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SMILEY v. HERNANDEZ

November 15, 2005.

MITCHELL SMILEY, Petitioner,
v.
ROBERT J. HERNANDEZ, Warden, Respondent.



The opinion of the court was delivered by: WILLIAM McCURINE JR., Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
I.
INTRODUCTION
Petitioner Mitchell Smiley has spent his entire adult life in prison. He was convicted of second degree murder and committed to prison at age eighteen. Now forty-four years old, Petitioner, proceeding by and through counsel, challenges a decision of the California Board of Prison Terms ("BPT"), which denied him parole and refused to set a parole release date, with a habeas corpus petition ("Petition"), pursuant to 28 U.S.C. § 2254. Respondent has submitted an Answer accompanied by Memorandum of Points and Authorities and has lodged portions of the state court record ("Lodgments"). Petitioner has submitted a Traverse. This Report and Recommendation is submitted to United States District Judge Napoleon A. Jones, Jr., pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.

After reviewing the Petition, Answer, and Traverse in light of the state court record, this Court recommends the Petition be DENIED for the reasons stated below. II.

  PROCEDURAL HISTORY

  On January 23, 1980, following a jury conviction for second-degree murder in the San Diego County Superior Court (Case No. CR46889), Petitioner was sentenced to a state prison term of fifteen years to life with the possibility of parole. (Petition at 3.) The California appellate court affirmed the conviction in an unpublished opinion issued April 21, 1981. (See Lodgment No. 4, In the Matter of the Application of Mitchell Smiley, No. HC14676, slip op. (Cal.Super.Ct. Jan. 28, 2005) at 1.)

  On August 30, 2004, the BPT held a parole hearing (the "Parole Hearing") to determine whether Petitioner was suitable for parole, and if found suitable, his parole release date. (Petition, Ex. A, Parole Hearing Transcript.) The BPT found Petitioner unsuitable for parole and, as a result, did not set a parole release date. (Id.)

  On November 30, 2004, Petitioner filed a petition for writ of habeas corpus in San Diego County Superior Court challenging the BPT's August 30, 2004, decision. (Lodgment No. 3, In re Mitchell Smiley, Pet. for Review, No. HC14676 (filed Nov. 30, 2004).) On January 28, 2005, the San Diego Superior Court issued an order denying habeas relief, finding that the BPT did not abuse its discretion in denying parole and thus did not deprive Petitioner of due process of law. (Lodgment No. 4, In the Matter of the Application of Mitchell Smiley, No. HC14676, slip op. (Cal.Super.Ct. Jan. 28, 2005).)

  On February 10, 2005, Petitioner filed a Writ of Habeas Corpus in the California Court of Appeal Fourth District, Division One, again challenging the BPT's decision. (Lodgment No. 5, In re Mitchell Smiley, Pet. for Review, No. D045876 (filed Feb. 14, 2005).) On March 16, 2005, the California appellate court issued an order denying Petitioner habeas relief on reasoning similar to that of the superior court. (Lodgment No. 6, In re Mitchell Smiley on Habeas Corpus, No. D045876, slip op. (Cal.Ct.App. March 16, 2005).)

  On March 21, 2005, Petitioner filed a habeas petition in the California Supreme Court, which was denied without written analysis or citation to authority on June 8, 2005. (Lodgment No. 7, In re Mitchell Smiley, Pet. for Review; No. S132330 (filed Mar. 21, 2005); Lodgment No. 8, In re Mitchell Smiley on Habeas Corpus, No. S132330, slip op. (Cal. June 8, 2005).) On June 15, 2005, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. On August 8, 2005, Respondent filed his Answer and Notice of Lodgment. On August 18, 2005, Petitioner filed a Traverse. Respondent admits Petitioner has exhausted his state court remedies and that the Petition is timely. (Answer at 2.)

  III.

  STATEMENT OF FACTS

  Petitioner is currently serving a prison sentence of fifteen years to life with the possibility of parole for a stabbing murder that resulted from a bar fight on April 25, 1979. (Petition at 3.) On August 30, 2004, the BPT convened the Parole Hearing to determine: (1) whether Petitioner was suitable for parole, and (2) if he was suitable for parole, his parole release date. (Petition, Ex. A, Parole Hearing Transcript at 3-4.) The BPT found that Petitioner was, "not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." (Id. at 70.) In making its determination, the BPT relied on four principal factors: (1) the commitment offense, (2) Petitioner's prison record, (3) Petitioner's juvenile record and history prior to the commitment offense, and (4) Petitioner's parole plans. (Petition, Ex. A. Parole Hearing Transcript.)

 
The California appellate court summarized the facts as follows:
In 1979 a jury convicted Mitchell Smiley of second degree murder. The court sentenced him to prison for 15 years to life. The Board of Prison Terms (Board) conducted Smiley's 10th parole hearing on August 30, 2004, and declined to set a parole date, finding Smiley would pose an unreasonable risk of danger to society if released. The Board based its decision on the facts of the crime, Smiley's extensive and escalating pattern of criminal conduct and violence, his failure to profit from society's previous attempts to correct his criminality and 31 disciplinary violations in prison between 1980 and 1996.
(Lodgment No. 6, In re Mitchell Smiley on Habeas Corpus, No. D045876, slip op. at 1.) After citing California authorities relevant to their analysis, the court of appeal reasoned their decision and held as follows:
The facts of Smiley's crime are some evidence to support the Board's finding that the motive for the killing was trivial and senseless because it was based on rival biker membership and the victim was helpless and outnumbered. The Board's reliance on Smiley's extensive criminal history is also supported by the evidence. Smiley exhibited antisocial behavior beginning as early as third grade when he was expelled from school for fighting. Smiley was a runaway, he set fires, assaulted teachers and was placed in [California Youth Authority] around 12 years of age. Smiley used drugs on a daily basis, sold drugs and associated with "biker-outlaw" friends. At age 16 Smiley was recommitted to [California Youth Authority] after an assault. The murder was committed when Smiley was 17 years old and on parole. The Board noted "of the 24 years Smiley spent in prison, he spent 16 of them living basically the same lifestyle that he did when he was out." Smiley assaulted another inmate with a prison-made weapon and spent four and one-half years in the secured housing unit. He set fires, flooded the tier, threw caustic liquid on officers, used drugs, incited others to disobey rules and possessed contraband. The Board noted Smiley only "started to turn it around" in 1996 and his violent behavior both in and out of prison outweighed his relatively recent positive programming and discipline-free time.
Smiley was not denied due process. The petition is denied.
(Id. at 2.) The following four sections present the relevant facts in more detail.

  A. Commitment Offense

  On April 25, 1979, Petitioner and two friends were sitting in an El Cajon bar when the victim walked into the bar and ordered a beer. (Petition, Ex. A, Parole Hearing Transcript at 8.) One of Petitioner's friends made a sarcastic remark to the victim, who was a member of the Axemen Motorcycle Club. (Id.) Petitioner, who was seventeen at the time, and his two friends, aged twenty-three and twenty-four, also rode motorcycles with a rival group of bikers. (Id. at 60.) In apparent reaction to the sarcastic remark, the victim hit one of Petitioner's friends in the face with a beer pitcher and a fight among the four men ensued. (Petition at 2.) The brawl moved outside the bar where the victim was fatally stabbed eight times. (Petition, Ex. A, Parole Hearing Transcript at 8.) Petitioner and his two friends left the victim lying on the sidewalk and ran back through the bar and escaped through the back door. (Id.) The victim died from blood loss. (Id.)

  Petitioner and his two friends were subsequently arrested and all three were later convicted of murder. (Petition, Ex. B, Psychosocial Assessment at 2.) On January 23, 1980, Petitioner began serving his prison term. (Petition at 3.) B. Prison Record

  During his prison term, Petitioner admits he "established an awful disciplinary record, amassing thirty infractions*fn1 between 1980 and 1996, most of which were non-violent, only one of which . . . occurred after 1993."*fn2 (Petition at 3.) Petitioner committed a majority of these infractions during the 1980s, the initial decade of his imprisonment. (Petition, Ex. B, Psychosocial Assessment at 8.) Petitioner amassed five infractions between 1991 and 1996, has not committed an infraction since 1996, and has accumulated seventeen "128 counseling violations" during his prison term. (Id.)

  Petitioner's discipline record has been clean since 1996. (Id.) He earned his GED while in prison in 1986. (Id. at 5.) Since then, he has become certified in two vocational trades: mill & cabinet and plumbing. (Petition at 4.) He has participated in various self-help groups, including alcoholics anonymous, narcotics anonymous, Category V, X, and T therapy, and the Lifers Support Group. (Id.) Further, Petitioner has engaged his creative talents by involving himself in Arts in Corrections, where he has both created pieces of art and taught art classes for fellow inmates. (Id.) He has made instructional art videos for the prison television channel and has organized fund raisers to benefit abused children. (Id.; Petition, Ex. A, Parole Hearing Transcript at 31-32.) He also helped create an honors program at Lancaster State Prison in 2000. (Petition, Ex. A., Parole Hearing Transcript at 32.)

  During the Parole Hearing, the BPT considered both the positive and negative aspects of Petitioner's prison record when making their decision. The BPT stated:
[To the group:] [Petitioner] has had a total of [thirty-one infractions]. And there were, as [Petitioner's attorney] pointed out, numerous of them were from the time, the first few years after he was incarcerated. But I went through and noted that there were very few years between 1980 and 1996 where there were [no infractions]. And many of them, once again, were violent [infractions]. And just things that sort of indicated a real anger in his behavior.
[. . .]
[To Petitioner:] We want to commend you that something happened in 1996 and that was when you decided that, for some reason, that you were going to start doing the right thing. You've been AA and NA since then. You've gotten excellent work reports. You've been using your art for fund raising. So there was something about that time, you ...

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