Opinion
No. CIV-S-01-0835 MCE KJM P.
March 16, 2005
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner currently is serving a sentence of fifteen-years-to-life imprisonment in the California Department of Corrections imposed following petitioner's 1988 conviction for second degree murder. His conviction was based on his head-on collision, while driving under the influence of alcohol, with a 27-year-old woman who was five months pregnant. Petitioner challenges denials of parole that occurred in 1999 and 2000 on multiple grounds, including that his liberty interest in having a parole date set has been denied. It appears from the record that, due to the accumulation of good conduct sentence credits, petitioner became eligible for parole on September 27, 1997. Answer, Ex. A at 13 (2000 Legal Status Summary), 15 (1998 Legal Status Summary).
Petitioner also was denied parole in 1996. However, on September 12, 2002, the district judge assigned to this case found that any challenge to the 1996 parole proceedings is time-barred.
I. Availability Of Habeas Relief
An application for writ of habeas corpus may be granted only for violations of federal law. 28 U.S.C. § 2254(a).
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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).
Section 2254(d)(2) applies only to factual determinations, while section 2254(d)(1) applies to questions of law and mixed questions of law and fact. Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000).
"`[C]learly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
The Supreme Court has interpreted the "contrary to" and "unreasonable application" clauses of § 2254(d) as follows:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.Bell v. Cone, 535 U.S. 685, 694 (2002). It is the habeas petitioner's burden to show the state court's decision either was contrary to or an unreasonable application of federal law.Woodford v. Visciotti, 537 U.S. 19, 25 (2002). Generally, the court must examine Supreme Court precedent for the controlling federal law, but circuit authority is nevertheless a relevant guide to determining whether a particular state court decision is "contrary to" or involves an "unreasonable application" of Supreme Court law. See Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
So long as the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief the order. Lockyer v. Andrade, 538 U.S. 63, 75 (2003);Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000). The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where there is no reasoned state decision, however, this court undertakes an independent review of the claims. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002).
II. Analysis
A. Mootness
Respondent argues that the claims brought by petitioner in this action are moot because petitioner has had parole hearings subsequent to those at issue. Assuming petitioner's claims are moot, that is, petitioner's injuries could no longer be redressed by a favorable judicial decision, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), the claims are capable of repetition yet evade review. See Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir. 2000) (courts may still hear a moot claim, if the claim is capable of repetition, yet evades review). The issues raised by petitioner in this action could arise in a subsequent parole hearing. Moreover, given the frequency with which petitioner's parole hearings are held, the time it takes petitioner to exhaust state court remedies under 28 U.S.C. § 2254(b)(1) before coming to federal court, and the time it takes cases to make their way to decision in this court, petitioner's claims might never be decided if the court only were able to reach the merits of claims arising from the most recent parole denial at the time of decision. This court thus recommends that respondent's mootness argument be rejected. Cf. Hubbart v. Knapp, 379 F.3d 773, 777-78 (9th Cir. 2004) (petitioner's challenge to two year Sexually Violent Predator commitment not dismissed as moot due to subsequent two year commitment), cert. denied, ___ U.S. ___, 125 S. Ct. 913 (2005).
Petitioner has had three parole hearings since his 2000 hearing. See Answer, Ex. G (recording hearing dates in 2001, 2002 and 2004).
B. Due Process and Parole
Under California law, the parole board is not to set a parole date if, among other things, it finds that the gravity of the potential parolee's current and prior offenses are such that "public safety requires a more lengthy period of incarceration . . ." Cal. Penal Code § 3041(b). Also, parole must be denied without regard to time already served, if release will pose "an unreasonable risk of danger to society." Cal. Code of Regs. tit. 15, § 2402(a). See In re Rosenkrantz, 29 Cal. 4th 616, 654 (2000), cert. denied, 538 U.S. 980 (2003). The specific factors the parole board is authorized to consider in determining whether someone is suitable for parole are found in the California Code of Regulations; the factors include an inmate's social history, mental state, past criminal history, commitment offense, criminality generally, and conditions capable of treating or controlling behavior upon release. Cal. Code Regs. tit. 15, § 2402(b).
The Ninth Circuit has determined that California's statutory scheme gives prisoners a liberty interest in release on parole, for the parole statute creates a presumption that parole release will be granted unless the statutorily defined determinations are made. McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). The existence of this liberty interest entitles a prisoner to various procedural protections as part of the parole determination, including that the decision to deny parole must be based on "some evidence," with some "indicia of reliability." Id. at 904; see also Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987). The Ninth Circuit also has indicated that the Board of Parole's continued reliance on immutable factors such as the nature of the crime, prior record, and unstable pre-commitment history to deny parole "runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." Biggs v. Terhune, 334 F.3d 910, 917 (9th Cir. 2003).
While respondent takes issue with the correctness ofMcQuillion, it is the law of this circuit.
In Biggs, the Ninth Circuit upheld the decision of the parole board, rendered at Biggs's first parole hearing, to deny Biggs parole based on pre-commitment factors. Biggs, 334 F.3d at 916-17.
1. 1999 And 2000 Decisions Denying Parole
In 1999, the Board rendered the following decision in denying petitioner parole:
PRESIDING COMMISSIONER SHELTON: . . . Mr. Sass, the Panel reviewed all information received from public and relied on the following circumstances in concluding that you're not suitable for parole today and would pose an unreasonable risk of danger to others — to society and a threat to public safety if released from prison: And that's because the offense was carried out in an especially cruel manner. And these conclusions are drawn from the Statement of Facts wherein the prisoner, while driving a vehicle under the influence of drugs and alcohol lost control of the vehicle either by falling asleep or passing out. He went on the wrong side of the road, had a head-on collision, resulting in the death of the 27-year-old female who was five months pregnant. He had an escalating pattern of criminal conduct. Had a history of unstable and tumultuous relationships with others, his drinking and his use of drugs, and his burglary as a juvenile. He's failed previous grants of probation. He failed to profit from society's previous attempts to correct his criminality. Such attempts include juvenile camp, county jail, county probation time. He had an unstable social history with prior criminality which includes the burglary as a juvenile, staying in the Republic for Boys for a few months, seven DUIs — prior drunk driving — driving under the influence prior to the instant crime. He has faced county jail time and probation, and he continued to drive under the influence and on a revoked driver's license. You've done very well since you've been in here. You just — you upgraded vocationally, upgraded educationally. You've done very well. We feel you still need therapy in order to face, discuss, understand, and cope with stress in a non-destructive manner, and until progress is made, the prisoner continues to be unpredictable and a threat to others. The prisoner must demonstrate an ability to maintain gains over an extended period of time. Nevertheless, he should be commended for no 115s since 1994, his positive work record, upgrading educationally with the GED and I believe attended some college classes with excellent grades, received your vocation in auto mechanics, and you've attended different therapy classes, and you've stayed in AA and you're presently in AA. However, these positive aspects of your behavior do not outweigh the factors of unsuitability . . . You had good parole plans. Everything is falling in for you. It's just you really messed up having seven DUIs, spending time in jail, then just refusing to obey the law and keep drinking and driving. You're a young man. You're on the right path and I hope you stay with it . . . I want to congratulate you on what you have done. Mr. Bordonaro?
COMMISSIONER BORDONARO: No, I'd just like to echo the Chairman. You know, it's tragic that it took two losing their lives for you to figure out the problem. And that's all — it is a tragedy, but you're doing the right things. You've come around the corner. I believe that you are a different person now than when you entered, and I think you'll end up walking out of here even though, you know, you were sentenced to a life term. I think that you are doing the types of things that will get you a date. I don't know when that will be, but I do wish you luck.
COMMISSIONER WILLIAMS: My vote for a one year denial was predicated on your conduct in prison and the statements made by counsel and the support you have outside. But if it were just focused on this crime, I wouldn't have any problem at all denying your parole for five years. And I think you have to understand that that is what makes the difference is your conduct in prison, the support that you have. I'd maintain that. And I don't know when you're going to get out of prison, but I think you are doing as well as you can under the circumstances. But you have to understand that was a major, major crime . . .
Answer, Ex. C at 46-48.
In 2000, the board found as follows:
PRESIDING COMMISSIONER GIAQUINTO: — and we've denied you're parole for one year. The Panel reviewed all the information received from the public and relied on the following circumstances in concluding that the prisoner is 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 offense was carried out in a manner which demonstrates a total disregard for human suffering. The prisoner was under the influence of drugs and alcohol, driving a vehicle, drove his vehicle head on into a vehicle containing the victim, 27 year old female victim, and she lost her life as a result of that. She was pregnant at the time. The prisoner had a number of arrests for driving under the influence, seven prior convictions, and arrest for possession of a controlled substance, methamphetamine. This prisoner has not sufficiently participated in self-help and therapy. The District Attorney's Office has voiced opposition to the granting of a parole date as has the Highway Patrol. The Panel feels theat the prisoner could use continued therapy so that he might further explore the causative factors related to the life offense and the companion offenses. Until progress is made he continues to be unpredictable. And he should be commended for being disciplinary-free for the last six years. He's completed vocational auto, got satisfactory work reports, he's upgraded educationally. He's been involved in such things as Pro-Social behavior, Literacy, Parole recidivism Prevention, Healthy Relationship class, Lifer Psychiatric therapy group, AA, Communicational Leadership Club, a program of Toastmaster. However, these positive aspects of his behavior do not outweigh the factors of unsuitability. It's a one year denial and we ask that the prisoner remain disciplinary free and participate in available self-help and therapy . . .
Answer, Ex. F at 28-29.
2. The Boards' Decisions And The "Some Evidence" Standard
Both the 1999 and 2000 parole boards indicated petitioner must undergo more therapy before being suitable for release, and suggest that the need for more therapy over time is the one factor that needs to be satisfied in order for petitioner to be given a parole date:
1999
We feel you still need therapy in order to face, discuss, understand, and cope with stress in a non-destructive manner, and until progress is made, the prisoner continues to be unpredictable and a threat to others. The prisoner must demonstrate an ability to maintain gains over an extended period of time.Id., Ex. C at 47:14-19. 2000
The Panel feels that the prisoner could use continued therapy so that he might further explore the causative factors related to the life offense and the companion offenses. Until progress is made he continues to be unpredictable.Id., Ex. F at 28:24-29:3. In the next breath, the 2000 panel's chair noted petitioner's "being disciplinary-free for the last six years," and also acknowledged petitioner's participation in numerous therapy programs, including "Parole Recidivism Prevention, Healthy Relationship class, Lifer Psychiatric therapy group" and "AA." Id., Ex. F at 29:7-11.
It is undisputed that petitioner had a chronic problem with alcohol prior to admission to prison, a problem he had denied prior to his conviction. Following the accident leading to his conviction, petitioner says he finally admitted his alcoholism.Id., Ex. C at 11:19-20, 15:10-22 (petitioner's testimony at 1999 hearing); id., Ex. F at 9:2-3, 16:18-22 (petitioner's testimony at 2000 hearing). At the time of petitioner's 1999 and 2000 hearings, petitioner had participated in Alcoholics Anonymous (AA) since January 1992, which was the earliest he could enroll in AA given his custody status; petitioner acknowledges he will "always go to AA." Id., Ex. C at 17:13-26, 23:20-22, 36:15-37:15 (1999 hearing); id., Ex. F at 13:21-22, 16:2-23, 29:7-11 (2000 hearing). Petitioner denies any use of alcohol in prison, see, e. g., id., Ex. B at 33:10-27 (1996 hearing describing requests to move out of cells where cellmates had "pruno"), and he has never been disciplined for such use. Cf. id., Ex. C at 20:20-21:2 (only disciplinaries were for participation in a work strike and having television turned up too loud); id., Ex. F at 10:22-26 (same). As of his 1996 hearing, petitioner's alcohol problem had been deemed by the evaluating psychiatrist as being in "institutional remission," an impression confirmed at his 1999 and 2000 hearings. Id., Ex. B at 22: 22-23 (1996 hearing); id., Ex. C at 18:24-19:14 (1999 hearing); id., Ex. F at 15:10-11 (2000 hearing). In the 2000 psychological evaluation prepared for use at the 2000 parole hearing, no mention is made of the need for further therapy, other than the need for ongoing management of alcohol addiction and avoidance of drug use. Answer, Ex. F (3/2/00 Psychosocial Assessment) (PS Assessment); cf. id., Ex. C at 19:24-20:9 (review during 1999 hearing of psychiatrist's assessment, summarized by commissioner as indicating "if you were released from prison your future would depend on whether you drink or not," without noting the need for specific additional therapies).
The commissioners' conclusions about petitioner's need for further programming and therapy, as of the 2000 hearing at least, are not supported by the necessary "some evidence." None of the commissioners professed to have the expertise of the psychiatrist or psychologists who evaluated petitioner. These professionals saw no need for additional therapy, other than the ongoing need to address alcoholism, acknowledged by petitioner. As of 2000, they reported that "risk to the community ha[s] changed significantly," and "risk to the community has reduced significantly." PS Assessment at 4. Petitioner was diagnosed as having no personality disorder, described as "thoughtful, mature, well-functioning, with a positive attitude and determination to better himself while incarcerated," and having a "commitment to a disciplinary lifestyle." Id. at 5. "[P]rior reports" were referenced for comments on his "mental status and strengths," PS Assessment at 3, suggesting that nothing material had changed in petitioner's mental status since his last evaluation.
Respondent asserts petitioner challenged his 2000 denial in the California Supreme Court and that the California Supreme Court denied the challenge on July 10, 2002. Answer at 5:1-2 Ex. H. Because the California Supreme Court did not comment in denying the 2000 challenge, the court refers only to the actual 2000 parole board decision in determining whether petitioner is entitled to habeas relief. The court notes that petitioner includes in his amended petition an October 30, 2001 decision from the Superior Court of San Joaquin County denying a challenge to a parole hearing. Am. Pet., Ex. J. It is not clear whether this denial pertains to the 2000 parole hearing. Even if it does, there is no analysis in the decision regarding the claims before this court. Regarding the earlier 1999 denial, in its decision denying a state application for writ of habeas corpus based on that denial, the Superior Court of San Joaquin County upheld the parole board's decision based solely on pre-commitment factors. Answer, Ex. D. The court did not address any post-commitment factors including the 1999 board's assertion that petitioner needed "therapy."
The doctors' conclusion is consistent with the Department of Corrections' classification score of "zero" assigned to petitioner at the time of his 1999 and 2000 hearings, a score assigned to him continuously since 1997. See Answer, Ex. C at 16:16-17; id., Ex. F at 10:21 Life Prisoner Postconviction Progress Report at 1. Taking into account the classification score and after a full review of petitioner's file, the following conclusion reached by the correctional counselors' in the report prepared for the 2000 hearing also is at odds with the commissioners' determination that petitioner requires more therapy: "Considering the commitment offense, prior record and prison adjustment, . . . Sass would pose a low degree of threat to the public at this time if released from prison."Id., Ex. F (5/26/00 Life Prisoner Evaluation Report at 4).
The classification score is used to determine the proper custody level and placement for inmates. Stoneham v. Rushen, 137 Cal. App. 3d 729, 731 (Cal.Ct.App. 1st Dist. 1982). A higher classification score indicates greater security control needs. In re Richards, 16 Cal. App. 4th 93, 94 (1993); Cal. Code Regs. tit. 15, § 3375. A score of zero is the lowest possible, and is consistent with placement in a Level I, or minimum security, facility. See Cal. Code Regs. tit. 15, § 3375.1.
Moreover, no information in the record of the 1999 or 2000 hearing supports the commissioners' determination that petitioner was "unpredictable" despite his successful institutional adjustment. While petitioner has been the subject of two disciplinary actions while incarcerated, the last action was in 1994, and the commissioners themselves treated petitioner's disciplinary record as negligible. See Answer, Ex. C at 20:20-21:2 (in 1999 noting disciplinaries for participation in a work strike and having television turned up too loud constituted a record described as "commendable"); id., Ex. F at 10:22-26 (in 2000 noting "six years discipline-free").
In the context of the entire record, the 1999 and 2000 boards' assertions that petitioner needs "more therapy" to overcome public safety concerns, and is too "unpredictable" to be eligible for release, are pretextual. The only supported reason petitioner could have been denied parole in 1999 and again in 2000 is his commitment offense and other factors that manifested themselves before petitioner arrived in prison. The primary factor is petitioner's alcoholism, which he acknowledges is a chronic condition he must manage daily, and for which there is nothing more identifiable he can do than he already is doing while incarcerated.
Even at petitioner's first parole hearing in 1996, the parole board relied heavily on unchanging factors to deny petitioner parole. Answer, Ex. C at 47-48:20, 50:8-18. The 1996 board also cited, without reference to underlying facts, such pre-commitment factors as "a persistent pattern of tumultuous relationships," and "unstable social history" Id. at 47:23-48:2.
The undersigned finds that the board's decision to deny petitioner parole in 2000 for the third time in a row, based only upon the consideration of pre-commitment factors for at least the second time in a row, violates the Due Process Clause of the Fourteenth Amendment as indicated in Biggs. Petitioner's application for writ of habeas corpus therefore should be granted.
In addition to his liberty interest claim, petitioner raises several other grounds for relief in his habeas application. See Am. Pet. at 5-6(c). To the extent petitioner raises claims not covered by the analysis set forth in these findings and recommendations, petitioner has not established he is entitled to habeas corpus relief.
III. Conclusion
For all the foregoing reasons, the court will recommend that petitioner's application for writ of habeas corpus be granted. In light of these findings and recommendations, the interests of justice require appointment of counsel for the duration of these proceedings. See 18 U.S.C. § 3006A(a)(2)(B); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Accordingly, IT IS HEREBY ORDERED that:
1. The Federal Defender is appointed to represent petitioner.
2. The Clerk of the Court is directed to serve a copy of petitioner's habeas corpus application and a copy of this order and findings and recommendations on David Porter, Assistant Federal Defender.
3. Petitioner's counsel shall contact the Clerk's Office to make arrangements for copies of other documents in the file.
IT IS HEREBY RECOMMENDED that:
1. Petitioner's application for a writ of habeas corpus be granted.
2. Petitioner be given a parole date within thirty days of adoption of these findings and recommendations, assuming his record remains substantially unchanged from the time of his 2000 parole hearing.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within ten days after being served with this order, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within five days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).