Pratt v. Schwarzenegger et al, No. 4:2005cv03503 - Document 28 (N.D. Cal. 2008)
Court Description: ORDER DENYING HABEAS PETITION re 1 Petition for Writ of Habeas Corpus filed by Dennis W. Pratt, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 9/29/08. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 9/29/2008)
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Pratt v. Schwarzenegger et al Doc. 28 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 DENNIS W. PRATT, Petitioner, 8 9 vs. ORDER DENYING HABEAS PETITION WARDEN ORNOSKI, Respondent. 11 For the Northern District of California United States District Court 10 No. C 05-3503 PJH (PR) / 12 13 14 15 This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The petition is directed to a denial of parole. The court ordered respondent to show cause why the writ should not be granted. 16 Respondent has filed an answer and a memorandum of points and authorities in support of 17 it, and has lodged exhibits with the court. Petitioner has responded with a traverse. For 18 the reasons set forth below, the petition will be denied. 19 BACKGROUND 20 Petitioner pled guilty in Sonoma County Superior Court to one count of second 21 degree murder. In 1981 he was sentenced to fifteen years to life in prison. On December 22 3, 2004, after a hearing before the Board of Prison Terms ("Board"), during which petitioner 23 was represented and was given an opportunity to be heard, the Board found petitioner 24 unsuitable for parole. Exh. 2 at 83.1 The Board based its decision upon the commitment 25 offense; the fact that the motive for the crime was very trivial in relation to the offense; 26 27 28 1 Citations in format "Exh. __" refer to exhibits attached to the Attorney General's Answer to Petition for Writ of Habeas Corpus. Dockets.Justia.com 1 petitioner's unstable social history; an escalating pattern of criminal conduct, including 2 misconduct while in prison; and his lack of insight into how his crime and his actions 3 affected others. Id. at 83-87. 4 5 DISCUSSION I. For the Northern District of California United States District Court 6 Standard of Review A district court may not grant a petition challenging a state conviction or sentence on 7 the basis of a claim that was reviewed on the merits in state court unless the state court's 8 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an 9 unreasonable application of, clearly established Federal law, as determined by the 10 Supreme Court of the United States; or (2) resulted in a decision that was based on an 11 unreasonable determination of the facts in light of the evidence presented in the State court 12 proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to 13 mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), 14 while the second prong applies to decisions based on factual determinations, Miller-El v. 15 Cockrell, 537 U.S. 322, 340 (2003). 16 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 17 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 18 reached by [the Supreme] Court on a question of law or if the state court decides a case 19 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 20 Williams (Terry), 529 U.S. at 412-13. A state court decision that is an “unreasonable 21 application of” Supreme Court authority, falls under the second clause of § 2254(d)(1), if it 22 correctly identifies the governing legal principle from the Supreme Court’s decisions but 23 “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The 24 federal court on habeas review may not issue the writ “simply because that court concludes 25 in its independent judgment that the relevant state-court decision applied clearly 26 established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must 27 be “objectively unreasonable” to support granting the writ. Id. at 409. 28 /// 2 1 “Factual determinations by state courts are presumed correct absent clear and 2 convincing evidence to the contrary.” Miller-El, 537 U.S. at 340. This presumption is not 3 altered by the fact that the finding was made by a state court of appeals, rather than by a 4 state trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 5 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present 6 clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; 7 conclusory assertions will not do. Id. 8 For the Northern District of California United States District Court 9 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in 10 light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; 11 see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). 12 When there is no reasoned opinion from the highest state court to consider the 13 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 14 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th 15 Cir.2000). 16 II. Issues Presented 17 A. 18 Among other things, respondent contends that California prisoners have no liberty Respondent’s Contentions 19 interest in parole and that if they do, the only due process protections available are a right 20 to be heard and a right to be informed of the basis for the denial – that is, respondent 21 contends there is no due process right to have the result supported by sufficient evidence. 22 Because these contentions go to whether petitioner has any due process rights at all in 23 connection with parole, and if he does, what those rights are, they will be addressed first. 24 25 1. Liberty Interest Respondent contends that there is no clearly established Supreme Court authority 26 holding that California law creates a liberty interest in parole. Respondent argues that 27 although the Ninth Circuit has held that California inmates do have a liberty interest in 28 parole, its decision is not clearly established federal law for purposes of the Antiterrorism 3 1 and Effective Death Penalty Act (AEDPA). Id. For the Northern District of California United States District Court 2 The Fourteenth Amendment provides that no state may “deprive any person of life, 3 liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1. In 4 Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 5 (1979), the Supreme Court found that the inmates had a liberty interest in discretionary 6 parole that was protected by the Due Process Clause. The right was created by the 7 “expectancy of release provided in [the Nebraska parole statute.]” That statute provided 8 that the parole board “shall order” release of eligible inmates unless that release would 9 have certain negative impacts. Id. at 11–12. The Supreme Court returned to the issue in 10 Board of Pardons v. Allen, 482 U.S. 369 (1987). There it held that a similar liberty interest 11 was created even though the parole board had great discretion. Id. at 381. For parole 12 decisions, this mode of analysis survived the Supreme Court’s later rejection of it for prison 13 disciplinary decisions in Sandin v. Conner, 515 U.S. 472 (1995). Biggs v. Terhune, 334 14 F.3d 910, 914 (9th Cir. 2003) (Sandin “does not affect the creation of liberty interests in 15 parole under Greenholtz and Allen.”). 16 While there is "no constitutional or inherent right of a convicted person to be 17 conditionally released before the expiration of a valid sentence," Greenholtz, 442 U.S. at 7, 18 a state's statutory parole scheme, if it uses mandatory language, may create a presumption 19 that parole release will be granted when or unless certain designated findings are made, 20 and thereby give rise to a constitutionally protected liberty interest, Allen, 482 U.S. at 376- 21 78 (Montana parole statute providing that board "shall" release prisoner, subject to certain 22 restrictions, creates due process liberty interest in release on parole); Greenholtz, 442 U.S. 23 at 11-12 (Nebraska parole statute providing that board "shall" release prisoner, subject to 24 certain restrictions, creates due process liberty interest in release on parole). In such a 25 case, a prisoner has a liberty interest in parole that cannot be denied without adequate 26 procedural due process protections. Allen, 482 U.S. at 373-81; Greenholtz, 442 U.S. at 11- 27 16. 28 /// 4 For the Northern District of California United States District Court 1 Respondent contends that California law does not create a liberty interest in parole. 2 But California’s parole scheme uses mandatory language and is similar to the schemes in 3 Allen and Greenholtz which the Supreme Court held gave rise to a protected liberty interest 4 in release on parole. In California, the panel or board "shall set a release date unless it 5 determines that the gravity of the current convicted offense or offenses, or the timing and 6 gravity of current or past convicted offense or offenses, is such that consideration of the 7 public safety requires a more lengthy period of incarceration for this individual, and that a 8 parole date, therefore, cannot be fixed at this meeting." Cal. Penal Code § 3041(b). Under 9 the clearly established framework of Allen and Greenholtz, “California’s parole scheme 10 gives rise to a cognizable liberty interest in release on parole.” McQuillion v. Duncan, 306 11 F.3d 895, 902 (9th Cir. 2002). The scheme requires that parole release be granted unless 12 the statutorily defined determination (that considerations of public safety forbid it) is made. 13 Id.; Biggs v. Terhune, 334 F.3d 910, 915-16 (9th Cir. 2003) (finding initial refusal to set 14 parole date for prisoner with fifteen-to-life sentence implicated prisoner’s liberty interest). In 15 sum, the structure of California's parole scheme – with its mandatory language and 16 substantive predicates – gives rise to a federally protected liberty interest in parole such 17 that an inmate has a federal right to due process in parole proceedings. 18 19 20 Respondent’s argument as to liberty interest is without merit. 2. Due Process Protections Respondent contends that even if California prisoners do have a liberty interest in 21 parole, the due process protections to which they are entitled by clearly-established 22 Supreme Court authority are limited to notice, an opportunity to be heard, and a statement 23 of reasons for denial. That is, respondent contends there is no due process right to have 24 the decision supported by “some evidence.” This position, however, has been rejected by 25 the Ninth Circuit, which has held that the Supreme Court has clearly established that a 26 parole board’s decision deprives a prisoner of due process if the board’s decision is not 27 supported by "some evidence in the record", or is "otherwise arbitrary." Irons v. Carey, 479 28 F.3d 658, 662 (9th Cir. 2007) (applying "some evidence" standard used for disciplinary 5 1 hearings as outlined in Superintendent v. Hill, 472 U.S. 445-455 (1985)); McQuillion, 306 2 F.3d at 904 (same). The evidence underlying the Board’s decision must also have "some 3 indicia of reliability." McQuillion, 306 F.3d at 904; Biggs, 334 F.3d at 915. The some 4 evidence standard identified in Hill is clearly established federal law in the parole context for 5 purposes of § 2254(d). See Sass, 461 F.3d at 1128-1129. 6 B. 7 Petitioner contends that: (1) his due process rights were violated by the Board’s 8 denial of parole based on the circumstances of his crime; (2) the Board's decision was pro 9 forma, arbitrary, capricious, and not supported by the evidence; and (3) use of the "some For the Northern District of California 10 United States District Court Petitioner’s Claims evidence" standard for denying parole violated his due process rights. 11 According to the transcript of the December 3, 2004, parole hearing, petitioner 12 confirmed as true the Board's statement of the facts and circumstances of petitioner's 13 offense. Exh. 2 at 12. Petitioner admitted to stabbing the victim – a friend of his – 14 seventeen times during a confrontation that occurred while petitioner attempted to 15 burglarize the victim's motor home. Id. at 11-12, 65-69. The Board stated that the "[crime] 16 was clearly carried out in a way that demonstrate[d] an exceptionally callous disregard for 17 human suffering" in light of the motive for the crime and the victim's older age in 18 comparison to petitioner's. Id. at 84. The Board was also influenced by petitioner's 19 decision to write a letter to the victim's daughter seven years prior to the hearing and 20 seventeen years after the crime was committed. Id. While the contents of the letter were 21 not evident from the transcript, the daughter's submission of a videotape expressing her 22 fear after reading the letter contributed to the Board's determination of petitioner's 23 "tremendous lack of insight" into his crime and actions. Id. at 81. Petitioner's only serious 24 disciplinary action occurred in 1988 and while the Board recognized his positive conduct 25 and letters of support since then, it emphasized that these gains were recent and must be 26 demonstrated over an extended period of time. Id. at 85-86; Exh. 3 at 6.2 27 2 28 At the hearing, the Board twice referred to the year of the disciplinary violation and accompanying criminal conviction as 1998. The date is accompanied by [sic] in the transcript, without explanation. Exh. 2 at 24, 85. The Board agreed that the correct date was 1988 when 6 1 2 For the Northern District of California “Biggs Claim” In a line of relatively recent cases the Ninth Circuit has discussed the 3 constitutionality of denying parole when the only basis for denial is the circumstances of the 4 offense. See Hayward v. Marshall, 512 F.3d 536, (9th cir. 2008); Irons v. Carey, 505 F.3d 5 846, 852-54 (9th Cir. 2007); Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1129 6 (9th Cir. 2006); Biggs v. Terhune, 334 F.3d 910, 915-17 (9th Cir. 2003). 7 United States District Court 1. In Biggs the court said that it might violate due process if the Board were to continue 8 to deny parole to a prisoner because of the facts of his or her offense and in the face of 9 evidence of rehabilitation. 334 F.3d at 916-17. No legal rationale for this statement was 10 provided, and it was unclear whether the court was suggesting that the continued denial of 11 parole would be a new sort of due process violation or whether it was simply expressing the 12 thought that with the passage of time the nature of the offense could cease to be “some 13 evidence” that the prisoner would be a danger if paroled.3 This ambiguity was helpfully 14 cleared up in Irons, where the court clearly treated a “some evidence” claim as different 15 from a “Biggs claim.” Irons, 505 F.3d at 853-54. It appears, putting together the brief 16 discussions in Biggs and Irons, that the court meant that at some point denial of parole 17 based on long-ago and unchangeable factors, when overwhelmed with positive evidence of 18 rehabilitation, would be fundamentally unfair and violate due process. As the dissenters 19 from denial of rehearing en banc in Irons point out, in the Ninth Circuit what otherwise might 20 be dictum is controlling authority if the issue was presented and decided, even if not strictly 21 “necessary” to the decision. Irons v. Carey, 506 F.3d 951, — (9th Cir. Nov. 6, 2007) 22 (dissent from denial of rehearing en banc) (citing and discussing Barapind v. Enomoto, 400 23 F.3d 744, 751 n. 8 (9th Cir.2005)). 24 25 26 27 28 petitioner pointed out the error. Exh. 2 at 25-26. 3 The Supreme Court has clearly established that a parole board’s decision deprives a prisoner of due process if the board’s decision is not supported by “some evidence in the record,” or is “otherwise arbitrary.” Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1129 (9th Cir. 2006) (adopting “some evidence” standard for disciplinary hearings outlined in Superintendent v. Hill, 472 U.S. 445, 454-55 (1985). 7 1 Depending on whether the discussion of dictum in the dissent from denial of 2 rehearing en banc in Irons is correct, it thus may be that the Ninth Circuit has recognized 3 that due process right, which for convenience will be referred to in this opinion as a “Biggs 4 claim.” Here, petitioner’s first issue is a “Biggs claim,” in that he contends that simply using 5 the circumstances of his offense as grounds for denial violates due process, separate from 6 his “some evidence” claim, which is issue two, below. For the Northern District of California United States District Court 7 Petitioner has failed to establish the predicate for his Biggs claim. First, petitioner’s 8 parole was not denied solely because of the circumstances of his offense, but also because 9 of petitioner's lack of insight into the crime and his actions – demonstrated by the fact that 10 he had his wife locate the victim's daughter's address in order to write her a letter – seven 11 years prior to the hearing. Exh. 2 at 83-85. Further, the Board also relied on petitioner's 12 unstable social history and escalating criminal conduct that continued while he was 13 incarcerated, which it concluded outweighed any recent positive rehabilitative behavior. Id. 14 at 83-88. In 1988, petitioner was subject to serious disciplinary action and a criminal 15 conviction for attempting to smuggle drugs into the prison, and he recieved five other minor 16 disciplinary reports since then. Id. at 39. And finally, assuming for purposes of this 17 discussion that Biggs and Irons recognized an abstract due process right not to have parole 18 repeatedly denied on the basis of the facts of one’s crime and in the face of extensive 19 evidence of rehabilitation, and also assuming arguendo that the right was violated in 20 petitioner’s case, petitioner still cannot obtain relief on this theory, because as there is no 21 clearly-established United States Supreme Court authority recognizing a “Biggs claim.” 22 The state courts’ rulings therefore could not be contrary to, or an unreasonable application 23 of, clearly-established Supreme Court authority. 24 25 26 27 28 2. “Some Evidence” Claim Petitioner contends that denial of parole was not supported by “some evidence” and thus was a violation of his due process rights. Ascertaining whether the some evidence standard is met "does not require examination of the entire record, independent assessment of the credibility of witnesses, or 8 1 weighing of the evidence. Instead, the relevant question is whether there is any evidence 2 in the record that could support the conclusion reached by the disciplinary board." Hill, 472 3 U.S. at 455; Sass, 461 F.3d at 1128. The some evidence standard is minimal, and assures 4 that "the record is not so devoid of evidence that the findings of the disciplinary board were 5 without support or otherwise arbitrary." Sass, 461 F.3d at 1129 (quoting Hill, 472 U.S. at 6 457). For the Northern District of California United States District Court 7 Here, the Board’s decision was supported by evidence of the callous nature of 8 petitioner’s crime, Exh. 2 at 64-65; petitioner's disciplinary report and criminal conviction in 9 1988 for possession of a controlled substance after he attempted to smuggle 10 methamphetamine into the prison, id. at 25-26; his past history with substance abuse, id. at 11 24-26; and his deliberate decision to contact the victim's daughter which indicated a lack of 12 insight into his crime, id. at 59-60. The Board did not ignore petitioner's recent positive 13 rehabilitative activities and supportive psychiatric evaluations but determined that they have 14 not been maintained for a sufficient period of time. Id. at 41-59. 15 Because there was no constitutional violation, the state courts’ denial of this claim 16 was not contrary to, or an unreasonable application of, clearly established Supreme Court 17 authority. 18 19 3. Breach of Plea Bargain Petitioner contends that by denying him parole the Board has breached his plea 20 bargain, because it in effect treated him as if he had been convicted of first-degree murder. 21 The plea bargain called for a sentence of fifteen years to life, and that is what petitioner 22 received. See Exh. 1. Although petitioner contends he is being punished as if he had 23 pleaded to first-degree murder, he in fact is receiving the parole consideration that his 24 fifteen-to-life sentence entitles him. 25 Also, the factual premise of this claim is false. Because first-degree murder is 26 punishable by death, life without parole, or a term of twenty-five years to life, Cal. Penal 27 Code § 190(a), if petitioner had been convicted of first-degree murder he would not have 28 served the twenty-five year minimum sentence at the time of the 2004 parole hearing at 9 1 For the Northern District of California United States District Court 2 issue here. This claim is without merit. The state courts’ rejection of petitioner’s argument was 3 not contrary to, or an unreasonable application of, clearly established Supreme Court 4 authority. 5 4. 6 Petitioner appears to believe that the Board used the “some evidence” standard at Standard of Decision 7 the initial decision-making level, when its proper place is as a review standard. There is no 8 evidence of this – the Board never said what standard it was applying -- so the claim fails. 9 Petitioner contends that the proper standard for the Board to apply would be 10 “‘substantive-evidence’ (defined as enough to convince a reasonable person).” Pet. at 8c. 11 His confusion here, which is perfectly understandable, is between the standard that the 12 Board uses in the first instance and the standard that this court uses in determining 13 whether a due process violation has occurred (it is also the standard that state law requires 14 for appellate review of sufficiency of the evidence claims). See Sass, 461 F.3d at 1128-29 15 (federal); In re Rosenkrantz, 29 Cal. 4th 616, 652 (2002) (state-law standard). Because 16 there is no clearly-established United States Supreme Court authority saying that a parole 17 board is constitutionally required to use any particular standard in making its decision in the 18 first instance, this claim is legally without merit, as well as factually. 19 20 The state courts’ rejection of this claim was not contrary to, or an unreasonable application of, clearly-established Supreme Court authority. 21 CONCLUSION 22 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file. 23 IT IS SO ORDERED. 24 Dated: September 29, 2008. PHYLLIS J. HAMILTON United States District Judge 25 26 27 28 G:\PRO-SE\PJH\HC.05\PRATT3503.RUL.wpd 10
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