Opinion
No. C 02-0935 CRB (PR), (Doc # 6)
November 27, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a state prisoner incarcerated at the Correctional Training Facility in Soledad, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging the California Board of Prison Terms' ("BPT") decision of July 1, 1999 finding him not suitable for parole. Per order filed on April 16, 2002, the court found that the petition stated cognizable claims for denial of due process under § 2254, when liberally construed, and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause (accompanied by a motion for summary judgment), and petitioner has filed a traverse.
BACKGROUND
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Ventura of second degree murder. On or about August 14, 1980, he was sentenced to 15 years to life in state prison. Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme Court of California.
Petitioner has been found not suitable for parole each time he has appeared before the BPT. On December 19, 2001, the Supreme Court of California denied his challenge to the BPT's decision of July 1, 1999, and this federal habeas action followed.
On April 22, 2002, approximately two months after petitioner filed this action, the BPT afforded him his next parole consideration hearing and again found him not suitable for parole.
DISCUSSION
A. Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court 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." Id. § 2254(d).
B. Legal Claims
Petitioner seeks federal habeas corpus relief from the BPT's July 1, 1999 decision finding him not suitable for parole on the ground that the decision does not comport with due process because (1) there is no evidence to support the BPT's finding that he would pose an unreasonable risk of danger to society and a threat to public safety if released from prison, and because (2) the BPT impermissibly used first degree murder elements in finding him unsuitable for parole. Petitioner also claims that he has been denied due process by the indefinite postponement of a subsequent parole suitability hearing.
California's parole scheme provides that the 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). In making this determination, the board must consider various factors, including the prisoner's social history, past criminal history, and base and other commitment offenses, including behavior before, during and after the crime. See Cal. Code Regs. tit. 15, § 2402(b) (c). This parole scheme "gives rise to a cognizable liberty interest in release on parole" which cannot be denied without adequate procedural due process protections. McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002).
A parole board's decision to deny parole satisfies the requirements of due process if "some evidence" supports the decision. Id. at 904 (adopting "some evidence" standard for disciplinary hearings outlined inSuperintendent v. Hill, 472 U.S. 445 (1985)); Morales v. California Dep't of Corrections, 16 F.3d 1001, 1005 (9th Cir. 1994) (same), rev'd on other grounds, 514 U.S. 499 (1995); Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987) (same). The "some evidence" standard is minimally stringent: The "Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact." Hill, 472 U.S. at 456 (emphasis added). The relevant question for the court is "whether there is any evidence in the record that could support the conclusion reached by the [BPT]." Id. at 455-56. The court "cannot reweigh the evidence;" it only looks "to see if 'some evidence' supports the BPT's decision." Powell v. Gomez, 33 F.3d 39, 42 (9th Cir. 1994). Additionally, the evidence underlying the BPT's decision must have some indicia of reliability. McQuillion, 306 F.3d at 904; Jancsek, 833 F.3d at 1390. Relevant in this inquiry is whether the prisoner was afforded an opportunity to appear before, and present evidence to, the board. See Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987); see also Morales, 16 F.3d at 1005 (court may consider whether a prisoner's allegations of any violations by the board 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).
Here, the record shows that on July 1, 1999, petitioner appeared before a BPT hearing panel for a parole consideration hearing, accompanied by counsel. The presiding commissioner explained that in assessing suitability for parole the panel would consider petitioner's commitment offense, prior criminality, social history, behavior since commitment, progress since last parole consideration hearing, new psychiatric reports, any other information which has a bearing on parole suitability, and any change in petitioner's parole plans. Accord Cal. Code Regs. tit. 15, § 2402(b) (setting out factors to be considered in determining suitability for parole).
After some preliminary matters were addressed, the panel discussed with petitioner the circumstances of his commitment offense, including that petitioner had been a PCP dealer, that the victim had previously held a knife to petitioner's daughter's throat over a gambling dispute inside of petitioner's home, that petitioner had obtained a gun, and that the next day petitioner had shot the victim seven times as he "emptied the gun."
The panel discussed with petitioner his criminal history, including an arrest history for robbery, burglary, carrying a loaded firearm in public, possession of a controlled substance, possession for sale, disobeying a court order, and "being in possession and under the influence." Petitioner also indicated that he had been in "drug therapy," but that it did not help because he was "wasn't cooperating" and was missing classes.
The panel discussed with petitioner his social background. Specifically, they discussed that petitioner was raised by his mother along with three sisters and two brothers. One sister served jail time for drug use and a brother served time in a juvenile facility for robbery. Petitioner worked as truck driver delivering furniture after high school and used PCP, heroin and marijuana during this time.
The panel discussed with petitioner his post-conviction factors. They discussed his generally positive participation in various programs since his last parole consideration hearing, including his obtaining an occupational certificate for welding machine operator on March 1999, and participation in Narcotics Anonymous and the Inmate Literacy Program. They also discussed petitioner's "improved" behavior over the past ten years (with his last "fighting" incident having occurred on February 2, 1996), and the Correctional Counselor's assessment to the BPT that petitioner "poses a moderate degree of risk to the community if released at this time."
The panel discussed with petitioner a psychiatric report prepared on February 24, 1999. The report referenced petitioner's psychiatric history, including previous findings of "sociopathic orientation" or "antisocial personality," and noted that the most recent finding in 1996 reflected no evidence of mental or emotional problems. Although there were some high risk factors (e.g., petitioner's childhood background and involvement with drugs), the final recommendation of the 1996 psychiatric assessment was that petitioner would make a "good parole adjustment."
After hearing statements from a deputy district attorney and petitioner's counsel, the panel recessed to deliberate and, after the hearing resumed, found that petitioner was "not suitable for parole and would pose an unreasonable risk of danger to society and a threat to public safety if released from prison." The panel explained that it was denying petitioner parole for one year based on the following factors: (1) the commitment offense was carried out "in a dispassionate and calculated manner such as an execution style murder;" (2) petitioner had an escalating pattern of criminal conduct and unstable social history, including the use and sales of drugs; (3) petitioner had failed to profit from society's attempts to correct his criminality during his time in county jail and probation; (4) petitioner's arrest history; and (5) petitioner's misconduct while incarcerated, including thirteen "115" disciplinary actions through 1990, and twenty counseling memorandums, the last two in 1995 and 1996 for fighting.
The panel further explained:
The prisoner needs therapy in order to face, discuss, understand and cope with stress in a nondestructive manner. Until progress is made, the prisoner continues to be unpredictable and a threat to others. I think this is probably the most important one to us, the prisoner's gains are recent and he must demonstrate an ability to maintain gains over an extended period of time. Your lifestyle and the crime makes the Panel want to look at you and know that you're going to maintain no [disciplinary or counseling actions]. Nevertheless, the prisoner should be commended for his [positive programming]. However, these positive aspects of your behavior do not outweigh the factors of unsuitability at this time. . . . We're asking you to do what you've been doing as of late, to remain disciplinary-free, if available . . . continue to upgrade vocationally and educationally and keep your mind active. You're very intelligent. . . . And stay in your [Narcotics Anonymous] program, your therapy, ok.
July 1, 1999 Hr'g Tr. at 49-50 (Resp't Ex. 3).
Petitioner is not entitled to federal habeas relief because the BPT's July 1, 1999 decision to deny him parole was supported by some evidence in the record. See McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002) (adopting "some evidence" standard outlined in Superintendent v. Hill, 472 U.S. 445 (1985)). The BPT considered pertinent factors such as the "heinous, atrocious or cruel manner" in which petitioner committed the murder and petitioner's unstable social history, circumstances tending to show unsuitability, see Cal. Code Regs. tit. 15, § 2402(c), as well as factors such as petitioner's improved institutional behavior and many positive institutional activities, circumstances showing suitability, see id. § 2402(d). It concluded that the factors supporting unsuitability outweighed the factors supporting suitability because, among other things, petitioner's suitability factors, i.e., "improved" behavior and positive "programming," were still relatively recent and therefore, in the panel's judgment, petitioner still posed an unacceptable risk to society if released at this time. To be sure, the panel reasonably could have concluded that petitioner's suitability factors outweighed his unsuitability ones. But our inquiry here is simply "whether there is any evidence in the record that could support the conclusion reached by the [BPT]." Hill, 474 U.S. at 455-56. There is — the crime was committed in a "heinous, atrocious or cruel manner," petitioner has a history of drug use and social instability, and his institutional "improvements," although commendable, may reasonably be viewed as "recent" and "ongoing." It is not up to this court to "reweigh the evidence." Powell v. Gomez, 33 F.3d 39, 42 (9th Cir. 1994).
Petitioner's contention that the BPT impermissibly used first degree murder elements as a basis for finding him unsuitable for parole does not compel a different result. The BPT only analogized the "dispassionate and calculated manner" of petitioner' s crime as being comparable to a crime "such as an execution style offense." It did not use first degree murder elements as the basis for finding petitioner unsuitable for parole. And in any event, the BPT did not deny parole based solely on the gravity of the commitment offense so that it could be said that there is no evidence in the record to support its decision to deny parole. After all, the BPT made clear that the most important factor in its decision to deny petitioner parole at this time was that although petitioner had made some gains in his ability to "face, discuss, understand and cope with stress in a nondestructive manner," he needed additional time to demonstrate that he had an ability to "maintain gains over an extended period of time." The BPT's July 1, 1999 decision to deny petitioner parole did not violate due process.
Petitioner's contention that he was denied due process by the indefinite postponement of a subsequent parole consideration hearing was rendered moot by the subsequent hearing he received on April 22, 2002.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. It simply cannot be said that the Supreme Court of California's rejection of petitioner's due process claims was "contrary to, or involved an unreasonable application of, clearly established Federal law," or that it "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).The Clerk shall close the file, enter judgment in favor of respondent and terminate all pending motions (see, e.g., doc #6) as moot.
SO ORDERED.