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Zumbro v. Kane

July 21, 2008


The opinion of the court was delivered by: Ronald M. Whyte United States District Judge


Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the California Board of Prison Terms ("Board") decision denying him parole. The court ordered respondent to show cause why the petition should not be granted. Respondent has filed an answer addressing the merits of the petition, and petitioner has filed a traverse. Having reviewed the briefs and the underlying record, the court concludes that petitioner is not entitled to relief based on the claims presented and denies the petition.


Following his 1983 conviction for second degree murder, grand theft firearm and grand theft auto, petitioner was sentenced to a term of eighteen years and four months-to- life in state prison. On October 7, 1982, at the age of twenty, petitioner consumed largequantities of alcohol with a friend at a bar. At some point in the night, petitioner retrieved a gun from his motorcycle which was parked outside. He had taken the gun from his employer earlier that day. Petitioner attempted to sell the gun to his friend but the friend declined to purchase it. Sometime after, petitioner got into an argument with the victim, Greg Matthews. As the argument escalated, the bartender suggested the two continue 0 outside. Outside the bar, petitioner stated he took the gun out to show Matthews under the pretext of offering the gun for sale. Then, petitioner fired a single round into Matthews' chest. Petitioner remembers Matthews running back into the bar before petitioner left the scene. Petitioner stole a car the next day and was arrested the day after that. After a parole suitability hearing on May 27, 2004, the Board denied petitioner1 parole. Thereafter, petitioner filed a petition for a writ of habeas corpus in the Los Angeles County Superior Court, which was denied on August 2, 2005. Petitioner filed a habeas petition in the California Court of Appeal, which was summarily denied on September 8, 2005. Petitioner then filed a habeas petition in the California Supreme Court which was summarily denied on September 13, 2006. Petitioner filed the instant federal habeas petition on September 27, 2006.


A. Standard of Review

This court may entertain a petition for 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."

U.S.C. § 2254(a). Under the AEDPA, a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's 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. § 2254(d). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set 1 of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if the state court correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Where, as here, the highest state court to consider the petitioner's claims issued a summary opinion which does not explain the rationale of its decision, federal review under § 2254(d) is of the last state court opinion to reach the merits. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Bains v. Cambra, 204 F.3d 964, 970-71, 973- 78 (9th Cir. 2000). In this case, the last state court opinion to address the merits of petitioner's claim is the order of the Los Angeles County Superior Court. Resp. Ex. 11 (In re John F. Zumbro, Los Angeles County Superior Court Order re: Writ of Habeas Corpus, Case No. BH003400 (A085733), (Aug. 2, 2005)).

B. Subject Matter Jurisdiction

Respondent contends that this court does not have subject matter jurisdiction over the instant petition because California inmates have no federally-protected liberty interest in parole under California Penal Code section 3041. Resp. Mem. P. & A. at 2. Without this protected liberty interested, respondent argues, petitioner has not alleged a federal question and this Court does to have subject matter jurisdiction to decide his claims. Id. Although a convicted person has no inherent or constitutional right to early release on parole, a state's statutory parole scheme may create "a presumption that parole release will be granted" if it uses mandatory language. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 12 (1979). The Ninth Circuit made clear that because California's parole statute uses mandatory language, "California inmates continue to have a liberty interest in parole after In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005)." Sass v. Cal. Bd of Prison Terms, 461 F.3d 1123, 1125 (9th Cir. 2006) (finding that the district court misread Dannenberg which did not hold that there is no constitutionally protected liberty interest in parole -- but upholding denial of petition on other grounds). Because controlling Ninth Circuit authority holds that petitioner does have a constitutionally protected liberty interest in release on parole, this court has subject matter jurisdiction pursuant to 28 U.S.C. § 2254 to decide whether petitioner's Fourteenth Amendment right to due process was violated by the Board's denial of parole.

C. Petitioner's Due Process Claims

Petitioner asserts that his right to due process was violated by the Board's decision denying him parole because there is no evidence to support its finding that he is unsuitable for parole. Petitioner maintains that the Board's denial of parole was based on factors either incorrectly or arbitrarily decided and thus violated his right to due process.

1. The "Some Evidence"

Standard California prisoners have a constitutionally protected liberty interest in release on parole and, therefore, they cannot be denied a parole date without the procedural protections necessary to satisfy due process. McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002). A parole board's decision must be supported by "some evidence" to satisfy the requirements of due process. Sass, 461 F.3d at 1128-29 (adopting some evidence standard for disciplinary hearings outlined in Superintendent v. Hill, 472 U.S. 445, 454-55 (1985) (hereinafter "Hill")). Accordingly, if the Board's denial of parole in this case is to satisfy due process, there must be some evidence, with some indicia of reliability, to support the decision. Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005). Whether the "some evidence" standard is satisfied "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 conclusion reached by the [Board]." Hill, 472 U.S. at 455-56. In assessing whether or not there is "some evidence" supporting the Board's denial of parole, this court considers the regulations which guide the Board in making its parole suitability determinations. California Code of Regulations, title 15, section 2402(a) states that "[t]he panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." The regulations direct the Board to consider "all relevant, reliable information available." Cal. Code of Regs., tit. 15, ยง 2402(b). Further, they list sets of circumstances tending to indicate whether or not an inmate is suitable for ...

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