by counsel through his plea and sentencing. 16 There simply is no evidence before the court sufficient to allow 17 habeas relief on his claim. 18 of petitioner’s plea agreement claim cannot be said to have been 19 objectively unreasonable. Doc 4-3 at 3. Doc # Although petitioner’s apparent confusion regarding the Id. Moreover, the state courts’ rejections See 28 USC § 2254(d). 20 21 2 22 Regarding petitioner’s claim that BPH’s finding that he 23 was unsuitable for parole violated his due process rights because 24 “there was no evidence that petitioner is a current threat to public 25 safety,” the record shows that BPH afforded petitioner and his 26 counsel an opportunity to speak and present petitioner’s case at the 27 28 8 1 hearing, gave them time to review documents relevant to petitioner’s 2 case and provided them with a reasoned decision in denying parole. 3 Doc #4-5 at 9–10, 28–31 & 32–36. 4 The record also shows that BPH relied on several 5 circumstances tending to show unsuitability for parole and that 6 these circumstances formed the basis for its conclusion that 7 petitioner posed “an unreasonable risk of danger to society or a 8 threat to public safety if released from prison.” 9 see Cal Code Regs tit 15, § 2402(a) (stating that a prisoner Doc #4-5 at 32; 10 determined to be an unreasonable risk to society shall be denied 11 parole). 12 First, the board examined the commitment offense and found 13 that the offense “was carried out in an especially cruel and callous 14 manner. * * * 15 manner. And the victim was certainly abused during the offense. 16 Because at one point during the crime the victim even cried out to 17 [petitioner] to please, stop stabbing him.” 18 Code Regs tit 15, § 2402(c)(1)(D) (listing “exceptionally callous 19 disregard for human suffering” as factor tending to show 20 unsuitability for parole). 21 The offense was carried out in a dispassionate Doc #4-5 at 32; see Cal Second, BPH noted that petitioner “failed to develop a 22 marketable skill that can be put to use upon release.” 23 33. 24 contrary to previous recommendations, “to upgrade vocationally.” 25 Id; see Doc #1, Ex 4; Id, Exs 6, 7 & 9 at 45–46. 26 that petitioner “has not sufficiently participated in beneficial Third, and related, BPH cited petitioner’s consistent failure, 27 28 Doc #4-5 at 9 BPH also noted 1 self-help and or therapy programs. 2 little self-help that [petitioner has] participated in and none 3 since the last appearance, zero. 4 * * *.” 5 Basically, there has been very There has been no Anger Management Id. BPH also considered other factors tending to support 6 suitability for parole including: 7 discipline free for the duration of his incarceration; that he had 8 taken some steps towards self-help; that he had watched a successful 9 reentry video in November 2003; that he participated in Life Skills that petitioner had been 10 in September 1998 and Breaking Barriers in 1991; that he has had 11 positive work reports; and that he has been in Prison Industry 12 Authority since 1993. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Doc #4-5 at 35. At the conclusion of the hearing, BPH summarized petitioner’s situation as follows: * * * [petitioner has] definitely done some things that [he] should be commended for. However, these positive aspects of [petitioner’s] behavior [do] not outweigh the factors of unsuitability. * * * the crime was very cruel and mean. And the crime was done without feeling bad about hurting others. * * * [the victim] was crying out and asking [petitioner] to stop, please stop stabbing him. * * * [petitioner] did not care if people suffered. And, the victim was definitely abused during the crime. And the reason for the crime was very small compared to the hurt it caused. * * * And [petitioner] has poor [p]arole [p]lans. * * * [There are no] letters of support whatsoever. [Petitioner] lacks a realistic [p]arole [p]lan in that he does not have a viable residential plan. He does not have acceptable employment plans, and does not have a marketable skill. Id at 35–36. 27 28 10 1 The state superior court affirmed the decision of BPH to 2 deny petitioner parole, finding that it was “supported by some 3 evidence.” 4 denied petitioner’s request for habeas corpus relief, Doc #4-8 at 2, 5 and the state supreme court summarily denied his petition for 6 review. 7 Doc #4-7 at 2. The state appellate court summarily See Doc #1 at 5. On this record, the court finds that the state courts’ 8 rejection of petitioner’s due process claim was not contrary to, nor 9 did it involve an unreasonable application of, clearly established 10 federal law, and it was not based on an unreasonable determination 11 of the facts. 12 See 28 USC § 2254(d). The record shows that BPH had some reliable evidence to 13 support its finding of unsuitability. 14 served the minimum 15 year determinate part of his sentence, he has 15 been advised during at least four of his five parole suitability 16 hearings to upgrade vocationally and educationally and participate 17 in self-help and therapy. 18 petitioner’s own admission, he has failed to do this. 19 6. 20 sufficiently participated in these recommended programs, viewed in 21 conjunction with the callous nature of the crime and petitioner’s 22 lack of a realistic comprehensive parole plan, reasonably 23 contributed to its determination that petitioner was unsuitable for 24 parole. 25 Carey, 505 F3d 846, 850 (9th Cir 2007) (upholding denial of parole 26 based solely on gravity of offense). Doc #1, Exs 4, 6, 7 & 9 at 45–46. By See Doc #5 at BPH’s finding at his sixth hearing that petitioner had not See Hill, 474 US at 455–56; see, for example, Irons v 27 28 Although petitioner has 11 On this record, BPH reasonably 1 concluded that petitioner was not yet suitable for parole. 2 not up to this court to “reweigh the evidence.” 3 F3d 39, 42 (9th Cir 1994). It is Powell v Gomez, 33 4 5 6 7 8 9 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. 10 11 12 IT IS SO ORDERED. 13 14 15 16 VAUGHN R WALKER United States District Chief Judge 17 18 19 20 21 22 23 24 25 26 G:\PRO-SE\VRW\HC.07\Lujao-07-4900-habeas denial.wpd 27 28 12
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