Opinion
CASE NO. 2:07-cv-00641-RSL-JLW.
November 19, 2009
REPORT AND RECOMMENDATION
I. SUMMARY
Petitioner Javert Siller is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted of second degree murder with a firearm enhancement in Contra Costa County Superior Court on September 27, 1982, and sentenced to 17-years-to-life with the possibility of parole. He has filed a petition for writ of habeas corpus, together with relevant portions of the state court record, under 28 U.S.C. § 2254 challenging his 2006 denial of parole by the Board of Parole Hearings of the State of California (the "Board"). ( See Docket 1, Exhibits A-L.) Respondent has filed an answer to the petition, and petitioner has filed a response in reply to the answer. ( See Dkt. 13; Dkt. 14.) Petitioner has also filed a separate habeas petition challenging the Board's 2008 parole denial, relevant portions of the state court record, and a motion to proceed in forma pauperis. ( See Dkt. 18, Exs. A-H; Dkt. 19.) The Court, having thoroughly reviewed the record and briefing of the parties, recommends the Court deny both petitions, and dismiss this action with prejudice.
The Board of Parole Hearings replaced the Board of Prison Terms, which was abolished on July 1, 2005. See California Penal Code § 5075(a).
II. BACKGROUND
Petitioner and his estranged wife, Denise, separated in November 1981. ( See Dkt. 1, Ex. A at 6-7.) On December 31, 1981, petitioner was on his way to a New Year's Eve party with his brother and niece when Denise called and invited petitioner to stay at her place for the evening with their two-and-a-half-year-old son, Traval. ( See id.) Petitioner complied with her request, and spent the night with Denise. ( See id.) He claims that he was carrying a loaded .32 caliber Harrington Richardson revolver on his person that evening because he had originally planned to shoot the gun in celebration at midnight, although he never fired it that night. ( See id. at 6 and 10.)
At approximately 8:00 a.m. the next morning, petitioner and Denise were awakened by a phone call from one of Denise's male friends. ( See id. at 7.) When Denise answered the phone, she stated that petitioner was present. ( See id.) After the phone call, she asked petitioner to leave, and he refused. ( See id.) An argument ensued, and Denise picked up a steak knife and attempted to stab petitioner. ( See id.) Petitioner initially prevented her from stabbing him by grabbing her by the wrists, but then released her and encouraged her to stab him. ( See id.) In response, Denise stabbed petitioner in the chest, causing a superficial wound. ( See id.) A witness who had spent the previous night sleeping on the couch in the house intervened by separating petitioner and Denise, and removing the steak knife from her grasp. ( See id.) Petitioner then dressed their son, and took him to the car. ( See id. at 7-8.)
When petitioner's car would not start, petitioner went back to the residence to ask the witness for assistance with a jumpstart. ( See id. at 8.) Denise then informed petitioner that she had summoned the police because of petitioner's behavior that morning. ( See id.) While holding his child, petitioner drew his revolver and fired two shots at Denise, striking her in the right eye and neck, and killing her. ( See id.) When police arrived, petitioner took his child into the backyard. ( See id.) Petitioner threatened to kill himself, and also held the gun to his child's side while he sat in the backyard. ( See id.) After police talked petitioner into relinquishing his weapon, he was taken into custody. ( See id.)
During the 2006 hearing, petitioner told the panel that he had not been holding his child at the time he shot his wife, because he had left him alone in the car. ( See id.) He also admitted threatening to commit suicide following the shooting, but denied endangering his son's life. ( See id. at 9.) Petitioner claimed the witnesses were mistaken about these aspects of the offense. ( See id.)
The commitment offense occurred when petitioner was twenty-seven-years-old. ( See Dkt. 1 at 1.) Petitioner was convicted of second degree murder with a firearm enhancement, and sentenced to 17-years-to-life with the possibility of parole. ( See id., Ex. A at 1.) His minimum eligible parole date was set for April 12, 1992. ( See id.) The parole denial which is the subject of the first habeas petition in this case took place after petitioner's eighth overall parole consideration hearing on January 24, 2006. ( See id. at 16.) The second petition in this case challenges the Board's parole denial on April 29, 2008, following his ninth overall parole consideration hearing. ( See Dkt. 18, Ex. A at 1.) As of the date of the 2006 parole hearing, petitioner was fifty-one-years-old and had been in custody for twenty-four years.
After denial of his 2006 and 2008 applications, petitioner filed habeas corpus petitions in the Contra Costa County Superior Court, California Court of Appeal, and California Supreme Court. ( See Dkt. 1, Exs. I and J; Dkt. 3, Exs. 3-5; Dkt. 18, Ex. H.) Those petitions were unsuccessful. ( See id.) His federal habeas petitions followed. Petitioner contends his 2006 and 2008 denials by the Board violated his Fifth and Fourteenth Amendment Due Process rights. Thus, petitioner does not challenge the validity of his conviction, but instead challenges the Board's 2006 and 2008 decisions finding him unsuitable for parole.
III. STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. denied, 543 U.S. 991 (2004) (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction."). Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) and (2).
As a threshold matter, this Court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).
The Court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be [objectively] unreasonable." Id. at 411.
In each case, the petitioner has the burden of establishing that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).
Finally, AEDPA requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir. 1993)).
IV. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS
A. Due Process Right to be Released on Parole
Under the Fifth and Fourteenth Amendments to the United States Constitution, the government is prohibited from depriving an inmate of life, liberty or property without the due process of law. U.S. Const. amends. V, XIV. A prisoner's due process claim must be analyzed in two steps: the first asks whether the state has interfered with a constitutionally protected liberty or property interest of the prisoner, and the second asks whether the procedures accompanying that interference were constitutionally sufficient. Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006).
Accordingly, our first inquiry is whether petitioner has a constitutionally protected liberty interest in parole. The Supreme Court articulated the governing rule in this area in Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 482 U.S. 369 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying "the 'clearly established' framework of Greenholtz and Allen" to California's parole scheme). The Court in Greenholtz determined that although there is no constitutional right to be conditionally released on parole, if a state's statutory scheme employs mandatory language that creates a presumption that parole release will be granted if certain designated findings are made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 12; Allen, 482 U.S. at 377-78.
As discussed infra, California statutes and regulations afford a prisoner serving an indeterminate life sentence an expectation of parole unless, in the judgment of the parole authority, he "will pose an unreasonable risk of danger to society if released from prison." Title 15 Cal. Code Regs., § 2402(a). The Ninth Circuit has therefore held that "California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion, 306 F.3d at 902. To similar effect, Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) held that California Penal Code § 3041 vests all "prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause." This "liberty interest is created, not upon the grant of a parole date, but upon the incarceration of the inmate." Biggs v. Terhune, 334 F.3d 910, 915 (2003). See also Sass, 461 F.3d at 1127.
Because the Board's denial of parole interfered with petitioner's constitutionally-protected liberty interest, this Court must proceed to the second step in the procedural due process analysis and determine whether the procedures accompanying that interference were constitutionally sufficient. "[T]he Supreme Court [has] clearly established that a parole board's decision deprives a prisoner of due process with respect to this interest if the board's decision is not supported by 'some evidence in the record.'" Irons, 505 F.3d at 851 (citing Superintendent v. Hill, 472 U.S. 445, 457 (1985) (holding the "some evidence" standard applies in prison disciplinary proceedings)). The "some evidence" standard requires this Court to determine "whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56. Although Hill involved the accumulation of good time credits rather than release on parole, later cases have held that the same constitutional principles apply in the parole context because both situations directly affect the duration of the prison term. See e.g., Jancsek v. Or. Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987) (adopting the "some evidence" standard set forth by the Supreme Court in Hill in the parole context); accord, Sass, 461 F.3d at 1128-29); Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904.
"The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact," however. Hill, 472 U.S. at 456. Similarly, the "some evidence" standard is not an invitation to examine the entire record, independently assess witnesses' credibility, or re-weigh the evidence. Id. at 455. Instead, it is there to ensure that an inmate's loss of parole was not arbitrarily imposed. See id. at 454. The Court in Hill added an exclamation point to the limited scope of federal habeas review when it upheld the finding of the prison administrators despite the Court's characterization of the supporting evidence as "meager." See id. at 457.
B. California's Statutory and Regulatory Scheme
In order to determine whether "some evidence" supported the Board's decision with respect to petitioner, this Court must consider the California statutes and regulations that govern the Board's decision-making. See Biggs, 334 F.3d at 915. Under California law, the Board is authorized to set release dates and grant parole for inmates with indeterminate sentences. See Cal. Penal Code § 3040 and 5075, et seq. Section 3041(a) requires the Board to meet with each inmate one year before the expiration of his minimum sentence and normally set a release date in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, as well as comply with applicable sentencing rules. Subsection (b) of this section requires that the Board set a release date "unless it determines that the gravity of current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration." Id., § 3041(b). Pursuant to the mandate of § 3041(a), the Board must "establish criteria for the setting of parole release dates" which take into account the number of victims of the offense as well as other factors in mitigation or aggravation of the crime. The Board has therefore promulgated regulations setting forth the guidelines it must follow when determining parole suitability. See 15 CCR § 2402, et seq.
Accordingly, the Board is guided by the following regulations in making a determination whether a prisoner is suitable for parole:
(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.
(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include 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.
15 CCR § 2402(a) and (b). Subsections (c) and (d) also set forth suitability and unsuitability factors to further assist the Board in analyzing whether an inmate should be granted parole, although "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." 15 CCR § 2402(c).
In examining its own statutory and regulatory framework, the California Supreme Court in In re Lawrence recently held that the proper inquiry for a reviewing court is "whether some evidence supports the decision of the Board . . . that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." In re Lawrence, 44 Cal.4th 1181, 1212 (2008). The court also asserted that the Board's decision must demonstrate "an individualized consideration of the specified criteria, but "[i]t is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." Id. at 1204-05, 1212. As long as the evidence underlying the Board's decision has "some indicia of reliability," parole has not been arbitrarily denied. See Jancsek, 833 F.2d at 1390. As the California courts have continually noted, the Board's discretion in parole release matters is very broad. See Lawrence, 44 Cal.4th at 1204. Thus, the penal code, corresponding regulations, and California law clearly establish that the fundamental consideration in parole decisions is public safety and an assessment of a prisoner's current dangerousness. See id., at 1205-06.
C. Summary of Governing Principles
By virtue of California law, petitioner has a constitutional liberty interest in release on parole. The parole authorities may decline to set a parole date only upon a finding that petitioner's release would present an unreasonable present risk of danger to society if he is released from prison. Where the parole authorities deny release, based upon an adverse finding on that issue, the role of a federal habeas court is narrowly limited. It must deny relief if there is "some evidence" in the record to support the parole authority's finding of present dangerousness. The penal code, corresponding regulations, and California law clearly support the foregoing interpretation.
V. ANALYSIS OF PETITION CHALLENGING THE BOARD'S 2006 PAROLE DENIAL
A. Parties' Contentions
Petitioner contends the Board violated his right to due process and equal protection by finding him unsuitable for parole without "some evidence" that he posed an unreasonable risk of danger to society if released from prison as of January 24, 2006, the date of the parole hearing. ( See Dkt. 1 at 7-10.) Specifically, petitioner claims the Board improperly relied upon immutable factors, as well as opinions of the district attorney and victim's family members. ( See id. at 9-12 and 21.) In addition, petitioner contends that California law "mandates proportionality in the actual amount of time served by prisoners convicted of murder," and his "disproportionate" period of incarceration has exceeded the matrix for his offense. ( See id. at 35.) Petitioner also argues the Board's two-year parole denial violated the Rutherford decision, which provided that prisoners who have formerly been denied parole for only one year may not be given multiple-year denials by the Board at future hearings. ( See id. at 24.) Finally, he claims his "life sentence has been altered by the Board to resemble a sentence [for a first-degree murder conviction] of twenty-five years to life, or life without the possibility of parole, thus [constituting] an ex post facto application of law." ( Id.)
Respondent claims that petitioner does not have a constitutionally protected liberty interest in being released on parole, that the "some evidence" standard is inapplicable in this context, and that even if he does have a protected liberty interest, the Board adequately predicated its denial of parole on "some evidence." ( See Dkt. 13 at 3-11.) Accordingly, respondent argues that petitioner's constitutional rights were not violated by the Board's 2006 decision, and the Contra Costa County Superior Court's Order upholding the Board's 2006 parole denial was not an unreasonable application of clearly established federal law. ( See id. at 4-5 and 11.)
B. State Court Proceedings
After the Contra Costa County Superior Court denied his habeas petition challenging his 2006 parole denial, petitioner filed habeas petitions in the California Court of Appeal and California Supreme Court. ( See id., Exs. 3-5.) Both petitions were summarily denied. ( See id.) Respondent admits that petitioner's habeas petition was timely, and petitioner properly exhausted each of his claims before the California Supreme Court. ( See id. at 3.) This Court reviews the Contra Costa County Superior Court's Order upholding the Board's decision to determine whether it meets the deferential AEDPA standards, as it is the last reasoned state court decision. See Ylst, 501 U.S. at 803-04.
C. Petitioner's Due Process Claim
The Board based its decision that petitioner was unsuitable for parole primarily upon his commitment offense, but also cited petitioner's insufficient insight into the offense, insufficient parole plans, and opposition by the district attorney and victim's family. ( See Dkt. 1, Ex. A at 83-97.) The Board's findings tracked the applicable unsuitability and suitability factors listed in § 2402(b), (c) and (d) of title 15 of the California Code of Regulations. After considering all reliable evidence in the record, the Board concluded that evidence of petitioner's positive behavior in prison did not outweigh evidence of his unsuitability for parole. ( See id. at 93.)
1. Petitioner's Commitment Offense
The Board primarily relied upon the circumstances of the commitment offense to find petitioner unsuitable for parole, and it did not find petitioner's description of the crime to be credible. ( See id. at 83-86.) Specifically, the panel asserted that petitioner "killed his wife in front of his son, even though he's denying that. All indications in the reports from eyewitnesses indicate that he was holding his son at the time that he shot and killed his [estranged] wife." ( Id. at 83.) Furthermore, the Board pointed out that an eyewitness "described to police . . . how [petitioner] was threatening to kill the child and himself [in the backyard following the murder] . . . [and] while [petitioner] does not agree with this version of the offense, this is the version that came out of the Probation Officer's Report and police reports." ( Id.)
The Board found that the offense was "cruel and callous and certainly dispassionate, due to his, number one, killing another human being, and then doing it in front of their child and his child. . . ." ( Id. at 84.) See 15 CCR § 2402(c)(1)(B). Because petitioner's offense subjected his son to a trauma that would likely affect him throughout his life, the Board found that petitioner "had a callous disregard for human suffering, times two." (Dkt. 1, Ex. A at 85.) See 15 CCR § 2402(c)(1)(D). The Board also asserted that "the motive for the crime is inexplicable. [Petitioner] could have just walked away . . . [gotten] his car jumped and move[d] on with [his] life . . . But [he] chose not to do that." (Dkt. 1, Ex. A at 85.) "We can't help but think that there was some calculation going on here, to bring a weapon, a loaded weapon, to your ex-wife's house . . . That in itself disturbs us. We are having trouble with that." ( Id. at 86.) See also 15 CCR § 2402(c)(1)(E). The circumstances of petitioner's commitment offense, when combined with petitioner's present refusal to acknowledge the fact that his actions endangered his son as well as his wife, provide "some evidence" to support the Board's conclusion that petitioner would pose an unreasonable risk of danger to society or threat to public safety if released from prison. ( See Dkt. 1, Ex. A at 83.)
2. Petitioner's Insufficient Insight
The Board also relied upon petitioner's insufficient insight into the offense to find him unsuitable for parole. The Board is required to consider "[a]ll relevant, reliable information available to the panel . . . [including a prisoner's] past and present attitude toward the crime." 15 CCR § 2402(b). In addition, if a prisoner has "performed acts which tend to indicate the presence of remorse, such as . . . indicating that he understands the nature and magnitude of the offense," the Board may consider those acts as circumstances tending to indicate suitability for parole. Id. § 2402(d)(3). In each case, however, "[t]he importance attached to any circumstance or combination of circumstances . . . is left to the judgment of the panel." Id. § 2402(c) and (d).
During the hearing, the Board informed petitioner that "[w]e'd like to see some more insight into this crime . . . [w]e don't think you're a control freak in terms of trying to control women, but we'd like to see more as far as your insight is concerned into this particular crime, and want you to develop that if you possibly can." (Dkt. 1, Ex. A at 87-88.) "[I]f it requires therapy, then so be it . . . you can [go] in and do some therapy. . . ." ( Id. at 88.) For example, the Board asserted that "we think that there was more calculation done in this case [than you have admitted]. I mean, the fight was over. You left. But you were there and you were there with a loaded weapon, and then panicked, of course, from the sounds of it . . . because the police had already been called in regards to the first fight." ( Id. at 89.) The Board also rejected the conclusions of petitioner's most recent psychological evaluation, which had assessed petitioner's risk of violence if released into the free community as low. ( See id., Ex. B at 7.) Specifically, the Board stated that "we didn't wholesale buy the psychiatric report . . . [some issues weren't] dealt with, in our opinion." ( Id., Ex. A at 88.) Especially in light of the fact that the Board did not find petitioner's version of the commitment offense to be credible, there was "some evidence" in the record to support its conclusion that petitioner had not developed sufficient insight into the offense to be found suitable for parole at the time of his 2006 parole hearing.
3. Petitioner's Parole Plans
The Board acknowledged petitioner's parole plans, but found his employment plans insufficient because three of the four job offers were from non-profit organizations. ( See id.) The Board asserted, "number one they don't pay a lot, and, number two . . . we've all been around a lot of non-profits — they go from feast to famine, depending on whether the United Way collects enough money or whether their support groups give them money. . . ." ( Id. at 89-90.) The Board also expressed concern that at least one of the jobs was not a full-time position, and petitioner did not know the exact rate of his salary or whether he would receive medical benefits. ( See id. at 15-19 and 90.) As a result, the Board asserted that working at a non-profit upon his release would be "a potential for stressors in [petitioner's] life, and stress is not what [he needs]." ( Id. at 90.)
Petitioner's fourth job offer was for a clerical position at an investigative service center run by petitioner's ex-sister-in-law in Sacramento. ( See id. at 19.) Although the Board deemed this job "a pretty good alternative" to working at a non-profit organization, it also expressed concern that the position was not located in the East Bay area where petitioner's residence with his brother Robert and sister Ernestine Tatum was located. ( See id. at 19 and 90.) The Board therefore found the job insufficient unless the company had business in the Bay area, or petitioner could work from home on a computer. ( See id. at 90.) The Board did note, however, that the Tatums promised to "help [petitioner with] getting [his] driver's license and I.D., and they'll help [him] with transportation." ( Id. at 89.) The Board also admitted that petitioner has a "real good, strong family support group and community support group, as exampled by the letters that are in your file." ( Id. at 90.)
The applicable regulations provide that a prisoner's "realistic plans for release or [development of] marketable skills that can be put to use upon release" should be considered by the Board as a factor tending to indicate suitability for parole. See 15 CCR § 2402(d)(8). The Board could reasonably conclude that the clerical position in Sacramento was "unrealistic" absent evidence that petitioner could work near his residence in the Bay area, or work remotely. ( See Dkt. 1, Ex. A at 90.) The Board could also reasonably conclude that, without additional details regarding salary and medical benefits, petitioner's job offers from non-profit organizations were too unreliable. ( See id. at 89-90.) Accordingly, there was "some evidence" evidence in the record to support the Board's finding that petitioner's parole plans were insufficient at the time of the 2006 parole hearing.
4. Opposition by the District Attorney and Victim's Surviving Family Members
Petitioner argues that the Board erred by considering opposition to petitioner's release on parole by the Contra Costa County Deputy District Attorney, as well as the victim's mother and son. ( See Dkt. 1 at 21.) Specifically, the district attorney argued that petitioner was armed with a loaded gun at the time of the offense because he was planning to have a confrontation with his wife, and "[h]e's got a problem with women and he hasn't even come close to addressing it. . . ." ( Id., Ex. A at 55.) The victim's mother told the Board she sees "no basic change in what this Inmate would have to offer to either his son, to society, or to this family if released on parole." ( Id. at 76.) Finally, petitioner's son, who was a grown man at the time of the hearing, argued that petitioner's efforts to become involved in his life since petitioner killed his mother have been minimal, and that petitioner's three job offers from non-profit organizations were unreliable. ( See id. at 77-82.)
In making its suitability determination, the Board must "take into account all pertinent information and input about the particular case from the inmate's victims, the officials familiar with his or her criminal background, and other members of the public who have an interest in the grant or denial of parole to this prisoner." In re Dannenberg, 34 Cal.4th 1061, 1086 (2005). California law affords a deceased victim's next of kin or immediate family members the opportunity to make a statement at the prisoner's parole hearing. See 15 CCR § 2029. In addition, a prosecutor may attend a parole hearing to represent "the interests of the people," and may "comment on the facts of the case and present an opinion about the appropriate disposition." See Cal. Penal Code § 3041.7; 15 CCR § 2030. See also Rosenkrantz v. Marshall, 444 F. Supp. 2d 1063, 1080 n. 14 (C.D. Cal. 2006) (noting that in the absence of other reliable evidence of unsuitability in the record, opposition by law enforcement based upon the nature of the commitment offense does not constitute "some evidence" to support parole denial). Because the Board relied upon other reliable evidence of petitioner's unsuitability for parole, in addition to its consideration of opposition by law enforcement and the victim's surviving family members, its finding that petitioner would present an unreasonable risk of danger to society if released on parole was not arbitrary and capricious.
5. Petitioner was Afforded Due Process of Law
Contrary to petitioner's argument that the Board failed to consider or give appropriate weight to the parole suitability rules which favored petitioner, the Board noted that petitioner "had no previous [criminal] record, and [he] should be commended for that." ( See Dkt. 1, Ex. A at 86.) In addition, it observed that "[petitioner's] institutional behavior has been outstanding." ( Id.) Specifically, petitioner was only involved in a couple incidents of "minor misconduct" in prison over twenty years before the hearing, and he has never committed any major rule violation during his incarceration. ( See id.) The Board also commended petitioner for programming well, completing ample self-help, and putting together programs designed to help youth in the community. ( See id. at 32-34, 86-87, and 93.) It is therefore an inaccurate characterization of the record to say that the Board failed to provide petitioner with an individualized consideration of all relevant factors, and relied upon immutable facts to find him unsuitable for parole. ( See Dkt. 1 at 9-12.)
As mentioned above, however, the Board has broad discretion to determine how suitability and unsuitability factors interrelate to support its conclusion of current dangerousness to the public. See Lawrence, 44 Cal.4th at 1212. Although petitioner has "done exceptionally well and should be commended for . . . all the programming [he has] done," the Board found that he would pose an unreasonable risk of danger to society or threat to public safety if released from prison within the following two years. (Dkt. 1, Ex. A at 83 and 93.) Furthermore, the Board could reasonably recommend additional therapy to help petitioner gain insight into the crime, because the Board is in the best position to evaluate the credibility of petitioner's version of the offense. ( See id. at 93-94.) The Board's parole decision was therefore supported by "some evidence" in the record.
D. Petitioner's Equal Protection Claim
Petitioner also contends that the Board's failure "to fix his term" and set a parole date violated his "right to equal protection of the law under the Fourteenth Amendment of the United States Constitution. . . ." (Dkt. 1 at 28.) Specifically, he claims that California law sets forth a "matrix, which codifies the more commonplace variations of murder . . . [and] demonstrates that different instances of murder can be, and must be meaningfully compared." ( Id. at 35-36.) As a result, he argues the Board's denial of parole violated the matrix for his offense, and caused him to serve a disproportionate sentence. ( See id. at 1 and 36-37.)
The petition offers little support for petitioner's equal protection claim, and respondent fails to address this issue on the merits. ( See id. and Dkt. 13.) Contrary to petitioner's assertions, California law does not require the Board to conduct a comparative analysis of the period of confinement served by other prisoners with similar crimes, nor does it require the Board to refer to the sentencing matrices. See In re Dannenberg, 34 Cal.4th 1061, 1083-84 (2005) (holding whether an inmate poses a current danger is not dependent upon whether his commitment offense was more or less egregious than other, similar crimes). Instead, the Board is required to review the specific facts of each case and to make an individualized determination of whether that prisoner is suitable for parole. See Lawrence, 44 Cal.4th at 1221. Petitioner's allegations, without more, fail to establish an equal protection violation. The Court therefore finds that petitioner's claim lacks merit.
E. Petitioner's Rutherford Claim
Petitioner claims that the Board violated the " In re Rutherford decision" by denying him another parole consideration hearing for two years without describing a significant change in circumstances on the record during his 2006 hearing, because he was denied parole for only one year at his previous parole hearing. ( See Dkt. 1 at 24.) As explained below, petitioner's arguments are unavailing, and the California Court of Appeal has reversed the decision upon which petitioner relies.
The " Rutherford decision" refers to a decision of the Marin County Superior Court in a case involving a life-term inmate at the San Quentin State Prison who filed a habeas corpus petition contending that the Board failed to conduct his subsequent parole consideration hearing in a timely manner in violation of his due process rights and the requirements of California Penal Code section 3041.5(b)(2). See In re Inez Tito Lugo, 164 Cal.App.4th 1522, 1529 (2008). The trial court granted a motion by Rutherford for class certification, and defined the class as all prisoners serving indeterminate terms of life with the possibility of parole who have approached or exceeded their minimum eligible parole dates without receiving their parole hearings within the time required by the California Penal Code. See id. at 1529-30.
An order entered by the Marin County Superior Court on May 5, 2006, appointed Inez Tito Lugo as the class representative in place of original petitioner Jerry Rutherford, who had died since the commencement of the litigation. See id. at 1532.
One of the disputed issues in the Rutherford case involved the validity of multi-year denials of parole by the Board following a one-year denial of parole at a prior hearing. See id. at 1531. Under the requirements of section 3041.5(b)(2) of the California Penal Code in effect at the time of the trial court's decision, if the Board gave a prisoner a multi-year denial, that prisoner's next scheduled parole suitability hearing would not be conducted for two to five years. See Cal. Penal Code § 3041.5(b)(2)(A)-(B) (effective to November 4, 2008). In contrast, if the Board issued a one-year denial, the matter was heard on an annual basis. See id. The class of prisoners (hereinafter "petitioners") in Rutherford argued that the Board should not issue multi-year denials in cases in which inmates had previously received a one-year parole denial absent a statement of a "significant change in circumstances" on the record, because the Board seemed to be issuing multi-year denials as a means of reducing its own hearing backlog. See Lugo, 164 Cal.App.4th at 1531. In response, the Board asserted that individual parole decisions should be left to the discretion of the hearing panel, and requiring the Board to justify a multi-year denial following a one-year denial by identifying a "significant change in circumstances" would improperly tether the Board's discretion to the decisions of prior panels. See id. at 1531-32. By an order dated May 5, 2006, the trial court ruled in favor of petitioners, and the Board appealed. See id. at 1532.
Text amendments to section 3041.5(b)(2) of the California Penal Code became effective on November 5, 2008, approximately four months after the California Court of Appeal's July 21, 2008, decision in Lugo. The amended version of the statute authorizes the Board to postpone a prisoner's next hearing for three, five, seven, ten, or fifteen years after any hearing at which parole was denied. See Cal. Penal Code § 3041.5(b)(2).
The California Court of Appeal reversed, finding that the trial court's order "violated the separation of powers and intrudes upon the inherent discretion afforded to the Board to decide parole matters." Id. at 1540. After summarizing the requirements set forth by California Penal Code section 3041.5, the Court of Appeal observed that "[t]he statute contains no requirement that the Board must find a significant change in circumstances justifying a multi-year denial following a one-year denial." Id. at 1537. "The Board's decision to defer annual parole consideration hearings is guided by the same criteria used to determine parole suitability . . . [and the] reasons for postponing the next scheduled parole hearing need not be completely different from the reasons for denying parole suitability." Lugo, 164 Cal.App.4th at 1537. Because the requirements of procedural due process impose some limitations upon the executive branch's broad discretionary powers in parole matters, the Court of Appeal held that "[t]he 'some evidence' standard of review governs consideration of a Board decision to postpone the next scheduled parole hearing by issuing a multi-year denial." Id.
The revised version of California Penal Code § 3041.5 also omits such a requirement. See fn. 3, supra; Cal. Penal Code 3041.5(b)(2) (effective November 5, 2008).
Therefore, a reviewing court might be justified in closely scrutinizing a decision issuing a multi-year denial in the case of an inmate who has "consistently received one-year denials of parole and then received a multi-year denial" to ensure that the Board's decision was supported by "some evidence" in the record, but that reviewing court must remain mindful that "some evidence is all that is required." Id. at 1539, fn. 9. "A panel of the Board need not point to additional evidence supporting its departure from the discretionary decisions of earlier panels." Id.
Accordingly, this Court must determine whether there was "some evidence" in the record to support the Board's decision to postpone petitioner's next parole hearing for two years, even though he received one-year denials at prior hearings, pursuant to the California Court of Appeal's decision in Lugo. ( See Dkt. 1, Ex. A at 93.) See also Lugo, 164 Cal.App.4th at 1537. During petitioner's 2006 hearing, the Board explained that a multi-year denial was appropriate because "it's not reasonable to expect that parole would be granted at a hearing during the following two years, specifically based on the commitment offense, murdering your wife in front of your son and bringing that gun to that event. It makes no sense at all." (Dkt. 1, Ex. A at 93-94.) In addition, the Board recommended that petitioner "work on getting therapy [to gain] insight" into the offense, because the Board suspected that some premeditation or calculation by petitioner was involved in the murder, and petitioner's version of the crime differed significantly from the facts set forth by the Probation Officer's Report and law enforcement. ( See id. at 94.) Based upon the Board's reasoning as described in its decision, there was "some evidence" in the record to support the Board's finding that a multi-year denial of parole was appropriate in petitioner's case.
F. Petitioner's Ex Post Facto Claim
Petitioner also claims that by denying him a parole date, the Board has "altered . . . [his sentence] to resemble a sentence of twenty-five-years-to-life, or life without the possibility of parole, thus constituting an ex post facto application of law." ( Id. at 35.) Specifically, he states that "because there appears to be no other lawful explanation for [the Board's parole denial, the Board must have imposed] the greater penalty of twenty-five years to life which is reserved for prisoners convicted of first degree murder on or after November 8, 1978, and/or life without the possibility of parole." ( Id. at 37.)
Petitioner's claim fails for multiple reasons. First, Article I of the United States Constitution provides that neither Congress nor any state shall pass an ex post facto law. U.S. Const. Art. I, § 9, cl. 3, Art. I, § 10, cl. 1. Hence, the Ex Post Facto Clause, by definition, applies to the Legislative Branch, not to the courts or an administrative body, such as the Board of Parole Hearings. See Rogers v. Tennessee, 532 U.S. 451, 460 (2001) (holding "[t]he Ex Post Facto Clause, by its own terms, does not apply to courts"); Marks v. United States, 430 U.S. 188, 191 (1977) (holding "[t]he Ex Post Facto Clause is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.") (citations omitted)); Lagrand v. Stewart, 133 F.3d 1253, 1260 (9th Cir.) (holding "[t]he Ex Post Facto Clause does not apply to court decisions construing statutes."), cert. denied, 525 U.S. 971 (1998).
Moreover, the Board has not increased petitioner's punishment. The Ex Post Facto Clause prohibits the retrospective application of criminal statutes that change the definition of a crime or enhance the punishment for a criminal offense. See Collins v. Youngblood, 497 U.S. 37, 41 (1990) ("Although the Latin phrase 'ex post facto' literally encompasses any law passed 'after the fact,' it has long been recognized . . . that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.") Petitioner was sentenced to a term of seventeen-years-to-life. While petitioner might have hoped or expected to be released sooner, the Board's decision to deny him a parole release date because he would present an unreasonable risk of danger to society has not enhanced or otherwise "altered" his punishment. Accordingly, the Board's decision denying petitioner parole did not violate the Ex Post Facto Clause, and petitioner's contention in this respect should be denied.
G. Contra Costa County Superior Court Decision
In a reasoned decision denying petitioner's request for habeas relief, the Contra Costa County Superior Court concluded that "the [Board] properly considered all the relevant facts, and its decision was fully supported by the record." (Dkt. 1, Ex. I at 3.) "Although there were conflicting accounts of whether Petitioner was holding his three-year-old son during the shooting, the panel could choose to disbelieve Petitioner's version . . . and accept the evidence that he was holding the child during the shooting." ( Id. at 4.) After reviewing the applicable suitability and unsuitability factors, the superior court concluded that "the [Board] considered all the relevant factors in reaching its decision and did not act arbitrarily." ( Id. at 5.) In addition, the superior court held that petitioner's argument that the Board erred by not "comparing Petitioner's crime to other second-degree murders or to its base matrices" was unavailing, and that petitioner's Rutherford claim lacked merit. ( See id. at 6.) Accordingly, the superior court denied the petition. ( See id. at 7.)
VI. PETITION CHALLENGING THE BOARD'S 2008 PAROLE DENIAL
Petitioner has filed another federal petition for writ of habeas corpus in this case claiming that his federal due process rights were violated when the Board again denied parole at his April 29, 2008, parole hearing, because there was no evidence in the record to support the decision. ( See Dkt. 18 at 10-20.) Along with his federal petition, petitioner filed the 2008 parole hearing transcript, his most recent psychological evaluation prepared by Dr. Geca on March 29, 2008, and the decisions denying his state court habeas petitions. ( See id., Exs. A, B, and H.) Specifically, the Contra Costa County Superior Court denied his habeas petition challenging the 2008 parole denial on January 22, 2009, and his habeas petitions filed in the California Court of Appeal and California Supreme Court were both summarily denied. ( See Dkt. 18, Ex. H.) He has also filed a separate motion to proceed in forma pauperis. ( See Dkt. 19.)
The petition challenging the Board's 2008 parole denial did not present any other claims that were not addressed by this Court's discussion of the prior petition supra.
It is not clear whether petitioner intended his federal habeas challenge to the 2008 denial to be filed in this case, along with his challenge to the 2006 denial; or intended to commence a new action. In fact, the Clerk filed it in this case.
While the Court could order it re-filed as a separate case, as a practical matter nothing recommends doing so. For the reasons discussed below, his challenge to the 2008 denial has even less merit than his challenge to the 2006 denial. Resolving it here has the multi-faceted attraction of expeditious resolution, preserving the scarce resources of the parties and the court, and at the same time not depriving petitioner of fairness in any respect. His federal habeas petition was timely, and because this Court finds that it should be denied on the merits, it is unnecessary to determine whether all petitioner's federal claims were exhausted. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
Rule 4 of the Rules Governing Section 2254 Cases requires the undersigned to dismiss a federal habeas petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . ." Rule 4 of the Rules Governing Section 2254 Cases. Accordingly, this Court must review the petition challenging the Board's 2008 parole denial, as well as the attached exhibits, to determine whether "it plainly appears" that petitioner is not entitled to relief.
The 2008 habeas petition and exhibits do not demonstrate any enhancement of the suitability factors since the 2006 parole hearing, and even contain stronger evidence of petitioner's unsuitability for parole. Although the Board admitted that petitioner's parole plans in 2008 were viable, the Board's findings concerning petitioner's commitment offense and opposition by the district attorney remain consistent with its 2006 parole denial, and the Board expressed increased concern regarding petitioner's lack of insight into the commitment offense. ( See Dkt. 18, Ex. A at 96-100 and 102-109.) For example, the Board noted that petitioner had not taken any steps to seek one-on-one therapy since the 2006 parole hearing, although the prior panel had recommended additional therapy to help petitioner develop insight regarding the crime. ( See id. at 50-51.) The Board also discussed numerous passages from the 2008 psychological evaluation conducted by Dr. Geca, which examined petitioner's insufficient insight in greater detail than any of petitioner's eight prior evaluations. ( See id. at 102-09; id., Ex. B at 2-9; Dkt. 1, Ex. B.) See also 15 CCR § 2402(b); 15 CCR § 2402(d)(3).
Specifically, Dr. Geca diagnosed petitioner as narcissistic, and found that "whenever he addresses the issue of remorse and culpability, he prefaces it by denigrating his wife and he emphasizes her alleged sexual indiscretions. He then presents himself as the victim of her manipulation and trickery . . . [thereby giving the] impression of projecting blame or justifying his actions and thus taking only a partial responsibility for the murder." (Dkt. 18, Ex. B at 8.) As evidence that petitioner has failed to gain insight into the murder, the psychologist pointed out that "[a]lthough he clearly says he holds himself accountable for the crime and blames himself, he seems unable or unwilling to answer why he shot his wife." ( Id.) Thus, the psychologist concluded that petitioner's "insight into his situation, his criminal behavior and potential impact upon others needs improvement." ( Id. at 2.) As a result of Dr. Geca's findings regarding petitioner's lack of insight into the offense, the Board chose not to rely upon Dr. Geca's assessment that petitioner would present a low risk of recidivism, and instead found petitioner unsuitable for parole. ( See id., Ex. A at 105-109.)
As mentioned above, the Contra Costa County Superior Court upheld the Board's decision to deny parole in a reasoned decision on January 22, 2009. ( See id., Ex. H at 1-8.) Specifically, the superior court found that "[t]he Board was amply supported in concluding that petitioner has failed to gain insight into his situation, his criminal behavior and its impact on others . . . None of this inspires any confidence that, if he perceived himself to be offended or provoked in a relationship again, he would not explode again into violence and rage." ( Id. at 8.) As a result, the superior court concluded that "there was some evidence to support the Board's conclusion that the petitioner's current failure to show insight, and continued adherence to the mindset he had when he committed a heinous, callous and senseless murder, show he presents a continued unreasonable public safety risk." ( Id.)
Accordingly, this Court finds that "it plainly appears from the petition and [the] attached exhibits," when viewed in the context of this Court's ruling supra regarding petitioner's 2006 habeas petition, that "petitioner is not entitled to relief" based upon his 2008 habeas petition. See Rule 4 of the Rules Governing Section 2254 Cases. Petitioner's 2008 habeas petition should therefore be summarily dismissed under Rule 4. ( See Dkt. 18.)
VII. CONCLUSION
As stated above, it is beyond the authority of a federal habeas court to determine whether evidence of suitability outweighs the circumstances of the commitment offense, together with any other reliable evidence of unsuitability for parole. The Board has broad discretion to determine how suitability and unsuitability factors interrelate to support its conclusion of current dangerousness to the public. See Lawrence, 44 Cal.4th at 1212. Although the Board praised petitioner's good behavior in prison, it determined that petitioner remains unpredictable, and therefore an unreasonable risk of danger to society if released. Because the state court decisions upholding the Board's findings satisfied the "some evidence" standard, there is no need to reach respondent's argument that another standard applies.
Given the totality of the Board's findings, there is "some evidence" that as of January 24, 2006, and April 29, 2008, the dates of the two parole decisions challenged in this case, petitioner's release on parole would have posed an unreasonable risk of danger to society or threat to public safety if released from prison. The Contra Costa County Superior Court's Orders upholding the Board's decisions were not contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of facts. I therefore recommend that the Court find that petitioner's due process rights were not violated, and that it deny his habeas petitions, strike petitioner's motion to proceed in forma pauperis as moot, and dismiss this action with prejudice.
This Report and Recommendation is submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with this Report and Recommendation, any party may file written objections with this Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Report and Recommendation." Failure to file objections within the specified time may waive the right to appeal the District Court's Order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). A proposed order accompanies this Report and Recommendation.