Jay v. Kane, No. 4:2006cv01795 - Document 39 (N.D. Cal. 2008)

Court Description: ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 11/12/08. (scc, COURT STAFF) (Filed on 11/12/2008)
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Jay v. Kane Doc. 39 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 MATTHEW ADAM JAY, 6 7 Petitioner, ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS v. 8 ANTHONY KANE, Warden, 9 Respondent. 10 United States District Court For the Northern District of California No. CV 06-01795 CW / 11 12 On March 8, 2006, Petitioner Matthew Adam Jay filed a petition 13 for a writ of habeas corpus pursuant to title 28 U.S.C. section 14 2254, challenging as a violation of his constitutional rights the 15 sixth denial of parole by the California Board of Parole Hearings1 16 (Board) on May 5, 2004. 17 On March 23, 2006, the Court issued an order to show cause why 18 the writ should not be granted. 19 a motion to dismiss for failure to exhaust state remedies. 20 that some of Petitioner's claims were unexhausted, the Court denied 21 Respondent's motion to dismiss, and stayed the petition to allow 22 Petitioner either to exhaust the unexhausted claims in state court 23 or to file a First Amended Petition (FAP) omitting them. 24 Petitioner chose the latter and filed his FAP on November 13, 2006. 25 However, one unexhausted claim remains in the FAP, which the Court On June 14, 2006, Respondent filed Finding 26 27 28 1 The Board of Prison Terms was abolished effective July 1, 2005, and replaced with the Board of Parole Hearings. Cal. Penal Code § 5075(a). Dockets.Justia.com 1 will deny. 2 Petitioner currently has two other habeas corpus petitions 3 pending before this Court challenging subsequent denials of parole 4 by the Board. 5 v. Schwarzenegger, et al., No. 4:08-cv-01998-CW (PR) (2008). 6 Jay v. Curry, No. 4:08-cv-00845-CW (PR) (2008); Jay Having considered all of the papers filed by the parties, the 7 petition is GRANTED and the matter is remanded to the Board to 8 reevaluate Petitioner's parole suitability in accordance with this 9 order. United States District Court For the Northern District of California 10 11 BACKGROUND I. The Commitment Offense 12 The following summary of the facts of Petitioner's commitment 13 offense is derived from the Los Angeles County Probation Officer's 14 Report. 15 old Torran "Tory" Meier, decided to kill his mother, Shirley Rizk. 16 (Id. at 2.) 17 assistance from Petitioner, who was eighteen years old, and Richard 18 Parker, who was twenty-three. 19 said that they would use it to strangle Rizk. 20 Meier's plan was to transport the body in the victim's car to the 21 Malibu Canyon area, light the car on fire, and push it over a cliff 22 in order to make it look like an accident. 23 (Resp't Ex. 2 at 2-6.) On October 13, 1985, sixteen-year- Prior to the crime, Meier received a promise of (Id.) Meier produced a rope and (Id. at 2-3.) (Id.) The three went to Meier's home and Meier lured his mother into 24 his bedroom where Petitioner and Parker were waiting. 25 Parker placed a noose around Rizk's neck and began to strangle her. 26 (Id.) 27 and Meier pulled on her legs. 28 (Id. at 3.) Parker pulled on the rope around her neck, while Petitioner (Id.) 2 At some point during the 1 strangulation, Rizk's eight year old son, Rory, awakened to her 2 screams, went to investigate, and observed the strangulation. 3 (Id.) 4 from knowing what was happening. 5 approximately fifteen minutes before Rizk died. United States District Court For the Northern District of California 6 Meier took Rory away from the room in an effort to keep him (Id.) The strangulation lasted (Id.) Meier realized that Rory was a potential witness and decided 7 that he would kill Rory with poison. 8 Petitioner with some money to purchase snail and rat poison. 9 at 4.) (Id. at 3-4.) Meier sent (Id. While Petitioner was gone, Parker and Meier placed Rizk's 10 body in the trunk of her car. 11 poison and returned to the Meier residence with it. 12 attempted to poison Rory with a poison-laced sandwich and malt, but 13 he refused to ingest it because of the taste. 14 Rory to go for a ride in the Malibu Canyon and Rory agreed. 15 (Id.) Petitioner purchased the (Id.) (Id.) Meier Meier asked (Id.) With Rizk's body in the trunk and Rory in the back seat, 16 Petitioner, Meier and Parker drove away from the house. 17 route they stopped at a gas station and purchased a gallon of gas. 18 (Id.) 19 location to push the car over a cliff, they drove back to 20 Petitioner's house where Petitioner retrieved his car and followed 21 Meier and Parker back to the Canyon location. 22 arrival, Petitioner apparently remained in his car while Meier and 23 Parker got out. 24 rag, stuffed the rag into the gas tank of Rizk's car, blindfolded 25 Rory, tied Rory's hands behind his back, and put him in the back 26 seat of the car. 27 steering wheel. 28 (Id.) En After driving through the Malibu Canyon area and finding a (Id. at 5.) (Id.) (Id.) (Id. at 4-5.) Upon Meier proceeded to pour gasoline on a Parker then placed Rizk's body behind the Meier and Parker pushed the car over the 3 1 embankment as Parker lit the rag on fire. 2 down approximately thirty feet of the embankment. 3 parole officer's report does not indicate that Petitioner had any 4 direct involvement with fire or pushing the car down the 5 embankment. 6 Apparently, Petitioner transported Meier and Parker to Meier's car, 7 though the record does not describe this. 8 to untie himself, remove his blindfold, and climb out of the 9 burning car to call for help. United States District Court For the Northern District of California 10 (Id.) The car rolled (Id.) The The perpetrators then left in Petitioner's car. (Id.) Meanwhile, Rory was able (Id.) A passing motorist saw the flames, heard Rory's call and 11 stopped to assist him. 12 with Rory. 13 (Id.) 14 Rory to a hospital, he saw the car Rory had described as Meier's 15 and pulled it over. 16 the sheriff arrested them. 17 statement implicating himself, Petitioner and Meier. 18 On October 16, 1985, Petitioner was arrested. 19 (Id.) (Id.) The authorities arrived and spoke Rory described Meier's car to a deputy sheriff. While that sheriff was following the ambulance transporting (Id.) Meier and Parker were in the car and (Id. at 5-6.) Parker made a full (Id. at 6.) (Id.) Petitioner told his probation officer that he had been under 20 the influence of marijuana, alcohol, cocaine, and hashish at the 21 time of the crime. 22 to a probation officer that Petitioner had also taken LSD the 23 previous night. 24 stated that Meier had offered him $2,000 for his assistance in the 25 murder, but that Petitioner never believed Meier would pay. 26 (Resp't Ex. 2, Probation Officer's Report at 14-15.) 27 28 (Id. at 14.) (Id.) A friend of Petitioner's reported At the time of his arrest, Petitioner Petitioner stated that Meier convinced him to assist in the 4 1 murder because of his "influential personality" and because he had 2 "long been telling everyone [that Rizk] had been severely 3 physically and emotionally abusing him." 4 Officer's Report at 7; Resp't Ex. 11, Psychological Evaluation by 5 A.M. Charlens, Ph.D. at 1) 6 II. United States District Court For the Northern District of California 7 (Resp't Ex. 3, Probation Plea and Sentencing Pursuant to a plea agreement, on January 12, 1987, Petitioner 8 plead guilty to second degree murder and attempted murder.2 9 (Resp't Ex. 1 Report--Indeterminate Sentence, Other Sentence Choice 10 at 1.) 11 attorney. 12 submits the declaration of Elliot Stanford, his attorney at the 13 time he entered the plea, who declares that he had advised 14 Petitioner that he would likely serve only seven to ten years of 15 his sentence before being released on parole. 16 Stanford Declaration at 1.) 17 communications with Mr. Feldman, the Deputy District Attorney 18 prosecuting Petitioner's case. 19 All additional allegations were dismissed by the district (Resp't Ex. 4, Board Transcript at 84.) Petitioner (Pet’r Ex. L, Stanford based this advice upon his (Id.) On March 12, 1987, the superior court sentenced Petitioner to 20 fifteen years to life in prison with the possibility of parole, 21 plus the mid-term of seven years for the attempted murder charge, 22 to run concurrently. (Resp't Ex. 1 Report--Indeterminate Sentence, 23 24 25 26 27 28 2 At a jury trial, Meier was found guilty of the lesser offenses of voluntary manslaughter, attempted voluntary manslaughter and conspiracy to commit manslaughter, apparently because of a "long history of abuse by his mother that led to the events." (Resp't Ex. 4, Board Transcript, at 87.) Meier received a twelve-year sentence and was released in the early nineties. (Id. at 87.) 5 1 Other Sentence Choice at 1.) 2 attorney that Petitioner should be sent to the California Youth 3 Authority rather than state prison. 4 Transcript at 11, 16.) 5 Correctional Training Facility at Soledad. 6 Transcript at 1.) 7 1995. 8 III. May 5, 2004 Board Hearing United States District Court For the Northern District of California 9 The judge agreed with Petitioner's (Resp't Ex. 3, Sentencing Petitioner is currently incarcerated at the (Resp't Ex. 4, Board His minimum eligible parole date was October 18, (Id.) Petitioner had been incarcerated for nearly twenty years at 10 the time of his May 5, 2004 parole suitability hearing. 11 represented by counsel at the hearing. 12 Transcript at 2.) 13 an exemplary record, remaining discipline-free with the exception 14 of one minor 128(b) violation for smoking in 2000. 15 He was (Resp't Ex. 4, Board During his incarceration, Petitioner maintained (Id. at 33.) Petitioner presented the Board with an extensive record of his 16 positive prison performance and rehabilitation. 17 hearing, Petitioner was working as a production clerk with an 18 above-standard evaluation and was working on a consumer specialist 19 certification. 20 22, 2003, Petitioner had received a certificate of proficiency as a 21 production coordinator and on October 3, 2003, he had received a 22 forklift operator certificate. 23 held the jobs of vocational sewing machine shop assistant, janitor, 24 and bakery porter. 25 At the time of the (Resp't Ex. 4, Board Transcript at 23, 31.) (Id. at 24-25.) On May Petitioner also (Id. at 25-26.) Petitioner presented evidence that he had availed himself of 26 many self-help, self-improvement and community programs in prison. 27 (Id. at 23-36.) 28 He attained a high school equivalency diploma 6 United States District Court For the Northern District of California 1 early in his incarceration. 2 2004 hearing, Petitioner had completed seventy-five out of 120 3 units necessary for a Bachelor's Degree from the University of 4 Iowa. 5 since his incarceration and regularly participated in Alcoholics 6 Anonymous (AA) and Narcotics Anonymous (NA) programs, for which he 7 received chronos. 8 courses in prison: Life Skills, Advanced Breaking Barriers, 9 Alternatives to Violence, Reengaging into Society, Road to (Id. at 28.) (Id. at 27.) At the time of the May, Petitioner has remained alcohol and drug free (Id. at 23.) Petitioner completed the following 10 Happiness, Federal Emergency Management Agency Institute (FEMAI) 11 Emergency Program Management, FEMAI Decision Making/Problem 12 Solving, FEMAI Effective Communication and FEMAI Developing and 13 Managing Volunteers. 14 Alternatives to Violence program, Petitioner became a peer 15 facilitator in the program and received chronos for his work. 16 at 29.) 17 in 2001 and a Share a Bear Foundation program. 18 (Id. at 29-30, 35.) After completing the (Id. Petitioner volunteered to organize both a Red Cross drive The Board denied parole. (Id. at 34-35.) First, the Board looked at 19 Petitioner’s pre-incarceration history, and noted that he had no 20 prior criminal or juvenile arrest record. 21 noted that Petitioner had attained his high school equivalency 22 diploma. 23 (Id. at 13.) The Board (Id. at 31-32.) The Board considered a 2002 report by Dr. Jeff Howlin, a staff 24 psychologist. 25 prior record and prison adjustment, the psychologist found that 26 Petitioner's potential for violence within the controlled setting 27 was "well below average relative to the Level II inmate 28 Upon assessing Petitioner's commitment offense, 7 1 population." 2 were to be released into the community, his violence potential 3 would be "no more than the average citizen in the community." 4 (Id.) 5 into his commitment offense" and "remorse for the victim and the 6 victim's family members." 7 the commitment offense as "quite violent" but found that it was 8 "quite removed from both [Petitioner's] history and functioning 9 since being incarcerated." United States District Court For the Northern District of California 10 (Id. at 41.) Dr. Howlin found that, if Petitioner Dr. Howlin noted that Petitioner "demonstrated good insight (Id. at 40-41.) Dr. Howlin described (Id. at 40.) Dr. Howlin noted, "[Petitioner] feels that his ongoing drug 11 use . . . significantly interfered with his ability to know right 12 from wrong . . . . 13 substances again, his violence potential would be considered higher 14 than the average citizen in the community . . . however, 15 [Petitioner] does appear to have insight into his substance abuse 16 history and awareness of the idea that recovery from such a history 17 is most likely going to be an ongoing process and has made plans 18 for the future to address some of these issues." 19 At the hearing, Petitioner stated, "There is no doubt in my mind 20 that I will continually go to AA and NA and do whatever it takes 21 for the rest of my life to stay sober." 22 Should [Petitioner] make the choice to use (Id. at 40-42.) (Id. at 44.) The Board then considered Petitioner's "tremendous" amount of 23 support, noting that sixty-one support letters were submitted on 24 his behalf by family, friends, church acquaintances and others. 25 (Id. at 18, 50.) 26 Rory's grandparents, had written the Board three times vigorously 27 endorsing Petitioner's parole and stating that they forgave 28 Significantly, the parents of Shirley Rizk, 8 1 Petitioner. 2 letter that "[t]here are at least 50 homes open to [Petitioner] 3 upon his release." 4 Petitioner employment. 5 intended to accept employment with the Reverend J. Jon Bruno of the 6 Episcopal Diocese of Los Angeles while he pursued a career as a 7 youth substance abuse counselor. 8 United States District Court For the Northern District of California 9 (Id. at 52.) Petitioner's godmother indicated in her (Id. at 55-56.) (Id. at 51.) Five letters offered Petitioner indicated that he (Id. at 50, 52.) In another letter of support, Susan Beck, a youth group counselor, stated that Petitioner had sent letters to her youth 10 group and the youths' parents about the dangers of drug abuse, with 11 descriptions of his own mistakes. 12 concluded, "I can't tell you how much I appreciated Matthew's input 13 or what a tremendous impact his candor made on the young people in 14 this program." 15 (Id. at 60.) Ms. Beck (Id.) The Board expressed concern that Petitioner had not "kept 16 tabs" on Rory. 17 Rory in 1993 to make amends, but that he did not want to injure, 18 bother or upset him with further communications if they were 19 unwanted. 20 (Id. at 70.) Petitioner explained that he wrote to (Id.) Finally, the Board considered the opposition to Petitioner’s 21 parole. 22 Board to deny parole based on the circumstances of the commitment 23 offense. 24 Dave Dahle attended the hearing and stated he was opposed to 25 Petitioner's parole based on his concern that the commitment 26 offenses were "particularly cold, calculated, well planned acts." 27 (Id. at 77.) 28 A letter from the Los Angeles County Sheriff urged the (Id. at 65.) Los Angeles County deputy district attorney Dahle also expressed skepticism over Petitioner's 9 United States District Court For the Northern District of California 1 claim of severe intoxication because "this inmate was able to 2 negotiate the highways of the County of Los Angeles without getting 3 stopped. 4 concluded that Petitioner still needed to work on "the whys" before 5 parole eligibility. He wasn't that drunk . . . ." (Id. at 78-79.) Dahle (Id.) 6 The Board concluded that Petitioner was not suitable for 7 parole and would pose an unreasonable risk of danger to society or 8 a threat to public safety if released. 9 Board commended Petitioner for actively participating in self-help, 10 staying discipline-free and achieving marketable vocational skills, 11 it found that his gains did not outweigh the factors of 12 unsuitability. 13 although Petitioner received letters from Ms. Rizk's parents, "they 14 don't address anything at all about Rory, and you could not answer 15 my questions about Rory and I think that is a big element that 16 needs to be addressed before I can find that you are suitable for 17 parole." 18 (Id. at 106-07.) (Id. at 99.) Although the The Board also emphasized that, (Id. at 108.) The Board stated that its primary reason for denying parole 19 was the gravity of Petitioner’s offense and the evidence that the 20 offense involved "great violence and a high degree of cruelty and 21 callousness." 22 dispassionate and calculated in committing the crime; one 23 Commissioner reflected, "When I go to measure this crime against 24 other crimes of a similar type, I can't come up with any, that's 25 how egregious it is." 26 the motive was very trivial in relation to the offense. 27 Board found that Petitioner had an unstable social history based on 28 10 (Id. at 99.) The Board characterized Petitioner as (Id. at 99, 112.) The Board reasoned that (Id.) The 1 "chronic childhood depression" and "extensive use of alcohol." 2 (Id. at 104.) United States District Court For the Northern District of California 3 Finally, the Board recommended that Petitioner seek further 4 psychiatric treatment based on a ten-year-old psychologist's report 5 that indicated Petitioner's violence potential to be average in the 6 past but estimated to be decreased. 7 stated that further psychiatric treatment was necessary to address 8 a fourteen-year-old psychologist's report that observed that "the 9 elements within [Petitioner] of a deeper level of motivation have (Id. at 105.) The Board also 10 yet to be addressed." 11 psychologists' reports endorsing parole as merely "recent gains." 12 (Id. at 106.) 13 (Id.) The Board characterized several At the time of the May 5, 2004 parole suitability hearing, 14 Petitioner had already been denied parole five times. 15 IV. 16 (Id. at 14.) Superior Court Petition for Writ of Habeas Corpus On January 31, 2005, Petitioner filed a petition for a writ of 17 habeas corpus in superior court challenging the Board's decision. 18 (Resp't Ex. 17, May 25, 2005 Los Angeles County Superior Court 19 Order at 3-4.) 20 there was "ample evidence" in the record about the commitment 21 offense alone to support an unsuitability finding: 22 23 24 The court denied the petition, on the ground that It was undeniably dispassionate and calculated, involved multiple victims, the adult victim was abused, and the petitioner's motive was very trivial. Moreover, the circumstances of the crime are more than the minimum necessary to sustain a conviction for second-degree murder. 25 (Id. at 3.) The court concluded that "the nature of these crimes 26 is enough to conclude petitioner is a public danger." 27 28 11 (Id.) 1 The court noted that, while the Board's decision was also 2 based on a prior unstable social history evidenced by childhood 3 depression and alcohol and drug use, "there is no evidence in the 4 record that either of those contributed to unstable or tumultuous 5 relationships with others." 6 denial of the petition solely on the circumstances of the 7 commitment offense. 8 United States District Court For the Northern District of California 9 (Id.) Therefore, the court based its On July 6, 2005, Petitioner filed supplemental points and authorities in support of his petition. (Resp't Ex. 18.) On 10 August 5, 2005, the superior court found that it had already 11 considered the supplemental issues. 12 California Superior Court Order re: Writ of Habeas Corpus at 1.) 13 On September 29, 2005, the superior court again denied Petitioner's 14 petition. 15 (Resp't Ex. 19, Aug. 5, 2005 (Resp't Ex. 21, Denial of Reconsideration at 2.) Petitioner filed subsequent habeas petitions in the California 16 court of appeal and the California Supreme Court. 17 were summarily denied. 18 Appellate Court Order at 1; Resp't Ex. 25, Jan. 25, 2006 California 19 Supreme Court Order at 1.) 20 federal habeas corpus petition in this Court challenging the state 21 court decisions upholding the Board's determination. 22 23 24 Both petitions (Resp't Ex. 23, Oct. 27, 2005 California Subsequently, Petitioner brought a DISCUSSION I. Standard of Review Because this case involves a federal habeas corpus challenge 25 to a state parole eligibility decision, the applicable standard is 26 contained in the Antiterrorism and Effective Death Penalty Act of 27 1996 (AEDPA). 28 McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 12 1 2002). United States District Court For the Northern District of California 2 Under AEDPA, a district court may not grant habeas relief 3 unless the state court's adjudication of the claim: "(1) resulted 4 in a decision that was contrary to, or involved an unreasonable 5 application of, clearly established Federal law, as determined by 6 the Supreme Court of the United States; or (2) resulted in a 7 decision that was based on an unreasonable determination of the 8 facts in light of the evidence presented in the State court 9 proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 10 362, 412 (2000). 11 the state court's factual findings. A federal court must presume the correctness of 28 U.S.C. § 2254(e)(1). 12 Where, as here, the highest state court to reach the merits 13 issued a summary opinion which does not explain the rationale of 14 its decision, federal court review under § 2254(d) is of the last 15 state court opinion to reach the merits. 16 964, 970-71, 973-78 (9th Cir. 2000). 17 court opinion to address the merits of Petitioner's claim is that 18 of the California superior court. 19 II. 20 Bains v. Cambra, 204 F.3d In this case, the last state Analysis Petitioner argues that (1) he was denied due process because 21 the Board's decision was not supported by some evidence that he is 22 presently dangerous; (2) the State violated his plea agreement; 23 (3) the Board violated Apprendi v. New Jersey, 530 U.S. 466, 488-90 24 (2000), by relying on unproven facts related to a special 25 circumstances allegation that was dismissed; and (4) the Board 26 relied upon unconstitutionally vague regulatory language in making 27 its determination of unsuitability. 28 13 United States District Court For the Northern District of California 1 A. 2 The United States Supreme Court has clearly established that a Due Process Claim 3 parole board's decision deprives a prisoner of due process with 4 respect to his constitutionally protected liberty interest in a 5 parole release date if the board's decision is not supported by 6 “some evidence in the record,” or is “otherwise arbitrary.” 7 v. California Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 8 2006) (citing Superintendent v. Hill, 472 U.S. 445, 457 (1985)). 9 Respondent argues that California inmates do not have a Sass 10 federally protected liberty interest in parole release and that the 11 Ninth Circuit’s holding to the contrary in Sass is not clearly 12 established federal law for the purposes of AEDPA. 13 Court is bound by Ninth Circuit authority. 14 Carey, 505 F.3d 846, 850 (9th Cir. 2007) (all California prisoners 15 whose sentences provide for the possibility of parole are vested 16 with a constitutionally protected liberty interest in the receipt 17 of a parole release date, a liberty interest that is protected by 18 the procedural safeguards of the Due Process Clause); McQuillion, 19 306 F.3d at 898 ("under clearly established Supreme Court 20 precedent, the parole scheme in California . . .[gives] rise to a 21 constitutionally protected liberty interest). 22 claim fails. 23 However, this See, e.g., Irons v. Therefore, this When assessing whether a state parole board's suitability 24 determination was supported by “some evidence,” the court's 25 analysis is framed by the statutes and regulations governing parole 26 suitability determinations in the relevant state. 27 at 1128. 28 Sass, 461 F.3d Accordingly, in California, the court must look to 14 1 California law to determine the findings that are necessary to deem 2 a prisoner unsuitable for parole, and then must review the record 3 to determine whether the state court decision constituted an 4 unreasonable application of the “some evidence” principle. 5 California law provides that a parole date is to be granted 6 unless it is determined “that the gravity of the current convicted 7 offense or offenses, or the timing and gravity of current or past 8 convicted offense or offenses, is such that consideration of the 9 public safety requires a more lengthy period of incarceration 10 United States District Court For the Northern District of California Id. . . .” Cal. Penal Code § 3041(b). 11 The California Code of Regulations sets out the factors 12 showing suitability or unsuitability for parole that the Board is 13 required to consider. 14 These include “[a]ll relevant, reliable information available,” 15 such as, 16 the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in finding of unsuitability. 17 18 19 20 21 22 23 24 25 26 27 28 See 15 Cal. Code Regs. tit. 15 § 2402(b). Id. Circumstances tending to show unsuitability for parole include the nature of the commitment offense and whether “[t]he prisoner 15 United States District Court For the Northern District of California 1 committed the offense in an especially heinous, atrocious or cruel 2 manner.” 3 victims, whether "[t]he offense was carried out in a dispassionate 4 and calculated manner,” whether the victim was “abused, defiled or 5 mutilated during or after the offense,” whether “[t]he offense was 6 carried out in a manner which demonstrates an exceptionally callous 7 disregard for human suffering,” and whether “[t]he motive for the 8 crime is inexplicable or very trivial in relation to the offense.” 9 Id. Id. at (c). This includes consideration of the number of Other circumstances tending to show unsuitability for parole 10 are a previous record of violence, an unstable social history, 11 previous sadistic sexual offenses, a history of severe mental 12 health problems related to the offense, and serious misconduct in 13 prison or jail. 14 Id. Circumstances tending to support a finding of suitability for 15 parole include no juvenile record, a stable social history, signs 16 of remorse, that the crime was committed as a result of significant 17 stress in the prisoner's life, a lack of criminal history, a 18 reduced possibility of recidivism due to the prisoner's present 19 age, that the prisoner has made realistic plans for release or has 20 developed marketable skills that can be put to use upon release, 21 and that the prisoner's institutional activities indicate an 22 enhanced ability to function within the law upon release. 23 (d). 24 that due process is denied when "an inquiry focuse[s] only upon the 25 existence of unsuitability factors." 26 1181, 1208 (2008). 27 28 Id. at In a recent decision, the California Supreme Court stated In re Lawrence, 44 Cal. 4th Respondent contends that even if California prisoners do have 16 1 a liberty interest in parole, the due process protections to which 2 they are entitled by clearly established Supreme Court authority 3 are limited to an opportunity to be heard and a statement of 4 reasons for denial. 5 rejected by the Ninth Circuit, which held in Irons, 505 F.3d at 851 6 that a prisoner’s due process rights are violated if the Board’s 7 decision is not supported by "some evidence in the record," or is 8 "otherwise arbitrary." 9 thus clearly established federal law in the parole context for United States District Court For the Northern District of California 10 11 This position, however, has likewise been purposes of § 2254(d). The “some evidence” standard identified is Sass, 461 F.3d at 1128-1129. In that the superior court stated that the Board's unstable 12 social history justification was unfounded, the superior court 13 upheld the denial of Petitioner's parole based solely on his 14 commitment offense. 15 and heinous. 16 Circuit has held that continuous reliance over time on static 17 factors such as the commitment offense could violate due process. 18 See Irons, 505 F.3d at 851; Sass, 461 F.3d at 1129; Biggs v. 19 Terhune, 334 F.3d 910, 916-917 (9th Cir. 2003). 20 It is undeniable that the offense was brutal These facts are immutable. However, the Ninth The original sentence here bears on the evaluation of 21 heinousness. 22 for his attempted murder conviction. 23 prosecutor, the judge committed Petitioner to the California Youth 24 Authority rather than state prison. 25 Transcript 3 at 14, 16.) 26 the utmost heinousness and demonstrates the trial judge's view that 27 Petitioner was capable of rehabilitation. 28 Petitioner was given a midterm, concurrent sentence With the agreement of the (Resp't Ex., Sentencing This, too, weighs against a finding of 17 United States District Court For the Northern District of California 1 The Ninth Circuit has not specified the number of denials or 2 the length of time served beyond the minimum sentence that would 3 constitute a due process violation, but Petitioner has served 4 considerably more than his minimum sentence of fifteen years and 5 was denied parole by the Board for the sixth time at the 2004 6 hearing. 7 three years to find that the facts of the offense constitute some 8 evidence that Petitioner would presently be a danger to society if 9 released. The question is whether it is reasonable after twenty- Petitioner possesses each of the suitability factors the 10 Board was bound to evaluate. 11 convictions save for the commitment offense. 12 remorse. 13 years of psychological reports indicating social stability and 14 recommending parole. 15 He has no juvenile or adult He has expressed He has a stable social history, evidenced by nearly ten The Board overstated some of the unsuitability factors 16 relating to the static facts of the commitment offense. 17 particular, the motive for the crime is not "inexplicable or very 18 trivial" in relation to the offense. 19 mastermind of the crime, convinced Petitioner that he was being 20 abused by his mother, just as he convinced a jury of the same. 21 That a jury convicted Meier only of the lesser offense of voluntary 22 manslaughter and that he was released in the mid-nineties weighs 23 against the triviality of the motive. 24 In Meier, the undisputed The Board also overemphasized older psychologist reports, and 25 dismissed current reports as merely "recent gains." 26 the Board used a 1990 report that obliquely indicated, "the 27 elements within [Petitioner] of a deeper level of motivation have 28 18 In particular, 1 yet to be addressed." 2 Though the Board viewed this as indicative of a need for further 3 treatment, subsequent psychological reports contradict that 4 analysis.3 5 The Board also placed undue emphasis on the fact that 6 Petitioner had not "kept tabs" on Rory. 7 him a letter to make amends in 1993, to which he received no 8 response. 9 determine that further attempts at communication could cause Rory 10 United States District Court For the Northern District of California (Resp't Ex. 11, Charlens Report at 1.) 11 However, Petitioner wrote It was reasonable and conscientious for Petitioner to further emotional hardship. The California Supreme Court recently clarified the 12 appropriate analysis for a reviewing court, even when the 13 commitment offense involves aggravated circumstances. 14 Cal. 4th at 1214. 15 16 17 Lawrence, 44 The aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's preor post-incarceration history, or his . . . current demeanor and mental state, indicates that the 18 19 3 27 In Petitioner's subsequent parole hearing on February 16, 2007, he presented a report from Dr. Merrick which directly addressed the 1990 report. Jay v. Schwarzenegger, et al., No. 4:08-cv-01998-CW (PR) (2008), Pet'r Attachment 1, Parole Board Transcript at 27. The transcript of this hearing is judicially noticeable as it is also before this Court as an attachment to another petition. See Lee v. City of Los Angeles, 250 F.3d 668, 668-690 (9th Cir. 2001) (a court may take judicial notice of undisputed matters of public record); Fed. R. Evid. 201. In response to Charlens' report, Dr. Merrick stated, "This evaluator respectfully believes that being easily influenced and immaturity are reasonable, probably accurate inferences to be made from Jay's behavior, but there are no apparent pre- or post-offense behaviors that confirm these hypotheses or turn them into lifelong deepseated unalterable traits for which psychotherapy is mandated. For example, there is no evidence that Jay ever allowed the world class predators in prison to manipulate him." Id. at 27-28. 28 19 20 21 22 23 24 25 26 1 implications regarding the prisoner's dangerousness that derive from his . . . commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety. 2 United States District Court For the Northern District of California 3 4 Id. 5 In re Rozenkrantz, 29 Cal. 4th 616, 683 (2002)("a life term offense 6 or any other offenses underlying an indeterminate sentence must be 7 particularly egregious to justify the denial of a parole date")] 8 has been read to suggest that reliance solely upon the 9 circumstances of the commitment offense would violate an inmate's 10 due process rights only in those cases in which the circumstances 11 of the crime are not particularly egregious, we emphasize that due 12 process cannot, and should not, be so narrowly defined." 13 at 1214. The court further clarified, "To the extent [the language of Lawrence 14 The Board noted but gave no weight to the other evidence which 15 militated against a finding that Petitioner is currently dangerous. 16 Petitioner’s last six psychological reports conclude that 17 Petitioner will not pose a danger if released. 18 Psychiatric Evaluation by Ronald H. Kitt, Ph.D. at 194-195; 1995 19 Psychological Evaluation by S. McDill, Ph.D. at 191-193; 1998 20 Psychological Evaluation by Dean Clair, Ph.D. at 189-190; Pet'r Ex. 21 U, 1999 Updated Conclusions and Recommendations by Marilyn Kennedy, 22 M.S., M.S.W., L.C.S.W., Ph.D. at 585; Pet'r Ex. B, 2001 23 Psychological Evaluation by Joe Reed, Ph.D. at 183-188; 2002 24 Psychological Evaluation by Jeff Howlin, Ed.D. at 174-181.) 25 Kennedy's 1999 report, which was before the Board at the 2004 and 26 prior hearings, stated that Petitioner will not return to drugs, 27 repeat his crime, or be a danger to himself or others. 28 20 (Pet’r Ex. B, 1994 Dr. (Pet’r Ex. 1 U at 585.) 2 to have insight into his substance abuse history, and awareness of 3 the idea that recovery from such a history is most likely going to 4 be an ongoing process." 5 180.) United States District Court For the Northern District of California 6 Dr. Howlin's report indicated that Petitioner "appears (Pet'r Ex. B, Howlin Report, 2002, at Petitioner has served considerably more than his minimum term 7 of fifteen years, and more than the parole matrix for aggravated 8 second-degree murders.4 9 maximum penalty of life with the possibility of parole. Petitioner's commitment offense carries a The 10 Board's decisions threaten to increase this sentence to one of life 11 without parole. 12 Furthermore, Petitioner’s present age of forty-one years 13 suggests a reduced possibility of recidivism. 14 realistic plans for release, as evidenced by numerous letters from 15 family members and friends indicating that they can assist him with 16 employment and housing. 17 including his high school equivalency diploma, associate's degree, 18 and substantial progress towards a bachelor's degree, have given 19 him marketable skills that can be put to use on release. 20 institutional activities, such as rehabilitation programs and 21 vocational and charitable work, indicate an enhanced ability to 22 function within the law upon release. He has made Petitioner’s educational achievements, His 23 4 24 25 26 27 28 In a subsequent parole board hearing in 2007, one of the Commissioners found Petitioner suitable for parole. Jay v. Schwarzenegger, et al., Case No. 4:08-cv-01998-CW (PR) (2008), Pet'r Attachment 1, Parole Board Hearing Transcript Feb. 16, 2007 at 72. The Commissioner found Category III(c) of the matrix (Cal. Code Regs. tit. 15, § 2403(c)) to be appropriate for Petitioner. (Id. at 75-76.) The Commissioner calculated that a release date should be set after 252 months (21 years). (Id. at 76.) 21 United States District Court For the Northern District of California 1 In light of Petitioner’s entire record, including his age at 2 the time of the crime, his violence-free years before he was 3 arrested, his lengthy incarceration, and his rehabilitation through 4 education, good conduct and charitable work, his commitment 5 offense, which occurred nearly twenty-three years ago, no longer 6 constitutes “some evidence” that his release will pose an imminent 7 danger to public safety. 8 commitment crime alone violated Petitioner’s due process rights, 9 and the state court’s affirmation of the Board's denial was The Board’s continued reliance upon the 10 unreasonable in light of the facts and an unreasonable application 11 of United States Supreme Court law. 12 process claim is GRANTED. 13 Accordingly, Petitioner’s due Petitioner also raises three alternative grounds for habeas 14 relief. 15 Petitioner is entitled to relief based on his first claim, the 16 Court will do so below. Although there is no need to address these claims because 17 B. 18 Petitioner claims that the Board violated his plea agreement. 19 20 Plea Agreement Claim This claim is without merit. Plea agreements are contractual in nature and subject to 21 contract law standards of interpretation. 22 1198, 1207 (9th Cir. 2004) (citing United States v. Hyde, 520 U.S. 23 670, 677-78 (1997)). 24 relief if he or she enters into a plea agreement with a state 25 prosecutor, and the prosecutor breaches the agreement. 26 Ignacio, 263 F.3d 965, 969-70 (9th Cir. 2001). 27 sentencing, a defendant who pleads guilty may not collaterally 28 In re Ellis, 356 F.3d Thus, a petitioner is entitled to habeas 22 Gunn v. However, after 1 challenge a guilty plea that was voluntary and intelligently 2 entered into with the advice of competent counsel. 3 v. Broce, 488 U.S. 563, 572 (1989). 4 collaterally attack the plea's validity merely because he or she 5 made what turned out, in retrospect, to be a poor deal. 6 v. Stumpf, 545 U.S. 175, 186 (2005). United States District Court For the Northern District of California 7 United States Nor may a defendant Bradshaw Petitioner characterizes his plea agreement as a contract 8 between the prosecutor and the sentencing court. 9 an agreement between Petitioner and the district attorney. However, it was The 10 plea agreement specified that Petitioner would plead guilty to 11 second degree murder and attempted murder and, in return, the 12 district attorney would dismiss all additional charges. 13 Resp't Ex. 2, Probation Officer's Report at 1; Resp't Ex. 1, 14 Report-Indeterminate Sentence at 1.) 15 from his attorney at the time that the deputy district attorney 16 handling the case told him that the "approximate" time Petitioner 17 would spend in custody would be seven to ten years. 18 Declaration of Elliot Stanford, at 540.) 19 inadmissible and, furthermore, the prosecutor's oral 20 representations cannot change the written agreement of the parties. (See Petitioner provides evidence (Pet'r Ex. L, This hearsay evidence is 21 Petitioner does not argue that the plea agreement is anything 22 other than the agreement described by the judge, nor does he argue 23 that the prosecutor violated the agreement by pursuing any of the 24 other charges. 25 agreement was violated fails. Therefore Petitioner’s argument that his plea 26 C. 27 Petitioner argues that the Board used inadmissible evidence in 28 Apprendi Claim 23 1 making the parole determination, because it considered allegations 2 to which Petitioner had not plead guilty. 3 merit. United States District Court For the Northern District of California 4 This claim is without The United States Supreme Court has ruled that "[o]ther than 5 the fact of a prior conviction, any fact that increases the 6 penalty for a crime beyond the prescribed statutory maximum must be 7 submitted to a jury, and proved beyond a reasonable doubt." 8 Apprendi, 530 U.S. at 488-90. 9 criminal defendant used a firearm in the commission of the For example, an allegation that a 10 underlying offense may not be adjudicated by a judge alone where 11 doing so could alter the maximum penalty for the crime. 12 Roe, 244 F.3d 758, 773 (9th Cir. 2001). 13 Dillard v. Apprendi does not apply here because the statutory maximum for 14 second degree murder in California is an indeterminate life 15 sentence. 16 decision to deny parole was based on the facts to which Petitioner 17 plead guilty, and the decision neither increased the maximum 18 penalty for second degree murder nor Petitioner’s sentence, 19 Petitioner’s Apprendi claim is DENIED. Cal. Penal Code § 190(a). Accordingly, because the 20 D. 21 Petitioner claims that, "as applied" to him, the language of Unconstitutional Vagueness Claim 22 section 2402 of the California Code of Regulations governing parole 23 suitability is unconstitutionally vague. 24 this claim is unexhausted, the Court has the authority to deny it 25 on the merits, 28 U.S.C. § 2254(b)(2), “when it is perfectly clear 26 that the applicant does not raise even a colorable federal claim.” 27 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). 28 24 Petition at 35. Although 1 2 principle of due process if its prohibitions are not clearly 3 defined. 4 This is because laws must give a person of ordinary intelligence a 5 reasonable opportunity to know what is prohibited. 6 must provide explicit standards to those who apply them so they may 7 not be enforced in an arbitrary and discriminatory manner. 8 109. 9 United States District Court For the Northern District of California An enactment is void for vagueness under the constitutional Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Id. Also, laws Id. at California Code of Regulations, title 15, § 2402 sets forth 10 the criteria for determining whether an inmate is suitable for 11 release on parole. 12 prisoner shall be found unsuitable for and denied parole if, in the 13 judgment of the panel, the prisoner will pose an unreasonable risk 14 of danger to society if released from prison. 15 15, § 2402(a). 16 tend to show unsuitability or suitability for parole. 17 that the inmate poses an unreasonable risk to society can be made 18 solely on the basis of the commitment offense only if the offense 19 is "especially heinous, atrocious, or cruel." 20 15, § 2402(c)(1). 21 clarified these regulations in Lawrence. 22 a determination based on section 2402(c)(1) must also explain why 23 the egregious commitment offense "remains probative to the 24 statutory determination of a continuing threat to public safety." 25 Lawrence, 44 Cal. 4th at 1214. 26 27 28 Regardless of the length of time served, a life Cal. Code Regs. tit. Section 2402(c) and (d) provides the factors that A finding Cal. Code Regs. tit. However, the California Supreme Court recently The court explained that Petitioner argues that the factors listed in section 2402(c) that determine whether a crime was committed in an especially 25 1 heinous, atrocious or cruel manner are "purely subjective" and 2 that, because they are difficult to understand, Petitioner had 3 inadequate notice regarding the manner in which the factors would 4 apply to him. United States District Court For the Northern District of California 5 Petition at 35. The regulations define the terms in an unambiguous manner. An 6 offense is considered “especially heinous, atrocious, or cruel” if 7 it “was carried out in a manner which demonstrates an exceptionally 8 callous disregard for human suffering” or “[t]he motive for the 9 crime is inexplicable or very trivial in relation to the offense.” 10 Cal. Code Regs. tit. 15 § 2402,(c)(1). 11 clarify the analysis by providing a list of factors that support a 12 finding of a commitment offense that was performed in a "heinous, 13 atrocious, or cruel" manner. 14 The regulatory explication, along with the state court guidance on 15 the proper application of the regulations creates a scheme that is 16 not unconstitutionally vague as applied to Petitioner. 17 Petitioner's unconstitutional vagueness challenge to section 18 2402(c) is DENIED. 19 20 The regulations further Cal. Code Regs. tit. 15 § 2402(c)(1). CONCLUSION For the foregoing reasons, the petition for a writ of habeas 21 corpus is GRANTED. 22 within sixty (60) days and re-evaluate Petitioner’s suitability for 23 parole in accordance with this order. 24 Petitioner suitable for parole and sets a release date and the 25 Governor does not reverse, the Court will stay Petitioner’s actual 26 release for two weeks to allow Respondent to request a stay from 27 this Court and if necessary from the Court of Appeals, of the 28 The Board shall hold a new parole hearing 26 If the Board finds 1 release date pending appeal. 2 review compliance with its order. 3 The Court retains jurisdiction to The Clerk of the Court shall terminate all pending motions, 4 enter judgment and close the file. 5 costs. 6 Each party shall bear his own IT IS SO ORDERED. 7 8 Dated: 11/12/08 CLAUDIA WILKEN United States District Judge 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 27