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Staben v. Hernandez

August 2, 2007

LEE M. STABEN, PETITIONER,
v.
ROBERT J. HERNANDEZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Rejecting Objections; Adopting Report and Recommendation; Denying Petition for a Writ of Habeas Corpus

Petitioner Lee M. Staben ("Staben"), a state prisoner proceeding through counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging former Governor Gray Davis' May 19, 2003 decision finding he was unsuitable for parole.*fn1 On April 20, 2007, Magistrate Judge Barbara L. Major filed a Report and Recommendation ("R&R") recommending the Court deny the petition. Both Petitioner and Respondent have filed objections to the R&R. Respondent has filed a reply.

The petition presents serious issues concerning the point at which the denial of parole by state agents violates due process. However, this Court's review is limited by the scope of relief available under 28 U.S.C. § 2254. Upon de novo review, for the reasons set forth herein, the Court rejects both Petitioner and Respondent's objections and adopts the R&R. The petition is DENIED.

Background

On June 14, 1991, Staben was convicted of two counts of second degree murder with the special allegation of personal use of a firearm for the death of Danwya Boyd and her eight month old fetus. [Respondent's Exhibit B.] On October 2, 1991, Staben was sentenced to a total term of 18 years to life. [Id.] His minimum eligible parole date was July 16, 2002. [Respondent's Exhibit G, at 109.]

Following his first parole hearing on December 27, 2001, the Board of Prison Terms ("Board") found Staben unsuitable for parole. [Respondent's Exhibit F.] On December 20, 2002, following a second hearing, the Board found Staben suitable for parole. [Respondent's Exhibit G.] The Board, in making its admittedly unusual decision, cited Petitioner's complete lack of criminal history, his stable social history, the fact that he graduated from high school and continued his education while in prison, his involvement in religious and self-help activities while in prison, his lack of infractions while in prison, his realistic parole plans, his great family support, and his considerable remorse. [Id. at 149-51.]

On May 19, 2003, Governor Davis reversed the Board's finding. [Respondent's Exhibit H.] The Governor determined the Board gave inadequate consideration to the gravity of the crime, the fact Staben had several clear opportunities to cease his criminal activity but instead chose to continue, the fact Staben was not under significant stress at the time he committed the crime, that the facts of the case fully supported the second degree murder conviction, and the fact Staben had not fully participated in self-help programming and anger management. [Id.]

Staben filed a petition for a writ of habeas corpus in the Riverside County Superior Court, which was denied without comment. [Respondent's Exhibit L and M.] Staben filed an identical petition with the California Court of Appeal, which was summarily denied. [Respondent's Exhibits N and O.] Staben then filed a petition for a writ of habeas corpus with the California Supreme Court, which was also summarily denied. [Respondent's Exhibits P and Q.]

Staben initially filed his petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Central District of California on April 6, 2004. On May 30, 2006, after the case was fully briefed, the Court transferred the case to this Court. Following the submission of supplemental briefing, on April 20, 2007, Magistrate Judge Major filed the R&R recommending denial of the petition. Both parties have filed objections.

Discussion

Magistrate Judge Major has set forth the appropriate standard of review with regard to Staben's petition. [R&R, pp. 5-7.] The Court reviews de novo those portions of the R&R to which the parties have objected. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002) (citing 28 U.S.C. § 636(b)(1)(C)).

A. Respondent's Objections

Respondent raises three objections to the R&R: (1) the R&R erroneously found it is clearly established federal law that California inmates possess a federal liberty interest in parole; (2) the R&R erroneously found it is clearly established federal law that the "some evidence" standard of review applies in the parole context; and (3) the R&R erroneously found the "some evidence" standard was not met with regard to the Governor's determination the Petitioner failed to participate in sufficient self-help and anger management therapy.

The Ninth Circuit has squarely rejected both of Respondent's first two arguments. The Supreme Court in Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1 (1979) and Board of Pardons v. Allen, 482 U.S. 369 (1987) held that "a state's statutory scheme, if it uses mandatory language, 'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 2002) (citing Greenholtz and Allen). In McQuillion, the Ninth Circuit examined the language of California Penal Code ยง 3041(b) regarding when parole should be granted. Upon comparison of the language to the statutes at issue in Greenholtz and Allen, the Ninth Circuit stated that "[u]nder the 'clearly established' framework of Greenholtz and Allen, we hold that California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion, 306 F.3d at ...


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