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Smith v. Hartley


September 26, 2008


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Petitioner Darrel Maurice Smith, Sr., a state prisoner proceeding pro se, filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Smith is presently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Avenal State Prison.


In September 1984 Smith, following a "slow plea" submission,*fn2 was convicted in the Sacramento County Superior Court of second degree murder with a firearm enhancement. Smith was sentenced to an aggregate term of 17 years to life.

On December 18, 2002, Smith made his fourth appearance before a panel of the Board of Prison Terms ("Board"), which denied him parole, finding that he was not suitable for parole and would not be found suitable for a period of three years. Smith administratively appealed the decision of the panel, which affirmed the panel decision July 8, 2003. On October 23, 2003, Smith filed a habeas petition in the Sacramento County Superior Court that was denied in a reasoned written decision on November 12, 2003. On December 15, 2003, Smith filed a habeas petition in the California Court of Appeal, which was summarily denied without opinion or citation on December 30, 2003. On January 14, 2004, Smith petitioned the California Supreme Court for a writ of habeas corpus, which was summarily denied without opinion or citation to authority on December 1, 2004. Smith timely filed his petition for habeas relief in this Court on June 22, 2005 (file stamped June 27, 2005).


In his petition, Smith has raised 10 Grounds: (1) the California Superior Court erred in denying his habeas petition; (2) Petitioner's "slow plea" is tantamount to a guilty plea; (3) he did not waive his right to a jury trial; (4) he was not informed of the consequences of his "slow plea"; (5) he has a constitutional right to compel the state to comply with his plea agreement; (6) he must be permitted to withdraw his guilty plea; (7) plea agreements are contracts the state must honor; (8) he was entitled to parole release at his 2002 hearing; (9) the Board failed to follow controlling legal principles so disproportionately that it violated his constitutional rights; and (10) lack of evidence to support a finding of suitability.

The Court previously dismissed, without prejudice, the petition to the extent that it challenged his conviction.*fn3 Respondent was ordered to respond to the remaining grounds challenging the Board's December 18, 2002, decision denying him parole. Respondent concedes that Smith has exhausted his state court remedies as to the remaining grounds and that the petition is not subject to any other procedural bar.


Because Petitioner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5

Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn6 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable, "not just incorrect."*fn7 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn8

Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn9

In applying this standard, this Court reviews the last reasoned decision by the state court,*fn10 which in this case was that of the Sacramento County Superior Court. In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn11

To the extent that Petitioner raises issues of the proper application of State law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law.*fn12 A federal court must accept that state courts correctly applied state laws.*fn13 A petitioner may not transform a state law issue into a federal one by simply asserting a violation of due process.*fn14 Nor may a federal court issue a habeas writ based upon a perceived error of state law unless the error is sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment.*fn15


Ground 8: Entitlement to Parole Release

Sass v. California Board of Prison Terms,*fn16 settled the issue that a California prisoner has a liberty interest in parole protected by the procedural safeguards of the Due Process Clause of the Fourteenth Amendment.*fn17 It is equally as well settled that a decision of the parole board to deny a prisoner parole must be supported by some evidence in the record.*fn18 Smith challenges the refusal of the Board to grant him a parole on the basis that the decision was based primarily, if not wholly, upon the nature of his commitment offense.*fn19 In Biggs v. Terhune,*fn20 the Ninth Circuit indicated that although the commitment offense provides some evidence of unsuitability for parole, "[a] continued reliance in the future on an unchanging factor, the circumstances of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the system and could result in a due process violation." It is this principle that Smith has drawn into issue in this case.

There is, as this Court has noted in other cases, a lack of clear guidance from the Court of Appeals on this issue. Where the line of demarcation that triggers a violation of the Due Process Clause referred to in Biggs lies is unknown. Irons v. Carey,*fn21 appears to make it dependent, at least in significant part, upon the gravity of the commitment offense, how heinous it was, e.g., the extent to which the prisoner acted in callous disregard for human life, the degree of depravity or cruelty shown, and the nature of the victim. The holding in Irons established a bright-line test of sorts, i.e., a crime that is more heinous, atrocious, callous, or cruel than that committed by Sass,*fn22 is sufficient to satisfy due process, despite evidence of exemplary behavior in prison and evidence of rehabilitation and the lack of a prior criminal record.*fn23 Irons did not, however, address the question posed by Biggs-at what point in time does the nature of the commitment offense becomes so attenuated that it no longer constitutes "some evidence"?*fn24

From Biggs, Sass, and Irons, a district court can glean certain guiding principles in ruling on a California prisoner's application for a writ of habeas corpus addressed to the denial of parole. First, a California prisoner has a liberty interest in parole protected by the Due Process Clause. Second, the test to be applied is whether some evidence indicates a parolee's release unreasonably endangers public safety, not whether the findings of the Board are supported by evidence. Third, at least until such time as the prisoner has served the minimum sentence imposed, denial of a parole date solely upon the basis of the commitment offense more likely than not does not violate the Due Process Clause. Fourth, a district court must examine the record for sufficient evidence to support the findings of the Board that release unreasonably endangers public safety. Fifth, the extent to which the gravity of the commitment conviction is attenuated by time, assuming that all other factors properly considered are either neutral or positive, is dependent upon (1) the nature of the commitment offense and (2) there has been a significant time lapse since the offense was committed.

In this case, the crime occurred nearly 20 years before the hearing and, unlike Biggs, Sass, and Irons, Smith had, although barely, completed his minimum term. The California Court of Appeal on direct appeal described the underlying offense:*fn25

The shootings stemmed from defendant's unhappiness because Tracie Connor, a woman by whom he had a child, no longer wished to see him. They had lived together over a four-year period and she had previously moved out on more than one occasion. On January 5, 1984, the day of the shootings, Tracie Connor and David Holmes, the homicide victim, had a dating relationship. About 8 o'clock that night, defendant came to the Sacramento home where Tracie Connor lived with her mother, Linda Nance, to see Connor. He seemed upset, but there was no "Bogart anger." He did not appear intoxicated or under the influence of drugs, and spoke calmly. On his arrival Nance told him to behave properly and he replied that he merely wanted to talk briefly to Connor and leave. Nance sat on the couch with a "Mr. Bell" while defendant and Connor had a conversation nearby. David Holmes was in a back bedroom with Nance's son. After about two to five minutes Holmes entered the room. As he passed by Connor he touched the right side of her face, then sat down. Nance heard Connor say, "What are you going to do, shoot me?" Defendant had a pistol which he pointed first at Connor's chest, then her leg. He shot her in the leg. Defendant shot Nance in the upper leg, then shot Holmes in the head as he attempted to stand up. Defendant ran out the front door. Holmes died.

This crime, found to constitute second degree murder, is certainly more heinous and atrocious than the second degree murder convictions found sufficient in Sass and Irons to constitute a sufficient basis for the Board's decision. As was the panel in Irons, this Court is bound by Sass and must find that Smith's due process rights were not violated.

Ground 10: Lack of Evidentiary Support

Smith's argument that the decision of the Board lacks evidentiary support lacks merit. Smith focuses on a single factor, the nature of his crime, as being the basis for denial of parole; however, as the decision of the Sacramento County Superior Court found, the Board tailored its decision to the totality of Smith's individual circumstances. While continued reliance on the unchanging circumstances of Smith's offense, standing alone, may have implicated his liberty interest in parole,*fn26 that did not happen in the course of the Board's 2002 parole denial.

The Superior Court found, in addition to the specific offense of which he was convicted, which is not in dispute:*fn27

Petitioner also claims that he was erroneously denied parole on December 18, 2002, by the Board of Prison Terms. Petitioner first claims that the denial of parole was based solely on his commitment offense, and under Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, as well as In re Ramirez (2001) 94 Cal.App.4th 549 and other recent California appellate decisions, this presents a due process question. Not so. Not only did the Board of Prison Terms panel rely on the commitment offense in denying parole, the panel also relied on numerous other factors, including his prior escalating pattern of criminal conduct, based on his prior conviction for possession of a weapon, which gave him the message not to carry a handgun yet he did so and that resulted in the murder; his only limited amount of programming while incarcerated; his eleven serious disciplinaries while incarcerated, including threatening staff and physically assaulting an officer in 1986, a 1990 disrespect towards staff, a 1990 positive drug urinalysis, violence in 1993, another positive drug urinalysis in 1995, and as recently as 2001 an offense of threatening staff. As the panel so aptly concluded, this clearly evidences a pattern of petitioner not being able co control his rage or temper, or even his drug use which had been a contributing factor to the crime. Indeed, petitioner's disciplinary history alone would support the decision to deny parole to petitioner. All that is required to uphold the Board's decision is "some evidence" to support its conclusion (Superintendent v. Hill (1985) 472 U.S. 445, 456-457; In re Powell (1988) 45 Cal.3d 894, 903--904; Ramirez, supra), and that is more than amply met in this case.

Under McQuillion v. Duncan,*fn28 these unquestionably constitute "'some evidence' having 'some indicia of reliability.'"

In light of Hill, Irons, Sass, and McQuillion, this Court cannot say that the decision of the Sacramento County Superior Court, which applied the same "some evidence" test applied in Hill, was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn29 Nor can this Court find that the Superior Court unreasonably applied the correct legal principle to the facts of the Smith's case, i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable.*fn30

To the extent that Smith argues that the failure to set a parole date is contrary to the provisions of California Penal Code § 3041 and title 15 of the California Code of Regulations, that argument, involving the proper interpretation and application of a state statute and regulations, is an issue beyond the purview of this Court in a federal habeas proceeding. The question to be decided by a federal court on petition for habeas corpus is not whether the Board committed state-law error in relying upon the commitment offense. Rather, the federal, constitutional question is whether such reliance is so arbitrary or capricious as to constitute an independent due process violation under the Fourteenth Amendment.*fn31 Even if the California Superior Court erred in applying California law, which it did not,*fn32 that error was not so arbitrary and capricious as to constitute a violation of due process.


Smith is not entitled to relief under any ground raised in his petition. Accordingly,

IT IS THEREFORE ORDERED THAT the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT no Certificate of Appealability is required.*fn33

The Clerk of the Court to enter final judgment accordingly.

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