Lujan v. Curry, No. 4:2008cv00474 - Document 13 (N.D. Cal. 2010)
Court Description: ORDER Granting Petition for Writ of Habeas Corpus. Signed by Judge Claudia Wilken on 9/17/2010. (ndr, COURT STAFF) (Filed on 9/17/2010)
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Lujan v. Curry Doc. 13 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 LEROY PAUL LUJAN, Petitioner, United States District Court For the Northern District of California 10 11 12 No. C 08-0474 CW (PR) C 09-0462 CW (PR) ORDER GRANTING PETITIONS FOR WRIT OF HABEAS CORPUS v. BEN CURRY, Warden, Respondent. 13 / 14 15 16 These habeas corpus petitions were filed by a state prisoner 17 pursuant to 28 U.S.C. § 2254 challenging decisions in 2006 and 2007 18 by the California Board of Parole Hearings finding Petitioner 19 unsuitable for parole. 20 of parole in 2006 and 2007 deprived him of his right to due process 21 because they were not supported by at least some evidence that he 22 would be a danger to the community if released. 23 Respondent was ordered to show cause why the petition should not be 24 granted. 25 petitions, along with supporting memoranda and exhibits, and 26 Petitioner filed traverses in response. 27 28 Petitioner argues that the Board’s denials In each case, Respondent filed answers denying the claims in the Having considered all of the papers filed by the parties, the Court GRANTS the petitions in case numbers C 09-0462 CW and C 08- Dockets.Justia.com 1 0474 CW. 2 3 BACKGROUND The following summary of the facts of Petitioner's commitment 4 offense is derived from the probation report, which was read into 5 the record at both the January 25, 2006 and February 15, 2007 6 parole consideration hearings. (Petitions, Exs. C Probation 7 Report.) 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 Records of the Newport Beach Police Department reveal that on September 30th, 1989, at approximately 10:15 p.m., police responded to a West Balboa Boulevard address to investigate a report that gunshots had been fired. Their subsequent investigation revealed that the [Petitioner] was one of several young men involved in a shooting death of 21-year-old John David Fahey. After talking with various witnesses and the suspects, police determined that earlier in the day on September 30, 1989, 21-year-old Heather Rose, a resident at 1324 West Balboa, Apartment A, became involved in a physical altercation with 19-year-old Jennifer McMartin, who was one of several roommates of Mr. Fahey residing at 1324 West Balboa, Apartment C. The physical altercation occurred because Ms. Rose was jealous of another young woman she felt was becoming involved with 20-year-old Brent Claxton, a young man she had been dating. Ms. Rose reportedly received injuries which necessitated medical treatment. Later in the day, Ms. Rose told her roommate, 21-year-old Leslie Peng, that "some guys are coming over to protect them." In the early evening, approximately 20 persons arrived, mainly male Hispanic "gang types." One man had a handgun, and other items that could be used as weapons. 27 When the occupants of Heather Rose's apartment heard someone coming down the stairs, the men grabbed for various weapons and Mr. Fahey was confronted by several of the suspects, after he came down the stairs. A physical altercation ensued, involving the victim and several suspects. Subsequently, Mr. Fahey attempted to flee, however, he was pursued by approximately five suspects, including the [Petitioner.] [Petitioner] was observed to strike Mr. Fahey with a baseball bat, causing the victim to fall to the ground. The physical assault continued, until Stanley Anaya allegedly approached and shot the victim in the chest with a .25 caliber handgun. 28 The victim was transported to a nearby hospital where 22 23 24 25 26 2 1 he was pronounced dead at 10:45 p.m. as a result of a gunshot wound. 2 (Petitions, Exs. C at 3-4.) 3 In 1990, Petitioner plead guilty to second degree murder. 4 (C 09-0462 CW Petition at 2.) Thereafter, the court sentenced him 5 to a total of fifteen years to life. (Transcript of 2006 Hearing 6 (2006 Tr.) at 1.) His minimum eligible parole date was October 23, 7 1999. (Id.) 8 The Board found Petitioner unsuitable for parole for a third 9 time at his parole hearing in 2006, and Petitioner filed United States District Court For the Northern District of California 10 unsuccessful habeas petitions in the California courts challenging 11 the Board’s decision. In 2007, the Board held Petitioner’s fourth 12 parole hearing and, again, found him unsuitable for parole. 13 Petitioner challenged this decision in the California courts, but 14 these petitions also failed. Thereafter, Petitioner filed a 15 federal petition for writ of habeas corpus in case number C 08-0474 16 CW (PR), in which he challenges the Board’s denial of parole in 17 2007. Subsequently, Petitioner filed a federal petition for writ 18 of habeas corpus in case number C 09-0462 CW (PR), in which he 19 challenges the Board’s denial of parole in 2006.1 Both petitions 20 will be addressed below. 21 DISCUSSION 22 I. Standard of Review 23 A district court may not grant a petition challenging a state 24 conviction or sentence on the basis of a claim that was reviewed on 25 26 27 28 1 Petitioner initially filed a federal habeas petition challenging his 2006 parole hearing on January 19, 2007 in C 070387 CW (PR). On March 25, 2008, the Court dismissed the petition without prejudice as unexhausted. 3 the merits in state court unless the state court's adjudication of 2 the claim: "(1) resulted in a decision that was contrary to, or 3 involved an unreasonable application of, clearly established 4 Federal law, as determined by the Supreme Court of the United 5 States; or (2) resulted in a decision that was based on an 6 unreasonable determination of the facts in light of the evidence 7 presented in the State court proceeding." 8 The first prong applies both to questions of law and to mixed 9 questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 10 United States District Court For the Northern District of California 1 362, 407-09 (2000), while the second prong applies to decisions 11 based on factual determinations, Miller-El v. Cockrell, 537 U.S. 12 322, 340 (2003). 13 28 U.S.C. § 2254(d). A state court decision is “contrary to” Supreme Court 14 authority, that is, falls under the first clause of § 2254(d)(1), 15 only if “the state court arrives at a conclusion opposite to that 16 reached by [the Supreme] Court on a question of law or if the state 17 court decides a case differently than [the Supreme] Court has on a 18 set of materially indistinguishable facts.” 19 U.S. at 412-13. 20 application of” Supreme Court authority, that is, falls under the 21 second clause of § 2254(d)(1), if it correctly identifies the 22 governing legal principle from the Supreme Court’s decisions but 23 “unreasonably applies that principle to the facts of the prisoner’s 24 case.” 25 issue the writ “simply because that court concludes in its 26 independent judgment that the relevant state-court decision applied 27 clearly established federal law erroneously or incorrectly.” 28 at 411. Williams (Terry), 529 A state court decision is an “unreasonable Id. at 413. The federal court on habeas review may not Id. Rather, the application must be “objectively unreasonable” 4 1 to support granting the writ. 2 See id. at 409. “Factual determinations by state courts are presumed correct 3 absent clear and convincing evidence to the contrary.” 4 537 U.S. at 340. 5 decision “based on a factual determination will not be overturned 6 on factual grounds unless objectively unreasonable in light of the 7 evidence presented in the state-court proceeding.” 8 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th 9 Cir. 2000). United States District Court For the Northern District of California 10 Miller-El, Under 28 U.S.C. § 2254(d)(2), a state court Miller-El, 537 When there is no reasoned opinion from the highest state court 11 to consider the petitioner’s claims, the court looks to the last 12 reasoned opinion. 13 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n.2 (9th Cir. 14 2000). 15 different where the state court gives no reasoned explanation of 16 its decision on a petitioner's federal claim and there is no 17 reasoned lower court decision on the claim. 18 review of the record is the only means of deciding whether the 19 state court's decision was objectively reasonable. 20 v. Alameida, 467 F.3d 1190, 1197-98 (9th Cir. 2006); Himes v. 21 Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Greene v. Lambert, 288 22 F.3d 1081, 1088 (9th Cir. 2002). 23 decision, a federal court should conduct “an independent review of 24 the record” to determine whether the state court’s decision was an 25 objectively unreasonable application of clearly established federal 26 law. 27 F.3d 943, 970 n.16 (9th Cir. 2004). 28 otherwise defer to the state court decision under AEDPA: See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 However, the standard of review under AEDPA is somewhat In such a case, a See Plascencia When confronted with such a Plascencia, 467 F.3d at 1198; accord Lambert v. Blodgett, 393 5 The federal court need not "A state 1 court's decision on the merits concerning a question of law is, and 2 should be, afforded respect. 3 merits, however, there is nothing to which to defer." 4 F.3d at 1089. 5 II. Case number C 09-0462 CW If there is no such decision on the Greene, 288 6 A. 7 Petitioner had been incarcerated for approximately sixteen January 25, 2006 Board Hearing 8 years at the time of his 2006 parole suitability hearing. 9 Petitioner elected to discuss the commitment offense. (2006 Tr. at United States District Court For the Northern District of California 10 7.) 11 did not really know anyone there because a friend told him that 12 there was going to be a party and Petitioner thought he could sell 13 drugs to some people. 14 altercation starting, he tried to get away by going out the back 15 door because he didn't know what was happening and wanted to get 16 back to his truck. 17 baseball bat and decided to grab it because he did not know what 18 was happening inside. 19 armed. 20 other people, insisting that he fled out the back door by himself. 21 (Id. at 53.) 22 Petitioner encountered the victim but did not know who the victim 23 was or if he had been at the party. 24 states that he was still alone at this time. 25 victim swung at Petitioner and then ran. 26 believed that the victim was holding a knife or something in his 27 hand. 28 Petitioner ran after him and hit him with the baseball bat. Petitioner stated that he arrived at the party even though he (Id. at 13.) When Petitioner heard an (Id. at 11-12, 14.) (Id. at 52.) (Id. at 12, 54.) On his way out, he saw a He was not otherwise Petitioner denies that he ran out with four When he got around to the side of the house, (Id. at 10-11.) (Id. at 15-16.) Petitioner (Id. at 54.) (Id. at 16.) The Petitioner Even though the victim was running away, 6 (Id. 1 at 16.) 2 Petitioner hit him again with the bat. 3 point, Stanley Anaya ran up and shot and killed the victim. 4 at 17, 55.) 5 The victim fell and took a swing at Petitioner's leg, so (Id. at 17.) At that (Id. Petitioner said that he was responsible for the victim's 6 death, and explained that "it happened so fast, it was like [a] 7 reaction." 8 was a child, his father always taught him that, "if anybody tries 9 to hurt you, you get them before they get you, and it was kind of (Id. at 17.) Petitioner went on to say that when he United States District Court For the Northern District of California 10 the way I grew up. 11 was instilled to me that I got back. 12 as an excuse, it's just the way I grew up, was that you don't get 13 [sic] unless someone hits or beats you up in other words. 14 that's just the way as a kid I was brought up to think that way." 15 (Id. at 20.) 16 that he hung around a lot of gang members because he often sold 17 crack cocaine to them. 18 It was like if you are angry, try to hit him it And not that I'm making that And Petitioner denied being in any gang, but admitted (Id. at 19.) After Petitioner's prior parole hearing in 2003, he had 19 completed an Impact Program which taught him how to be a better 20 person, not just to react to things but to think before reacting. 21 (Id. at 21.) 22 thinking and how he was taught. 23 was always to where I would just did it [sic], and whatever 24 happens, happens. 25 taken quite a bit of classes, self-help. 26 just made me a total different person, how I perceive life, and how 27 I reacted in this situation." 28 how to draw since being incarcerated and he uses that ability to Petitioner noted the contrast between that way of (Id. at 21-22.) As a child, "[i]t Now that I've been in here all these years, I've I go to AA, NA. (Id. at 22.) 7 It's Petitioner has learned 1 "take [himself] away." 2 (Id. at 25-26.) Petitioner had been arrested as a juvenile in February, 1989, 3 for transporting and selling narcotics and for receiving stolen 4 property. 5 of the commitment offense and was 18 or 19 years old. 6 Petitioner has since received his GED. 7 (Id. at 26.) Petitioner was in night school at the time (Id. at 28.) (Id. at 51.) As a parole plan, Petitioner wanted to live with his sister, 8 Michelle. 9 live in Southern California. (Id. at 30.) Petitioner has four siblings, all of whom (Id. at 30-31.) Petitioner had job United States District Court For the Northern District of California 10 offers as well. 11 childhood sweetheart but realized that she had put her life on hold 12 while waiting for him. 13 support letters from Petitioner's family. 14 (Id. at 31.) Petitioner was married to his (Id. at 32, 35.) The Board read several (Id. at 36-42.) While institutionalized, Petitioner had received three 128As 15 since March, 1995 for gambling, and two 115s, the last one in 16 February, 1997, for attempting to smuggle photographs. 17 43.) 18 had received eight laudatory chronos for his continuous 19 participation in AA, and secured a sponsor from AA for when he is 20 released into the community. 21 four additional laudatory chronos for completion of the inmate 22 employability program and of a three hour anger management course. 23 (Id. at 44.) 24 currently a furniture finisher. 25 Petitioner had consistently received above average work reports and 26 acquired a certificate of proficiency as a sewing machine operator. 27 (Id. at 45.) 28 meditation studies which taught him how to relax and control (Id. at Further, since Petitioner's last parole hearing in 2003, he (Id. at 43.) Petitioner had received Petitioner had also taken health courses and was (Id. at 44-45.) Moreover, Finally, Petitioner participated in Buddhist 8 1 2 himself. (Id. at 46-47.) Reviewing Petitioner's psychological evaluation from December, 3 2005, the Board noted that Petitioner's diagnosis scores appeared 4 normal. 5 the motive for the crime" and needed some more "soul-searching" 6 before being considered for release. 7 report concluded that Petitioner's violence potential was estimated 8 to be below average compared to the average citizen. 9 The doctor reported that Petitioner was "still vague about The Board denied parole. (Id. at 48-49, 50.) (Id. at 77.) The (Id. at 49.) It concluded that the United States District Court For the Northern District of California 10 commitment offense was carried out in a dispassionate manner and 11 the motive was very trivial in relation to the offense. 12 77-78.) 13 involved only one arrest for the sale of drugs, but that selling 14 drugs contributed to his unstable social history. 15 The Board viewed the 2005 psychological report as inconsistent and, 16 therefore, did not rely on it. 17 Petitioner on his realistic and strong parole plans and for 18 remaining disciplinary-free since 1997. 19 recommended that Petitioner continue to participate in self-help 20 programs in order to “face, discuss, understand, and cope with 21 stress in a nondestructive manner.” 22 23 24 25 26 27 28 (Id. at The Board commented that Petitioner’s criminal history (Id. at 79.) (Id. at 78.) The Board commended (Id.) The Board (Id.) It’s the area of the crime that just, you know, we just need to feel completely comfortable that you have confronted all the aspects and all the activities of that night, so that it’s completely behind you, and that it is not apt to happen again. So if you can regroup and go back over these transcripts, please pay special attention to particularly what Commissioner Smith said about the opportunities that night where you had an opportunity to stop, and even perhaps if you have a trusted friend here who can read back the transcript and say, you know, this is where it kind of falls apart. This is what you need to really think about, and be able to address. . . . So you’ve got to 9 1 2 be able to come in here so that the Panel feels completely comfortable about your rendition of the commitment crime because, you know, this is only the first step. 3 (Id. at 81-82.) 4 B. State Court Decisions 5 In 2006, Petitioner filed a petition for a writ of habeas 6 corpus in Orange County Superior Court. (Resp. Ex. 1.) That 7 petition was denied because Petitioner failed to provide the court 8 with a complete copy of his 2006 parole hearing transcript. (Resp. 9 Ex. 2.) Petitioner filed the same claim in the California Court of United States District Court For the Northern District of California 10 Appeal, which denied the petition. (Resp. Exs. 3, 4.) Petitioner 11 filed a petition for review in the California Supreme Court, which 12 rejected the petition as untimely. (Resp. Ans. at ¶ 4.) Finally, 13 Petitioner filed an original habeas petition in California Supreme 14 Court, which was summarily denied. (Resp. Ex. 6.) 15 C. Analysis 16 This petition can be summarized as a single claim that 17 Petitioner was denied due process because the Board's decision was 18 not supported by some evidence that he is currently dangerous. In 19 conjunction with answering on the merits, Respondent asserts that 20 Petitioner's claims are procedurally defaulted. 21 1. Procedural Default 22 Respondent asserts that because Petitioner failed to attach 23 adequate records to his superior court petition and the superior 24 court denied the petition based on that failure as an independent 25 and adequate state ground, this Court is barred from reviewing 26 Petitioner's claims. 27 However, a denial based on People v. Duvall, 9 Cal. 4th 464, 28 10 1 474 (1995), cited by the superior court in its denial (Resp. Ans. 2 Ex. 2 at 2), is not irremediable and can be cured in a renewed 3 petition. 4 2005) (analyzing whether a state petition was “properly filed” and 5 concluding that citations to Duvall and In re Swain, 34 Cal. 2d 6 300, 303-304 (1949) are more akin to a demurrer rather than a final 7 ruling on the merits); Kim v. Villalobos, 799 F.2d 1317, 1319-1320 8 (9th Cir. 1986) (discussing “fair presentation” and explaining that 9 a citation to In re Swain is a curable deficiency rather than an United States District Court For the Northern District of California 10 11 Cf. Gaston v. Palmer, 417 F.3d 1030, 1039 (9th Cir. automatic preclusion of review). Thus, because California law allowed Petitioner to file a new 12 state petition remedying these deficiencies, by definition, 13 Petitioner’s claim is not procedurally barred. 14 Lewis, 929 F.2d 460, 463 (9th Cir. 1991) (“If a federal 15 constitutional claim can no longer be raised because of a failure 16 to follow the prescribed procedure for presenting such an issue, 17 however, the claim is procedurally barred”); Carey v. Sisto, 2009 18 WL 385777 (E.D. Cal.). 19 original state petition in the California Supreme Court, which was 20 summarily denied without citation. 21 assertion, Petitioner gave the state courts an opportunity to 22 dispose of his claims on the merits. 23 Cf. Johnson v. Furthermore, Petitioner did file a new and Thus, contrary to Respondent’s Accordingly, Respondent's argument for procedural default is 24 not well-taken and the Court will address Petitioner’s claim on the 25 merits. 26 27 28 2. Due Process The Due Process Clause does not, by itself, entitle a prisoner to release on parole in the absence of some evidence of his or her 11 1 “current dangerousness.” 2 561 (9th Cir. 2010) (en banc). 3 “some evidence” of current dangerousness is required in order to 4 deny parole. 5 1205-06 (2008) and In re Shaputis, 44 Cal. 4th 1241 (2008)). 6 requirement gives California prisoners a liberty interest, 7 protected by the federal constitutional guarantee of due process, 8 in release on parole in the absence of “some evidence” of current 9 dangerousness. United States District Court For the Northern District of California 10 Hayward v. Marshall, 603 F.3d 546, 555, Under California law, however, Id. at 562 (citing In re Lawrence, 44 Cal. 4th 1181, This Cooke v. Solis, 606 F.3d 1206, 1213-1214 (9th Cir. 2010). 11 When a federal habeas court in this circuit is faced with a 12 claim by a California prisoner that his right to due process was 13 violated because the denial of parole was not supported by “some 14 evidence,” the court analyzes whether the state court decision 15 reflects "an ‘unreasonable application’[] of the California ‘some 16 evidence’ requirement, or was ‘based on an unreasonable 17 determination of the facts in light of the evidence.’” 18 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(1)-(2)); see Cooke, 19 606 F.3d at 1213. 20 summarized in Hayward as follows: 21 22 23 24 25 26 27 28 Hayward, California’s “some evidence” requirement was As a matter of California law, "the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety." 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." The prisoner’s aggravated offense does not 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. Thus, in California, the offense of conviction may be considered, but the consideration must address the determining factor, "a current threat to public safety." 12 1 Hawyard, 603 F.3d at 562 (quoting Lawrence, 44 Cal. 4th. at 1191, 2 1210-14); see Cooke, 606 F.3d at 1213-1214 (describing California’s 3 “some evidence” requirement). 4 Because there is no reasoned state court opinion, this Court 5 conducts “an independent review of the record” to determine whether 6 the state court’s decision was an objectively unreasonable 7 application of clearly established federal law. 8 F.3d at 1198. 9 Plascencia, 467 Here, a primary, though not exclusive, basis for the Board's United States District Court For the Northern District of California 10 determination of parole unsuitability was the nature of the 11 commitment offense. 12 Supreme Court held that in cases 13 (2006 Tr. at 78.) In Lawrence, the California 18 in which evidence of the inmate’s rehabilitation and suitability for parole under the governing statutes and regulations is overwhelming, the only evidence related to unsuitability is the gravity of the commitment offense, and that offense is both temporally remote and mitigated by circumstances indicating the conduct is unlikely to recur, the immutable circumstance that the commitment offense involved aggravated conduct does not provide "some evidence" inevitably supporting the ultimate decision that the inmate remains a threat to public safety. 19 Lawrence, 44 Cal. 4th at 1191 (emphasis in original); see also 20 Cooke, 606 F.3d at 1214 (finding California’s “some evidence” rule 21 requires “more than the crime or its circumstances alone to justify 22 the Board’s or Governor’s finding of current dangerousness”). 23 question then is whether any other factors for parole unsuitability 24 indicate that the cruel and callous nature of a petitioner’s 25 commitment offense is still “probative” of the risk he poses to 26 public safety. 14 15 16 17 The Cooke, 606 F.3d at 1214. 27 One of the bases upon which the Board deemed Petitioner 28 unsuitable for parole was that he had an unstable social history. 13 1 (2006 Tr. at 78.) 2 evidence supporting this conclusion except that he sold narcotics. 3 (Id.) 4 past, (2001 Psychological Evaluation at 2), he currently does not 5 use drugs, alcohol, or cigarettes, (2006 Tr. at 74). 6 record demonstrates that Petitioner's post-incarceration record 7 includes continuous involvement in AA and NA. 8 Petitioner had engaged in selling drugs prior to being incarcerated 9 does not lead to a finding of current dangerousness. United States District Court For the Northern District of California 10 However, the Board failed to identify any In fact, while Petitioner has used drugs and alcohol in the Moreover, the Thus, that In discussing his social history, Petitioner stated that he 11 has four siblings and a mother still living. 12 He also reportedly has a seventeen or eighteen year old son whom he 13 has never met. 14 report, the evaluator noted that Petitioner's "family relationships 15 were poor in the past, but he says that they are good now. 16 sister ran away from home because of drugs. 17 a variety of positions as secretaries and in managerial positions." 18 (2001 Psychological Evaluation at 2.) 19 support letters came from family members. 20 (Id. at 33-34.) (Id. at 30-31, 33.) In Petitioner's 2001 psychological One His siblings have had In fact, Petitioner's Petitioner dropped out of high school mainly due to conflicts 21 with his peers because he would get into fights. 22 29.) 23 fights because he was looking for attention, and he does not look 24 for that kind of attention any longer. 25 (2006 Tr. at 28- At the hearing, Petitioner suggested that he engaged in (Id. at 29.) Nothing in the record reveals an unstable social history that 26 can be rationally connected to a finding that Petitioner is 27 currently dangerous. 28 “due consideration of the specified factors [for parole As the California Supreme Court explained, 14 1 suitability] requires more than rote recitation of the relevant 2 factors with no reasoning establishing a rational nexus between 3 those factors and the necessary basis for the ultimate decision -- 4 the determination of current dangerousness.” 5 at 1210 (internal quotation marks omitted). 6 base a parole denial on “immutable facts” like an unstable social 7 history, “some evidence will support such reliance only if those 8 facts support the ultimate conclusion that an inmate continues to 9 pose an unreasonable risk to public safety.” Lawrence, 44 Cal. 4th Although the Board may Id. at 1221 (emphasis United States District Court For the Northern District of California 10 in original). 11 Petitioner's pre-offense "unstable social history" with his current 12 dangerousness. 13 history does not provide “some evidence” of danger to others. 14 No rational nexus links the immutable facts of Given the record as a whole, Petitioner's social The second factor the Board appeared to rely upon in denying 15 parole was that Petitioner needed to "cope with stress in a 16 nondestructive manner" and to engage in "self-help." 17 79.) 18 supporting this conclusion. 19 participation in self-help programs. 20 laudatory chronos in AA, anger management, and the inmate 21 employability program; had been disciplinary free for almost ten 22 years; and was vice-chair of AA. 23 this factor does not reasonably support a finding of current 24 dangerousness. 25 (2006 Tr. at However, again, the Board did not identify any evidence Petitioner excelled in his He received numerous (Id. at 79-80.) Accordingly, See Cooke, 606 F.3d at 1215. The last factor the Board relied on, and seemingly the most 26 significant, was Petitioner's lack of insight into the crime. 27 (2006 Tr. at 81-82.) 28 needed to feel completely comfortable that Petitioner had Specifically, the Board indicated that it 15 1 "confronted all the aspects and all the activities of that night," 2 and had thought about the opportunities he had to stop or 3 disengage. 4 understanding of the nature and magnitude of the commitment offense 5 is one factor tending to indicate the prisoner is suitable for 6 release. 7 insight,” however, is probative of unsuitability only to the extent 8 that it is both (1) demonstrably shown by the record and 9 (2) rationally indicative of the inmate's current dangerousness. (Id. at 81.) A prisoner's remorse or demonstrated 15 Cal.Code Regs., tit. 15, § 2402(d)(3). “Lack of United States District Court For the Northern District of California 10 In re Calderon, 184 Cal. App. 4th 670, 690 (2010). 11 California Penal Code provides that the Board "shall not require, 12 when setting parole dates, an admission of guilt to any crime for 13 which an inmate was committed." 14 Further, the Cal. Penal Code § 5011(b). Contrary to the Board's conclusion, the record contains 15 evidence of Petitioner's remorse and insight into the offense. 16 Petitioner acknowledged that he did not feel threatened after the 17 victim started to run from him and that he ran after the victim 18 because he was always taught as a child to "get them before they 19 get you." 20 through self-help classes and programs, he has learned to think 21 before he reacts and knows how different his perception of life has 22 become. 23 victim's death (id. at 75) and understood that he hit the victim 24 and engaged in fights pre-incarceration because he wanted to look 25 "tough." 26 was just a kid trying to look tough. 27 more. 28 the real men and enjoy the rest of my life and my families." (2006 Tr. at 20, 55.) (Id. at 21-22.) (Id. at 75-76.) Petitioner explained that, Petitioner took responsibility for the Petitioner said, "Before it was just, I I don't want to be tough no I don't want to be out in a crowd. 16 I want to be just like (Id. 1 at 76.) 2 that he "feels remorse for the family and doesn't know how to repay 3 the family." 4 Although the Board believed Petitioner must have had more reasons 5 for failing to disengage that he was not disclosing, the Board 6 cannot deny Petitioner parole for disagreeing with its version of 7 events. Petitioner's psychological evaluation in 2001 reported (Petition, Ex. D 2001 Psychological Evaluation at 4.) See Cal. Penal Code § 5011(b). This record contrasts with that in Shaputis, where the 9 California Supreme Court upheld a parole denial based in part on 10 United States District Court For the Northern District of California 8 Shaputis' failure to grasp the nature of his commitment offense. 11 Although Shaputis stated that his conduct was “wrong” and that he 12 felt “some remorse” for his crime, he still claimed that his wife's 13 brutal murder was an “accident” and sought to minimize his 14 responsibility. 15 indicated that Shaputis' character remained unchanged and that he 16 was “unable to gain insight into his antisocial behavior despite 17 years of therapy and rehabilitative programming.” 18 Cal. 4th at 1260 (internal quotation marks omitted). In addition, recent psychological reports Shaputis, 44 19 Here, there simply was no reliable evidence showing that 20 Petitioner failed to appreciate the significance of his offense or 21 lacked remorse or insight into his role in the offense. 22 The Board mentioned that it was not relying on the 2005 23 psychological evaluation because of its inconsistencies. (2006 Tr. 24 at 78-79.) 25 probative of the Board's determination that Petitioner was 26 dangerous. 27 28 Because the report was disregarded, it was not found See Cooke, 606 F.3d at 1215. At the time of the parole decision, Petitioner had served approximately sixteen years in state prison, more than six years 17 1 past his minimum eligible parole date. “[A]fter these prisoners 2 have served their suggested base terms, the underlying 3 circumstances of the commitment offense alone rarely will provide a 4 valid basis for denying parole when there is strong evidence of 5 rehabilitation and no other evidence of current dangerousness.” 6 Lawrence, 44 Cal. 4th at 1211. 7 evidence of Petitioner's rehabilitation and no other evidence of 8 current dangerousness cited by the Board. 9 As described above, there is strong Therefore, pursuant to the standard announced in Hayward United States District Court For the Northern District of California 10 entitling a petitioner to habeas relief if the state court 11 unreasonably applied California’s “some evidence” requirement, the 12 petition for a writ of habeas corpus in this case will be granted. 13 See Hayward, 603 F.3d at 563 (citing 28 U.S.C. § 2254(d)(1)); see 14 also Cooke, 606 F.3d at 1216. 15 III. Case number C 08-0474 CW 16 A. 17 Petitioner had been incarcerated for approximately seventeen February 15, 2007 Board Hearing 18 years at the time of his 2007 parole suitability hearing. 19 Petitioner elected to discuss the commitment offense. 20 again questioned Petitioner about his motivation for running after 21 the victim once the victim began to flee. 22 Hearing (2007 Tr.) at 18.) 23 thinking, but merely reacting. 24 he realizes now that the decision to chase after the victim was 25 wrong. 26 The Board (Transcript of 2007 Petitioner responded that he wasn't (Id.) Petitioner acknowledged that (Id. at 19.) With respect to his criminal history, Petitioner elaborated on 27 prior encounters with law enforcement that the Board had not 28 discussed in his 2006 parole hearing. 18 Specifically, when 1 Petitioner was around sixteen or seventeen years old, he was 2 arrested for carrying a gun which belonged to his father, and 3 received counseling as a result. 4 discussed in his 2006 hearing, he was arrested for the sale of a 5 controlled substance and receiving stolen property in February, 6 1989. 7 Petitioner plead guilty to the commitment offense. 8 Also in 1989, Petitioner had been charged with theft for use of an 9 access card when his brother found a wallet near their house and (Id. at 28.) (Id. at 30-31.) Then, as Ultimately, those charges were dropped when (Id. at 28-29.) United States District Court For the Northern District of California 10 Petitioner used the card. 11 convicted of petty theft and placed on two years informal 12 probation. 13 2007 Tr. at 32-33.) 14 (Id. at 31-32.) Petitioner was (Resp. Ex. C, Orange County Probation Department at 14; Since Petitioner's 2006 hearing, he had remained disciplinary- 15 free. 16 chronos for his participation in an Alternatives to Violence 17 Project (AVP), where he was "an interactive participant radiating 18 positive energy and exuberance," (id. at 47), and in AA, (id. at 19 47-48, 49, 50.) 20 chronos written by prison staff vouching for Petitioner's good 21 character. 22 support letters. 23 psychological report. 24 (Id. at 43.) He had also received at least five laudatory The Board read into the record five separate (Id. at 52-57.) Petitioner also presented many updated (Id. at 57, 58-74.) Again, the Board denied parole. There was no updated (Id. at 110.) The Board 25 concluded that the commitment offense was "carried out in a very, 26 very cruel and calloused manner in that the victim was clearly 27 outnumbered." 28 a "history of unstable and tumultuous relationships with others," (Id.) The Board also concluded that Petitioner had 19 1 referring to Petitioner's admission that he had sold drugs, 2 associated with gang members, and supplied drugs to gang members. 3 (Id. at 112.) 4 sale of a controlled substance and receiving stolen property and 5 stated that Petitioner had "failed previous grants of probation" 6 and "failed to profit from society's attempts to correct his 7 criminality." 8 psychological report as inconclusive because of its contradictions. 9 (Id. at 113-114.) The Board mentioned Petitioner's prior arrest for (Id. at 113.) The Board again dismissed the 2005 The Board again stated that Petitioner needed to United States District Court For the Northern District of California 10 "continue to participate in documented self-help in order to face, 11 discuss and cope with . . . stress and anger in a nondestructive 12 manner" and that "[u]ntil progress is made, the prisoner continues 13 to be unpredictable and a threat to others." 14 Finally, the Board's main concern was about Petitioner's motivation 15 to chase the victim once the victim started to run. 16 115.) 17 18 19 20 21 (Id. at 115.) (Id. at 114- In fact, one Board member stated: I really, really needed to know from you why this happened, other than I was macho. I needed to hear from you the truth. And I'm not saying that you didn't give the truth, but I struggled with how you could not be a part of a gang when you agreed to participate in this behavior with these other nine young men -- or other nine people. So, I suggest that you really, really dig deep and think about what you did and your state of mind at that time. 22 (Id. at 118.) 23 B. 24 In 2007, Petitioner filed a state habeas petition in superior State Court Decisions 25 court. 26 there was "some evidence" to support the Board's denial. 27 Ex. 2.) 28 (2005), and concluded that the Board did not abuse its discretion In denying the petition, the state court concluded that (Resp. The court relied on In re Dannenberg, 34 Cal. 4th 1061 20 1 in denying parole. 2 Board pointed to other factors beyond the minimum elements of the 3 commitment offense, i.e., that Petitioner could not give a 4 satisfactory explanation for his behavior and that he became 5 involved in an attack on an unknown and unarmed person, the Board 6 "was not required to engage in a further analysis." 7 The court therefore found it unnecessary for the Board, and thus 8 the court, to consider other suitability factors, and denied habeas 9 relief. United States District Court For the Northern District of California 10 (Id.) The court determined that, because the (Id. at 3.) (Id. at 2-3.) The California Court of Appeal and California Supreme Court 11 both denied Petitioner's subsequent state habeas petitions. 12 Exs. 4, 6.) (Resp. 13 C. 14 Petitioner's claims, again, can be summarized as a single Analysis 15 assertion that the denial of parole for a fourth time, based on 16 immutable factors, did not rest on "some evidence" of current 17 dangerousness and violated his right to due process. 18 The state court found it unnecessary to discuss all the 19 Board's reasons for denying parole, and unheld the denial of parole 20 based solely on the facts and circumstances of the commitment 21 offense. 22 court's decision here, the California Supreme Court addressed 23 whether the “some evidence” requirement can be met solely by the 24 circumstances of the commitment offense, stating that 25 26 27 28 In Lawrence, which was announced after the superior to the extent our decisions in Rosenkrantz and Dannenberg have been read to imply that a particularly egregious commitment offense always will provide the requisite modicum of evidence supporting the Board's or the Governor's decision, this assumption is inconsistent with the statutory mandate that the Board and the Governor consider all relevant statutory 21 1 2 factors when evaluating an inmate's suitability for parole, and inconsistent with the inmate's due process liberty interest in parole that we recognized in Rosenkrantz. 3 Lawrence, 44 Cal. 4th at 1191 (emphasis in original); see also 4 Cooke, 606 F.3d at 1214 (finding California's “some evidence” rule 5 requires “more than the crime or its circumstances alone to 6 justify the Board's or Governor's finding of current 7 dangerousness”). Thus, the state court's decision approving the 8 Board's denial of parole based solely on the circumstances of the 9 commitment offense was an unreasonable application of California's United States District Court For the Northern District of California 10 "some evidence" standard. 11 Here, however, the Board denied parole based on several 12 additional factors. First, the Board relied on Petitioner's 13 unstable social history and, in particular, his history of selling 14 drugs to gang members. The Court finds no evidence that 15 Petitioner's prior sales of drugs to gang members is probative of 16 current dangerousness. See In re Shipman, 185 Cal. App. 4th 446, 17 459 (2010) (“an inmate's unstable social history, like his 18 commitment offense, is an ‘immutable’ fact, and thus insufficient 19 by itself to prove unsuitability.”). Considering the time that 20 has passed since Petitioner's incarceration, his past relationship 21 with gang members is unlikely to motivate his actions upon 22 release. 23 In fact, the evidence indicates that Petitioner does not have 24 “unstable or tumultuous relationships with others.” Cal. Code 25 Regs., tit. 15, § 2402(c)(3). Numerous family members and friends 26 sent letters of support and offers of residency and employment, 27 evidencing Petitioner's stable relationships with people outside 28 22 1 of prison. 2 Petitioner's social history does not provide some evidence that he 3 is currently dangerous. 4 (2007 Tr. at 58-73.) Thus the Court finds that The Board also relied on Petitioner's prior criminal history. While Petitioner's record is not pristine, there is no indication 6 that he committed previous violent crimes. 7 Cal. App. 4th 573, 601-602 (2005) ("the fact that a prisoner has a 8 previous record of violence -- i.e., that '[t]he prisoner on 9 previous occasions inflicted or attempted to inflict serious 10 United States District Court For the Northern District of California 5 injury on a victim, particularly if the prisoner demonstrated 11 serious assaultive behavior at an early age' -- tends to show him 12 unsuitable for release; while the fact that he 'lacks any 13 significant history of violent crime' tends to show him suitable 14 for release on parole") (internal citations omitted). 15 Petitioner was nineteen years old at the time of the commitment 16 offense and seventeen years had passed from the time of the 17 commitment offense to the hearing. 18 had committed no serious rules violations involving violence and 19 had committed no serious rules violations at all for the previous 20 twelve years. 21 Cf. In re Scott, 133 Moreover, During that time, Petitioner The Board's reliance on the immutable factor of Petitioner's 22 pre-incarceration criminal record is erroneous as the Board failed 23 to articulate a rational explanation as to why this immutable 24 factor continues to be probative of Petitioner's current 25 dangerousness. 26 the commitment offense, absent articulation of a rational nexus 27 between those facts and current dangerousness, fails to provide 28 the required 'modicum of evidence,'" mere recitation of Just as "mere recitation of the circumstances of 23 1 Petitioner's pre-incarceration record fails to provide the 2 required modicum of evidence here. 3 1227. 4 youthful criminal history is not probative of current 5 dangerousness. 6 See Lawrence, 44 Cal. 4th at Accordingly, the Court finds that Petitioner's non-violent Next, although the Board stated that Petitioner needed to 7 participate in more self-help studies in order to cope "with 8 stress in a nondestructive manner," the record demonstrates that 9 Petitioner had received at least five laudatory chronos for his United States District Court For the Northern District of California 10 participation and completion in AA and AVP since his previous 11 parole hearing one year prior. 12 supporting the Board's conclusion. 13 There was no reliable evidence See Cooke, 606 F.3d at 1215. Finally, the record does not support the Board's continued 14 concern about Petitioner's lack of insight into why he committed 15 his offense. 16 recalled that at the time of the commitment offense, everything 17 happened quickly and he just "reacted" after the victim struck him 18 and ran. 19 he was the cause of the victim's death even though he did not know 20 that someone was going to shoot the victim. 21 Petitioner said he wished he could "correct what went wrong," but 22 understood that the only thing he could do now is recognize that 23 he is no longer that same child and demonstrate that he is a 24 changed person. As Petitioner stated in his 2006 hearing, he (2007 Tr. at 19.) Petitioner explained that he realized (Id. at 22.) (Id. at 22-23.) 25 Petitioner went on to talk about what he had learned, in 26 going to classes and counseling, about himself, confrontation, and 27 choices that he would make now. 28 away from confrontation and to think about what he would do if he (Id. at 24.) 24 He learned to walk 1 were forced into such a situation. 2 that he was housed in a dorm with 370 people all with their own 3 ways of doing things and he has learned to deal with disagreements 4 in a non-confrontational way in order to resolve those 5 disagreements. 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 (Id.) Petitioner explained (Id. at 26.) Guys don't want to do things that, you know, the way that it should be done. They want to do it their way. And I try to talk to them. And I've learned after a while, talking to somebody even if they're mad, you have to come down to being a better result of getting things done the right way. And that's what I've been trying to do. Like I said, every day I work, it's just like -- I know out there on the street is stressful, too, I imagine. My brother tells me, my sisters tell me. It's not easy there. And I know that, but being in here isn't easy either dealing with nothing but convicts and people that don't have rational thinking. I try to be as rational in everything. I'm not the smartest person in the world. I'm not even close to being anything like that, but I try to think and take into consideration how this person thinks or how he's going to react. So I know how I should react. And that's what I do every day at work. 15 (Id. at 27.) 16 In light of the record as a whole, the Board's conclusion that 17 Petitioner had poor insight into his crime and needed to tell the 18 "truth" as to his motive does not appear to be based on reliable 19 evidence. See Pirtle v. California Board of Prison Terms, 611 F.3d 20 1015, 1025 (9th Cir. 2010) (“[t]he record contains no evidence that 21 contradicts [the] professional assessment [of the psychologist who 22 concluded the petitioner] was neither unstable [n]or potentially 23 dangerous”); Cooke, 606 F.3d at 1216 ("[w]hen habeas courts review 24 the 'some evidence' requirement in California parole cases, both 25 the subsidiary findings and the ultimate finding of some evidence" 26 must have reasonable factual support). 27 The Court therefore concludes that the state courts' 28 25 1 determinations that the Board's denial of parole suitability was 2 supported by "some evidence" of current dangerousness was an 3 "'unreasonable application' of the California 'some evidence' 4 requirement, and was 'based on an unreasonable determination of the 5 facts in light of the evidence.'" 6 (citations omitted). 7 federal habeas relief on his due process claim. As a result, Petitioner is entitled to 8 9 Hayward, 603 F.3d at 562–63 CONCLUSION The petitions for a writ of habeas corpus are GRANTED. Within United States District Court For the Northern District of California 10 thirty (30) days of the date of this order, the California Board of 11 Parole Hearings must set a parole date for Petitioner in accordance 12 with Section 3041(a) of the California Penal Code. 13 611 F.3d at 1025. 14 file a notice with the Court indicating whether Petitioner was 15 released on parole. 16 Order. 17 18 19 20 21 See Pirtle, Within ten (10) days thereafter, Respondent must The Court retains jurisdiction to enforce its The Clerk of the Court shall terminate all pending motions, enter judgment and close the file. IT IS SO ORDERED. Dated: 9/17/2010 CLAUDIA WILKEN United States District Judge 22 23 24 25 26 27 28 26 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 LEROY PAUL LUJAN, Case Number: CV08-00474 CW CV09-00462CW 4 Plaintiff, 5 CERTIFICATE OF SERVICE v. 6 BEN CURRY et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 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 September 17, 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 15 16 17 18 Leroy Paul Lujan E-76840 Correctional Training Facility P.O. Box 689 / East Dorm 8-Low Soledad, CA 93960-0689 Dated: September 17, 2010 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 27
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