Escalante v. Davis et al, No. 5:2007cv02702 - Document 12 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Jeremy Fogel on 8/17/09. (dlm, COURT STAFF) (Filed on 8/17/2009)
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Escalante v. Davis et al Doc. 12 1 2 3 4 5 6 7 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 JUSTO ESCALANTE, 13 Petitioner, 14 vs. 15 16 B. CURRY, Warden, Respondent. 17 No. C 07-02702 JF (PR) ) ) ) ) ) ) ) ) ) ) ) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 18 19 Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254, challenging the decision of the Board of Prison Terms (“the 21 Board”) to deny him parole. The Court found that the petition stated three cognizable 22 claims and ordered Respondent to show cause why the petition should not be granted. 23 Respondent filed an answer addressing the merits of the petition, and Petitioner filed a 24 traverse. Having reviewed the papers and the underlying record, the Court concludes that 25 Petitioner is not entitled to relief based on the claims presented and will deny the petition. 26 /// 27 /// 28 /// Order Denying Petition for Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.07\Escalante02702_denyHC.wpd 1 Dockets.Justia.com BACKGROUND 1 In 1991, a Los Angeles Superior Court jury convicted Petitioner of aggravated 2 3 mayhem (Cal. Penal Code § 205). Petitioner was sentenced to a term of seven years to 4 life in state prison plus one year for a dangerous weapon enhancement. Petitioner 5 challenges the Board’s decision denying him parole after a fourth parole consideration 6 hearing on December 15, 2005. Petitioner filed habeas petitions in the state superior, 7 appellate, and supreme courts, all of which were denied. Petitioner filed the instant 8 federal habeas petition on May 22, 2007. 9 DISCUSSION 10 11 12 A. Standard of Review This Court will entertain a petition for a writ of habeas corpus “in behalf of a 13 person in custody pursuant to the judgment of a State court only on the ground that he is 14 in custody in violation of the Constitution or laws or treaties of the United States.” 28 15 U.S.C. § 2254(a). The petition may not be granted with respect to any claim adjudicated 16 on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted 17 in a decision that was contrary to, or involved an unreasonable application of, clearly 18 established federal law, as determined by the Supreme Court of the United States; or (2) 19 resulted in a decision that was based on an unreasonable determination of the facts in 20 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 21 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the 22 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 23 question of law or if the state court decides a case differently than [the] Court has on a set 24 of materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-413 25 (2000). “Under the ‘reasonable application clause,’ a federal habeas court may grant the 26 writ if the state court identifies the correct governing legal principle from [the] Court’s 27 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. 28 at 413. “[A] federal habeas court may not issue the writ simply because that court Order Denying Petition for Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.07\Escalante02702_denyHC.wpd 2 1 concludes in its independent judgment that the relevant state-court decision applied 2 clearly established federal law erroneously or incorrectly. Rather, that application must 3 also be unreasonable.” Id. at 411. “[A] federal habeas court making the ‘unreasonable application’ inquiry should 4 5 ask whether the state court’s application of clearly established federal law was 6 ‘objectively unreasonable.’” Id. at 409. In examining whether the state court decision 7 was objectively unreasonable, the inquiry may require analysis of the state court’s method 8 as well as its result. Nunes v. Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003). The 9 standard for “objectively unreasonable” is not “clear error” because “[t]hese two 10 standards . . . are not the same. The gloss of error fails to give proper deference to state 11 courts by conflating error (even clear error) with unreasonableness.” Lockyer v. 12 Andrade, 538 U.S. 63, 75 (2003). A federal habeas court may grant the writ if it concludes that the state court’s 13 14 adjudication of the claim “results in a decision that was based on an unreasonable 15 determination of the facts in light of the evidence presented in the State court 16 proceeding.” 28 U.S.C. § 2254(d)(2). The court must presume correct any determination 17 of a factual issue made by a state court unless the petitioner rebuts the presumption of 18 correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 19 Where, as here, the highest state court to consider Petitioner’s claims issued a 20 summary opinion which does not explain the rationale of its decision, federal review 21 under § 2254(d) is of the last state court opinion to reach the merits. See Ylst v. 22 Nunnemaker, 501 U.S. 797, 801-06 (1991); Bains v. Cambra, 204 F.3d 964, 970-71, 973- 23 78 (9th Cir. 2000). In this case, the last state court opinion to address the merits of 24 Petitioner’s claims is the opinion of the California Superior Court for the County of Los 25 Angeles. (Resp. Ex. H (In re Justo Escalante on Habeas Corpus, Case No. BH003993, 26 October 2, 2006).) 27 /// 28 /// Order Denying Petition for Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.07\Escalante02702_denyHC.wpd 3 1 2 B. Legal Claims and Analysis As grounds for federal habeas relief, Petitioner alleges: (1) the Board’s denial of a 3 parole date for the fourth time based on the commitment offense and pre-commitment 4 factors despite Petitioner having served his minimum sentence violated his right to due 5 process of law and his liberty interest; (2) the commitment offense does not rise to the 6 level of “especially heinous”so as to justify the fourth denial of parole violating 7 Petitioner’s right to due process of law; and (3) the Board presented no evidence 8 containing indicia of reliability showing Petitioner would pose a current risk if released 9 on parole, violating Petitioner’s right to due process of law. (Pet. at 6.) 10 The Ninth Circuit has determined that a California prisoner with a sentence of a 11 term of years to life with the possibility of parole has a protected liberty interest in release 12 on parole and therefore a right to due process in the parole suitability proceedings. See 13 McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (citing Board of Pardons v. 14 Allen, 482 U.S. 369 (1987); Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 15 442 U.S. 1 (1979)). See also Irons v. Carey, 505 F.3d 846, 851 (9th Cir.), reh’g and reh’g 16 en banc denied, 506 F.3d 951 (9th Cir. 2007); Sass v. California Board of Prison Terms, 17 461 F.3d 1123, 1127-28 (9th Cir. 2006), reh’g and reh’g en banc denied, No. 05-16455 18 (9th Cir. Feb. 13, 2007); Biggs v. Terhune, 334 F.3d 910, 915-16 (9th Cir. 2003). 19 A parole board’s decision must be supported by “some evidence” to satisfy the 20 requirements of due process. Sass, 461 F.3d at 1128-29 (adopting “some evidence” 21 standard for disciplinary hearings outlined in Superintendent v. Hill, 472 U.S. 445, 454- 22 55 (1985)). The standard of “some evidence” is met if there was some evidence from 23 which the conclusion of the administrative tribunal may be deduced. See Hill, 472 U.S. 24 at 455. An examination of the entire record is not required, nor is an independent 25 assessment of the credibility of witnesses nor weighing of the evidence. Id. The relevant 26 question is whether there is any evidence in the record that could support the conclusion 27 reached by the Board. See id. Accordingly, “if the Board’s determination of parole 28 suitability is to satisfy due process there must be some evidence, with some indicia of Order Denying Petition for Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.07\Escalante02702_denyHC.wpd 4 1 reliability, to support the decision.” Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2 2005) (citing McQuillion, 306 F.3d at 904). 3 When assessing whether a state parole board’s suitability determination was 4 supported by “some evidence,” the court’s analysis is framed by the statutes and 5 regulations governing parole suitability determinations in the relevant state. Irons, 505 6 F.3d at 850. Accordingly, in California, the court must look to California law to 7 determine the findings that are necessary to deem a prisoner unsuitable for parole, and 8 then must review the record in order to determine whether the state court decision 9 constituted an unreasonable application of the “some evidence” principle. Id. 10 California Code of Regulations, title 15, section 2402(a) provides that “[t]he panel 11 shall first determine whether the life prisoner is suitable for release on parole. Regardless 12 of the length of time served, a life prisoner shall be found unsuitable for and denied 13 parole if in the judgment of the panel the prisoner will pose an unreasonable risk of 14 danger to society if released from prison.” Cal. Code of Regs., tit. 15, § 2402(a). The 15 regulations direct the Board to consider “all relevant, reliable information available.” 16 Cal. Code of Regs., tit. 15, § 2402(b). Further, the regulations enumerate various 17 circumstances tending to indicate whether or not an inmate is suitable for parole. Cal. 18 Code of Regs., tit. 15, § 2402(c)-(d).1 19 20 Recently, the Ninth Circuit reheard en banc the panel decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh’g en banc granted, 527 F.3d 797 (9th. Cir. 21 22 23 24 25 26 27 28 1 The circumstances tending to show an inmate’s unsuitability are: (1) the commitment offense was committed in an “especially heinous, atrocious or cruel manner;” (2) previous record of violence; (3) unstable social history; (4) sadistic sexual offenses; (5) psychological factors such as a “lengthy history of severe mental problems related to the offense;” and (6) prison misconduct. Cal. Code of Regs., tit. 15, § 2402(c). The circumstances tending to show suitability are: (1) no juvenile record; (2) stable social history; (3) signs of remorse; (4) commitment offense was committed as a result of stress which built up over time; (5) Battered Woman Syndrome; (6) lack of criminal history; (7) age is such that it reduces the possibility of recidivism; (8) plans for future including development of marketable skills; and (9) institutional activities that indicate ability to function within the law. Cal. Code of Regs., tit., 15 § 2402(d). Order Denying Petition for Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.07\Escalante02702_denyHC.wpd 5 1 2008), which presented a state prisoner’s due process habeas challenge to the denial of 2 parole. The panel opinion concluded that the gravity of the commitment offense had no 3 predictive value regarding the petitioner’s suitability for parole and held that the 4 governor’s reversal of parole was not supported by some evidence and resulted in a due 5 process violation. 512 F.3d at 546-47. The Ninth Circuit has not yet issued an en banc 6 decision in Hayward. 7 Unless or until the en banc court overrules the holdings in Biggs, Sass, and Irons, it 8 remains the law in this circuit that California’s parole scheme creates a federally 9 protected liberty interest in parole and therefore a right to due process, which is satisfied 10 if some evidence supports the Board’s parole suitability decision. Sass, 461 F.3d at 1128- 11 29. These cases also hold that the Board may rely on immutable events, such as the 12 nature of the conviction offense and pre-conviction criminality, to find that the prisoner is 13 not currently suitable for parole. Id. at 1129. Biggs and Irons also suggest, however, that 14 over time, the commitment offense and pre-conviction behavior become less reliable 15 predictors of danger to society such that repeated denial of parole based solely on 16 immutable events, regardless of the extent of rehabilitation during incarceration, could 17 violate due process at some point after the prisoner serves the minimum term on his 18 sentence. See Irons, 505 F.3d at 853-54. 19 The Board’s decision denying parole in this case was based upon its review of the 20 nature and circumstances of the commitment offense, Petitioner’s prior criminal history, 21 and what it found to be Petitioner’s insufficient participation in self-help programs during 22 imprisonment. The Board concluded that Petitioner “would pose an unreasonable risk of 23 danger to society or a threat to public safety if released from prison.” (Resp. Ex. E at 42.) 24 The Board observed that the commitment offense was carried out “in an especially cruel 25 and callous manner,” which “demonstrate[d] an exceptionally callous disregard for 26 human suffering.” (Id. at 42-43.) Petitioner and some of his friends began hitting and 27 kicking the victim after the victim refused to let Petitioner borrow his car. (Id. at 13.) 28 When the victim was down, Petitioner struck the victim in the eye with a knife, Order Denying Petition for Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.07\Escalante02702_denyHC.wpd 6 1 penetrating the brain. (Id.) The victim suffered permanent loss of sight in his right eye, 2 and a frontal lobotomy was performed resulting in permanent brain damage. (Id. at 13- 3 14.) Another factor in the Board’s decision was that prior to the commitment offense, 4 Petitioner was “entrenched in criminal activities,” including possession and sale of 5 controlled substances, murder, possession of a firearm, grand theft vehicle, and 6 possession of bad checks. (Id. at 47-48.) The Board also noted that Petitioner had “not 7 sufficiently participated in beneficial self-help [programs]...to address the issue of 8 insight” and Petitioner had not “completed any vocations during the entire time that 9 [Petitioner had] been incarcerated.” (Id. at 48-49.) Finally, the Board found that 10 Petitioner’s most recent psychological report was “not totally supportive of release,” 11 citing the psychologist’s assessment that Petitioner “still denies any responsibility for his 12 crime” and that “[h]e needs to develop some insight or reasonable explanation before 13 being considered for parole.” (Id. at 45.) 14 The Board acknowledged the presence of several factors tending to show 15 suitability, such as the fact that Petitioner had not received any disciplinary actions during 16 the entire record of his incarceration, received multiple laudatory acknowledgments from 17 prison staff, and continued participation in Alcoholics Anonymous and Narcotics 18 Anonymous. (Id. at 52.) However, the Board concluded that the “these positive aspects 19 of [Petitioner’s] behavior do not outweigh the factors of unsuitability.” (Id.) 20 In its order denying habeas relief, the state superior court determined that the 21 record contained some evidence to support the Board’s finding that Petitioner was 22 unsuitable for parole. The court made the following observations: 23 24 25 26 27 28 The Board based its decision on several factors, including his commitment offense. The Court finds that there is no evidence to support the Board’s findings that the commitment offense was “dispassionate and calculated,” such as an execution-style murder (see Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(D).) Although there is no evidence to support the Board’s specific findings regarding the commitment offense, the Court nevertheless finds that there is some evidence that the commitment offense was one in which the victim was abused, defiled, or mutilated during or after the offense. (See Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(C).) “We may uphold the [Board’s] decision, despite a flaw in its findings, if the authority has made clear it would have reached the same decision even absent the Order Denying Petition for Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.07\Escalante02702_denyHC.wpd 7 1 2 3 4 5 6 7 8 9 10 11 error.” (In re Dannenberg (2005) 34 Cal.4th 1061, 1100.) Based on the fact that the Board’s discussion of the commitment offense cited to the [P]etitioner hitting, kicking and knocking the victim to the ground before stabbing him, the Court concludes that the Board’s mistake does not invalidate its decision to deny parole based on the commitment offense. The record further reflects that the Board also relied on several additional factors in denying [P]etitioner parole at this time, and there is some evidence to support that decision. The Court finds that there is some evidence to support the Board’s findings that [P]etitioner is unsuitable based on insufficient self-help and a lack of vocational programming and based on a psychological evaluation that state that the “inmate still denies any responsibility for the crime” and needed to develop insight before being considered for parole. The Board was acting within its authority when it considered [P]etitioner’s various preconviction factors and postconviction gains, yet concluded that he would pose an unreasonable threat to public safety. (See Pen. Code § 1341, subd. (b).) (Resp. Ex. H at 2-3.) As noted by the state court, the Board denied Petitioner parole not only because of 12 the nature and circumstances of Petitioner’s commitment offense but also because of 13 Petitioner’s insufficient participation in self-help programs, lack of vocational training, 14 and denial of responsibility and lack of insight. The Board properly considered the nature 15 of Petitioner’s commitment offense in its decision to deny parole. See In re Rosenkrantz, 16 29 Cal. 4th 616, 682-83 (“the [Board] properly may weigh heavily the degree of violence 17 used and the amount of viciousness shown by a defendant”). Beyond the commitment 18 offense, the Board found other evidence that Petitioner remained an “unreasonable risk of 19 danger to society if released from prison.” Cal. Code of Reg., tit. 15, § 2402(a); see supra 20 at 6-7. Accordingly, the Board’s findings are supported by “some evidence,” and the 21 evidence underlying the Board’s decision has some “indicia of reliability.” Biggs, 334 22 F.3d at 915 (citing McQuillion, 306 F.3d at 904). 23 Petitioner claims that the commitment offense was not committed in an “especially 24 heinous” manner within the meaning of Cal. Code of Reg. tit. 15, § 2402(c)(1). (Pet. at 25 6.) Although it found that there was no evidence to support the Board’s findings that the 26 commitment offense was “dispassionate and calculated, such as an execution-style 27 murder” under § 2402(c)(1)(D), the state court concluded that there was some evidence 28 that the commitment offense was one in which “the victim was abused, defiled, or Order Denying Petition for Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.07\Escalante02702_denyHC.wpd 8 1 mutilated during or after the offense” pursuant to § 2402(c)(1)(C). See supra at 7. This Court agrees with the state court that the commitment offense was carried out 2 3 in “an especially heinous manner” in light of the fact that the victim was stabbed in the 4 eye while defenseless on the ground, and therefore was “abused, defiled, or mutilated 5 during or after the offense” pursuant to Cal. Code of Reg. tit. 15, § 2402(c)(1)(C). The 6 state court properly used the commitment offense as a factor tending to show unsuitability 7 for parole and, together with the other factors previously discussed, constituted some 8 evidence supporting the Board’s decision to deny parole. See Sass, 469 F.3d at 1129; see 9 also Irons, 505 F.3d at 665. This Court concludes that Petitioner’s right to due process and liberty interest were 10 11 not violated by the Board’s decision to deny parole. The state courts’ decisions were not 12 contrary to, or an unreasonable application of, clearly established Supreme Court 13 precedent, nor were they based on an unreasonable determination of the facts in light of 14 the evidence presented. See 28 U.S.C. § 2254(d)(1), (2). 15 CONCLUSION 16 The Court concludes that Petitioner has failed to show any violation of his federal 17 18 constitutional rights in the underlying state court proceedings and parole hearing. 19 Accordingly, the petition for writ of habeas corpus is DENIED. IT IS SO ORDERED. 20 21 Dated: 8/17/09 JEREMY FOGEL United States District Judge 22 23 24 25 26 27 28 Order Denying Petition for Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.07\Escalante02702_denyHC.wpd 9 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JUSTO ESCALANTE, Case Number: CV07-02702 JF Petitioner, CERTIFICATE OF SERVICE v. B. CURRY, Warden, Respondent. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 8/17/09 That on , 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. Justo Escalante E-91258 CTF Central F-Wing 302 P.O. Box 689 Soledad, CA 93960-0689 Dated: 8/17/09 Richard W. Wieking, Clerk
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