Placencia v. Curry, No. 3:2009cv01633 - Document 11 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Richard Seeborg on 7/16/10. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 7/16/2010)
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Placencia v. Curry Doc. 11 1 2 3 4 *E-Filed 7/16/10* 5 6 United States District Court For the Northern District of California 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 JOHN PLACENCIA, 13 14 15 16 17 18 19 20 21 22 No. C 09-1633 RS (PR) Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. A. P. KANE, Warden, Respondent. / INTRODUCTION This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is DENIED. BACKGROUND In 1992, a Los Angeles Superior Court jury convicted petitioner of second degree 23 murder, conspiracy to commit assault with a deadly weapon or by means of force likely to 24 produce great bodily harm, and two counts of assault with a deadly weapon by means of 25 force likely to produce great bodily harm. The trial court sentenced petitioner to fifteen years 26 to life in state prison. In 2007, the Board of Parole Hearings (“Board”) found petitioner 27 unsuitable for parole on grounds that he “would pose an unreasonable risk of danger to 28 No. C 09-1633 RS (PR) ORDER DENYING PETITION Dockets.Justia.com 1 society or threat to public safety if released from prison.” (Pet., Ex. D at 63.) In response to 2 the Board’s decision, petitioner sought, though was denied, relief on state collateral review. 3 (Ans. at 1.) This federal habeas petition followed. United States District Court For the Northern District of California 4 In reaching its decision, the Board considered the facts of the commitment offense. In 5 July 1992, petitioner and members of his gang attacked several persons in an underground 6 nightclub, and continued the attack outside. These acts of violence resulted in the stabbing 7 and beating death of Manuel Ortiz, injuries from punching and beating to Elsa Villa, who had 8 been trying to shield Ortiz from the blows, and injuries to Jairo Ortiz, Manuel’s brother. 9 Petitioner himself attacked Jairo, and kicked and punched Manuel “mercilessly.” (Pet., Ex. 10 D at 16.) After the attacks, petitioner was heard to say, “We kicked some guy[’]s ass and we 11 stabbed him.” Later in the evening, petitioner told a witness that nothing would happen to 12 her “as long as she kept quiet.” (Id. at 18, 19.) The attacks arose from Jairo bumping into a 13 petitioner’s friend. (Id. at 14.) 14 In addition to the circumstances of the commitment offense, the Board cited as factors 15 in its decision petitioner’s behavior in prison, and his psychological report. In 2005, 16 petitioner was found guilty of participating in a prison riot, though he vigorously protests that 17 he is innocent of the charge. (Id. at 33–46.) The Board noted that the 2005 citation came 18 after petitioner’s 2004 parole hearing during which he was instructed to stay disciplinary- 19 free. (Id. at 66.) As the Board noted, petitioner’s psychological report stated that his 20 propensity for future violence was in the “low moderate range.” (Id., Ex. E at 6.) This 21 rating was based on the fact that “the inmate has not been free of 115s and 128s for a 22 significant number of years,” which “may likely reflect continued impulsivity.” (Id.) In light 23 of all these factors, the Board concluded that petitioner posed an unreasonable threat to 24 public safety and denied him parole. (Id. at 32.) 25 As grounds for federal habeas relief, petitioner alleges (1) the Board violated due 26 process by relying on the unchanging facts of the crime; (2) the Board violated due process 27 by characterizing the crime as involving multiple victims contrary to the record; (3) the 28 2 No. C 09-1633 RS (PR) ORDER DENYING PETITION 1 Board’s finding that petitioner would pose an unreasonable risk to public safety if released 2 was without evidence and “arbitrary and capricious”; (4) the Board mis-characterized 3 petitioner’s offense as “mutilation” in violation of due process; (5) the denial violated 4 petitioner’s liberty interest in parole; (6) the Board’s decision finding petitioner would pose a 5 current threat to public safety is not supported by the record; and (7) there is no evidence to 6 support the Board’s determination that petitioner had not sufficiently participated in therapy 7 to no longer be a threat to public safety. United States District Court For the Northern District of California 8 STANDARD OF REVIEW 9 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 10 custody pursuant to the judgment of a State court only on the ground that he is in custody in 11 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 12 The petition may not be granted with respect to any claim that was adjudicated on the merits 13 in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that 14 was contrary to, or involved an unreasonable application of, clearly established Federal law, 15 as determined by the Supreme Court of the United States; or (2) resulted in a decision that 16 was based on an unreasonable determination of the facts in light of the evidence presented in 17 the State court proceeding.” 28 U.S.C. § 2254(d). 18 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 19 court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of 20 law or if the state court decides a case differently than [the] Court has on a set of materially 21 indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000). “Under 22 the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state 23 court identifies the correct governing legal principle from [the] Court’s decision but 24 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] 25 federal habeas court may not issue the writ simply because that court concludes in its 26 independent judgment that the relevant state-court decision applied clearly established 27 federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” 28 3 No. C 09-1633 RS (PR) ORDER DENYING PETITION 1 Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask 2 whether the state court’s application of clearly established federal law was “objectively 3 unreasonable.” Id. at 409. 4 United States District Court For the Northern District of California 5 DISCUSSION Petitioner claims that the Board’s decision violated his right to due process because it 6 was not based on “some evidence” that he currently poses an unreasonable risk to public 7 safety. Due process requires that the Board’s decision to deny a California prisoner parole be 8 supported by “some evidence” of current dangerousness. Hayward v. Marshall, 603 F.3d 9 546 (9th Cir. 2010); see also Pearson v. Muntz, No. 08-55728, 2010 WL -- (9th Cir. May 24, 10 2010) (per curium). Accordingly, in reviewing federal habeas claims that a California 11 prisoner was denied parole in violation of due process, courts must “decide whether the 12 California judicial decision approving the governor’s [or the parole board’s] decision 13 rejecting parole was an “unreasonable application” of the California “some evidence” 14 requirement, or was “based on an unreasonable determination of the facts in light of the 15 evidence.” Hayward, 604 F.3d at 562–63. 16 The commitment offense alone does not always provide evidence that a petitioner 17 poses a current threat to public safety. Id. at 562. The offense does not establish current 18 dangerousness “unless the record also establishes that something in the prisoner’s pre- or 19 post-incarceration history, or his or her current demeanor and mental state” supports an 20 inference of dangerousness. Id., citing In re Lawrence, 44 Cal. 4th 1181, 1214 (Cal. 2008). 21 Here, the record shows that there was “some evidence” to support the state court’s 22 approval of the Board’s parole denial. First, the circumstances surrounding the commitment 23 offense suggest that petitioner lacks sufficient self-control, and is capable of committing acts 24 of impulsive violence for trivial reasons. Second, the record establishes that petitioner’s 25 post-conviction history supports an inference of current dangerousness — in particular his 26 citation for participation in a prison riot, a citation received after his last parole hearing, and 27 his being rated as having a low to moderate potential for future violence. While a rating of 28 4 No. C 09-1633 RS (PR) ORDER DENYING PETITION United States District Court For the Northern District of California 1 low to moderate is not conclusively prohibitive, it does constitute some evidence of current 2 dangerousness in addition to the commitment offense. See Hayward, 603 F.3d at 570–71 3 (Berzon, J., concurring). 4 It is reasonable to infer from this record of past violence and recent misbehavior that, 5 if released, petitioner currently poses an unreasonable risk of danger to society, or a threat to 6 public safety. Because the Board’s decision is supported by sufficient evidence in the record, 7 including circumstances other than those of the commitment offense, petitioner’s claims that 8 the Board’s decision was unsupported by “some evidence,” was based solely on the 9 circumstances of the commitment offense, that the Board’s decision was arbitrary and 10 capricious when it found that petitioner would pose an unreasonable risk to public safety, that 11 the Board’s decision violated his liberty interest, and that the Board’s decision was based 12 exclusively on unchanging factors (claims 1, 3, 5, and 6) are DENIED. 13 Petitioner’s remaining claims are also DENIED. Claim two is facially invalid. The 14 facts, as determined by the state appellate court, supported the Board’s characterization of the 15 crime as involving multiple victims. As to claims four and seven, even if the Board’s 16 assertions were not supported by the record, there was sufficient evidence in the record to 17 support the Board’s determination that petitioner was unsuitable for parole. Petitioner’s 18 claims are DENIED. 19 In sum, the state court’s approval of the Board’s decision, therefore, was not an 20 “unreasonable application” of the California “some evidence” requirement, nor was it “based 21 on an unreasonable determination of the facts in light of the evidence.” 22 23 CONCLUSION The state court’s denial of petitioner’s claims did not result in a decision that was 24 contrary to, or involved an unreasonable application of, clearly established federal law, nor 25 did it result in a decision that was based on an unreasonable determination of the facts in 26 light of the evidence presented in the state court proceeding. Accordingly, the petition is 27 DENIED. 28 5 No. C 09-1633 RS (PR) ORDER DENYING PETITION 1 A certificate of appealability will not issue. Petitioner has not shown “that jurists of 2 reason would find it debatable whether the petition states a valid claim of the denial of a 3 constitutional right and that jurists of reason would find it debatable whether the district court 4 was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 The Clerk shall enter judgment in favor of respondent, and close the file. 6 IT IS SO ORDERED. 7 DATED: July 16, 2010 RICHARD SEEBORG United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 No. C 09-1633 RS (PR) ORDER DENYING PETITION
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