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December 7, 2005.

THUAN HUYNH, Petitioner,
T. CAREY, Warden, Respondent.

The opinion of the court was delivered by: NITA STORMES, Magistrate Judge

Thuan Huynh ("Petitioner") is a California prisoner serving an indeterminate life sentence for kidnapping to commit robbery. He has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging the decision of the California Board of Prison Terms ("the Board") denying him parole. This Court has reviewed the Petition, Respondents' Answer, the Traverse, and all supporting documents submitted by the parties. After a thorough review, the Court finds that Petitioner is not entitled to the relief requested and RECOMMENDS that the Petition be DENIED.


  In October 1990, Petitioner and two other men robbed an elderly woman and her daughter in their home. [Lodgment D at 166-68.] The facts underlying Petitioner's offense were summarized by the state court as follows:
Petitioner and his crime partners conspired to rob a 75-year-old woman and her daughter at their home. Petitioner was armed with a gun and his codefendant used a knife in the commission of the crimes. The elderly victim was grabbed while working in her yard. She was blindfolded, dragged into her house and bound with duct tape. When the daughter returned home, she found her mother lying on the floor with a stab wound in her leg. The daughter was also attacked, blindfolded, bound with duct tape and beaten when she told her attackers there was no money or gold in the house. Her clothes were cut off her while she was being beaten.
[Lodgment A at 4-5.] After taking some jewelry and cash, the two men left the house. A third man served as the getaway driver. The three men were subsequently arrested and charged with kidnapping to commit robbery and related offenses. The younger victim claimed that she was sexually assaulted by two of the men, including Petitioner, during the robbery. [Lodgment D at 182-89, 425-26.] Petitioner pled guilty to one count of kidnapping to commit robbery in exchange for dismissal of the other charges, and was sentenced to an indeterminate term of life in prison with the possibility of parole.*fn1 [Lodgment A at 3.]

  Petitioner first became eligible for parole in 1997 and was denied parole for the fourth time in January 2002, the decision that is the subject of this Petition. [See Lodgment D at 160-203.] At the January 2002 parole consideration hearing, the Board commended Petitioner for his positive institutional behavior, but ultimately determined that he was not suited for parole, basing its decision on the callous nature of Petitioner's offense, his lack of concrete parole plans, and his need for participation in further self-help programs. [Lodgment D at 199-202.] Petitioner filed a habeas petition with the San Diego County Superior Court alleging that the Board's decision lacked evidentiary support. [Lodgments A, B.] The court denied the petition, finding "some evidence" to support the Board's conclusion that Petitioner presented a danger to the community if released on parole. [Lodgment A at 4-7.] Petitioner then filed a habeas petition with the California appellate court, again challenging the sufficiency of the evidence underlying the Board's decision. The appellate court denied the petition, finding sufficient evidence to support the Board's determination. [Lodgment C.] Petitioner then filed a habeas petition with the California Supreme Court, which the Court summarily denied. [Lodgments D, E.] In April 2005, Petitioner filed this pro se Petition raising four grounds for relief: (1) denying parole "five and six times on unchanged factors" violates due process; (2) the Board improperly required written confirmation of his parole plans; (3) the Board improperly relied on his past substance abuse as a factor "when there is no evidence that the prisoner is still using"; and (4) there is no evidence in the record of an "escalating pattern of criminal conduct." [Petition at 5-6.] Petitioner requests that this Court order the Board to set a parole date for him. [Petition at 8.] Respondent has answered the Petition, arguing that Petitioner is not entitled to due process protections because he does not have a constitutionally protected liberty interest in parole. Alternatively, Respondent argues that Petitioner has failed to establish that his due process rights were violated by the Board's decision. [Respondent's Memorandum of Points & Authorities in Support of Answer to Petition for Writ of Habeas Corpus ("Resp. Points & Auth.").] Petitioner has filed a Traverse and also submitted numerous documents in support of his Petition. [Petitioner's Traverse ("Trav.") & Exhibits A-K.]


  This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997); Shelby v. Bartlett, 391 F.3d 1061, 1063-64 (9th Cir. 2004); Redd v. McGrath, 343 F.3d 1077, 1080 n. 4 (9th Cir. 2003). Under AEDPA a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). Clearly established federal law for purposes of § 2254(d) means "the governing 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, 72 (2003). A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. The "unreasonable application" clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must have been objectively unreasonable. Lockyer, 538 at 75. Additionally, the state court's factual determinations are presumed correct, and the petitioner carries the burden of rebutting this presumption with clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1).

  As a preliminary matter, the Court must address the state's argument that due process principles are wholly inapplicable here because Petitioner does not possess a protected liberty interest in parole under California law. [Resp. Points & Auth. at 7-10.] The Due Process Clause provides, "[No] state [shall] deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. To implicate due process protections, the plaintiff must establish that he has a "protectible right" or a "legitimate claim of entitlement" as opposed to a mere hope or expectation. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 13 (1978). With respect to parole, the Supreme Court has held that there is no right to parole inherent in the Due Process Clause, but that mandatory language in a state's parole statute can create a protected liberty interest in parole. Greenholtz, 442 U.S. at 7; Board of Pardons v. Allen, 482 U.S. 369, 381 (1987). The Ninth Circuit has held that mandatory language contained in California's parole statute creates a protected liberty interest in parole for California prisoners. See McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003).

  Respondent argues that McQuillion and Biggs are no longer good law after the California Supreme Court's recent decision in In re Dannenberg, 34 Cal.4th 1061, 1087 (Cal.), cert. denied, 126 S.Ct. 92 (Oct. 3, 2005) (No. 04-10299). In Dannenberg, the California Supreme Court concluded that the language in the state's parole statute is not mandatory and that there is accordingly no right to parole in California. Id. As a general matter, a federal court will defer to a state supreme court's interpretation of a state statute. See Gurley v. Rhoden, 421 U.S. 200, 208 (1975) ("[A] State's highest court is the final judicial arbiter of the meaning of state statutes."). However, at present, California law regarding parole rights appears to be somewhat muddled. The Court in Dannenberg held that California prisoners have no liberty interest in a uniform parole date, but it did not overrule its earlier opinion in In re Rosenkrantz, 29 Cal.4th 616, 654 (Cal. 2003), holding that the state's parole statute uses mandatory language that creates a liberty interest in parole. As Petitioner points out in his Traverse, at least one California appellate court case decided after Dannenberg found a liberty interest in parole in reliance on Rosenkrantz. [Trav. at 4 (citing In re DeLuna, 126 Cal.App.4th 585, 591 (Cal.Ct.App. 2005).]

  This confusion in California law has led the district courts of this Circuit to reach differing conclusions over whether California prisoners possess a protected liberty interest in parole. Following Dannenberg, at least one district court has held that California prisoners do not possess a protected liberty interest in parole. See Sass v. Cal. Bd. of Prison Terms, 376 F.Supp.2d 975 (E.D. Cal. 2005). Conversely, another district court has held that even after Dannenberg, California prisoners do possess a federally protected liberty interest in parole. See Hudson v. Kane, No. C 04-02232SI, 2005 WL 2035590 (N.D. Cal. Aug. 23, 2005). The Ninth Circuit has yet to resolve the issue, although it is worth noting that the Court recently cited McQuillion with approval, suggesting that the case is still good law. See Rosas v. Nielsen, ___ F.3d ___, 2005 WL 2898068 (9th Cir. Nov. 4, 2005). This complex issue need not be resolved here, however, because even assuming Petitioner possesses a protected liberty interest in parole, the record demonstrates that his due process rights were not violated.

  Under California law, parole determinations for life prisoners are to be made based on "[a]ll relevant, reliable information available." 15 Cal. Code Regs. § 2281(b). Such information includes the prisoner's social history, past and present mental state, past criminal history, the base and other commitment offenses, past and present attitude toward the crime, any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community, and any other information which bears on the prisoner's suitability for release. 15 Cal. Code Regs. § 2281(b). Factors tending to indicate that a prisoner is suitable for parole include lack of a juvenile record, stable social history, signs of remorse, lack of violent history, advanced age, realistic plans for release, presence of marketable job skills, and good conduct while institutionalized. 15 Cal. Code Regs. §§ 2281(d). Factors tending to demonstrate unsuitability for parole include a previous record for violent behavior, unstable social history, history of severe mental problems, and misconduct while institutionalized. A prisoner may be found unsuitable if his offense was committed in an especially heinous, atrocious or cruel manner, for instance, where the victim was abused, defiled or mutilated during or after the offense; the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering; or the motive for the crime was inexplicable or very trivial in relation to the offense. 15 Cal. Code Regs. § 2281(c).

  A state parole board's decision to grant or deny parole is ultimately one of "equity," which requires a careful balancing and assessment of all the relevant factors. Greenholtz, 442 U.S. at 8. Judicial review of a parole board's decision is limited to determining whether that decision is supported by "some evidence." See Superintendent v. Hill, 472 U.S. 445 (1985); Biggs, 334 F.3d at 915; Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987). Under the "some evidence" test, a reviewing court must uphold the state's parole determination as long as it has "some basis in fact." See Hill, 472 U.S. at 456. This standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of evidence." Id. at 455-56. Instead, the question for the reviewing court is "whether there is any evidence in the record that could support the conclusion." Id. (emphasis in original). In this case, the last reasoned state court decision addressing Petitioner's claims is the appellate court's unpublished opinion denying his state habeas petition. See Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004) (court is required to "look through" summary denials to last reasoned state court decision). In its opinion, the appellate court concluded that the Board's decision was adequately supported by some evidence in the record. [Lodgment C at 88-91.] The Board relied on Rosenkrantz, a state case which in turn relied on the Supreme Court's decision in Hill. [Lodgment C at 89 (citing Rosenkrantz, 29 Cal.4th at 658-59).] Because the state court relied on the correct legal standard, to obtain federal habeas relief Petitioner must demonstrate that the court's determination was objectively unreasonable. See Lockyer, 538 U.S. at 75.

  Petitioner's first claim is that the Board has repeatedly denied him parole based on unchanging factors, thus violating his due process rights.*fn2 [Petition at 5; Trav. at 5-7.] Petitioner is correct that the Ninth Circuit has warned against continued reliance on unchanging factors to deny parole, which can turn an indeterminate sentence like Petitioner's into an effective life sentence without the possibility of parole. See Biggs, 334 F.3d at 916. As the Ninth Circuit has observed, repeated denial of parole based solely on factors beyond the prisoner's control "runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." Id. at 917. In Biggs, the Court found no due process violation based on the board's initial reliance on an unchanging factor but observed, "Over time, should [petitioner] continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of [his] offense and prior conduct would raise serious questions involving his liberty interest in parole." Id. at 916.

  In this case, the Board found Petitioner unsuitable for parole based in part on the callous nature of the offense, in particular, that Petitioner and two other men "traumatized" two women, one of them 75 years old, by attacking them in their home. [Lodgment D at 199.] Petitioner is correct that this is an unchanging factor over which he has no control. However, the Board also relied on two potentially changing factors, namely, Petitioner's lack of adequate parole plans and his need for additional self-help therapy. These two factors are supported by some evidence in the record. As for the adequacy of Petitioner's parole plans, the record shows that Petitioner obtained housing and a means of support in Iowa, where several of his family members live. [Lodgment D at 381-83.] However, because he was convicted in San Diego County he would be required to serve his parole term there unless he was granted a transfer by the California Department of Corrections. Nothing before the Board indicated that Petitioner had in fact applied for a transfer to Iowa or that he was qualified for such a transfer. [Lodgment C at 90.] Regarding his parole plans in San Diego, Petitioner had an offer of housing from his brother, who had recently moved to the area, but he had not arranged a means of employment. [Lodgment D at 189-90, 378-79.] Additionally, as the Board observed, Petitioner is a citizen of Vietnam and is subject to being deported upon his release from prison; there was nothing before the Board to indicate that Petitioner had made any parole plans in the event he is deported to Vietnam. [Lodgment D at 180-81.] Regarding Petitioner's need for additional self-help therapy, the Board's determination is supported by a psychological report in the record, which noted inconsistencies in Petitioner's version of the facts regarding his culpability in the offense. [Lodgment D at 421-27.] Although Petitioner's most recent psychological evaluation was overall favorable, the evaluation also referred to an earlier report which recommended that Petitioner "participate in therapy to take responsibility for his involvement in the offense and continue to explore the possibility that he was indeed involved in raping the younger woman." [Lodgment D at 424; Lodgment A at 6.] Because the Board relied on these two additional factors, both of which are within Petitioner's ability to change, the Board's decision does not trigger the due process concerns raised by the Ninth Circuit in Biggs. Accordingly, the Court finds Petitioner's first claim without merit.

  Petitioner's second claim is that the Board improperly required written confirmation of his parole plans. [Petition at 5; Trav. at 9-10.] Petitioner appears to be arguing that the Board violated 15 Cal. Code Regs. § 2281 in finding his parole plans inadequate. [Trav. at 9-10.] A claim that the Board failed to follow state regulations in finding Petitioner unsuitable for parole is not cognizable in a federal habeas petition. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("federal habeas corpus relief does not lie for errors of state law"); Smith v. Idaho, 392 F.3d 350, 357 (9th Cir. 2004) (errors in application of state law not cognizable in federal habeas proceeding). Moreover, as a factual matter, the record does not support Petitioner's assertion that the Board required him to submit written confirmation of his plans. Rather, the record shows that two of the Board members advised Petitioner it would be helpful to his case to obtain documentation regarding his housing options and means of support should he be released. [See Lodgment D at 200 ("So if you can get a letter from your family there, that would be extremely helpful."); Lodgment D at 181 ("I might suggest to you . . . that you get a letter from your father that says that you can live with him upon parole ...

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