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Bell v. Hernandez

February 1, 2007

GILBERT BELL, PETITIONER,
v.
ROBERT HERNANDEZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

I. Procedural and Factual Background

On April 28, 2005, Petitioner Gilbert Bell's Petition for writ of habeas corpus, challenging a decision by California Gov. Arnold Schwarzenegger reversing a parole board's decision finding him suitable for parole. On May 23, 2005, the Petition was transferred to this Court from the Central District of California. Petitioner is represented by counsel.

In 1979 Petitioner shot and killed his common-law wife and pushed her body from the car. Petitioner had an extensive prior criminal record, including violent offenses. He pled guilty to second degree murder and was sentenced to a term of 15 years to life. Petitioner is presently incarcerated at the Richard J. Donovan Correctional Facility in San Diego. At parole hearings from 1989 to 2002, the Board of Prison Terms ("BPT") panel found him unsuitable for parole. In 2003, the panel found him suitable, set the term and conditions of his parole. Under Cal. Penal Code § 3041.2, the decision was reviewed by Gov. Schwarzenegger, who reversed it. The Governor's office issued a letter, accompanied by written findings signed by Gov. Schwarzenegger, identified as the Indeterminate Sentence Parole Release Review ("Governor's Review"). Following denial of habeas in state court proceedings, Petitioner filed the instant Petition.

This matter was referred to Magistrate Judge Jan M. Adler for report and recommendation pursuant to 28 U.S.C. § 636. Following the filing of an answer and traverse, Judge Adler issued his report and recommendation (the "R&R") on February 28, 2006, recommending that the Petition be denied with prejudice and judgment entered accordingly. Petitioner filed written objections to the R&R.

A district court has jurisdiction to review a Magistrate Judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Id.; see also 28 U.S.C. § 636(b)(1)(C). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Thus, this Court must review those parts of the report and recommendation to which a party has filed a written objection.

II. Petitioner's Arguments

A. Petition

The Petition objects to the Governor's decision because, it contends, the decision was drafted by others and "[s]igned by the Governor or his designated agent without the Governor's personal review of all, or any of the materials reviewed by the BPT panel that granted parole . . . ." (Petition at 9:27--10:1.) The Petition cites authority, including In re Rosenkrantz, for the principle that the BPT is required to consider "all relevant, reliable information available to the panel." 80 Cal.App.4th 409, 424--27 (2000) (disapproved on other grounds by In re Rosenkrantz, 29 Cal.4th 616 (2002)) (citing Cal. Code Regs., tit. 15, § 2402(b)). The Petition also cites authority including In re Arafiles, for the principle that "[t]he Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider." 6 Cal.App.4th 1467, 1474 (Cal.App.3.Dist. 1992) (citing California Constitution, Art. 5, § 8(b).) The Petition alleges that the Governor "did not personally review petitioner's case as required by law. . . ."

The Petition also takes issue with the bases on which the Governor's signed statement says he reversed the BPT panel's decision, and contends this violated Petitioner's due process rights. The Petition takes issue with the Governor's citation to Petitioner's "startling record of violence;" the fact that the commitment offense occurred while Petitioner was on parole; Petitioner's history of dealing with alcohol and drug abuse problems; Petitioner's history of personality disorders; the Governor's suspicion that Petitioner's expressions of remorse were insincere; and the viciousness of the murder and the triviality of Petitioner's motive in committing it.

The Petition contends the Governor should not have relied on the murder as a basis to continue denying Petitioner parole without "articulating a rational nexus between the offense factors recited and Petitioner's current parole risk, if any." The Petition contends this was a denial of Petitioner's due process rights.

The Petition argues that the Governor's reversal violated his due process rights because the Governor's discretion to deny parole repeatedly or interminably is necessarily limited. Therefore, it suggests, the characterization of Petitioner's offense as serious is an inadequate basis on which to deny parole.

The Petition further alleges Gov. Schwarzenegger reversed nearly all grants of parole by the BPT in second degree murder cases using "verbatim identical grounds to reverse parole grants. . . ." (Petition at 21:13--14.) The Petition contends this showed Petitioner was denied the ...


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