The opinion of the court was delivered by: Anthony W. Ishii, Chief Judge.
Order Denying Expedited Stay July 25, 2008
ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATION [Doc. # 11]; ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS; ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT
Petitioner Johnny Saldate is a state prisoner serving an indeterminate sentence of 15 years to life for second degree murder. Petitioner has been imprisoned since September 1986. Petitioner is proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by counsel. Petitioner challenges the California Board of Parole Hearings ("BPH")'s denial of parole at the conclusion of a January 23, 2006, parole suitability hearing.
On March 28, 2008, the Magistrate Judge issued a Findings and Recommendation that recommended the petition be DENIED with prejudice. The Magistrate Judge further recommended that the Clerk of Court be DIRECTED to enter judgment. The Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order.
On March 31, 2008, Petitioner filed objections to the Findings and Recommendation. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file and having considered the objections, the Court respectfully declines to adopt the Magistrate Judge's Findings and Recommendation.
When a petitioner is imprisoned from a state court adjudication and files a federal habeas petition after April 24, 1996, AEDPA governs and a court will not issue a writ of habeas corpus unless it is shown that the state court decision denying relief was "contrary to, or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1); Irons v. Carey, 505 F.3d 846, 850 (9th Cir.2007); Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir.2006).
California Penal Code § 3041 vests all California prisoners "whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause." Irons, 505 F.3d at 850; see Sass, 461 F.3d at 1128; Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.2003). Well before 2006, "the Supreme Court had clearly established that a parole board's decision deprives a prisoner of due process with respect to this interest if the board's decision is not supported by 'some evidence in the record,' or is 'otherwise arbitrary.' " Irons, 505 F.3d at 851; see Sass, 461 F.3d at 1128; Biggs, 334 F.3d at 915. The "some evidence" standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the decision ...." Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Sass, 461 F.3d at 1128. State statutes and regulation concerning parole suitability frame the "some evidence" analysis. Irons, 505 F.3d at 851. Therefore, courts "must look to California law to determine the findings that are necessary to deem a prisoner unsuitable for parole, and then must review the record in order to determine whether the state court decision holding that these findings were supported by 'some evidence' ... constituted an unreasonable application of the 'some evidence' principle articulated in Hill." Id.
Under California law, with respect to an eligible "life prisoner," the BPH "must 'normally set a parole release date' before the minimum term has been served," but "an inmate shall be found unsuitable for parole and denied parole if, in the judgment of the [BPH], the prisoner will pose an unreasonable risk of danger to society if released from prison." Id. (quoting In re Dannenberg, 34 Cal.4th 1061, 1078, 1080, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005) (quoting 15 C.C.R. § 2402(a))) (emphasis added). The BPH determines whether a prisoner is presently too dangerous to be released on parole by examining criteria set forth in regulations. See 15 C.C.R. § 2402; Irons, 505 F.3d at 851-52; Biggs, 334 F.3d at 915-16. The criteria set by regulation reads:
(b) All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; 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. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.
(c) The following circumstances each tend to indicate unsuitability for release. These circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate unsuitability include:
(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include:
(A) Multiple victims were attacked, injured or killed in the same or separate incidents.
(B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder.
(C) The victim was abused, defiled or mutilated during or after the offense.
(D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.
(E) The motive for the crime is inexplicable or very trivial in relation to the offense.
(2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.
(3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others.
(4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim.
(5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense.
(6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail.
(d) The following circumstances each tend to show that the prisoner is suitable for release. The circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment ...