Feliciano v. Curry, No. 4:2007cv04713 - Document 19 (N.D. Cal. 2010)
Court Description: ORDER Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability. Signed by Judge Claudia Wilken on 7/29/2010. (ndr, COURT STAFF) (Filed on 7/29/2010)
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Feliciano v. Curry Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 11 12 13 14 15 No. C 07-4713 CW (PR) PEDRO FELICIANO, Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY v. BEN CURRY, Warden, Respondent. 16 / 17 18 INTRODUCTION 19 Pro se Petitioner Pedro Feliciano, a state prisoner 20 incarcerated at the Correctional Training Facility in Soledad, 21 California, seeks a writ of habeas corpus under 28 U.S.C. § 2254 22 challenging the August 31, 2005 decision of the California Board of 23 Parole Hearings (BPH) to deny him parole at his fourth parole 24 suitability hearing. 25 Doc. No. 1 at 10. On February 7, 2008, the Court issued an Order to Show Cause 26 why the writ should not be granted. 27 Respondent filed a motion to dismiss the Petition on the ground that 28 it was untimely, which the Court denied on March 11, 2009. Doc. No. 3. On April 30, 2008, Dockets.Justia.com 1 Doc. Nos. 7 & 11. 2 Doc. No. 12. 3 No. 13. 4 On June 8, 2009, Respondent filed an Answer. On June 18, 2009, Petitioner filed a Traverse. Doc. After the matter was submitted, on April 22, 2010, the Ninth 5 Circuit issued its decision in Hayward v. Marshall, 603 F.3d 546 6 (9th Cir. 2010) (en banc), which addressed important issues relating 7 to federal habeas review of BPH decisions denying parole to 8 California state prisoners. 9 parties to file Supplemental Briefing explaining their views of how On May 6, 2010, the Court ordered the 10 the Hayward en banc decision applies to the facts presented in 11 Petitioner’s challenge to the BPH’s decision denying him parole. 12 Doc. No. 14. 13 2010; Petitioner filed his on June 14, 2010. 14 15 Respondent filed Supplemental Briefing on May 28, Having considered all of the papers filed by the parties, the Court DENIES the Petition. 16 17 Doc. Nos. 15 & 16. BACKGROUND At Petitioner’s August 31, 2005 parole suitability hearing, the 18 BPH read two factual summaries of Petitioner’s commitment offense. 19 Doc. No. 12-1 at 36–39. 20 parole suitability hearing and is set forth below. 21 22 23 24 25 26 27 28 The first derives from Petitioner’s 2004 On June 15, 1[9]82 at approximately 8:18 p.m. officers from the Colton Police Department responded to East Congress Street in Colton to [a] call [of] shots fired. Subsequent investigation revealed that [Petitioner’s] estranged common-law wife Lazarra . . . Hernandez, victim, went to his residents [sic] in order to see her three children. She was driven to the house by her boyfriend of two months, Pedro Rodriguez. While still in the vehicle, they were approached by [Petitioner], who advise[d] Rodriguez to . . . “take out the 2 1 rifle” . . . because he was going to obtain one. Mr. [Rodriguez] then informed [Petitioner] that [he] did not have a rifle. [Petitioner] obtained a 22 caliber automatic rifle from his . . . house, stood in the . . . area of the doorway and fired two to four shots in the direction of the vehicle striking Rodriguez in the neck and Ms. Hernandez in the head. Rodriguez was able to drive the vehicle away from the area and made contact with police. Both victims received emergency medical care and shortly there after [sic] Ms. Hernandez was pronounced dead at Loma Linda Medical Center. [Petitioner] was arrested at his residents [sic] at approximately 8:33 p.m. 2 3 4 5 6 7 8 9 10 Doc. No. 12-1 at 36–38. Below is Petitioner’s version of the commitment offense that 11 originally was set forth in a statement made in 1998, which 12 Petitioner maintained as true at his 2005 parole suitability 13 hearing. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [Petitioner] stated that he never told Rodriguez to take out the rifle. He stated that when Rodriguez pulled up in his car, he parked right in front of [Petitioner’s] apartment. [Rodriguez] told . . . [Petitioner] that . . . Ms. Hernandez wanted her children back. [Petitioner] told him that he would not give up the children and told Rodriguez to move his car from in front of his apartment. . . . [Petitioner] claimed . . . that he told Rodriguez that [Ms.] Hernandez could go to the end of the apartment to see her children. Then he said that Rodriguez refused to move his car so [Petitioner] went to his apartment, got a 22. [sic] [c]aliber rifle. It [sic] says that he stood in his doorway. He saw Rodriguez reach down. He thought Rodriguez was reaching for a relationship [sic], so he claims he fired two rounds not knowing his common-law wife was still in the car. He did not believe at first that he had killed – I’ll back up. He claims that even when he was arrested, he did not believe at fist [sic] that he had killed Hernandez. He said he felt badly and was concerned because he knew he was going to jail and that . . . [there] would be nobody to take care of his children. He said 3 1 he didn’t have any problems with his ex-common law wife and never intended to kill her. 2 Doc. No. 12-1 at 38–39. 3 On January 27, 1983, Petitioner was convicted in San Bernardino 4 County Superior Court of one count of first degree murder and one 5 count of attempted first degree murder with firearm enhancements 6 attached to both counts. Doc. No. 1 at 2. He was sentenced to a 7 term of twenty-seven years to life in state prison. Id. His 8 minimum eligible parole date was June 16, 2000. Doc. No. 12-1 at 9 27. 10 On August 31, 2005, Petitioner appeared before the BPH for his 11 fourth parole suitability hearing, having served over twenty two 12 years on his twenty seven to life sentence. Doc. No. 12-1 at 27; 13 Doc. No. 1 at 10. At the hearing, the BPH found Petitioner was not 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 yet suitable for parole and that he would pose an unreasonable risk of danger to society or threat to public safety if released from prison, citing the circumstances of the commitment offense and expressing concern over Petitioner’s absence of realistic parole plans, including his lack of “firm job offers at this time.” Doc. No. 12-1 at 45 & 64–65. Petitioner unsuccessfully challenged the BPH’s decision in the state superior and appellate courts. Doc. No. 12-3 at 22–24. On August 8, 2007, the California Supreme Court summarily denied Petitioner habeas relief. Doc. No. 1 at 23. for a Writ of Habeas Corpus followed. This federal Petition Doc. No. 1. LEGAL STANDARD In Hayward, the Ninth Circuit explained the law in California 4 1 2 3 4 5 6 as it relates to parole suitability determinations: The California parole statute provides that the Board of Prison Terms “shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual.” The crucial determinant of whether the prisoner gets parole in California is “consideration of the public safety.” 7 8 9 10 11 12 13 14 15 In California, when a prisoner receives an indeterminate sentence of fifteen years to life, the “indeterminate sentence is in legal effect a sentence for the maximum term, subject only to the ameliorative power of the [parole authority] to set a lesser term.” Under the California parole scheme, the prisoner has a right to a parole hearing and various procedural guarantees and rights before, at, and after the hearing; a right to subsequent hearings at set intervals if the Board of Prison Terms turns him down for parole; and a right to a written explanation if the Governor exercises his authority to overturn the Board of Prison Terms’ recommendation for parole. Under California law, denial of parole must be supported by “some evidence,” but review of the [decision to deny parole] is “extremely deferential.” 16 Hayward, 603 F.3d at 561–62 (footnotes and citations omitted). 17 The court further explained that: 18 19 20 21 22 23 24 25 26 27 28 [s]ubsequent to Hayward’s denial of parole, and subsequent to our oral argument in this case, the California Supreme Court established in two decisions, In re Lawrence [190 P.3d 535, 549 (Cal. 2008)] and In re Shaputis, [190 P.3d 573, 582 (Cal. 2008)] that as a matter of state law, “some evidence” of future dangerousness is indeed a state sine qua non for denial of parole in California. We delayed our decision in this case so that we could study those decisions and the supplemental briefs by counsel addressing them. As a matter of California law, “the paramount consideration for both the Board [of Prison Terms] and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety.” [Lawrence, 190 P.3d at 552.] There must be “some evidence” of such a threat, and an aggravated offense “does not, in every case, provide evidence that the inmate is a current threat to public safety.” [Id. at 554.] The prisoner’s aggravated offense does not 5 1 2 3 4 establish current dangerousness “unless the record also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state” supports the inference of dangerousness. [Id. at 555.] Thus, in California, the offense of conviction may be considered, but the consideration must address the determining factor, “a current threat to public safety.” [Id. at 539.] 5 Hayward, 603 F.3d at 562 (footnotes and citations omitted). 6 After providing this background on California law as it applies 7 to parole suitability determinations, the court then explained the 8 role of a federal district court charged with reviewing the decision 9 of either the BPH or the governor in denying a prisoner parole. 10 According to the Ninth Circuit, this Court must decide whether a 11 decision “rejecting parole was an ‘unreasonable application’ of the 12 California ‘some evidence’ requirement, or was ‘based on an 13 unreasonable determination of the facts in light of the evidence.’”1 14 15 16 17 18 19 20 21 Hayward, 603 F.3d at 562–63 (citations omitted); see also Cooke v. Solis, 606 F.3d 1206, 1208, n.2 & 1213 (9th Cir. 2010) (applying Hayward and explicitly rejecting the state’s argument that “the constraints imposed by AEDPA preclude federal habeas relief” on petitioner’s claim; noting that in Hayward, the court “held that due process challenges to California courts’ application of the ‘some evidence’ requirement are cognizable on federal habeas review under 22 23 1 27 Applying this standard to the facts presented in Hayward, the court concluded that the state court’s decision finding there was “‘some evidence’ of Hayward’s future dangerousness because of ‘the nature of the commitment offense’ and ‘the somewhat unfavorable psychological and counsel reports,’” one of which noted that Hayward “would pose a ‘low’ to ‘moderate’ risk of danger if released, as opposed to ‘no’ or merely ‘low’ risk,” was not unreasonable and therefore did not warrant federal habeas relief. Hayward, 603 F.3d at 563. 28 6 24 25 26 1 AEDPA”). 2 3 4 5 DISCUSSION I. California Law Regarding Parole Suitability Determinations When assessing whether California’s parole board’s suitability 6 determination was supported by “some evidence,” this Court’s 7 analysis is framed by California’s “regulatory, statutory and 8 constitutional provisions that govern parole decisions in 9 California.” Cooke, 606 F.3d at 1213 (citing In re Rosenkrantz, 29 10 Cal. 4th 616 (2002)); see Hayward, 603 F.3d at 561–62. 11 California law, prisoners serving indeterminate life sentences, like 12 Petitioner, become eligible for parole after serving minimum terms 13 of confinement required by statute. 14 1061, 1069-70 (2005). 15 “a life prisoner shall be found unsuitable for and denied parole if 16 in the judgment of the panel the prisoner will pose an unreasonable 17 risk of danger to society if released from prison.” 18 tit. 15, § 2402(a). 19 consider various factors, including the prisoner’s social history, 20 past and present mental state, past criminal history, the base and 21 other commitment offenses, including behavior before, during and 22 after the crime, past and present attitude toward the crime and any 23 other information that bears on the prisoner’s suitability for 24 release. 25 26 In re Dannenberg, 34 Cal. 4th Regardless of the length of the time served, Cal. Code Regs. In making this determination, the BPH must See Cal. Code Regs. tit. 15, § 2402(b)–(d). In considering the commitment offense, the BPH must determine whether “the prisoner committed the offense in an especially 27 28 Under 7 1 heinous, atrocious or cruel manner.” 2 § 2402(c)(1). 3 determination include: 4 or killed in the same or separate incidents; (B) The offense was 5 carried out in a dispassionate and calculated manner, such as an 6 execution-style murder; © The victim was abused, defiled or 7 mutilated during or after the offense; (D) The offense was carried 8 out in a manner which demonstrates an exceptionally callous 9 disregard for human suffering; (E) The motive for the crime is 10 11 Cal. Code Regs. tit. 15, The factors to be considered in making that “(A) Multiple victims were attacked, injured inexplicable or very trivial in relation to the offense.” Id. According to the California Supreme Court, “the core statutory 12 determination entrusted to the Board and the Governor [in 13 determining a prisoner’s parole suitability] is whether the inmate 14 poses a current threat to public safety . . . .” 15 Cal. 4th 1181, 1191 (2008). 16 safety’ under the statute and corresponding regulations involves an 17 assessment of an inmate’s current dangerousness.” 18 (emphasis in original) (citing Rosenkrantz, 29 Cal. 4th 616 and 19 Dannenberg, 34 Cal. 4th 1061). 20 21 22 23 24 25 26 27 28 In re Lawrence, 44 And, “the core determination of ‘public Id. at 1205 The court further explained that: a parole release decision authorizes the Board (and the Governor) to identify and weigh only the factors relevant to predicting “whether the inmate will be able to live in society without committing additional antisocial acts.” . . . These factors are designed to guide an assessment of the inmate’s threat to society, if released, and hence could not logically relate to anything but the threat currently posed by the inmate. Lawrence, 44 Cal. 4th at 1205–06 (citations omitted). The relevant inquiry, therefore, is: whether the circumstances of the commitment offense, 8 1 when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. 2 3 4 5 6 In re Shaputis, 44 Cal. 4th 1241, 1254–55 (2008). 7 The evidence of current dangerousness “must have some indicia 8 of reliability.” 9 (Scott I). In re Scott, 119 Cal. App. 4th 871, 899 (2004) Indeed, “the ‘some evidence’ test may be understood as 10 meaning that suitability determinations must have some rational 11 basis in fact.” 12 (2005) (Scott II); see also Cooke, 606 F.3d at 1216 (holding that 13 the state court decision upholding the denial of parole was “‘based 14 on an unreasonable determination of the facts in light of the 15 evidence[],’” Hayward, 603 F.3d at 563 (quoting 28 U.S.C. § 16 2254(d)(2)), and therefore finding petitioner entitled to habeas 17 relief because “[n]othing in the record supports the state court’s 18 finding that there was ‘some evidence’ in addition to the 19 circumstances of the commitment offense to support the Board’s 20 denial of petitioner’s parole”). 21 II. 22 In re Scott, 133 Cal. App. 4th 573, 590, n. 6 Analysis of Petitioner’s Claim Petitioner initially sought federal habeas corpus relief from 23 the BPH’s August 31, 2005 decision finding him unsuitable for parole 24 and denying him a subsequent hearing for two years, on the ground 25 that the decision did not comport with due process. 26 Specifically, Petitioner argued that at his 2005 parole suitability 27 28 9 Doc. No. 1. 1 hearing, the BPH “fail[ed] to address the exact nature of 2 Petitioner’s CURRENT character.” 3 Petitioner further argues that “a multi-year denial can only be 4 applicable when valid grounds exist to find Petitioner unsuitable 5 for parole.” Id. at 11 (emphasis in original). Id. at 17. 6 Respondent, in both the Answer and post-Hayward Supplemental 7 Briefing, argues that Petitioner is not entitled to relief because 8 he has not demonstrated that the state court decision was contrary 9 to, or an unreasonable application of, the California “some 10 evidence” standard, or that it was based on an unreasonable 11 determination of the facts in light of the evidence. 12 15. 13 Doc. Nos. 12 & After reviewing the petition filed in superior court 14 challenging Petitioner’s 2005 parole denial, that court concluded: 15 “A review of the record supports a finding that there was ‘some 16 evidence’ which led the Board to its finding of unsuitability of the 17 Petitioner for parole, for as the [California Supreme Court] 18 described such evidence, it need be only a ‘modicum’ of evidence.” 19 Doc. No. 12-3 at 24. 20 the record, the Court finds that the state court’s approval of the 21 BPH’s decision to deny Petitioner parole was not an unreasonable 22 application of the California “some evidence” standard, nor was it 23 based on an unreasonable determination of the facts in light of the 24 evidence. 25 26 As explained below, after careful review of See Hayward, 603 F.3d at 562–63. The record shows that, at Petitioner’s August 31, 2005 parole suitability hearing, the BPH afforded Petitioner and his counsel an 27 28 10 1 opportunity to speak and present Petitioner’s case, gave them time 2 to review documents relevant to Petitioner’s case and provided them 3 with a reasoned decision in denying parole. 4 & 64–71. 5 circumstances tending to show unsuitability for parole and that 6 these circumstances formed the basis for its conclusion that 7 Petitioner was not yet suitable for parole and would pose an 8 unreasonable risk of danger to society or threat to public safety if 9 released from prison. Doc. No. 12-1 at 31–36 The record also shows that the BPH relied on several Doc. No. 12-1 at 64; see Cal. Code Regs. tit. 10 15, § 2402(a) (stating that a prisoner determined to be an 11 unreasonable risk to society shall be denied parole). 12 At the hearing, the BPH commended Petitioner for his lack of 13 prior criminal history, for being free since 1995 of counseling 14 chronos and since 1984 of serious rules violations, and for 15 receiving several laudatory chronos. 16 expressed concern, however, that Petitioner’s “[v]ocational [and] 17 educational participation . . . has been nonexistent for about a 18 decade.” 19 Petitioner’s 20 Petitioner had an offer of employment in construction, but also 21 noted that during the evidentiary portion of the hearing Petitioner 22 explained he had various physical limitations which precluded him 23 from working while in prison. 24 not consider Petitioner’s construction job offer to be viable. 25 although Petitioner had a place to live with his wife in Hanford, 26 she was unable to work because of an injury sustained in a car Id. at 67. The BPH Further, the BPH was “troubled” by parole plans. Id. at 65. The BPH acknowledged that Id. at 52–53 & 65. 27 28 Doc. No. 12-1 at 65. 11 Thus, the BPH did And, 1 accident. 2 Petitioner planned to support himself (and his wife) and establish a 3 degree of self-sufficiency. 4 Id. at 46–47 & 65–66. It therefore was not clear how The BPH also relied on the circumstances of Petitioner’s 5 commitment offense in deciding to deny Petitioner parole, noting the 6 crime was “particularly callous and was clearly carried out in a 7 dispassionate calculated manner.” 8 concluded the hearing by recommending that Petitioner remain 9 disciplinary-free, learn a trade if possible, earn positive chronos Doc. No. 12-1 at 64. The BPH 10 and participate in self-help programs. 11 Based on the entire body of evidence presented at Petitioner’s 12 August 31, 2005 parole suitability hearing, this Court cannot say 13 that the state court’s approval of the BPH’s decision to deny 14 Petitioner parole was an unreasonable application of the California 15 “some evidence” standard, nor that it was based on an unreasonable 16 determination of the facts in light of the evidence.2 17 603 F.3d at 563. 18 19 Doc. No. 12-1 at 70. See Hayward, CONCLUSION For the foregoing reasons, the Petition for a Writ of Habeas 20 Corpus is DENIED. 21 court habeas petitions after any future parole denials, and attach 22 thereto any documents required by the state court. 23 Petitioner is advised to file timely any state Further, a certificate of appealability is DENIED. See 24 25 2 27 In light of this conclusion, Petitioner’s argument that “a multi-year denial can only be applicable when valid grounds exist to find Petitioner unsuitable for parole,” Doc. No. 1 at 17, necessarily fails as well. 28 12 26 1 Hayward, 603 F.3d at 554–55. 2 substantial showing of the denial of a constitutional right." 3 (citing 28 U.S.C. § 2253(c)(2)). 4 that his claim is “debatable among reasonable jurists.” 5 Hayward, 603 F.3d at 555. 6 Petitioner has failed to make “a Id. Nor has Petitioner demonstrated See The Clerk of Court shall terminate all pending motions as 7 moot, enter judgment in accordance with this order and close the 8 file. 9 IT IS SO ORDERED. 10 11 12 13 Dated: 7/29/2010 CLAUDIA WILKEN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 PEDRO FELICIANO, 4 Case Number: CV07-04713 CW Plaintiff, 5 CERTIFICATE OF SERVICE v. 6 BEN CURRY et al, 7 Defendant. 8 9 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 29, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 16 Pedro Feliciano C-59854 P.O. Box 689, ZW-321L Soledad, CA 93960-0689 17 Dated: July 29, 2010 15 18 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 14
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