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McCray v. Kernan

January 27, 2009

SABU SHERVON MCCRAY, PETITIONER,
v.
SCOTT KERNAN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding with appointed counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole in February 2005. Pending before the court are petitioner's pro se petition for a writ of habeas corpus (Doc. 1), respondents' answer (Doc. 15), and petitioner's pro se reply (Doc. 17). Also before the court are the following s filed after the appointment of counsel: petitioner's supplemental memorandum and exhibits (Docs. 34 and 35), respondents' supplemental answer (Doc. 41), and petitioner's supplemental reply (Doc. 45). Pursuant to the court's March 26, 2008, order, petitioner filed a supplemental brief (Doc. 47). Respondents request a stay of proceedings in this case (Doc. 48) pending issuance of the mandate in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), rehearing en banc granted, 527 F.3d 797 (9th Cir. 2008).

I. BACKGROUND

A. The Commitment Offense, Conviction, and Sentence

Petitioner and respondents refer to the Board of Prison Terms' ("Board") February 9, 2005, hearing decision for a description of the facts of petitioner's commitment offense. Petitioner summarizes those facts as follows:

Petitioner, Sabu McCray, was eighteen years old in 1984 when he and an older accomplice [Reginald Martin] attempted to rob a Kentucky Fried Chicken restaurant just after it closed to business. Frustrated when the manager did not have the combination to the safe, they forced her into her car, tied her hands with duct tape, and drove off. An alert deputy sheriff heard the manager scream and took up pursuit, catching petitioner and his accomplice, who surrendered immediately.

Citing to the transcript of February 2005 hearing, which is attached to respondents' answer as Exhibit B, respondents describe the facts in a bit more detail:

The circumstances of McCray's crimes are as follows: While on parole from the California Youth Authority, McCray and a crime partner conspired to commit a late night robbery of a fast food restaurant and its employees. (Ex. B at 48, 67-68). In furtherance of the conspiracy, the two gathered up weapons, ski masks and a roll of duct tape. (Id. at 68, 70). On December 3, 1984, at approximately 10:00 p.m., McCray and his crime partner donned their ski masks and confronted restaurant employees at gun-point. (Id. at 67-68). They ordered the employees to lie face down on the floor and forced them to hand over their wallets. (Id.). McCray was identified as one who then ordered the female restaurant manager to open the combination lock to the restaurant's safe. (Id. at 68). The manager told McCray that she did not know the combination to the safe. (Id. at 68- 69). Apparently angered, McCray and his crime partner decided to take the manager as a hostage. (Id. at 70).

Using a hat and some duct tape, they blind-folded the manager. (Ex. B at 70). Thereafter, McCray and his crime partner confiscated the manager's car keys so that they could use her car to further their escape. (Id.). Meanwhile, a sheriff's deputy, driving by the restaurant, became suspicious when he failed to see the usual sight of employees cleaning up the restaurant around the 10:00 p.m. hour. (Id. at 70-71). To clear up his suspicions, the deputy tapped on the restaurant window to draw attention, but he got no response. (Id. at 71). While the deputy was on the front-side of the restaurant, behind it McCray and his crime partner were busy loading the blind-folded manager into the car. (Id.). Fearing for her life, the manager screamed "help" before she was forcefully shoved headfirst into the front seat of the car. (Id.). Alerted by the scream, the deputy radioed dispatch for assistance and began a pursuit of the get-away car. (Id. at 70-71). McCray then advised his crime partner (the get-away car driver), "that's a cop behind us. Make sure you stop at all stop signs, be cool where you're going and what's your doing." (Id. at 71-72). During the car chase, the driver held the manager's head down and out-of-view by pressing his elbow to her head. (Id. at 71). Following a ten to fifteen minute car chase, that involved two law enforcement agencies, McCray and his crime partner were apprehended while the manager was rescued. (Id. at 72). At the time of his arrest, McCray was in possession of a handgun and a roll of duct tape. (Id.). McCray does not dispute the facts of his crimes. (Id. at 14).

Petitioner was convicted in 1985 of kidnaping to commit robbery, attempted robbery, and auto theft. With enhancements for use of a firearm, petitioner was sentenced to an indeterminate sentence of life with the possibility of parole. According to petitioner, he first became eligible for parole in 1993.

B. Parole Suitability Hearings

Petitioner has had at least nine parole suitability hearings.*fn1 Petitioner's initial parole suitability hearing was held on February 14, 1992, at which time the Board denied parole. Petitioner states that the Board could not provide his counsel a copy of the transcript from the 1992 hearing.

February 1994 Hearing

A second (or first subsequent) hearing was held on February 11, 1994. The Board denied parole, concluding that petitioner would pose an unreasonable risk of danger to society if released. The Board cited the following factors in support of its decision: (1) the facts of the commitment offense; (2) petitioner's prior criminal and social history; (3) petitioner's history of disciplinary actions while in prison; (4) petitioner's failure to upgrade educationally and vocationally; (5) petitioner's failure to participate in self-help programs; and (6) petitioner's January 1994 psychological evaluation. As to misconduct while in prison, the Board noted that petitioner has received nine "CDC 115" disciplinary charges since his arrival in prison, the most recent of which occurred on June 15, 1993. The Board recommended that petitioner complete "necessary programming which is essential to his adjustment" and concluded that he needed more time to complete such programming. The Board also recommended that petitioner "become disciplinary free." The presiding commissioner concluded the 1994 hearing by saying:

That's the first step, Mr. McCray. The first step is staying disciplinary free. If you can make that step, the other steps will follow. Remember what I said, when you put enough stuff in the file that will support a parole date, that's when you get it.

May 1996 Hearing

Petitioner next appeared before the Board for a suitability hearing in May 1996. Again, the Board denied parole. The Board cited the following factors: (1) the facts of the commitment offense; (2) petitioners prior criminal and social history; (3) petitioner's failure to participate in sufficient self-help programming; (4) recent disciplinary violations. As to disciplinary infractions, the Board noted that petitioner tested positive for marijuana since his last suitability hearing. The Board did, however, commend petitioner "for his work ethic and his AA participation." The presiding commissioner stated: "If you continue to get 115's, you're going to continue to stay in prison." Deputy Commissioner Douglas concluded the hearing by adding:

. . . I think you've got your foot in the right path now and, you know, you've [got] to realize that the longest journey starts with the first step. And that's where you're at. Good luck to you.

August 1998 Hearing Petitioner was again considered for parole in August 1998. The Board denied parole, citing many of the same factors. In particular, the Board noted that petitioner "has not, as of yet, completed a vocation." The Board, however, noted that petitioner had made progress educationally, having obtained his GED. The Board also noted that petitioner had not received any new disciplinary infractions and recommended that he "remain disciplinary free."

May 2001 Hearing

Petitioner's next suitability hearing was in May 2001. The Board noted that petitioner had not committed any disciplinary violations since 1995 and that petitioner had received excellent work evaluations and had continued to participate in AA and NA. The Board also addressed a June 2000 psychological evaluation, noting that the psychologist had concluded that petitioner "truly gained some maturity and perspective of the event and does not show ongoing criminality as part of his view toward life and his future." The psychologist assessed petitioner's risk level as "below average." The Board denied parole, but said that petitioner would be reviewed again in one year. In its decision, the Board again cited unchanging factors and added that petitioner had wasted his first ten years in prison. The Board also noted that petitioner's letters in support of parole were a few years out of date. Commissioner Granlund concluded the hearing by saying:

. . . I think you're on the right track. You're making progress. You've gotten to a point where you realize you don't -- I believe you don't want to spend the rest of your life here, you want to get out, and I believe that we've tried to lay some of that plan out for you of exactly what you're going to have to do because you really can go to work now on getting a parole date by having those plans in place and if you can upgrade any more in any other vocation or, you know, anything else that you can do along those lines.

May and August 2002 Hearings

Petitioner was next considered for parole at hearings held in May and August 2002. In denying parole, the Board once again relied on the facts of petitioner's commitment offense, prior criminal history, and social history. The board also cited a March 15, 2002, psychological report which "showed some promise, but . . . raised some concerns." The psychologist stated that it was difficult to assess petitioner's degree of risk to the community if released and observed that, if petitioner returned to drug use, his risk would be "greatly increased." However, the psychologist "didn't really want to go out on a limb and give an assessment in terms of whether the prisoner would be a risk of danger to society." Based on this, the Board decided to order a new psychological evaluation. As to positive factors, the Board noted that petitioner had not committed any disciplinary infractions for seven years, that he had obtained job skills, and had an impressive resume. Specifically, the Board stated:

. . . [T]here are things that we want to commend this prisoner for: outstanding work reports, outstanding comments from his supervisor, as well as his instructor in the vocational laundry. It appears that the prisoner is an excellent worker. He's dependable now. It appears that he sets a role model in the work place for other inmates. And we certainly want to commend him for that. He started a disciplinary [free] streak that the Board finds impressive. That he hasn't received a disciplinary since July 6th, 1995. And we certainly want to commend him for that.

Notwithstanding these positive factors, the Board found that "those positive aspects of his behavior [do] not outweigh the factor[s] of unsuitability." The Board also noted that petitioner's accomplice in the crime had been granted parole and told petitioner that parole was indeed possible "on this very particular crime because Reginald Martin is going home today. . . ."

October 2003 Hearing

The Board considered petitioner's case again in October 2003. By this time, petitioner had obtained vocational certifications for washroom technician and laundry management. Commenting on his promotion to the lead position in the prison laundry, the Board noted that petitioner had demonstrated "exceptional skill and knowledge in leadership qualities" and had "expressed an outstanding attitude towards staff and co-workers." Petitioner's supervisor reported that petitioner was highly motivated. In addition, the Board noted that petitioner had remained free of disciplinary violations since 1995. Petitioner had also continued his participation in AA and NA and the staff sponsor reported to the Board that petitioner was "wholehearted." Petitioner's correctional counselor prepared a report assessing petitioner's risk of danger as "minimal, at this time based on McCray's observed behavior in the preceding eight or nine years." The counselor also stated in his report as follows:

. . . I have noticed a tremendous change in him since his early days . . . in C facility. I feel the days of his reckless youth have been placed in the past and he is a more matured motivated individual. . . . I have had other occasions to observe McCray when his patience was put to the test. . . . McCray has met his challenge by keeping composure, continuing his . . . positive program, and maintaining good work ethics.

The counselor noted that petitioner had lowered his placement score by 64 points and stated that this accomplishment was "truly praiseworthy." The counselor concluded by stating: "I highly recommend McCray . . . be paroled at this time."

In its 2003 decision to again deny parole, the Board continued to rely on the unchanging factors of the facts of the commitment offense and petitioner's prior criminal and social history. The Board also cited the inconclusive 2002 psychological evaluation.*fn2 In denying parole, the Board stated:

. . . The Panel makes the following findings: That your gains are recent and you must demonstrate an ability to maintain your gains for an extended period of time. However, the Panel has really (indiscernible) by the fact that you have been disciplinary free since 1995, and the laudatories and all the comments that have come to you from your correctional counselor, from your supervisors in PIA talking about your exceptional work in all areas, your skill and knowledge, your attitude, your interaction with staff are really to be commended. However, these positive aspects of your behavior do not outweigh your facts of unsuitability.

The Board denied parole but indicated it would review plaintiff's case again in one year. In the meantime, the Board directed that a new psychological evaluation be completed to "specifically address . . . the prisoner's violence potential in a free community, significance of alcohol or drugs as it related to the commitment offense, and an estimate of the [prisoner's ability] to refrain from the use and abuse upon release. . . ." The Board wanted to see petitioner make progress over a great amount of time "to show that you really have turned around and you can be violence free."

February 2005 Hearing

On February 9, 2005, the Board conducted a seventh parole suitability hearing. Citing to Exhibit G to petitioner's supplemental brief, petitioner's appointed counsel outlines the hearing in detail. The court accepts counsel's summary, which is as follows:*fn3

On February 9, 2005, petitioner has his seventh parole suitability hearing. The Board reviewed the facts of the commitment offense and petitioner's criminal history. The Board discussed his social history, including his lack of any substance abuse outside prison and his continuing relationships with family.

The Board noted petitioner obtained his GED in 1997, and that he had continuous AA/NA attendance for several years. The evidence showed that petitioner had established an impressive work record in prison, consistently obtaining "exceptional" work evaluations while he moved from a daily worker to lead man in the laundry. The superintendent of the laundry, Jim Livingston, supervises both staff and prisoners who work in the laundry. He wrote a letter supporting petitioner. He noted that in seventeen years as a superintendent, he had never written a laudatory letter for a prisoner, but petitioner "deserved any praise that I can bestow on him." He noted he would recommend petitioner for any responsible position, with full confidence that petitioner would do an excellent job. Petitioner's job as lead man made him a supervisor of other prisoner workers, and Livingston wrote: "[D]irecting an inmate work crew while he was an inmate is difficult due to the factors that authority is fragile and must be handled with great tact" and yet petitioner has accomplished just that "with little difficulty."

The supervisor in the laundry, Wes Atkinson, also had written letters of support for petitioner. (footnote omitted). He wrote that he had insight into petitioner by virtue of their long association, including working with him eight hours a day each weekday since 1997. Atkinson noted that he had witnessed petitioner go through highs and lows, accepting the lows with "a positive attitude and even temperament" and the highs "with humility and professionalism." The supervisor stated that over the years he had come to "admire how [petitioner] addresses and overcomes adverse situations that would overwhelm most other persons, free staff (footnote omitted) included," and gave particular examples to prove his point. . . .

In addition to all his years and experience in the laundry, petitioner had also obtained a vocational certificate showing he was qualified as a forklift operator [In November 2004]. He also has several years experience installing drywall, having been a member of the union.

The Board noted petitioner's prison disciplinary history, including that his last serious write-up was in 1995. The Board questioned petitioner about his prison misconduct history. Petitioner explained that he was young and could not deal with the stress of prison. He noted that he hadn't really thought his misconduct was all that serious until he was forced to address it by the 1996 Board panel. He was asked for and made a commitment at that time to stay out of trouble, and he had honored that commitment.

Petitioner next states that the February 2005 panel "reviewed the reports submitted by petitioner's [correctional] counselor D. Cade, noting the counselor's opinion that petitioner would pose 'a minimal degree of threat to the public if released from prison at this time.'" There appears to be some confusion regarding the report from the correctional counselor. Attached as part of Exhibit H to petitioner's supplemental brief is a "Life Prisoner Evaluation" prepared by Smith for "subsequent parole consideration hearing #7" scheduled for the "October 2004 Calendar." Also attached as part of Exhibit H is a similar report, prepared by Cade, for the "August 2003 Calendar." While petitioner's counsel indicates Cade, the February 2005 hearing decision references correctional counselor Smith. However, the decision quotes language from Cade's earlier report, which was considered by the Board in October 2003. As discussed above, Cade stated that he believed the risk of danger posed by petitioner's release was minimal and he recommended parole. Smith's more recent report is quite different in that Smith does not assess a threat level and does not specifically recommend release on parole. Instead, Smith states that, prior to release, petitioner could benefit from "[c]ontinuing his present program." Thus, it appears that Smith did not agree with Cade and thought that petitioner should remain in prison.

Petitioner continues his summary of the February 2005 hearing by discussing the psychological evaluations as follows:

The board also reviewed evaluations prepared by prison psychologists. The most recent evaluation, prepared by Dr. Shoemaker, reported that petitioner had no DSM diagnosed mental health illness, that he understood his "very bad judgment" in getting involved in criminal conduct, and that he accepted full responsibility for his actions. In assessing petitioner's risk of danger to the community, Dr. Shoemaker opined that despite petitioner's criminal history and prior prison misconduct, "[b]ased on the length of time he has spent disciplinary free, his exceptional attitude relating to his work, and his positive and reasonable goals he has set for himself in the community, [petitioner] appears to represent a below average risk of dangerousness to others if he was released to the community." Dr. Shoemaker noted that if petitioner were to use drugs, his risk of dangerousness "may be increased"; thus, he recommended that drug and alcohol abstinence, as well as a steady job, would be critical to maintain petitioner's pro-social gains.

Dr. Mark Hoffman had also written a psychological evaluation for the hearing. Dr. Hoffman noted the positive significance of petitioner being able to remain completely disciplinary free for a decade while in a level four prison. (footnote omitted). The doctor had spoken with other staff members who knew petitioner, including guards; they spoke highly of petitioner, noting his positive programming. Dr. Hoffman concluded:

On the basis of his disciplinary record and the reports of staff that's cited here, it would seem that this inmate is exceptional and his change in behavior over the last 10 years would indicate a lower than average risk of danger to the community. [Petitioner does] not have a mental disorder. It appears [he has] made a favorable adaptation to [his] incarceration in that [he has] altered former attitudes of resistance and defiance of authority. [He has] resisted peer pressures to revert to antisocial behavior and used [his] time constructively to improve [his] employability and resistence to criminal influence.

Petitioner next summarized the Board's discussion of his parole plans:

Petitioner's parole plans were to live with his adult brother in Moreno Valley and to work in the field of laundry, in which he had many years of wide experience. He had many letters of support from family members who expressed willingness to help and support him in any way possible, including providing him with housing and employment.

The Board once again denied parole.*fn4 In its decision, the Board began by reciting the facts of petitioner's commitment offense, concluding:

. . . So this was not just merely a robbery. This was a crime that absolutely terrorized these people. And to this day the victim would be in fear of being confronted by anybody every time she saw [a] ski mask, every time she saw a gun, every time she had to go to a dumpster to do her work. . . . So, the commitment offense was paramount to a decision of denying parole.

The board next discussed petitioner's prior criminal and social history, concluding that it demonstrated a "pattern of behavior from this inmate." Next, the Board considered petitioner's history in prison:

. . . He has programmed in a limited manner with regards to self-help programs. He has not sufficiently participated in self-help programs and he has failed [to] demonstrate evidence of positive change. And it's noted that he's had five 128 counseling chronos with the last one being in October 5th of 2002, for a window covering. And he does have 10 115s and it is noted the last serious 115 was in 7/6 of '95, approximately 10 years ago. But the 115s were very serious 115s, physical altercations, he has two of them for attempted stabbing, two of them possession of marijuana, and then another one again for a positive urinalysis in '95, and he has been disciplinary free of 115s since that time.

As to the psychological evaluations by Drs. Hoffman and Shoemaker, the Board stated:

. . . The . . . psychological reports . . . these reports acknowledge the progress that the inmate has made. But there's also a report dated June 27th of '02, and that one was authored by Doctor Shoemaker also, and in the current report, Doctor Shoemaker doesn't really say, you know, what changed from his '02 assessment where he said that the prisoner has demonstrated that there is at least some potential risk for dangerousness in the controlled setting. If there's danger within a controlled setting, then certainly a release to the community would be enhanced by his dangerousness. It said that the abstinence from drugs and alcohol as well as holding a steady job are critical to maintain ...


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