Opinion
No. C 03-0820 CW.
August 25, 2004
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART REQUEST FOR DISCOVERY
Petitioner Frederick Newhall Woods has filed a petition for writ of habeas corpus pursuant to Title 28 U.S.C. § 2254 challenging as a violation of his constitutional rights the California Board of Prison Terms' (BPT's) denial of parole. Respondent Leslie R. Blanks moves for summary judgment on the habeas petition. Petitioner opposes the motion. This matter was heard on April 16, 2004. After the hearing, Petitioner submitted a supplemental memorandum and request for discovery regarding hisex post facto claim. Respondent opposes the discovery request. Having considered all of the papers filed by the parties, the Court GRANTS Respondent's motion for summary judgment in part and DENIES it in part and GRANTS Petitioner's request for discovery in part and DENIES it in part.
BACKGROUND
In July, 1976, Petitioner hijacked a school bus, kidnaping the driver and twenty six children. At the time of the kidnaping, California sentencing was governed by the Indeterminate Sentencing Law (ISL). In February, 1978, Petitioner was convicted of twenty-seven counts of violating California Penal Code § 209, kidnaping for ransom. He is serving a life sentence with the possibility of parole at the California Men's Colony in San Luis Obispo, California. Petitioner became eligible for parole on July 29, 1983. The BPT subsequently denied him parole on ten occasions. One such denial occurred on September 26, 2000. The BPT applied the Determinate Sentencing Law (DSL), which had been enacted in 1977 to replace the Indeterminate Sentencing Law (ISL). In denying Petitioner parole, the BPT remarked that the commitment offenses were carried out in a "very callous manner" and were motivated by greed. Ex. 3 to Motion for Summary Judgment (Ex. 3) at 82:10-16. It also cited the assessment of dangerousness in Petitioner's psychological report, id. at 83:14-84:5, and noted that Petitioner had not "sufficiently participated in beneficial self-help and therapy programming."Id. at 83:12-14. On March 26, 2003, Petitioner filed a petition for writ of habeas corpus pursuant to Title 28 U.S.C. § 2254 challenging the September 26, 2000 parole denial as a violation of his constitutional rights. Petitioner claims that the parole denial violated (1) the ex post facto clause of Article I, Section 10 of the United States Constitution; (2) the due process clauses of the Fifth and Fourteenth Amendments; and (3) the Eighth and Fourteenth Amendment right to be free from cruel and unusual punishment. Respondent moves for summary judgment on each of these claims.LEGAL STANDARD
Because this case involves a federal habeas corpus challenge to a State parole eligibility decision, the applicable standard is contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). McQuillion v. Duncan, 306 F.3d 895, 901 (2002). Under AEDPA, a district court may not grant habeas relief unless the State court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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); Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). A federal court must presume the correctness of the State court's factual findings. 28 U.S.C. § 2254(e)(1).
Respondent concedes that Petitioner has exhausted his State remedies by filing a petition for a writ of habeas corpus in California Supreme Court. The court denied that petition in a summary opinion. Where, as here, the highest State court to reach the merits issued a summary opinion which does not explain the rationale of its decision, federal court review under § 2254(d) is of the last explained State court opinion to reach the merits.Bains v. Cambra, 204 F.3d 964, 970-71, 973-78 (9th Cir. 2000). In this case, the last explained State opinion to address the merits of Petitioner's claim is the opinion of the BPT. Ex. 3.
DISCUSSION
I. JurisdictionRespondent argues that the Court does not have subject matter jurisdiction because State parole matters do not constitute a federal question. However, federal constitutional claims challenging State parole procedures do raise a federal question.Featherstone v. Estelle, 948 F.2d 1496, 1500 (9th Cir. 1991). The Court has subject matter jurisdiction based on Petitioner'sex post facto, due process, and cruel and unusual punishment claims.
II. Ex Post Facto Claim
At the time of Petitioner's offense in July, 1976, the parole law was governed by the ISL. The ISL was enacted in 1917. Cal Penal Code § 1168 (repealed). Although the ISL did not include a specific enumeration of parole criteria, such criteria developed in the sixty years of its application. In re Stanley, 45 Cal. App. 3d 1030, 1036 (1976). The ISL "emphasized the significance of acceptable conduct in prison and the individual's potential for reclamation." Id. at 1037. It recognized a "prisoner's good conduct in prison, his efforts toward rehabilitation, and his readiness to lead a crime-free life in society." In re Rodriguez, 14 Cal. 3d 639, 652 (1975) (superceded by statute). "In short, a discerned and mandatory objective of [the ISL] is recognition of the inmate's post-conviction history and his potential for safe release as indispensable considerations in parole setting." Stanley, 45 Cal. App. 3d at 1038. The ISL also considered the nature of the prisoner's offense, the prisoner's age, prior associates, habits, inclinations and traits of character. Id. at 1037. Petitioner offers some evidence that, under the ISL, the BPT found fifty percent of parole-eligible inmates suitable for parole each year. Petition Ex. 56 at IV-936-37.
Effective July 1, 1977, the California legislature enacted a "comprehensive revision" of the State's penal laws. In re Morrall, 102 Cal. App. 4th 280, 288 (2002). The DSL replaced the old ISL scheme. The purpose of sentencing became punishment rather than rehabilitation. Cal. Penal Code § 1170(a)(1). The DSL sought to impose uniformity of sentences based on the severity of the offense. Id. The paramount consideration in determining whether an inmate should be released became public safety. Id. § 1170.2(b). Petitioner offers some evidence that under the DSL, the annual rate of inmates paroled dropped to seven percent, and ultimately to below one percent. Petition Ex. 56 at IV-936-37. Petitioner also offers evidence that in 284 randomly selected DSL parole decisions between 1995 and 2000, 283 inmates were found unsuitable for parole, all based primarily on the commitment offense. Petition Ex. 57 at IV-938-39.
Petitioner claims that the BPT violated the ex post facto clause by applying the DSL at his September 26, 2000 parole hearing. "The ex post facto prohibition forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Connor v. Estelle, 981 F.2d 1032, 1033 (9th Cir. 1992) (internal citations omitted). A retroactively applied parole rule violates the ex post facto clause if it "creates a significant risk of prolonging [the prisoner's] incarceration." Garner v. Jones, 529 U.S. 244, 251 (2000). The "significant risk" must not be speculative or ambiguous. Scott v. Baldwin, 225 F.3d 1020, 1023 (9th Cir. 2000).
Respondent argues that this claim is without merit as a matter of law because the Ninth Circuit and California courts have determined that the DSL requires consideration of the same criteria as did the ISL. Respondent relies on In re Duarte, 143 Cal. App. 3d 943, 950 (1983), In re Seabock, 140 Cal. App. 3d 29, 41 (1983) and Connor, 981 F.2d at 1033-34. However, after these cases were decided, the United States Supreme Court explained that there are two methods for a prisoner to attack a parole decision under the ex post facto clause. First, he or she can make a facial challenge, that the new rule, "by its own terms, [creates] a significant risk" of increasing the punishment for a crime. Garner, 529 U.S. at 255. Alternatively, the prisoner can "demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule."Id. The cases Respondent cites consider facial ex post facto challenges rather than the type of practical application challenge that Petitioner here advances.
The Third Circuit recently considered such a practical application challenge in Mickens-Thomas v. Vaughn, 355 F.3d 294 (3d Cir. 2004). The habeas petitioner was a Pennsylvania prisoner whose life sentence had been commuted by the Governor. Like California's ISL, Pennsylvania's old parole law emphasized rehabilitation. Like California's DSL, Pennsylvania's new law was primarily concerned with public safety. The petitioner became eligible for parole in 1996, but was repeatedly denied parole by the parole board. The court granted the petitioner's habeas petition on ex post facto grounds, holding that the board acted in bad faith by applying newly amended Pennsylvania parole laws and guidelines to the petitioner's parole applications. The court considered statistics that, under the old law, the board had granted parole to every inmate with a commuted life sentence. That the petitioner was the only one to be denied parole was evidence that the board had retroactively applied the standards of the new law, in violation of the ex post facto clause.Mickens-Thomas, 355 F.3d at 300.
Petitioner requests discovery in order to seek further evidence that the practical application of DSL criteria to his September, 2000 parole hearing created a significant risk of prolonging his incarceration. Rule 6 of the Federal Rules Governing Section 2254 Cases in the United States District Courts (Rule 6) allows a habeas petitioner to invoke the processes of discovery available under the Federal Rules of Civil Procedure if the Court grants leave to do so. The Court may grant leave for discovery "in the exercise of [its] discretion and for good cause shown." Good cause is shown "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief." Bracy v. Gramley, 520 U.S. 899, 908-09 (1997),citing Harris v. Nelson, 394 U.S. 287, 300 (1969).
Petitioner makes three discovery requests. First, he requests discovery of his Central Office File maintained by the BPT's Chief Records Administrator in Sacramento, California pursuant to 15 Cal. Code Regs. § 2000(b)(20). The transcript of the September, 2000 hearing reflects that the BPT considered the contents of Petitioner's Central Office file in denying his parole. Ex. 3 at 3:3-4. Because its contents factored into the BPT's decision, the Court finds good cause to grant Petitioner discovery of his Central Office File.
Second, Petitioner requests discovery of all documents from 1977 to 1979, inclusive, concerning the effect of the change from the ISL to the DSL on parole decision-making, including but not limited to documents provided to the BPT commissioners and deputy commissioners explaining how to apply the new law to inmates appearing before them. The Court finds this request to be overly broad. A request for all documents concerning the effect of the change in the law is vague to the point of impracticability. Thus, the Court DENIES this request.
However, the Court grants the more specific portion of Petitioner's request: all documents from 1977 to 1979 provided to the BPT explaining how to apply the DSL. Respondent argues that any such documents would be difficult to find, because they have not been archived in a unified way. Nonetheless, the Court orders Respondent to produce to Petitioner any correspondence, memoranda, manuals, meeting minutes, policy statements or any other documents provided to the BPT from 1977 to 1979 explaining how to apply the DSL that the BPT can locate by a reasonable search.
Third, Petitioner seeks discovery of all parole decisions made between April 15, 1974 to April 15, 1975, including the statement of reasons for each decision made. Respondent argues that the request should be denied because hearings were not transcribed at that time, and microfiche procedures were not instituted until 1978. This argument fails in light of In re Sturm, 11 Cal. 3d 258 (1974), in which the California Supreme Court ordered the parole authority to "support all its denials of parole with a written, definitive statement of its reasons therefor and to communicate such statement to the inmate concerned." Id. at 273. The court also noted that the parole board had begun issuing written statements of reasons prior to the decision. Id. at n. 17. Even if these decisions are not archived on microfiche, they may be available in prisoners' files. Thus, the Court finds good cause to grant discovery of decisions denying parole between April 15, 1974 and April 15, 1975, including the statement of reasons for each decision made.
III. Due Process Claim
While there is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence," Greenholtz v. Inmates of Nebraska Penal Corr. Complex, 442 U.S. 1, 7 (1979), a State's statutory parole scheme, if it uses mandatory language, may create a presumption that parole release will be granted when or unless certain designated findings are made, and thereby give rise to a constitutionally protected liberty interest, Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987); Greenholtz, 442 U.S. at 11-12. In such a case, a prisoner gains a legitimate expectation of parole that cannot be denied without adequate procedural due process protections. Allen, 482 U.S. at 373-81; Greenholtz, 442 U.S. at 11-16.
California's parole scheme uses mandatory language and is largely parallel to the schemes found in Allen and Greenholtz to give rise to a protected liberty interest in release on parole:
The panel or board shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.
Cal. Penal Code § 3041(b). Accordingly, under the clearly established framework of Allen and Greenholtz, "California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion, 306 F.3d at 902. The scheme creates a presumption that parole release will be granted unless the statutorily defined determinations are made. Id. This is true regardless of whether a parole release date has ever been set for the inmate, because "[t]he 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, 915-16 (9th Cir. 2003); McQuillion, 306 F.3d at 903.
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court roundly criticized the mandatory language methodology described above and prescribed a new test; however, the Sandin test relates to claims dealing with the day-to-day management of prisons and does not apply to parole eligibility determinations.See McQuillion, 306 F.3d at 902-03; Ellis v. District of Columbia, 84 F.3d 1413, 1417-18 (D.C. Cir. 1996).
Because California prisoners have a constitutionally protected liberty interest in release on parole, they cannot be denied a parole date without adequate procedural protections necessary to satisfy due process. A parole board's decision satisfies the requirements of due process if "some evidence" supports the decision. Id. at 904; Morales v. California Dep't of Corrections, 16 F.3d 1001, 1005 (9th Cir. 1994), rev'd on other grounds, 514 U.S. 499 (1995); Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987). Additionally, the evidence underlying the board's decision must have some indicia of reliability. McQuillion, 306 F.3d at 904; Jancsek, 833 F.2d at 1390. A relevant factor in this latter inquiry is whether the prisoner was afforded an opportunity to appear before, and present evidence to, the parole board. Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987), cert. denied, 484 U.S. 1017 (1988). When applying these standards, the Court may look to whether a prisoner's allegations of any violations by the BPT are of a "minor" nature, whether they are supported in fact, whether the prisoner had an opportunity to participate, and whether he took full advantage of that opportunity. Morales, 16 F.3d at 1005; McQuillion, 306 F.3d at 900.
The Court may also consider the parole board's decision-making process over time: "The Parole Board's decision is one of `equity' and requires a careful balancing and assessment of the factors considered. . . . A continued reliance in the future on an unchanging factor . . . runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." Biggs, 334 F.3d at 916-17.
Petitioner argues that his right to due process was violated at his September 26, 2000 parole hearing for three reasons. First, he contends that there was no evidence in the record to support the BPT's conclusion that he would pose an unreasonable risk of danger to society if released. Second, he contends that the BPT's decision was arbitrary because it was based on Petitioner's failure to participate in self-help therapy programs that were not available to him. Third, he argues that there is no reasonable explanation for the BPT's denial of parole other than that it was applying a blanket policy of denying parole for virtually all life prisoners.
Petitioner claims that he was entitled to parole because the trial judge stated at sentencing that Petitioner was not motivated by malice, viciousness or intent to inflict injury or bodily harm; he had not received a disciplinary citation in his twenty four years of prison time; he had no history of violence or substance abuse; he expressed remorse for his crimes; and he had a stable family and employment plans to support him upon his release. Petitioner argues that the BPT's cited reasons for denying parole do not rationally support its decision. Petitioner relies on Biggs, where the Ninth Circuit upheld the initial denial of a parole release date based solely on the nature of the crime and the prisoner's conduct before incarceration, but cautioned that "[o]ver time . . . should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of Biggs' offense and prior conduct would raise serious questions involving his liberty interest in parole." Id.
Respondent argues that Petitioner's due process claim fails as a matter of law because the BPT's September 26, 2000 decision was supported by some evidence. The Court agrees that the BPT's finding regarding the nature and motivation of the commitment offenses and its concern with Petitioner's psychological report is some evidence supporting the decision. This is sufficient even if the BPT was wrong in its view that Petitioner did not participate in available programs. Moreover, as long as there is some evidence supporting the BPT's denial of Petitioner's parole, statistical evidence of multiple denials of other inmates' parole fails to establish that Petitioner's denial was based upon a blanket policy of denial. Even if such a blanket policy existed, there is no causal connection to Petitioner's denial, which was supported by some evidence. In re Rosenkrantz, 29 Cal. 4th 616, 685 (2002); In re Smith, 114 Cal. App. 4th 343, 362-63 (2003). Under the AEDPA standard, Petitioner's due process claim must fail. Accordingly, the Court GRANTS Respondent's motion for summary judgment on Petitioner's due process claim.
IV. Cruel and Unusual Punishment Claim
Petitioner asserts that the BPT's September 26, 2000 parole denial violated his right to be free from cruel and unusual punishment by imposing a punishment disproportionate to his offense. A criminal sentence that is not proportionate to the crime for which the defendant was convicted violates the Eighth Amendment. Solem v. Helm, 463 U.S. 277, 303 (1983). But "outside the context of capital punishment, successful challenges to the proportionality of particular sentences will be exceedingly rare." Id. at 289-90. There are
four principles of proportionality review — the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors — that inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.Ewing v. California, 538 U.S. 11, 23 (2003) (internal quotation marks and citations omitted).
Under this proportionality principle, the threshold determination for the Court is whether Petitioner's sentence is one of the rare cases in which a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality. United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992). Petitioner kidnaped twenty-seven people, all but one of them children. He was sentenced to life in prison with the possibility of parole. Comparing the crime to the sentence does not raise the inference of gross disproportionality.
Only if such an inference arises does the court proceed to compare a petitioner's sentence with sentences in the same and other jurisdictions. Harmelin, 501 U.S. at 1004-05; Bland, 961 F.2d at 129. Where it cannot be said, as a threshold matter, that the crime committed and the sentence imposed are grossly disproportionate, it is not appropriate to engage in a comparative analysis. United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998).
Petitioner also contends that it was cruel and unusual to subject him to "a meaningless charade of a parole hearing in which he could not demonstrate his suitability for parole." Even if the Court assumes that "a meaningless charade of a parole hearing" constitutes cruel and unusual punishment, a position for which Petitioner has cited no legal authority, Petitioner cannot show that his September 26, 2000 hearing was such a "meaningless charade." The BPT's decision was supported by "some evidence." Petitioner asserts that his cruel and unusual punishment claim is independent of his due process claim. However, his "meaningless charade" claim necessarily depends on whether the BPT afforded him the procedural protections guaranteed by the Constitution. He cannot establish, as a matter of law, that the September 26, 2000 hearing violated any of his due process rights. Therefore, as a matter of law he cannot establish that the September 26, 2000 hearing was a cruel and unusual "meaningless charade."
Last, Petitioner argues that the BPT denied him the benefit of the bargain of his guilty plea, which he entered in exchange for a sentence of life with possibility of parole. Petitioner claims that the BPT's September 26, 2000 denial of parole effectively transformed his sentence into a life sentence without the possibility of parole. However, the outcome of one hearing does not remove the possibility of parole. Petitioner will continue to have his parole suitability evaluated by the BPT at future hearings.
Respondent's motion for summary judgment on Petitioner's cruel and unusual punishment claim is GRANTED.
CONCLUSION
For the foregoing reasons, the Court GRANTS Respondent's motion for summary judgment as to Petitioner's due process and cruel and unusual punishment claims. The Court DENIES without prejudice Respondent's motion for summary judgment as to Petitioner's ex post facto claim. (Docket no. 26). The Court GRANTS Petitioner's request for discovery of his Central Office File, all documents from 1977 to 1979, inclusive, provided to the BPT explaining how to apply the DSL and all BPT decisions denying parole between April 15, 1974 and April 15, 1975. The Court DENIES Petitioner's request for additional discovery. (Docket no. 44). Respondent shall produce the discovery ordered no later than ninety days from the date of this order. Ninety days from the date of this order, Respondent shall renew its motion for summary judgment. Thirty days thereafter, Petitioner may cross-move for summary judgment and/or move for an evidentiary hearing. Respondent shall file any reply fourteen days later. The matter will be decided on the papers.IT IS SO ORDERED.