The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
FOR A WRIT OF HABEAS ORDER DENYING PETITION CORPUS
Petitioner Todd R Love, a state prisoner incarcerated at the Correctional Training Facility in Soledad, California seeks a writ of habeas corpus under 28 USC section 2254 challenging the California Board of Parole Hearings' ("board") February 15, 2005 decision to deny him parole. Per order filed on July 27, 2007, the court (Jenkins, J) found petitioner's claim that the board violated his due process and equal protection rights colorable under section 2254, when liberally construed, and ordered respondent to show why a writ of habeas corpus should not be granted. Respondent has filed an answer and petitioner has filed a traverse.
On June 20, 1993, petitioner fatally shot his sister's boyfriend. Doc #7, Ex 4. The shooting occurred after petitioner and the victim had been drinking beer and began to fight physically. Id. During a break in the fight, petitioner retrieved a gun from his bedroom and shot the victim twice. Id. At trial, the prosecution played a recording of a 911 emergency call which had recorded petitioner's repeated statements that he was going to kill the victim and the actual shots being fired. Id. On November 9, 1993, petitioner was convicted of first degree murder and use of a firearm to commit the crime. Cal Penal Code §§ 187, 12022.5. Petitioner filed a motion for a new trial and modification of the verdict. Id. The trial judge denied the new trial motion, but reduced the jury verdict to second degree murder. Id. Petitioner was sentenced to a prison term of 18 years-to-life: 15 years-to-life on the murder charge and an additional 3 year term for the use of a firearm during the offense. Id. On February 15, 2005, petitioner appeared before the board for his first parole consideration hearing. Doc #7, Ex 3. The board found petitioner unsuitable for parole. ("PAROLE DENIED TWO YEARS") Hr'g Tr at 73 (Doc #7, 3 Ex 3). Petitioner unsuccessfully challenged the board's decision in the state superior, appellate and supreme courts. Doc #1. On December 13, 2006, the California Supreme Court summarily denied petitioner's petition for review. This federal petition for a writ of habeas corpus followed.
The Antiterrorism and Effective Death Penalty Act 13 of 1996 ("AEDPA"), codified under 28 USC section 2254, provides "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the [p]petitioner is not challenging his underlying state court conviction." White v Lambert, 370 F3d 1002, 1009-10 (9th Cir 2004). Under AEDPA, this court may entertain a petition for habeas relief on behalf of a California state inmate "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 USC section 2254(a). The writ may not be granted unless the state court's adjudication of any claim on the merits: "(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 USC § 2254(d). Under this deferential standard, federal habeas relief will not be granted "simply because [this] 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." Williams v Taylor, 529 US 362, 411 (2000). While circuit law may provide persuasive authority in determining whether the state court made an unreasonable application of Supreme Court precedent, the only definitive source of clearly established federal law under 28 USC section 2254(d) rests in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id at 412; Clark v Murphy, 331 F3d 1062, 1069 (9th Cir 2003).
Petitioner seeks federal habeas corpus relief from the board's February 15, 2005 decision finding him unsuitable for parole and denying him a subsequent hearing for two years on the ground that the decision does not comport with due process and equal protection. Petitioner argues that the board's decision was arbitrary because he was not provided with individualized consideration and that the decision was not supported by some evidence in the record. Petitioner also argues that he was denied due process because his right to a parole hearing with the board one year prior to his minimum eligible parole release date was not timely satisfied.
Under California law, prisoners serving indeterminate life sentences, like petitioner, become eligible for parole after serving minimum terms of confinement required by statute. In re Dannenberg, 34 Cal 4th 1061, 1069-70 (2005). At that point, California's parole scheme provides that the board "shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration." Cal Penal Code § 3041(b). Regardless of the length of the 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." Cal Code Regs tit 15, § 2402(a). In making this determination, the board must consider various factors, including the prisoner's social history, past criminal history, and base and other commitment offense, including behavior before, during and after the crime. See Cal Code Regs tit 15, § 2402(b) - (d). California's parole scheme "gives rise to a cognizable liberty interest in release on parole which cannot be denied without adequate procedural due process protections." Sass v California Bd of Prison Terms, 461 F3d 1123, 1128 (9th Cir 2006); McQuillion v Duncan, 306 F3d 895, 902 (9th Cir 2002). It matters not that a parole release date has not been set for the inmate because "[t]he liberty interest is created, not upon the grant of a parole date, but upon the incarceration of the inmate." Biggs v Terhune, 334, F3d 910, 914-15 (9th Cir 2003). Petitioner's due process rights require that "some evidence" support the board's decision finding him unsuitable for parole. Sass, 461 F3d at 1125. This "some evidence" standard is deferential, but ensures that "the record is not so devoid of evidence that the findings of [the board] were without support or otherwise arbitrary." Superintendent v Hill, 472 US 445, 457 (1985). Determining whether this requirement is satisfied "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Id at 455-56. Due process also requires that the evidence underlying the parole board's decision have some indicia of reliability. Biggs, 334 F3d at 915; McQuillion, 306 F3d at 904. Relevant to this inquiry is whether the prisoner was afforded an opportunity to appear before, and present evidence to, the board. See Pedro v Oregon Parole Bd, 825 F2d 1396, 1399 (9th Cir 1987). If the board's determination of parole unsuitability is to satisfy due process, there must be some evidence with some indicia of reliability, to support the decision. Rosas v Nielsen, 428 F3d 1229, 1232 (9th Cir 2005).
Petitioner claims that the board's finding that he was unsuitable for parole is not supported by any evidence in the record or an individualized consideration of his circumstances. But the record shows that the board found three circumstances tending to show unsuitability for parole and that these circumstances formed the basis for its conclusion that petitioner posed "an unreasonable risk of danger to society and a threat to public safety if released from prison." Hr'g Tr at 69; see Cal Code Regs tit 15, § 2402(a) (stating that a prisoner determined to be an unreasonable risk to society shall be denied parole). The record also shows that the board afforded petitioner and his counsel an opportunity to speak and present petitioner's case at the hearing, gave them time to review petitioner's central file, allowed them to present relevant documents and provided them with a reasoned decision in denying parole. Hr'g Tr at 7-8. First, the board examined the commitment offense and found that the offense "was carried out in an especially callous, cruel manner. The offense was dispassionate * * * [showing] a callous disregard for another human being." Id at 69. The board also noted that the "motive for the crime was inexplicable or very trivial." Id; see Cal Code Regs tit 15, § 2401(c)(1)(D) - (E) (listing callous disregard for human suffering and trivial motive as factors tending to show unsuitability for parole). The board drew its conclusion from the fact that the offense was committed when petitioner was drinking beer and that the provocation for the shooting was a fistfight. Hr'g Tr at 69. The board cited the letter written by the district attorney in opposition to parole and the transcript of the 911 call during which the petitioner repeatedly stated his intent to kill the victim as particularly "powerful" in compelling it's decision to deny parole at this time. Id at 72. Second, the board cited four disciplinary write-ups as a factor in its decision to deny parole. The write-ups were issued between 1994 and 1997 and concerned: (1) entering an unauthorized cell; (2) manufacturing alcohol in a cell; (3) willful resistance; and (4) refusing a direct order. Doc #7, Ex 8. The board noted that, as of the time of the hearing, petitioner had been "disciplinary free for almost six and a half years, so he appears to be smoothing it out." Hr'g Tr at 70-71. But, in its judgment, this did not outweigh the other factors contributing to petitioner's parole denial. Id. Third, and related, is that the board determined that petitioner "had not sufficiently participated in substance abuse programs." Id at 70. Specifically, the board found that petitioner "needs to continue to participate in programs that would enable him to be able to face, discuss, understand and cope with stress in a non-destructive manner." Id. While commending petitioner on the vocational and rehabilitative strides he had made, the board noted that, as yet, he had not "completed the necessary programming which is essential to his adjustment." Id. The board considered other factors tending to support suitability for parole including: petitioner's favorable psychological evaluation which indicated a reduced level of dangerousness and that he was on the right track; that he had been discipline free for over six years; that he had support from family who would help him with his residential and employment plans; and his participation in vocational courses. Hr'g Tr at 70-71. The board found that these factors showed that petitioner was making progress, but that these positive aspects did not "outweigh the fact of his unsuitability." Hr'g Tr at 71. The state superior court affirmed the decision of the board. The superior court examined the board's considerations and concluded that the board based its determination of unsuitability for parole on some evidence. Doc #7, Ex 10. This evidence included the "four serious disciplinary write-ups during his state prison confinement, and further that petitioner had not sufficiently participated in substance abuse programs." Id (citing Hr'g Tr at 70, 72) (internal quotations omitted). Further, the superior court agreed that the gravity of the crime and its surrounding facts justified further incarceration. Id. The state appellate and supreme courts summarily denied petitioner's request for habeas corpus relief.
The state courts' rejection of petitioner's due process claim was not contrary to, nor did it involve an unreasonable application of clearly established federal law, and it was not based on an unreasonable determination of the facts. See 28 USC § 2254(d). The record shows that the board had some reliable evidence to support its finding of unsuitability. Because this was petitioner's first parole hearing, the circumstances surrounding the murder, which suggested a callous disregard for human suffering as well as a trivial motive were particularly relevant to the board's decision. Accord Irons v Carey, 505 F3d 846, 850 (9th Cir 2007) (upholding denial of parole based solely on gravity of offense). It is also relevant that petitioner had not yet served the minimum 18 year determinate part of his sentence. See id at 853 (denial of parole based on commitment offense where petitioner has not yet served the minimum number of years required by his sentence will generally comport with due process). In addition, the previous disciplinary write-ups and a finding that petitioner had not sufficiently participated in substance abuse programs reasonably contributed to the board's determination that he was unsuitable for parole. See Hill, 474 US at 455-56. The board's detailed findings rebut petitioner's allegation that the ...