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SMILEY v. HERNANDEZ

United States District Court, S.D. California


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 The California appellate court affirmed the conviction in an unpublished opinion issued April 21, 1981.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 haven't had [an infraction] since then, that made you decide it was time to change. However, currently the positive aspects of behavior do not outweigh the factors of unsuitability.
(Petition, Ex. A, Parole Hearing Transcript at 72-73.)

  C. Juvenile Record

  At the time of the commitment offense, Petitioner had a juvenile criminal record. Petitioner was first arrested on September 7, 1974 (age 13), for possession of marijuana. (Petition, Ex. A, Parole Hearing Transcript at 12.) He was then declared ward of the court and placed in a juvenile facility. (Id.) On November 22,1974, Petitioner was arrested for escaping from the juvenile facility. (Id.) On January 13, 1975, he was placed in the custody of his father in Montana, but was soon arrested on February 13, 1975, for violating the terms of his probation. (Id.; Petition, Ex. B, Psychosocial Assessment at 6.) While he was in Montana, he struck a school teacher. (Petition, Ex. A, Parole Hearing Transcript at 12.) On July 5, 1977 (age 16), Petitioner was arrested for assault with a deadly weapon and attempted robbery when he and an adult companion attacked and beat up two victims, losers of a foosball game, because the victims did not match quarters, as they had agreed. (Id.) One victim was knocked unconscious and suffered a possible concussion, broken nose, and swollen eye. (Petition, Ex. B, Psychosocial Assessment at 6.) On December 1, 1978, Petitioner was arrested for possession of marijuana and petty theft. (Id.) Other drugs and drug paraphernalia were found in his car. (Id.) On March 1, 1979, Petitioner was arrested for auto theft. (Id.)

  D. Parole Plans

  Petitioner has established a parole plan to implement if and when he is granted parole. He plans to live with his mother in Sun City, California. (Id. at 22.) He plans to work at the Steve Kaufman Art Studio in Santa Monica, California. (Id. at 23.) He also desires to find alternate work through the Offender program of the Catholic Church. (Id.)

  The BPT considered Petitioner's parole plans in its finding that Petitioner was unsuitable for parole. (Petition, Ex. A., Parole Hearing Transcript at 72.) In total, the BPT considered the commitment offense, Petitioner's prison record, Petitioner's juvenile record, and his parole plans in coming to a final determination that Petitioner was unsuitable for parole.

  IV.

  PETITIONER'S CLAIMS

  (1) Because no evidence supported the BPT's finding that Petitioner's parole poses "an unreasonable risk of danger to society or a threat to public safety," denying Petitioner parole on that basis abrogated his right to due process. (Petition at 9-10.)

  (2) Interminable denial of parole based on the unchangeable facts of his commitment offense, criminal record, and early prison misconduct, has converted Petitioner's prison term to life without any possibility of parole; a decision that has abrogated his right to due process. (Id. at 10-16.) V.

  DISCUSSION

  A. Scope of Review

  Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application 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.A. § 2254(a) (West 1994) (emphasis added).

  The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.A. § 2254(d) (West Supp. 2005) (emphasis added).

  A state court's decision may be "contrary to" clearly established Supreme Court precedent: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. Alternatively, an unreasonable application may be found, "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id.

  "[A] federal habeas court may not issue the [habeas] writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. . . . Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions." Williams, 529 U.S. at 412.

  Habeas relief is also available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding." 28 U.S.C.A. § 2254(d)(2) (West Supp. 2005). In order to satisfy this provision, Petitioner must demonstrate that the factual finding upon which the state court's adjudication of his claim rests, assuming it rests on a factual determination, is unreasonable. Torres v. Prunty, 223 F.3d 1103, 1108 (9th Cir. 2000).

  Where there is no reasoned decision from the state's highest court, the Court "looks through" to the last reasoned state-court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). However, if the dispositive state court order does not "furnish a basis for its reasoning," the federal court considering the habeas petition must conduct an independent review of the record to determine whether the state court unreasonably applied controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In Delgado, the court articulated that, "[o]nly by that examination may we determine whether the state court's decision was objectively reasonable." Id. Delgado does not, however, determine which prong of § 2254(d)(1) ("contrary to" or "unreasonable application of" clearly established federal law) applies to such cases. Because there is no reasoned decision from the California Supreme Court, this Court must "look through" to the last reasoned state court opinion by the California appellate court as the basis for analysis. Ylst, 501 U.S. at 806.

  Petitioner's case is distinguishable from the authorities cited above because he is not challenging what happened during his trial that led to his conviction and sentence. Rather, he is challenging a subsequent decision of the BPT that found him unsuitable for parole. Nevertheless, the Ninth Circuit has assumed without deciding that the AEDPA amendment to 28 U.S.C. § 2254 applied on very similar facts. McQuillion v. Duncan 306 F.3d 895, 901 (9th Cir. 2002). Therefore, this Court will examine Petitioner's claims under 28 U.S.C. § 2254(d) as amended by AEDPA.

  B. The BPT's Finding That Petitioner's Parole Would Pose An Unreasonable Risk Of Danger To Society Or A Threat To Public Safety

  Petitioner objects to the BPT's finding that his parole would pose "an unreasonable risk of danger to society or a threat to public safety." (Petition at 9-10.) He maintains that his right to due process and liberty interest in parole were violated because the BPT's finding was supported by "no evidence whatsoever." (Id.) Petitioner's argument heavily relies on conclusions drawn by a forensic psychologist who examined him on July 8, 2004, and found that Petitioner posed a "low to moderately low risk for future violence" and is "as ready for parole as he will ever be." (Id. at 9, quoting Petition, Ex. B, Psychosocial Assessment at 21-24.) Petitioner also cites the current correctional evaluation, which summarily concludes that Petitioner "would pose a low degree of threat to the public at this time if released from prison." (Petition at 10; quoting Petition, Ex. C, Correctional Evaluation at 2.)

  Respondent contends the Petition does not present a federal question for this Court to review, and this Court therefore lacks jurisdiction to rule on Petitioner's claim because a federal liberty interest in parole does not exist in California. (Memorandum of Points and Authorities in Support of Answer, "Ans. Mem." at 2-7.) Respondent's rationale is that California courts have interpreted California parole statutes in such a way as to preclude a finding of a federal liberty interest arising from them, and that this Court is required to defer to the California courts' interpretation of the California statute. (Id.) Respondent argues alternatively that, if Petitioner does indeed have a liberty interest in parole, he received the process he was due under clearly established federal law. (Id. at 10.)

  In the Traverse, Petitioner argues that regardless of what California courts have held, he possesses a federal liberty interest protected by the Fourteenth Amendment's Due Process Clause. (Traverse at 5-10.)

  The California appellate court found that sufficient evidence existed to support the BPT's finding that Petitioner was not suitable for parole. (Lodgment No. 6, In re Mitchell Smiley on Habeas Corpus, No. D045876, slip op.) In its opinion, the appellate court relied on California authorities that describe the broad discretion given to the BPT. (Id. at 1-2.) It stated that judicial review of the BPT's decision on due process grounds is an inquiry limited to whether "some evidence" existed in the record to support the BPT's finding of parole unsuitability. (Id. at 2.) The evidence the appellate court relied on included the facts underlying Petitioner's commitment offense, his extensive criminal history, his juvenile record and his prison record. Because "some evidence" in the record was found to justify the BPT's decision, the appellate court concluded that Petitioner received all the process he was due. (Id. at 2-3.)

  "The Due Process Clause applies when government action deprives a person of liberty or property;. . . ." Greenholtz v. Inmates of the Nebraska Penal and Correction Complex, 442 U.S. 1, 7 (1979). In Greenholtz, the United States Supreme Court first recognized that prison inmates are entitled to due process protection when state parole statutes provide them some expectancy of release. Id. at 13-14. The statute in that case, the Court held, created an expectancy of release because it used certain mandatory language that held out the possibility of parole to the inmate. Id. at 11-13. The Court limited its decision, however, when it emphasized the unique language of the Nebraska statute, and stated: ". . . whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis." Id. at 12. The Court went on to observe the necessarily subjective and predictive inquiry that parole boards must undertake when making parole-release decisions. The Court stated:

No ideal, error-free way to make parole-release decisions has been developed; the whole question has been and will continue to be the subject of experimentation involving analysis of psychological factors combined with fact evaluation guided by the practical experience of the actual parole decisionmakers in predicting future behavior.
Id. at 13. The Court also discussed the process of coming to a constitutionally permissible parole determination. Id. at 15. The Court noted the importance of the parole board's consideration of the inmate's entire record, including the gravity of the offense and the inmate's behavior during confinement. Id. In addition, the Court observed that inmates under the Nebraska regime were entitled to present letters and statements to the parole board on their own behalf, thus providing the inmate the opportunity to: (1) insure the correct records were in front of the parole board, and (2) raise any special considerations that make the inmate a particularly suitable candidate for parole. Id. The Supreme Court concluded: "this procedure adequately safeguards against serious risks of error and thus satisfies due process." Id. at 15.

  The Supreme Court later questioned the reasoning of Greenholtz when it decided Sandin v. Conner, 515 U.S. 472 (1995). The Sandin Court believed that Greenholtz was wrong insofar as it found that liberty interests protected by the Due Process Clause were created by particular language in state statutes. Id. at 483-84. Instead, Sandin held that under some circumstances states laws and regulations could grant inmates liberty interests, but that the analysis should focus not on the language of the particular statute, but on the nature of what is being deprived. Id. at 481-84. Unlike Greenholtz, where a liberty interest derived from specific language in the parole statute, Sandin found no liberty interest in a prison disciplinary rule based on the nature of interest of which the inmate was deprived. Id.

  ln ln re Dannenberg 34 Cal.4th 1061 (2005), the California Supreme Court recently interpreted the parole statue applicable in Petitioner's case, California Penal Code § 3041. There, the California supreme court analyzed the language of Penal Code § 3041 at length and found that it does not contain language that would impose a mandatory duty on the board of prison terms to set a parole release date for indeterminate life inmates like Petitioner. Id. at 1087. Applying the United States Supreme Court's analysis in Greenholtz to California Penal Code § 3041, as interpreted by the California's highest court in Dannenberg, it appears that Petitioner has no liberty interest in the California parole statute protected by the Due Process Clause. In other words, California has interpreted its own parole statute in such a way as to preclude the finding of a liberty interest under Greenholtz.

  The Ninth Circuit has not spoken on the issue since Dannenberg was decided in 2005. In McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002) and later in Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003), the Ninth Circuit found that California's parole scheme created a liberty interest in parole based on the language used in California's parole statute. McQuillion, 306 F.3d at 902-03; Biggs, 334 F.3d at 914. However, since Dannenberg, at least one District Court has adopted Dannenberg's interpretation of California's parole scheme in finding that inmates have no legitimate expectation of parole in California. Sass v. California Board of Prison Terms, 376 F.Supp.2d 975, 981-82 (E.D. Cal. 2005). The Court need not decide the issue because assuming a liberty interest is implicated, Petitioner received all the process he was due.

  Assuming that Petitioner retains some liberty interest in California's parole scheme protected by the Due Process Clause, the Ninth Circuit has said that a parole board will satisfy an inmate's due process rights so long as "some evidence" having "some indicia of reliability" supports its finding. McQuillion 306 F.3d at 904; Biggs 334 F.3d at 915.

  In the instant case, the BPT's decision denying Petitioner parole was well supported. The BPT relied on a number of salient facts in concluding that Petitioner's parole would cause "an unreasonable risk of danger to society or a threat to public safety." Petitioner had a problematic prison record that included at least thirty disciplinary infractions, some of which were violent. Combined with facts surrounding the commitment offense, Petitioner's prior juvenile history and parole plans, the BPT did not violate Petitioner's due process when they found him unsuitable for parole. It is clear the BPT's decision was supported by "some evidence" having "some indicia of reliability." Petitioner has placed undue emphasis on a single piece of evidence — the Psychosocial Assessment prepared by the forensic psychologist. The law does not require the BPT to examine any isolated piece of evidence in making its parole decisions. Because Petitioner has failed to demonstrate the state court's denial of this claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or based on an unreasonable determination of the facts, it is recommended that habeas relief for this claim be DENIED.

  C. The BPT's Decision Denying Petitioner Parole Based On Unchangeable Factors

  Petitioner next argues that the BPT has effectively converted his prison sentence to life without the possibility of parole because they denied parole for the tenth time based on the unchangeable facts of his commitment offense, prison record and juvenile record. (Petition at 10-16.) He emphasizes that his role in the commitment offense was not particularly egregious and that facts about his criminal and prison history are unchangeable. (Id.) Petitioner maintains that by denying parole on these facts, the BPT has abrogated his right to due process. (Id.)

  Respondent asserts that the Petition does not present a federal question for this Court to review because a federal liberty interest in parole, founded in the Due Process Clause, does not exist in California. (Memorandum of Points and Authorities in Support of Answer, "Ans. Mem." at 2-7.) Alternatively, Respondent argues that, if there is a federal question, the BPT's reliance on unchanging factors in denying Petitioner parole cannot be said to have violated his right to due process. (Id.) Respondent contends the California appellate court's decision was neither contrary to, nor an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented. (Id.)

  Petitioner replies that due process cannot permit the BPT to forever preclude his parole based on the unchangeable historical facts of his commitment offense, prison term and juvenile record. (Traverse at 12-16.) He further emphasizes that the issue is not whether he has served enough time to be suitable for parole, but rather, whether his parole would pose an unreasonable risk of danger to public safety. (Id. at 15-16.)

  The California appellate court found that the BPT was justified in relying on unchanging historical facts concerning Petitioner when it denied parole. (Lodgment No. 6, In re Mitchell Smiley on Habeas Corpus, No. D045876, slip op. at 2.) Citing California authority, the appellate court stated: "[t]he nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole, so long as the [BPT] does not fail to consider all other relevant factors." (Id., citing In re Ramirez, 94 Cal.App.4th 549, 569.) The court went on not only to use the commitment offense to justify the BPT's decision, but also the additional facts of Petitioner's juvenile criminal record and prison record. (Id.) As a result, the appellate court concluded that the BPT did not deny Petitioner his right to due process when they denied him parole. (Id. at 3.)

  As was previously noted, so long as the BPT's decision denying Petitioner parole was based on "some evidence," due process is satisfied. McQuillion, 306 F.3d at 898; Biggs, 334 F.3d at 915. In addition, the Ninth Circuit in Biggs noted that under California law, the board of prison terms may examine a variety of factors, including unchanging historical factors such as a commitment offense, in properly denying a prisoner parole. The Biggs court said:

California law allows the [Board of Prison Terms] to consider a myriad of factors when weighing the decision of granting or denying parole. Parole may be denied if the [Board of Prison Terms] 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 the individual. Additionally, the [board of prison terms] can consider all relevant information including potential threats to public safety, whether the offense was carried out in a manner which demonstrates exceptionally callous disregard for human life, and whether the prisoner engaged in misconduct while in jail.
Biggs, 334 F.3d at 915 (internal quotations and text adaptations omitted). In Biggs, the Ninth Circuit denied a "model inmate" parole, even after criticizing the board of prison terms for reaching many unsupported conclusions regarding his unsuitability for parole. Id. at 915-16. The inmate in Biggs was serving a sentence of twenty-five years to life with the possibility of parole and had only committed a single non-violent disciplinary violation during his prison tenure. Id. at 912. The court explained:
The [board of prison term's] decision is one of equity and requires a careful balancing and assessment of the factors considered. As in the present instance, the parole board's sole supportable reliance on the gravity of the offense and conduct prior to imprisonment to justify denial of parole can be initially justified as fulfilling the requirements set forth by state law. Over time, however, 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.
Biggs, 334 F.3d at 916 (internal quotations and citations omitted). Although dicta in Biggs alludes to a possible future due process violation if the inmate is persistently denied parole based solely on the unchanging nature of the offense and prior conduct, this is not a holding and therefore cannot be considered "clearly established" federal law. See Williams v. Taylor, 529 U.S. at 412. Therefore, the Ninth Circuit in Biggs refused to declare a due process violation, even though the board of prison terms there reached largely unsupported conclusions about the inmate's parole suitability and mostly relied on the commitment offense in denying parole.

  The facts and reasoning of Biggs are largely applicable to Petitioner's case. Although Petitioner has had nine discipline-free years in prison, his prison record is marred with at least thirty disciplinary violations. Petitioner has a juvenile criminal record and the commitment offense was a violent murder. Furthermore, Petitioner's characterization of the BPT's decision as suggesting "interminable denial of parole" is overstated. In the closing words of its decision, the BPT explained in plain language why it thought Petitioner was unsuitable for parole at this time:

The [BPT] just recommends that you remain disciplinary free, continue your program basically. What you're doing is certainly heading in the right direction. And I just have to say that you had so many years of violent behavior and during the 24 years that you've been in prison, it's only been since 1986, or 1996, that you started to turn it around. That's just, when you look at the overall picture, that's just not a long time. When you weigh it against the background that you came from, your behavior, your violent behavior outside of prison and your violent behavior since you've been in prison. It's just — We just would like to see you with some more disciplinary free time.
(Petition, Ex. A, Parole Hearing Transcript at 73.) The California appellate court did not deviate from clearly established federal law when it upheld the BPT's decision. The appellate court properly found that the BPT gave Petitioner the process he was due as a prison inmate seeking a parole suitability determination. Because Petitioner has failed to demonstrate the state court's denial of this claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or based on an unreasonable determination of the facts, it is recommended that habeas relief for this claim be DENIED.

  VI.

  CONCLUSION AND RECOMMENDATION

  For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered denying the Petition.

  IT IS ORDERED that no later than January 9, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than January 30, 2006. The parties are hereby advised that failure to file objections within the specified time period may result in a waiver of those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998), Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

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