Dowell v. Board of Prison Hearings, No. 4:2008cv01683 - Document 11 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUSAND GRANTING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 11/3/2010. (ndr, COURT STAFF) (Filed on 11/3/2010)
Download PDF
<![CDATA[
Dowell v. Board of Prison Hearings Doc. 11 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 6 7 KENNETH DOWELL, 8 9 United States District Court For the Northern District of California 10 No. 08-01683 CW Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING CERTIFICATE OF APPEALABILITY v. BOARD OF PAROLE HEARINGS, 11 Respondent. / 12 13 14 Petitioner Kenneth Dowell, an inmate at San Quentin State 15 Prison, filed a petition for a writ of habeas corpus pursuant to 16 title 28 U.S.C. § 2254, challenging as a violation of his 17 constitutional rights the denial of parole by Respondent California 18 19 20 Board of Parole Hearings1 (Board) on November 30, 2006. opposes the petition. Respondent Petitioner has not filed a traverse. After the matter was submitted, on April 22, 2010, the Ninth 21 Circuit issued its decision in Hayward v. Marshall, 603 F.3d 546 22 (9th Cir. 2010) (en banc), which addressed federal habeas review of 23 the Board’s decisions denying parole to California state prisoners. 24 The Court ordered the parties to file supplemental briefing 25 addressing Hayward, and both parties did so. 26 Having considered all of the papers filed by the parties, the 27 28 1 Petitioner incorrectly sues the Board of Prison Hearings. Dockets.Justia.com 1 Court denies the petition. 2 3 4 BACKGROUND I. The Commitment Offense The following summary of the facts of Petitioner's commitment 5 offense is derived from the superior court's opinion on habeas 6 review. 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 At the time of the commitment offense, Petitioner was separated from his common law wife (ex-wife). The exwife was dating another man (boyfriend), who she planned to marry. Petitioner was jealous and angry with the boyfriend, because Petitioner thought that the boyfriend was coming between Petitioner and his ex-wife and children. On March 24, 1982, Petitioner entered the residence of his ex-wife. Petitioner stated that he was going to kill his ex-wife and her boyfriend. Petitioner forced his ex-wife into his vehicle. The two drove around searching for the boyfriend. The boyfriend happened to be following Petitioner. Petitioner stopped his vehicle and retrieved a handgun located beneath the seat. Petitioner told the boyfriend that he was going to kill him. Petitioner and the boyfriend fired shots. When Petitioner's handgun no longer had any ammunition, he retrieved a shotgun from his vehicle and continued to shoot at the boyfriend. The boyfriend was shot several times and died from the wounds. After Petitioner shot the boyfriend, the ex-wife ran away from the scene. 17 Resp.'s Ex.2, In re Kenneth Dowell, No. BH004727 (Cal. Sup. Ct. 18 October 26, 2007) at 2. 19 On October 13, 1983, a jury found Petitioner guilty of second 20 degree murder with the use of a firearm, for which he was sentenced 21 to fifteen years to life plus two consecutive years for use of a 22 firearm. Resp.’s Ex. 1, attachment A, November 9, 1983 Probation 23 Officer Report. 24 II. November 30, 2006 Board Hearing 25 The Board found that Petitioner was unsuitable for parole and 26 would pose an unreasonable risk of danger to society or a threat to 27 28 2 1 public safety if released from prison. 2 commitment offense was carried out in an especially cruel and 3 callous manner because it involved multiple victims -- Petitioner's 4 ex-wife and her boyfriend, James Winnet -- and was done execution- 5 style because Mr. Winnet had his hands up and was surrendering when 6 Petitioner took his shotgun out of his car and shot him again. 7 Board also found that Petitioner's motive was trivial in relation 8 to the offense because it was based on jealousy. 9 The Board found that the The The Board found that Petitioner had an escalating pattern of United States District Court For the Northern District of California 10 criminal conduct before the commitment offense based on his 11 convictions for public drunkenness in 1965, possession of narcotics 12 and possession of a concealed weapon in 1970, failure to pay child 13 support in 1974, driving under the influence of alcohol in 1977 and 14 pandering in 1980. 15 probation for the pandering offense at the time of the commitment 16 offense. The Board also noted that Petitioner had a history of 17 unstable or tumultuous relationships with others, notably with his 18 ex-wife. The Board noted that Petitioner was on 19 The Board emphasized that, although Petitioner attended 20 services of the church of the Latter Day Saints (LDS), he had not 21 attended any self-help programs since 1996. 22 May 2, 2006 report authored by psychologist Dr. Michelle Inaba, who 23 concluded that Petitioner presented a low risk of violence in a 24 controlled environment and a low risk of violence if released into 25 the community, provided he abstained from the use of alcohol and 26 drugs. 27 Petitioner's ability to refrain from the use of alcohol when 28 The Board also cited a The Board was concerned that Dr. Inaba failed to estimate 3 1 released and failed to address whether Petitioner had accepted 2 responsibility for the commitment offense, and was aware of its 3 underlying causes and of his need for future therapy and self-help 4 programs. 5 questions by quoting Petitioner's statement that "he hasn't thought 6 about drinking for years," and concluded that this was an 7 inadequate diagnosis or prediction of Petitioner's ability to 8 remain alcohol-free in an uncontrolled environment. 9 mentioned that Dr. Inaba's 2000 psychological evaluation of The panel noted that Dr. Inaba only addressed these The Board United States District Court For the Northern District of California 10 Petitioner was fairly negative and that the risks and concerns she 11 raised in it were not adequately addressed in the 2006 report. 12 The Board also found that Petitioner's parole plans were 13 inadequate because he did not have viable residential options in 14 Los Angeles County, the county of his legal residence. 15 noted that Petitioner had plans to stay with his brother in Oregon, 16 but did not think Petitioner could be released out of state and was 17 concerned that living with his brother would expose him to an 18 environment that included alcohol and guns. 19 that Petitioner had no employment plans and that his statement that 20 he would find a job when released was not adequate. 21 suggested that, at his next hearing, Petitioner provide to the 22 Board copies of letters he sends out to potential employers with 23 the responses received and letters he writes to halfway houses for 24 living arrangements upon release. 25 The Board The Board also noted The Board The Board concluded that Petitioner had positive achievements 26 in that he had been discipline-free during the entire time of his 27 incarceration and he had completed vocational training courses, but 28 4 1 that the positive achievements did not outweigh the factors of 2 unsuitability. 3 needed to participate in documented self-help programs to enable 4 him to face, discuss, understand and cope with stress in a non- 5 destructive manner and, until he did this, he would continue to be 6 unpredictable and a threat to others. 7 III. Superior Court Habeas Decision 8 In particular, the Board concluded that Petitioner On July 13, 2007, Petitioner filed, in superior court, a petition for a writ of habeas corpus challenging the Board’s 10 United States District Court For the Northern District of California 9 November 6, 2006 decision finding him unsuitable for parole. 11 October 26, 2007, the superior court issued a written decision 12 denying Petitioner habeas relief. 13 BH004727. 14 the following factors: 15 offense; (2) Petitioner's criminal history; (3) Petitioner's 16 unstable social history; (4) Petitioner's insufficient 17 participation in self-help programs, and (5) Petitioner's lack of 18 viable parole plans. On See Resp's Ex. 2, In re Dowell, The court noted that the Board had based its decision on (1) the circumstances of the commitment Id. at 1. 19 The court found that “some evidence” supported each of the 20 Board’s reasons for determining unsuitability, and accepted the 21 Board's reasons as some evidence to support its finding that 22 Petitioner posed an unreasonable risk to the community if released. 23 The court found that the commitment offense was committed in an 24 especially cruel manner in that multiple victims were attacked, 25 injured or killed, the offense was carried out in a dispassionate 26 and calculated manner and the motive for the crime was trivial in 27 relation to the offense. 28 The court found there was some evidence 5 1 to support the Board's finding regarding Petitioner's criminal 2 history based on his previous convictions that were enumerated by 3 the Board and the fact that Petitioner was on probation for 4 pandering when he committed the commitment offense. 5 concluded that Petitioner's record showed escalation and that he 6 was undeterred by the earlier attempts to correct his criminality. 7 The court also found that Petitioner had abused his ex-wife during 8 the course of their relationship and this was some evidence to 9 support the Board's finding that Petitioner had a history of United States District Court For the Northern District of California 10 11 unstable social relationships. The court Id. at 2-3. The court also found the record contained some evidence to 12 support the Board's finding that Petitioner had not sufficiently 13 participated in any recent self-help programs. 14 found there was some evidence to support the Board's finding that 15 Petitioner lacked realistic parole plans because he did not have a 16 place to reside in the last county of his legal residence or an 17 offer of employment. 18 findings on all of the above factors constituted “some evidence” to 19 support the Board’s determination that Petitioner presented an 20 unreasonable risk of danger to society and was therefore not 21 suitable for release on parole. 22 Id. at 4. Finally, the court The court concluded that its Id. Petitioner filed subsequent habeas petitions in the California 23 court of appeal and the California Supreme Court. 24 were summarily denied. 25 this federal habeas corpus petition challenging the state court 26 decisions upholding the Board's determination. (Resp.'s Exs. 4, 6). 27 28 6 Both petitions Petitioner brought 1 2 LEGAL STANDARD Because this case involves a federal habeas corpus challenge 3 to a state parole eligibility decision, the applicable standard is 4 contained in the Antiterrorism and Effective Death Penalty Act of 5 1996 (AEDPA). 6 2002). 7 McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. Under AEDPA, a district court may not grant habeas relief 8 unless the state court's adjudication of the claim: "(1) resulted 9 in a decision that was contrary to, or involved an unreasonable United States District Court For the Northern District of California 10 application of, clearly established Federal law, as determined by 11 the Supreme Court of the United States; or (2) resulted in a 12 decision that was based on an unreasonable determination of the 13 facts in light of the evidence presented in the State court 14 proceeding." 15 362, 412 (2000). 16 the state court's factual findings. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. A federal court must presume the correctness of 28 U.S.C. § 2254(e)(1). 17 Where, as here, the highest state court to reach the merits 18 issued a summary opinion which does not explain the rationale of 19 its decision, federal court review under § 2254(d) is of the last 20 state court opinion to reach the merits. 21 964, 970-71, 973-78 (9th Cir. 2000). 22 court opinion to address the merits of Petitioner's claim is that 23 of the California superior court. 24 25 Bains v. Cambra, 204 F.3d In this case, the last state DISCUSSION A prisoner has no constitutional or inherent right to be 26 released before the expiration of a valid sentence. 27 Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). 28 7 Greenholtz v. However, when a state statutory scheme creates a presumption that 2 parole release will be granted unless designated findings are made, 3 an inmate does have a constitutionally protected expectancy of 4 release on parole. 5 369, 373 (1987); Hayward, 603 F.3d at 561. 6 parole statutes create certain procedural rights for prisoners. 7 Id. 8 Cal. 4th 1181 (2008), and In re Shaputis, 44 Cal. 4th 1241 (2008), 9 established that, as a matter of state constitutional law, “some 10 United States District Court For the Northern District of California 1 evidence” of future dangerousness is necessary for the denial of 11 parole. 12 Supreme Court cases, the paramount consideration for the Board is 13 whether the inmate currently poses a threat to public safety. 14 Id. at 12; Board of Pardons v. Allen, 482 U.S. In California, the Moreover, the California Supreme Court, in In re Lawrence, 44 Hayward, 603 F.3d at 562. Pursuant to the California Id. Thus, on federal habeas review, parole decisions in California 15 are analyzed under the “some evidence” standard set forth by the 16 California Supreme Court in Lawrence and Shaputis. 17 F.3d at 562-63. 18 California judicial decision approving the Board’s decision 19 rejecting parole was an ‘unreasonable application’ of the 20 California ‘some evidence’ requirement, or was ‘based on an 21 unreasonable determination of the facts in light of the evidence.’” 22 Id. at 563. 23 Hayward, 603 Federal habeas courts must “decide whether the In its supplemental brief, Respondent argues that Hayward 24 provides that a federal habeas court must determine only 25 (1) whether the prisoner received an opportunity to be heard and a 26 statement telling him why he was not paroled, and (2) whether 27 California’s procedures were fundamentally sufficient to protect 28 8 1 the prisoner’s state substantive right. 2 foreclosed by post-Hayward Ninth Circuit cases. 3 Muntz, 606 F.3d 606, 609 (9th Cir. 2010), the court noted that the 4 respondents, who had raised the same argument that Respondent does 5 here, had failed to recognize that state-created rights may give 6 rise to a liberty interest that may be enforced under federal law. 7 The court explained that Hayward’s holding, that a federal habeas 8 court may review the reasonableness of the state court’s 9 application of California’s “some evidence” rule, meant that This argument is In Pearson v. United States District Court For the Northern District of California 10 compliance with that state requirement was mandated by the federal 11 Due Process Clause. 12 Pearson explained that “Hayward specifically commands federal 13 courts to examine the reasonableness of the state court’s 14 application of the California ‘some evidence’ requirement, as well 15 as the reasonableness of the state court’s determination of the 16 facts in light of the evidence. 17 requiring an examination of how the state court applied the 18 requirement.” 19 accord Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). 20 Pearson, 606 F.3d at 609. Furthermore, That command can only be read as Pearson, 606 F.3d at 609 (emphasis in original); Likewise, Petitioner’s claim that the preponderance of the 21 evidence standard must be substituted for the “some evidence” 22 standard is foreclosed by Hayward, which explained that federal 23 habeas review is available only to decide whether the state court 24 decision rejecting parole was an unreasonable application of the 25 California “some evidence” requirement. 26 27 28 California law provides that a parole date is to be granted unless it is determined "that the gravity of the current convicted 9 1 offense or offenses, or the timing and gravity of current or past 2 convicted offense or offenses, is such that consideration of the 3 public safety requires a more lengthy period of incarceration 4 . . ." 5 Cal. Penal Code § 3041(b). The California Code of Regulations sets out the factors 6 showing suitability or unsuitability for parole that the parole 7 authority is required to consider. 8 § 2402(b). 9 available," such as: United States District Court For the Northern District of California 10 12 13 14 15 16 18 These include "[a]ll relevant, reliable information 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 a finding of unsuitability. 11 17 Cal. Code Regs. tit. 15, Id. Circumstances tending to show unsuitability for parole 19 include the nature of the commitment offense and whether "[t]he 20 prisoner committed the offense in an especially heinous, atrocious 21 or cruel manner." 22 the number of victims, whether "[t]he offense was carried out in a 23 dispassionate and calculated manner," whether the victim was 24 "abused, defiled or mutilated during or after the offense," 25 whether "[t]he offense was carried out in a manner which 26 demonstrates an exceptionally callous disregard for human 27 suffering," and whether "[t]he motive for the crime is 28 Id. § 2402(c). 10 This includes consideration of 1 2 inexplicable or very trivial in relation to the offense." Id. Other circumstances tending to show unsuitability for parole 3 are a previous record of violence, an unstable social history, 4 previous sadistic sexual offenses, a history of severe mental 5 health problems related to the offense, and serious misconduct in 6 prison or jail. 7 Id. Circumstances tending to support a finding of suitability for 8 parole include the lack of a juvenile record, a stable social 9 history, signs of remorse, that the crime was committed as a United States District Court For the Northern District of California 10 result of significant stress in the prisoner's life, a lack of 11 criminal history, a reduced possibility of recidivism due to the 12 prisoner's present age, that the prisoner has made realistic plans 13 for release or has developed marketable skills that can be put to 14 use upon release, and that the prisoner's institutional activities 15 indicate an enhanced ability to function within the law upon 16 release. 17 18 19 20 21 22 23 Id. § 2402(d). The California Supreme Court, in Lawrence, explained the “some evidence” standard as follows: This standard is unquestionably deferential, but certainly not toothless, and “due consideration” of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision–-the determination of current dangerousness. . . . 27 Indeed, our conclusion that current dangerousness (rather than the mere presence of a statutory unsuitability factor) is the focus of the parole decision is rooted in the governing statute. We have observed that “‘[t]he Board’s authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmate’s current or past offenses should not operate so as to swallow the rule that parole is ‘normally’ to be granted. . . .’” 28 11 24 25 26 1 2 3 4 Consistent with this statutory regime, the Board’s regulations, establishing a matrix of factors for determining the suggested base terms for life prisoners, contemplates that even those who committed aggravated murder may be paroled after serving a sufficiently long term if the Board determines that evidence of postconviction rehabilitation indicates they no longer pose a threat to public safety. . . . 5 In re Lawrence, 44 Cal. 4th at 1210-11. 6 The Court finds that the record contains “some evidence” of a 7 nexus between the findings of the state court and its determination 8 that Petitioner would be a danger to society if released. 9 The findings of the Board and the state court that the United States District Court For the Northern District of California 10 commitment offense was carried out in an especially cruel manner 11 constitutes “some evidence” of Petitioner’s current dangerousness. 12 The offense was especially cruel because it involved multiple 13 victims and it was an execution-like killing, carried out after the 14 victim had surrendered. Petitioner contends there were not 15 multiple victims because he did not force his ex-wife into his car; 16 rather, she came with him voluntarily. At the hearing before the 17 Board, the following facts regarding the commitment offense, taken 18 from the Probation Officer’s Report, were read into the record: 19 27 At about 12:30 in the morning on March 24, 1982, the defendant entered the residence of victim Pauline Dowell, ex-common-law wife, forced her to dress and stated that he was going to kill her and her boyfriend, victim James Winnet. Defendant then forced her into his red pickup and they drove looking for victim Winnet. At the time, victim Dowell did not know that there–-they were being followed by victim Winnet. The Defendant stopped the pickup truck and retrieved a handgun from beneath the seat and exited the truck. Several shots were fired, and the Defendant told victim Winnet that he was going to kill him. At about 1:40 a.m., victim Winnet was determined to be dead. After Defendant shot victim Winnet, victim Dowell ran from the scene to call for help. The Defendant shouted for her to stop, and when she did not comply, he fired one shot at her. 28 12 20 21 22 23 24 25 26 1 Petitioner was asked: 2 Sir, is that an accurate description of what–-I know it’s a brief description, but is that an accurate description of what happened on that night? 3 4 He responded: 5 Yeah, that’s the record of the court. I dispute one item in there. I never shot at Pauline. But other than that, it’s fairly accurate, yes. 6 7 Transcript of November 30, 2006 Hearing (TR) at 10-11. 8 9 Thus, Petitioner’s current statement that his ex-wife came with him voluntarily is not credible. United States District Court For the Northern District of California 10 However, Petitioner’s current dangerousness is not supported 11 by the findings of the Board and the superior court that he engaged 12 in an “escalating pattern of criminal conduct.” 13 convictions were episodic and were for minor, non-violent offenses 14 such as public drunkenness, failure to pay child support and 15 driving under the influence (DUI). 16 the first two offenses and served eight days in jail for the DUI. 17 Regarding the convictions for possession of narcotics and a 18 concealed weapon, Petitioner explained at the hearing that the 19 narcotics were prescription medications that did not belong to him. 20 They were in the pocket of a friend’s coat that he was wearing, and 21 the concealed weapon was a hunting knife he had in his belt because 22 he and his friends had just come home from a camping trip. 23 20. 24 sentence was only one year probation. 25 sentence for pandering was three years probation. 26 27 28 Petitioner’s He was placed on probation for Id. at Petitioner may have minimized the facts of this crime, but his Likewise, Petitioner’s This record cannot be described as escalating criminal conduct. However, the fact that Petitioner had been placed on 13 1 probation several times and, most significantly, was on probation 2 at the time of the commitment offense, supports the court’s finding 3 that he did not learn from attempts to correct his criminality. 4 This factor constitutes “some evidence” that Petitioner would be a 5 danger to society if released on parole. 6 Petitioner argues that the Board's consideration of his past 7 criminal record was improper because Title 15 California Code of 8 Regulations §§ 2322 and 2326 prohibit the Board from considering 9 past crimes that are over five years old. However, these United States District Court For the Northern District of California 10 regulations apply to prisoners sentenced under the indeterminate 11 sentence law prior to November 8, 1978. 12 in 1983. 13 § 2315 indicates that the Board considers the factors in §§ 2318- 14 2328 to determine the period of confinement once a prisoner is 15 found suitable for parole. 16 suitable for parole; therefore, §§ 2322 and 2326 would not have 17 been applicable even if Petitioner had been sentenced prior to 18 1978. 19 apply to prisoners who committed murders on or after November 8, 20 1978, such as Petitioner. 21 Regulations § 2402(b), the Board may consider involvement in other 22 criminal activity that is reliably documented. 23 his past crimes are not reliably documented. 24 probation report’s summary of Petitioner’s criminal history, 25 including his arrests and convictions, is reliable documentation. 26 The Board summarized this history at the hearing and asked 27 Petitioner if there was anything that should be added or deleted 28 Petitioner was sentenced Furthermore, Title 15 California Code of Regulations The Board did not find Petitioner Title 15 California Code of Regulations §§ 2400 et seq. Under Title 15 California Code of 14 Petitioner argues However, the 1 2 and Petitioner answered, “Not that I’m aware of.” TR at 30. The court’s finding that Petitioner had a history of unstable 3 social relationships is not supported by the evidence. 4 finding was based upon the fact that Petitioner once pushed or hit 5 his wife, who then called the police. 6 explained to the Board that this was the only time he was violent 7 toward his wife and, at that time, he was upset because she was 8 being unfaithful to him. 9 support the finding that Petitioner has a “history of unstable United States District Court For the Northern District of California 10 11 This However, Petitioner This isolated instance is insufficient to social relationships.” The Board expressed three concerns about Petitioner’s parole 12 plan to live with his brother in Oregon: (1) Petitioner’s brother’s 13 home environment included guns and alcohol; (2) Petitioner could 14 not be paroled out-of-state; and (3) Petitioner did not have an 15 offer of employment upon release from prison. 16 devoid of any evidence of guns and alcohol at the residence of 17 Petitioner’s brother. 18 that Petitioner’s brother would provide an appropriate environment 19 because he belonged to the LDS church, which abjures alcohol. 20 at 81. 21 LDS services and intended to continue attending them after his 22 release. 23 The record was To the contrary, Petitioner’s counsel argued TR As indicated above, while in prison, Petitioner attended The Board did not indicate why Petitioner could not be paroled 24 out-of-state. 25 certain states have agreed to permit parolees to reside in any 26 other state that is a party to the agreement if that person is a 27 resident of or has family residing in the receiving state and can 28 California Penal Code § 11177(1)(a) provides that 15 1 obtain employment there. 2 he did not have a job offer nor did he submit evidence that he 3 could obtain employment there. 4 discounting Petitioner’s parole plan for Oregon. 5 alternative of paroling in California, the Board found that 6 Petitioner did not submit evidence of efforts to find housing at a 7 half-way house or other suitable living arrangements in California. 8 Petitioner’s lack of supportive living arrangements would make his 9 transition into society difficult. Although Petitioner has family in Oregon, Thus, the Board was correct in Turning to the Therefore, the findings of the United States District Court For the Northern District of California 10 Board and state court that Petitioner’s insufficient plans for 11 living arrangements was “some evidence” of current dangerousness 12 was not unreasonable. 13 As noted above, the Board was correct that Petitioner did not 14 have an offer of a job upon his release, either in Oregon or 15 California, and did not mention any efforts to seek employment. 16 Petitioner points out that Title 15 California Code of Regulations 17 § 2402(d)(8) requires a prisoner to make realistic plans for 18 release or develop marketable skills. 19 because he has marketable skills, he is not required to have 20 realistic parole plans. 21 factors in predicting a prisoner's successful transition to a law- 22 abiding life after release from prison. 23 received a certificate in the maintenance and operation of high 24 pressure boilers, there is no evidence that he could obtain 25 employment in the community on the basis of this certificate. 26 Board found that Petitioner’s lack of realistic employment plans 27 would make his transition into society very difficult. 28 Petitioner argues that, Petitioner is wrong. 16 Both are important Although Petitioner The Petitioner 1 is less likely to be able to support a crime-free lifestyle if he 2 does not have employment. 3 the state court that Petitioner’s lack of an offer for a job was 4 “some evidence” of his current dangerousness was not unreasonable. 5 Therefore, the findings of the Board and The Board relied heavily upon the fact that Petitioner had not 6 sufficiently participated in self-help programs as “some evidence” 7 of his current dangerousness, and the state court affirmed this 8 finding. 9 meetings through the LDS church, and failed to provide After 1996, Petitioner only went to self-help group United States District Court For the Northern District of California 10 documentation of his attendance at this program. 11 Citing Title 15 California Code of Regulations § 2402(c)(5), 12 Petitioner argues that he does not need self-help programs because 13 he does not have a lengthy history of severe mental problems. 14 Although § 2402(c)(5) lists severe mental problems as a factor 15 tending to show unsuitability for parole, it is not necessary that 16 an inmate have mental problems to benefit from participating in 17 self-help groups. 18 understanding and remorse, which are factors indicating suitability 19 for parole. 20 participation in institutional activities would indicate an 21 enhanced ability to act within the law. 22 findings of the Board and the state court that Petitioner’s lack of 23 participation in self-help programs was some evidence of current 24 dangerousness was not unreasonable. 25 TR at 43-46. Self-help groups can help participants achieve See Cal. Code Regs. tit.15, § 2402(d). Furthermore, For these reasons, the Petitioner objects to the Board’s reliance on Dr. Inaba’s 2000 26 psychological evaluation. 27 this as support for the Board’s finding of current dangerousness. 28 However, the state court did not include 17 1 Finally, Petitioner argues that the Board unreasonably relied 2 on the immutable facts of his commitment offense and his previous 3 criminal record to find he was unsuitable for parole. 4 Hayward en banc decision, the Ninth Circuit quoted Lawrence to the 5 effect that continued reliance on a prisoner’s aggravated offense, 6 without more, does not establish current dangerousness. 7 603 F.3d at 562 (citing Lawrence, 44 Cal. 4th at 1213-14). 8 However, as discussed above, in Petitioner’s case, the Board and 9 the superior court relied on more than just the circumstances of In the Hayward, United States District Court For the Northern District of California 10 the commitment offense and Petitioner's criminal record to conclude 11 that he would be a danger if released. 12 unpersuasive. 13 Therefore, this argument is In sum, the findings of the Board and state court that the 14 commitment offense was committed in an especially cruel, 15 dispassionate and calculated manner, that Petitioner had not 16 benefitted from attempts to correct his criminality, that 17 Petitioner lacked a suitable living arrangement and offer of 18 employment upon release and that he had not sufficiently 19 participated in self-help programs provide “some evidence” that 20 Petitioner would be a danger to the public, if released on parole. 21 Thus, the state court's denial of Petitioner's claims for habeas 22 relief was not contrary to or an unreasonable application of 23 Supreme Court authority or an unreasonable finding of facts based 24 on the evidence in the record. 25 26 27 28 CONCLUSION For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The Court issues a certificate of appealability 18 1 for this petition. 2 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on 3 certificate of appealability in same order that denies petition). 4 A certificate of appealability should be granted "only if the 5 applicant has made a substantial showing of the denial of a 6 constitutional right." 7 appealability must indicate which issue or issues satisfy the 8 showing required by § 2253(c)(2). 9 Court finds that Petitioner has made a sufficient showing of the See Rule 11(a) of the Rules Governing § 2254 28 U.S.C. § 2253(c)(2). The certificate of 28 U.S.C. § 2253(c)(3). The United States District Court For the Northern District of California 10 denial of a constitutional right on the single issue raised in his 11 petition. 12 the file. 13 The Clerk of the Court shall enter judgment and close IT IS SO ORDERED. 14 15 Dated: 11/3/2010 CLAUDIA WILKEN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 19 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 KENNETH DOWELL, Case Number: CV08-01683 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 BOARD OF PRISON HEARINGS 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 November 3, 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 17 Kenneth Dowell C-78669 Avenal State Prison P.O. Box 900 130-11Low Avenal, CA 93204 18 Dated: November 3, 2010 15 16 19 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 20
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
