FINDINGS AND RECOMMENDATIONS
Petitioner is a 69 year old state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner also suffers myriad medical ailments: he is a brittle diabetic (DOJ001844)*fn1 and has hypertension, chronic hepatitis C viral infection, bilateral lower extremity venous insufficiency secondary to an old gunshot wound (DOJ001841), chronic low back pain and an allergy to sulfonamides. (DOJ001873.) On March 4, 2008, petitioner's counsel notified the court that petitioner had been diagnosed with prostate cancer, but had not yet received treatment. (Docket No. 40.)
Petitioner is serving a sentence of life with the possibility of parole, following his 1984 conviction on charges of kidnaping for robbery, robbery, and attempted robbery. Petitioner challenges the April 10, 2003 decision of the California Board of Parole Hearings (Board) to deny him a parole date. Petitioner contends that he was deprived of a constitutionally protected liberty interest because there was no evidence to support the Board's decision to rescind the 2002 grant of parole and there is no evidence that petitioner's release will unreasonably endanger public safety.
On April 15, 1996, a superior court judge appointed counsel for petitioner, and, in granting the state petition for writ of habeas corpus, ordered the Board to set aside its December 21, 1995 unsuitability finding, stating:
The record before this court reflects that Petitioner has done all that prior panels have asked him to do. He has realistic goals upon release and a supportive family. By ignoring all positive factors, the factual basis upon which to find Petitioner unsuitable for parole was skewed against his favor. There simply is no evidence to support the [Board's] finding that Petitioner would pose an unreasonable risk of harm. In finding Petitioner unsuitable for parole, the court finds that the [Board] abused its discretion.
(April 15, 1996 Order, appended to Petition as Ex. B at 42; DOJ001789-93.)(Judge Silver.) Despite Judge Silver's order, petitioner was denied parole at the subsequent parole consideration hearing.
Since the initial denial, despite Judge Silver's order, a classification score of zero, the absence of any prison disciplinary conviction after 1997,*fn2 multiple psychologist's conclusions that petitioner presents a low potential for violence, a stable and supportive family, an offer of employment in the family business, completion of a certified vocation in 1995, consistently good work reports, participation in Narcotics Anonymous and numerous religious activities, petitioner, a licensed minister and grandfather of two, who suffers multiple health issues, has been denied parole at nine subsequent parole consideration hearings from 1989 through 2003, since he was initially denied parole in 1988.
For the reasons set forth below, this court finds that the rescission of petitioner's parole was not supported by even the minimal quantum of evidence required to satisfy the requirements of the federal due process clause. Moreover, the rescinding Board's 2003 decision to rescind parole for another year, as well as their failure to parole petitioner over five years later, makes manifest and inescapable the conclusion that no purpose will be served in remanding this matter for another parole consideration hearing or setting a parole date. It is therefore the recommendation of this court that respondent be directed to release petitioner forthwith on parole.
In 1984, petitioner was found guilty after a jury trial of robbing two men and attempting to rob a third on separate occasions. As to one victim, petitioner was found guilty of both robbery and kidnaping for purposes of robbery and sentences were imposed on both counts. The trial court imposed two-year sentence enhancements under Penal Code §12022.1 because petitioner committed the additional crimes while he was free on bail after his arrest for the first robbery. Petitioner appealed, and his case was remanded for re-sentencing on December 17, 1985. On April 5, 1990, petitioner was sentenced to life with the possibility of parole for the kidnaping for robbery, plus one year for the weapon enhancement, five years for one count of robbery, and eight months for the attempted robbery. (Answer, Ex. 1.) The court stayed the sentence on the other robbery count. Petitioner was received in state prison on April 24, 1984. (DOJ0000880.)
After appeal and re-sentencing, petitioner was sentenced to life with the possibility of parole. At the time of the commitment offenses, petitioner was forty-six years old, and appeared to suffer a drug addiction.*fn3 Petitioner was not convicted of inflicting bodily injury on any of the victims. Id. Prior to this conviction, petitioner had no juvenile record, but he had an extensive criminal record.
On April 1, 1996, a hearing was held on petitioner's state habeas petition challenging the December 1995 denial of parole. In re Application of Benjamin Adams, Case No. HC 2809 (April 16, 1996)(DOJ001789). The state court noted that petitioner's prior petition had come before that court in November 1994. Id. The prior state court petition was denied on December 27, 1994. Based on a minimum factual basis to support the Board's findings, the court found respondent had not abused its discretion in finding petitioner unsuitable for parole. Id. However, the state court indicated that "if petitioner was again found unsuitable for parole, the court would consider setting the matter for hearing." Id.
Petitioner filed a Petition for Peremptory Writ of Mandate on December 29, 1995. The state court construed this filing as a petition for writ of habeas corpus and set the matter for hearing on April 1, 1996. (Id., DOJ001790.) As noted above, Judge Silver found the Board abused its discretion in denying petitioner parole in 1995 as "[t]here simply is no evidence to support the [Board's] finding that Petitioner would pose an unreasonable risk of harm." (Id., DOJ001793.) Judge Silver ordered respondent to set aside its December 21, 1995 decision finding petitioner unsuitable for parole and hold a new suitability hearing within thirty days. (Id.)
Petitioner filed another petition for writ of habeas corpus in state court, but that petition was denied as unexhausted. In re Application of Benjamin Adams, Case No. HC 3028 (September 22, 1997)(DOJ000685.)
On April 2, 2004, petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the 2003 rescission of parole. (Answer, Ex. 7.) The Superior Court upheld the rescission of parole, finding that the granting panel failed to adequately discuss the nature of the commitment offenses, merely incorporating by reference a statement of facts from prior transcripts, and did not consider all of petitioner's prior criminal convictions. In re Benjamin Adams, Case No. BH002706, Los Angeles County Superior Court, September 17, 2004 (Answer, Ex. 9).
On October 5, 2004, petitioner filed a petition with the California Supreme Court. (Answer, Ex. 10.) On August 15, 2007, that petition was denied with a citation to People v. Duvall, 9 Cal.4th 464, 474 (1995). (Answer, Ex. 9.)
Petitioner filed the instant action on January 6, 2005 in the Northern District of California. The case was transferred here on November 4, 2005.
Petitioner has served 14 years beyond his minimum eligible parole date of 1994,*fn4 and was denied parole at nine subsequent parole consideration hearings before he was granted parole at the 2002 Board hearing.
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
Petitioner alleges his "federal rights to due process of law were violated by the rescission of his parole which had been granted by the [Board] on a proper finding of suitability for parole based upon substantial evidence." (November 16, 2006 First Amended Petition.)
In the context of the rescission of parole, "[t]he process that is due before a prisoner can be deprived of such an interest is a showing that there is 'some evidence' in the record to support a later rescission of that date." McQuillion, 306 F.3d at 898.
The last reasoned rejection of this claim is the decision of the Los Angeles County Superior Court on petitioner's petition for writ of habeas corpus. The state court rejected this claim as follows:
Even after parole is granted, the Board is authorized to rescind the grant of parole for good cause after a rescission hearing.
(Caswell, supra, at 1026.)*fn5 "Cause" includes new information indicating parole should not occur or fundamental errors which resulted in the improvident grant of parole. (Caswell, supra, at 1026; see Cal. Code Regs., tit. 15, § 2451.) However, cause for rescission is not limited to those grounds enumerated in California Code of Regulations, title 15, section 2451, and can also be found where the granting panel has failed to adequately consider the gravity of the prisoner's convictions. (Caswell, supra, at 1026-27.) "When the granting panel misstated facts or explicitly declined to consider information germane to the gravity of the crimes, it can fairly be said that reasonable minds could differ on whether the panel gave adequate consideration to the severity of the crimes." (Id. at 1029.) In those cases, there is "some evidence" of the panel's failure to consider the gravity of Petitioner's offense, justifying rescission of the parole release date. (Id.) The rescission panel is required to articulate specific facts or cite express omissions of the granting panel, in rescinding a parole date. (Id. at 1031.)
The rescission panel reviewed the granting panel's record with regard to the gravity of the life offense. The record established that the granting panel, rather than read a description of the life crime into the record, merely incorporated by reference a statement of facts taken from prior transcripts. (See April 10, 2003 Parole Hearing Transcript, at 13 and 18.) The rescission panel characterized the discussion of the life crime as an "exchange" between the panel and Petitioner, rather than any official rendition of the events. (Id. at 18.) The granting panel's summary of the facts was limited to "it was three different events basically . . . Aldon Doolittle, who was 72, Sherman Elsberry, and Paul Singer. . . you used a firearm and you kidnapped and robbed some elderly victims." (Id. at 13-15.)
The record with regard to the granting panel's review of Petitioner's criminal history, established that the granting panel "incorporated" Petitioner's adult arrest record, including his personal and social history, by way of an October 1995 Board report. (See April 10, 2003 Parole Hearing Transcript, supra, at 41.) Additionally, the granting panel discussed some of
Petitioner's prior convictions, but not all. (Id. at 42.) The rescission panel found at least nine prior convictions that were not even mentioned during the April 2003 hearing. (Id.)
The rescission panel's findings that good cause existed to rescind Petitioner's parole date are supported by "some evidence." (Caswell, ...