Pizana v. Kane et al, No. 4:2005cv02457 - Document 13 (N.D. Cal. 2009)
Court Description: ORDER DENYING HABEAS PETITION re 1 Petition for Writ of Habeas Corpus filed by Angel Pizana. Signed by Judge Phyllis J. Hamilton on 2/25/09. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 2/25/2009)
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Pizana v. Kane et al Doc. 13 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 ANGEL PIZANA, No. C05-2457 PJH (PR) Petitioner, 8 9 11 For the Northern District of California United States District Court 10 ORDER DENYING HABEAS PETITION vs. A.P. KANE, Warden, Respondent. / 12 13 This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. 14 The petition is directed to a denial of parole. The court ordered respondent to show cause 15 why the writ should not be granted. Respondent has filed an answer and a memorandum 16 of points and authorities in support of it, and has lodged exhibits with the court. Petitioner 17 has responded with a traverse. For the reasons set forth below, the petition will be denied. 18 BACKGROUND 19 Petitioner pled guilty to kidnapping for ransom and two counts of second-degree 20 robbery in Los Angeles County Superior Court. In 1993, he was sentenced to a term of life 21 in prison with the possibility of parole, and he also received a three-year sentence for using 22 a firearm in the kidnapping. On July 1, 2004, after a hearing before the Board of Prison 23 Terms (“Board”), during which petitioner was represented and was given an opportunity to 24 be heard, the Board found petitioner unsuitable for parole. Resp. Ex. 2 at 42. In addition to 25 reviewing petitioner’s files and previous transcripts, the Board based its decision upon 26 petitioner’s commitment offense, his prior criminal and social history, and his behavior and 27 programming since his incarceration. Id. at 8. 28 Dockets.Justia.com 1 2 For the Northern District of California United States District Court 3 DISCUSSION I. Standard of Review A district court may not grant a petition challenging a state conviction or sentence on 4 the basis of a claim that was reviewed on the merits in state court unless the state court's 5 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an 6 unreasonable application of, clearly established Federal law, as determined by the 7 Supreme Court of the United States; or (2) resulted in a decision that was based on an 8 unreasonable determination of the facts in light of the evidence presented in the State court 9 proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to 10 mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), 11 while the second prong applies to decisions based on factual determinations, Miller-El v. 12 Cockrell, 537 U.S. 322, 340 (2003). 13 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 14 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 15 reached by [the Supreme] Court on a question of law or if the state court decides a case 16 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 17 Williams (Terry), 529 U.S. at 412-13. A state court decision that is an “unreasonable 18 application of” Supreme Court authority, falls under the second clause of § 2254(d)(1), if it 19 correctly identifies the governing legal principle from the Supreme Court’s decisions but 20 “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The 21 federal court on habeas review may not issue the writ “simply because that court concludes 22 in its independent judgment that the relevant state-court decision applied clearly 23 established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must 24 be “objectively unreasonable” to support granting the writ. Id. at 409. 25 “Factual determinations by state courts are presumed correct absent clear and 26 convincing evidence to the contrary.” Miller-El, 537 U.S. at 340. This presumption is not 27 altered by the fact that the finding was made by a state court of appeals, rather than by a 28 state trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 2 1 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present 2 clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; 3 conclusory assertions will not do. Id. 4 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual 5 determination will not be overturned on factual grounds unless objectively unreasonable in 6 light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; 7 see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). For the Northern District of California United States District Court 8 When there is no reasoned opinion from the highest state court to consider the 9 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 10 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir. 11 2000). 12 II. 13 Issues Presented Petitioner contends that: (1) his due process rights were violated when the Board 14 denied parole for the second time based on the circumstances of his crime; and (2) the 15 Board violated his plea agreement by withholding promised lesser punishment and by 16 recharacterizing his offense as more serious than that to which he pled guilty. 17 Among other things, respondent contends that California prisoners have no liberty 18 interest in parole and that if they do, the only due process protections available are a right 19 to be heard and a right to be informed of the basis for the denial – that is, respondent 20 contends there is no due process right to have the result supported by sufficient evidence. 21 Because these contentions go to whether petitioner has any due process rights at all in 22 connection with parole, and if he does, what those rights are, they will addressed first. 23 24 25 A. Respondent’s Contentions 1. Liberty Interest Respondent contends that California law does not create a liberty interest in parole. 26 However, the Ninth Circuit has held that it does. See Sass v. California Bd. of Prison 27 Terms, 461 F.3d 1123, 1127-28 (9th Cir. 2006). Respondent’s argument as to liberty 28 interest is without merit. 3 1 For the Northern District of California United States District Court 2 2. 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 4 Supreme Court authority are limited to notice, an opportunity to be heard, and a statement 5 of reasons for denial. That is, respondent contends there is no due process right to have 6 the decision supported by “some evidence.” This position, however, has been rejected by 7 the Ninth Circuit, which has held that the Supreme Court has clearly established that a 8 parole board’s decision deprives a prisoner of due process if the board’s decision is not 9 supported by "some evidence in the record", or is "otherwise arbitrary." Irons v. Carey, 479 10 F.3d 658, 662 (9th Cir. 2007) (applying "some evidence" standard used for disciplinary 11 hearings as outlined in Superintendent v. Hill, 472 U.S. 445-455 (1985)); McQuillion, 306 12 F.3d at 904 (same). The evidence underlying the Board’s decision must also have "some 13 indicia of reliability." McQuillion, 306 F.3d at 904; Biggs, 334 F.3d at 915. The some 14 evidence standard identified in Hill is clearly established federal law in the parole context for 15 purposes of § 2254(d). See Sass, 461 F.3d at 1128-1129. 16 B. 17 According to the transcript of the July 1, 2004 parole hearing, petitioner confirmed as Petitioner’s Claims 18 true the Board’s statement of the facts and circumstances of petitioner’s commitment 19 offense. Resp. Ex. 2 at 12-15. Petitioner admitted to collaborating with others in 20 kidnapping the victim at gunpoint, holding him for ransom, and attempting to kill him. Id. at 21 13. Specifically, petitioner – armed with a .22-caliber pistol – tied the victim up and kicked 22 the victim while he was on the floor, threatening him with death. Id. at 13-14. Petitioner 23 then placed a plastic bag over the victim’s head causing him to briefly lose consciousness. 24 Id. at 14. 25 The Board described petitioner’s participation in the crime as cruel and callous, 26 mentioning that petitioner may have been the most violent of the participants according to 27 the victim. Id. at 42, 46. The Board also took into consideration petitioner’s unstable social 28 history – citing alcohol and drug use, his coming to the country illegally, and his past 4 1 criminal acts, which include an arrest for taking a vehicle without the owner’s consent. Id. 2 at 43-44. In addition, while in prison, petitioner received three counseling memos – one of 3 which he received since his last parole hearing – for stealing on two separate occasions. 4 Id. at 26-27. The Board noted that petitioner lacked basic knowledge of Alcoholics 5 Anonymous despite his attendance in the program, and that he did not demonstrate 6 educational or vocational advancement. Id. at 45-46. Finally, the Board ordered a new 7 psychological evaluation for petitioner recommending that petitioner “be honest with the 8 evaluator.” Id. at 48. 9 For the Northern District of California United States District Court 10 1. “Biggs Claim” In a line of relatively recent cases the Ninth Circuit has discussed the 11 constitutionality of denying parole when the only basis for denial is the circumstances of the 12 offense. See Hayward v. Marshall, 512 F.3d 536, (9th cir. 2008); Irons v. Carey, 505 F.3d 13 846, 852-54 (9th Cir. 2007); Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1129 14 (9th Cir. 2006); Biggs v. Terhune, 334 F.3d 910, 915-17 (9th Cir. 2003). 15 In Biggs the court said that it might violate due process if the Board were to continue 16 to deny parole to a prisoner because of the facts of his or her offense and in the face of 17 evidence of rehabilitation. 334 F.3d at 916-17. No legal rationale for this statement was 18 provided, and it was unclear whether the court was suggesting that the continued denial of 19 parole would be a new sort of due process violation or whether it was simply expressing the 20 thought that with the passage of time the nature of the offense could cease to be “some 21 evidence” that the prisoner would be a danger if paroled. This ambiguity was helpfully 22 cleared up in Irons, where the court clearly treated a “some evidence” claim as different 23 from a “Biggs claim.” Irons, 505 F.3d at 853-54. It appears, putting together the brief 24 discussions in Biggs and Irons, that the court meant that at some point denial of parole 25 based on long-ago and unchangeable factors, when overwhelmed with positive evidence of 26 rehabilitation, would be fundamentally unfair and violate due process. As the dissenters 27 from denial of rehearing en banc in Irons point out, in the Ninth Circuit what otherwise might 28 be dictum is controlling authority if the issue was presented and decided, even if not strictly 5 For the Northern District of California United States District Court 1 “necessary” to the decision. Irons v. Carey, 506 F.3d 951, 956 (9th Cir. Nov. 6, 2007) 2 (dissent from denial of rehearing en banc) (citing and discussing Barapind v. Enomoto, 400 3 F.3d 744, 751 n. 8 (9th Cir.2005)). Depending on whether the discussion of dictum in the 4 dissent from denial of rehearing en banc in Irons is correct, it thus may be that the Ninth 5 Circuit has recognized that due process right, which for convenience will be referred to in 6 this opinion as a “Biggs claim.” Here, petitioner’s first issue is such a “Biggs claim,” in that 7 he contends that simply using the circumstances of his offense as grounds for denial 8 violates due process, separate from his “some evidence” claim, which is issue two, below. 9 Petitioner has failed to establish the predicate for his Biggs claim. First, petitioner’s 10 parole was not denied solely because of the circumstances of his offense, but also because 11 petitioner did not sufficiently participate in institutional programming. Exh. 2 at 45, 48. For 12 instance, petitioner was unable to express any basic understanding of Alcoholics or 13 Narcotics Anonymous, despite attending these programs. Id. at 45. Petitioner also “failed 14 to upgrade either educationally or vocationally” while incarcerated, although the Board 15 recognized that petitioner’s limited English proficiency was a contributing factor. Id. The 16 Board also stated that “ [petitioner] needs self-help in order to face, discuss, and cope with 17 stress in a non-destructive manner.” Id. at 46. And finally, assuming for purposes of this 18 discussion that Biggs and Irons recognized an abstract due process right not to have parole 19 repeatedly denied on the basis of the facts of one’s crime and in the face of extensive 20 evidence of rehabilitation, and also assuming arguendo that the right was violated in 21 petitioner’s case, petitioner still cannot obtain relief on this theory, because as there is no 22 clearly-established United States Supreme Court authority recognizing a “Biggs claim.” 23 The state courts’ rulings therefore could not be contrary to, or an unreasonable application 24 of, clearly-established Supreme Court authority. 25 26 27 28 2. “Some Evidence” Claim Petitioner contends that denial of parole was not supported by “some evidence” and thus violated his due process rights. Ascertaining whether the some evidence standard is met "does not require 6 1 examination of the entire record, independent assessment of the credibility of witnesses, or 2 weighing of the evidence. Instead, the relevant question is whether there is any evidence 3 in the record that could support the conclusion reached by the disciplinary board." Hill, 472 4 U.S. at 455; Sass, 461 F.3d at 1128. The some evidence standard is minimal, and assures 5 that "the record is not so devoid of evidence that the findings of the disciplinary board were 6 without support or otherwise arbitrary." Sass, 461 F.3d at 1129 (quoting Hill, 472 U.S. at 7 457). 8 For the Northern District of California United States District Court 9 Here, the Board’s decision was supported by evidence of the callous nature of petitioner’s crime – specifically his participation in using a gun in kidnapping the victim, 10 tying up and then kicking the victim, and placing a plastic bag over the victim’s head until 11 he passed out. Exh. 2. at 43, 46-47. The Board also reviewed reports by petitioner’s 12 counselor and a psychological expert that indicated inconsistencies between what 13 petitioner admitted to the Board regarding his involvement in the crime and what petitioner 14 told the psychologist: “[The evaluation]. . . referred to him as being non-violent and not 15 participating in any real threats or violence or really having much culpability in this crime.” 16 Id. at 43-44, 47-48. The Board concluded that “[i]n view of the prisoner’s assaultive history, 17 and lack of program participation, there’s no indication that he would behave differently if 18 paroled.” Id. at 46. 19 The nature of petitioner’s commitment offense, his violent criminal history, the 20 combination of alcohol playing a role in petitioner’s commitment offense and his lack of 21 understanding of the alcohol addiction recovery program, and his disciplinary history and 22 lack of vocational or educational advancement in prison all amount to some evidence that 23 petitioner continued to present an unreasonable risk of harm to the public if released. 24 Consequently, the denial of parole did not violate petitioner’s right to due process, and the 25 state courts’ denial of this claim was not contrary to, or an unreasonable application of, 26 clearly established Supreme Court authority. 27 28 3. Breach of Plea Bargain 7 1 2 bargain by withholding the promised lesser punishment and recharacterizing his offense as 3 more serious than that to which he pled guilty. The plea bargain called for striking the 4 enhancements for counts four and five and that petitioner’s sentences would run 5 concurrently. Resp. Ex. 18 at 4-5. Petitioner received a sentence to a term of three years 6 plus life with the possibility of parole. Id. at 3. At the sentencing hearing, the government 7 told petitioner, “[A]t some point in time, you will be eligible for parole and they’ll put you out 8 on parole.” Id. at 7. No where in the sentencing transcript does it state that petitioner 9 would be guaranteed release from prison after seven years, as petitioner claims. Traverse For the Northern District of California 10 United States District Court Petitioner contends that by denying him parole the Board has breached his plea at 2. 11 A party breaches a plea bargain if it fails to live up to the promises it made under the 12 agreement. See Buckley v. Terhune, 441 F.3d 688, 698 (9th Cir. 2006). If the government 13 agrees to make a certain recommendation to the sentencing court, it is bound by the 14 agreement to make that particular recommendation. See United States v. Johnson, 187 15 F.3d 1129, 1135 (9th Cir. 1999). Here, the government only stated that petitioner would 16 receive a life sentence with the possibility of parole. Resp. Ex. 18 at 3, 7. Petitioner’s 17 argument that the Board is withholding a promised lesser punishment and punishing him 18 for a greater offense is without merit. Because petitioner is serving an indeterminate life 19 sentence, he may be lawfully incarcerated until the Board determines that he is suitable for 20 parole. See Dannenberg, 34 Cal. 4th at 1083-84 (“an inmate whose offense was so 21 serious as to warrant, at the outset, a maximum term of life in prison, may be denied parole 22 during whatever time the Board deems required for ‘this individual’ by ‘consideration of the 23 public safety.’” (quoting Cal. Penal Code § 3041(b) (emphasis in original)). Petitioner has 24 not demonstrated that the Board violated the plea bargain agreement. 25 This claim is without merit, and the state courts’ rejection of petitioner’s argument 26 was not contrary to, or an unreasonable application of, clearly established Supreme Court 27 authority. 28 CONCLUSION 8 1 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file. 2 IT IS SO ORDERED. 3 4 Dated: February 25, 2009 PHYLLIS J. HAMILTON United States District Judge 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 G:\PRO-SE\PJH\HC.05\PIZANA2457.RUL.wpd 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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