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Carr v. Woodford

February 3, 2009

CHARLES H. CARR, JR., PETITIONER,
v.
JEANNE WOODFORD, BOB HOREL, ACTING WARDEN, RESPONDENTS.
CHARLES H. CARR, PETITIONER,
v.
BOB HOREL, ACTING WARDEN, RESPONDENTS.
CHARLES H. CARR, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with three applications for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. These applications challenge the 2002 and 2004 denials of parole, and the 2003 Governor's reversal of the grant of parole, but all rely on the same evidence. Accordingly, the court will begin its analysis with the Governor's reversal of the grant of parole.

Petitioner is serving a sentence of life with the possibility of parole*fn1 following his 1969 Butte County conviction on charges of first degree murder. In Case No. 2:05-cv-1870, petitioner challenges the Governor's October 17, 2003 reversal of the May 22, 2003 decision by the California Board of Prison Terms ("Board") finding petitioner suitable for parole. (Answer, Exs. 3 & 4.) Petitioner contends that there was no evidence to support the Governor's decision that petitioner continues to pose an unreasonable risk of danger to society, and that the denial was a violation of petitioner's due process rights. Petitioner is 62 years old (answer, ex. 5), and has served over 35 years in state prison. The Board assessed petitioner's prison term at 148 months (pet., Ex. A, at 52-53); thus he has served over 23 years beyond his minimum eligible parole date.

This court finds that the continued denial of parole, nineteen different times by the year 2004, based on the unchanging factors of petitioner's childhood, his commitment offense and his criminal history, has violated petitioner's due process rights, and recommends that the habeas petition be granted.

ANALYSIS

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.

28 U.S.C. § 2254(d).

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, __ U.S. __, 123 S.Ct. 1166, 1175 (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). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

Petitioner contends that there was no evidence to support the Governor's decision to reverse the grant of a parole date and that the decision was contrary to applicable provisions of state and federal law. Petitioner further claims that there was substantial evidence to support application of the suitability factors to him, and that the evidence showed he would pose very little danger to the community if released.

The Board's May 22, 2003 parole decision, reversed by the Governor on October 17, 2003, was made at a subsequent parole consideration hearing. (See Exhibit 4 to Answer to Petition for Writ of Habeas Corpus, filed December 20, 2006.) In his decision, the Governor concluded the following:

Petitioner "continues to pose an unreasonable risk of danger to society." (Ex. 3 to Answer, at 13-16.) The Governor relied principally on petitioner's commitment offense and criminal record, noting that during petitioner's second escape from prison in 1977 he again hit an elderly man over the head, which is how petitioner killed his first victim in 1969. (Id. at 14.) Despite the fact that petitioner's "conduct in prison has sometimes been good and even exemplary in some respects, he has also engaged in serious incidents of misconduct." (Id.) It was troubling that petitioner told a 2003 Board panel that he had "taken to the Board 20 years of clean time, disciplinary free," because he failed to acknowledge "serious incidents of misconduct prior to that time, including his two successful escapes,*fn2 a later escape attempt*fn3 and a serious disciplinary report in 1983 for possession of cash related to his sale of cigarettes to fellow inmates. (Id.) Petitioner had received three reports for minor misconduct within the past 20 years, including one as recent as 2000. (Id.) Petitioner continues to pose an unreasonable risk of danger to society based on petitioner's history of institutional behavior. (Id.)

The Governor also based his reversal on evidence suggesting petitioner's serious gambling addiction had not been addressed, particularly considering the 1969 murder was the result of his addiction to gambling and the 1977 robbery was committed to obtain money to offset gambling losses. (Id.) He discounted recent psychosocial evaluations as unreliable because the 2003 report failed to address petitioner's childhood abuse and the 2001 report reflected petitioner denied he suffered childhood abuse, despite the 1991, 1993, 1994 and 1997 psychological evaluations that noted he suffered childhood abuse. (Id. at 15.) None of the recent psychiatric reports explained the "abrupt turnabout in the findings in the most recent reports" from petitioner's 1991 Psychological Evaluation indicating petitioner needed therapy to include exploration of all predisposing factors, from excessively harsh parental discipline, exposure to gambling as accepted social behavior, high value placed on material and financial symbols, to lack of family emphasis on saving, planning, and budgeting. He also needs to identify high risk situations and viable coping responses for himself in order to abstain from gambling.

(Id. at 16.) Recent reports also failed to address the 1998 and 1999 Life Prisoner Evaluation Reports that concluded petitioner posed an unpredictable degree of threat to the public. (Id.) Petitioner failed to address and resolve issues through self-help programs such as VORG and NA, specifically citing the 2002 Board's concerns that petitioner "never seemed to really get to [his] innermost feelings. That [petitioner] just ha[sn't] quite gotten it." (Id.)

The fifth reason the Governor found petitioner still poses an unreasonable risk of danger to society was based on petitioner's past and present attitude toward his crimes. (Id.) Although petitioner has since 1997 expressed remorse for killing the victim, petitioner had offered varying statements concerning the murder prior to 1997. (Id.) The most recent psychiatric report was flawed because it erroneously stated petitioner had always admitted responsibility for his crime. (Id.) Recent psychosocial evaluations failed to reflect any change or progress on petitioner's "key psychological defense mechanisms revolv[ing] around denial, externalization, and projection, . . . [or] inflexibility and rigidity." (Id.)

The sixth reason the Governor cited was that petitioner's parole plans were inadequate because "without solid parole plans, [petitioner] poses an unreasonable risk of danger to society." (Id. at 17.) The Governor opined that "[i]n the absence of solid employment plans, and with his gambling addiction issues not addressed, he could easily find himself in a desperate financial situation and return to criminal activity as a means of support." (Id.)

By stark contrast, in 2003, the Board found petitioner did not pose an unreasonable risk of danger to society or a threat to public safety if petitioner were released from prison. (Answer, Ex. 4 at 47; Pet., Ex. A at 47.) The Board specifically found petitioner had no juvenile record of assaulting others. While imprisoned, he has enhanced his ability to function within the law upon release through participation in educational programs. He acquired his GED early on. He also participated in college courses. Through his participation in self-help and therapy programming, and including one-on-one therapy, the rigorous CCat-X program, through MVP, Men's Violence Prevention, VORG, and many years with NA, Narcotics Anonymous. He's enhanced his ability through vocational programs, having acquired his certification as an Electrician, as well as his many years serving in institutional job assignments, relative to his performance as a Clerk, where he always received exceptional work reports. He, because of maturation, growth, and greater understanding, has a reduced probability of recidivism. And he has realistic parole plans, which include family support. He has maintained close family ties while imprisoned via letters. And he has maintained positive institutional behavior, which indicates significant improvement in self-control. And I would note for the record that this includes a total of four 115s over the course of -- over 30 years, and the last 115 was a little over 20 years ago. And he shows signs of remorse. He has indicated that he understands the nature and the magnitude of the offense and accepts responsibility for the criminal behavior and has a desire to change towards good citizenship. And although he didn't speak to the Panel today about his remorse, it is contained sufficiently, in the Panel's mind, in the various reports in the files. The psychiatric report, dated February 25th, 2003, by John T. Rouse, . . . Ph.D., appears to support release. Dr. Rouse says:

"Whatever anti-personality traits he has had prior to his incarceration has lessened significantly. And he seems to have made significant gains in understanding his life crime, as well as his life prior to his incarceration. He has, as reported by other examiners, compiled a record of conformity, stability, and productivity and as such, [petitioner] no longer presents as a risk to the community. His risk of dangerousness at this point is negligible and less than that of the average inmate incarcerated here at CSP, Solano."

The previous report done by Dr. Dean J. Clair, . . . really no date on it, but it's for the Subsequent number 16, March 2001 hearing, also appears to support release. I believe I said that. The doctor writes under Assessment of Dangerousness:

"Looking back, there is nothing positive that can be found in either the nature of the crime or the inmate's lifestyle at that stage of his development. He was a predator with few apparent redeeming social qualities. He followed this crime up with an escape and with an eventual capture in the process of committing still another crime against property.

Now, in arriving at his fifties, the inmate has progressed remarkably. He has compiled a record of conformity, stability and productivity, as described above. He has impressed both his family and others with his eagerness to put his life together and to function as just another member of the community. He is mentally stable and has never been significantly addicted. As before, the writer feels that this man is no longer dangerous."

(Id. at 47-50.) The Board assessed petitioner's prison term as 148 months, after crediting petitioner for periods of good behavior. (Id. at 52-53.) The Board's Decisional Review Unit reviewed and approved the Board's decision. (Pet., Ex. B.)

The last reasoned opinion by a California state court was issued by the Solano County Superior Court on January 15, 2004. (Answer, Ex. 6.) The state court denied the petition for writ of habeas corpus with the attached comment:

The court applies the "some evidence" standard when reviewing the Governor's decision to reverse a finding of the board of Prison Terms. (In re Rosenkrantz (2002) 29 Cal.4th 616, 666[.] The governor's decision will be upheld so long as there is some basis in fact to support the decision. Additionally, "The nature of the prisoner's offense, alone can constitute a sufficient basis for denying parole." (In re Rosenkrantz (2002) 29 Cal.4th 616, 682)[.] The Governor found that petitioner "continues to pose an unreasonable danger to public safety if released at this time." The Governor based this finding, in part, on the commitment offense in which petitioner beat an elderly man to death with a hammer. These facts provide "some evidence" in the record to support the governor's decision. Accordingly, this petition for writ of habeas corpus should be denied.

(Answer, Ex. 6, at 2.)

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts, see Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985), and is unavailable for alleged errors in the interpretation or application of state law, see Lewis v. Jeffers, 497 U.S. 764, 780 (1990). For this reason, petitioner's claims arising out of alleged violations of state law are not cognizable in this federal habeas corpus action.

California's statutory scheme governing parole "creates in every inmate a cognizable liberty interest in parole which is protected by the procedural safeguards of the Due Process Clause." Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); see also Sass v. California Board of Prison Terms, 461 F.3d 1123, 1127-28 (9th Cir. 2006).

[T]he Supreme Court ha[s] clearly established that a parole board's decision deprives a prisoner of due process with respect to this interest if the board's decision is not supported by "some evidence in the record," Sass, 461 F.3d at 1128-29 (citing Superintendent v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)); see also Biggs, 334 F.3d at 915 (citing McQuillion, 306 F.3d at 904), or is "otherwise arbitrary," Hill, 472 U.S. at 457, 105 S.Ct. 2768.

Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007).

When reviewing a decision of the Board of Parole Hearings or the Governor regarding a prisoner's suitability for parole, the relevant inquiry is "whether some evidence supports the decision . . . that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." In re Lawrence, 44 Cal.4th 1181, 1212, 82 Cal.Rptr.3d 169 (2008). The Board and Governor both have authority to resolve conflicts in the evidence and decide the weight to be given to particular evidence, and each has broad discretion that will only be disturbed when due consideration is not given to the specified factors. Id. at 1204, 82 Cal.Rptr.3d 169.

In addition, the Board and Governor may rely on the nature of the commitment offense as a basis to deny parole, but only when, considered in light of other facts in the record, the offense continues to be predictive of current dangerousness. Id. at 1221, 82 Cal.Rptr.3d 169; Cal.Code Regs., tit. 15, § 2402; see also Irons, 505 F.3d at 854 ("[I]n some cases, indefinite detention based solely on an inmate's commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process, given the liberty interest in parole that flows from the relevant California statutes."); Biggs, 334 F.3d at 917 ("A continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation.").

[T]he Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate's criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.

In re Lawrence, 44 Cal.4th at 1221, 82 Cal.Rptr.3d 198. Facts relevant to determining the predictive value of the commitment offense include the amount of time since the offense, the prisoner's history before and after the offense, and the prisoner's current demeanor and mental state. In re Lawrence, 44 Cal.4th at 1211, 1214, 1219, 1221, 82 Cal.Rptr.3d 169.

First, the court must look to the last reasoned state court opinion to determine if it was an unreasonable application of the facts or contrary to controlling principles of United States Supreme Court authority. Here, unfortunately, the Superior Court decision is barely more than a pro forma denial. (Answer, Ex. 6.) The Superior Court decision denies the petition and appends an eleven-line "comment" that concludes there is some evidence, based solely on the commitment offense, to support the governor's decision. (Answer, Ex. 6.) This opinion provides nothing to evaluate as it is simply a conclusion without analysis.

"[D]ue consideration" of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision-the determination of current dangerousness. "It is well established that a policy of rejecting parole solely upon the basis of the type of offense, without individualized treatment and due consideration, deprives an inmate of due process of law."

In re Lawrence, 44 Cal.4th at 1210, 82 Cal.Rptr.3d 168, quoting Rosenkrantz, 29 Cal.4th at 684. Accordingly, this court must conduct an independent review the record. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

Petitioner was received in state prison on May 12, 1969, following his conviction of first degree murder. (Ex. 1 to Answer.) Petitioner was initially sentenced to death, but on January 4, 1973, his death sentence was modified to a life sentence with the possibility of parole by the California Supreme Court. (Id.) Petitioner's initial parole consideration hearing was held on January 23, 1979, at which time parole was denied for a period of one year. (Ex. 2 to Answer, at 2.) The Board's May 2003 decision was made at petitioner's eighteenth parole hearing. (September 26, 2006 Supp. Briefing, at 12.)*fn4

As noted above, the Governor relied principally on the commitment offense, his criminal history (both prior to the commitment offense and after), and institutional behavior to support the denial of parole. The record reflects that there was some evidence before the Governor to support the description of petitioner's commitment offense and his criminal history. However, petitioner claims that these unchanging factors alone are insufficient to support a finding of present dangerousness required to justify the denial of parole. Specifically, petitioner contends that he has been free from serious disciplinaries since 1983, the last time he incurred a 115 disciplinary, and his most recent act of violence was the 1977 robbery, over thirty years ago. Petitioner argues the evidence shows he poses little threat to the community.

Indeed, the record before the Board at the time of the 2003 hearing contains substantial evidence contrary to the Governor's conclusion that petitioner would pose an unreasonable risk of danger to society.

Petitioner was born on July 3, 1946, and was the oldest of eight children. (Pet'r's Supp. Brief, at 4 [docket no. 20].) Petitioner's parents "became very religious and puritanical in their views" when petitioner was 14 years old, forbidding their children from reading magazines, going to movies or dating. (Id.) Petitioner "has acknowledged that his parents were strict disciplinarians who sometimes used corporal punishment which today would be considered abusive." (Id.) Petitioner enlisted in the United States Marines, working in warehousing and supplies for two years. (Id.) Petitioner was discharged with an "Other than Honorable Discharge" after serving a six month sentence for stealing an 8 mm movie camera and suffering other disciplinary problems while housed in the military prison. (Id.) Petitioner returned to civilian life in 1966 and sustained no criminal offenses, other than traffic violations, until his commitment offense in 1969. (Id. at 5.)

Petitioner has spent almost thirty-five years in prison. Petitioner was 57 at the time of his 2003 parole hearing and will be 63 in 2009. Although petitioner admittedly got off to a rocky start during his initial years of incarceration, he began to turn his life around in 1984. In 1987, he received a laudatory chrono for informing CDC staff of a prison-made knife, or shank, he found in a dental clinic file cabinet while working as a clerk in the clinic. (Pet., Ex. A, at 42-43.) In 1991, petitioner was commended for pointing out a prison employee's misplaced wallet containing cash, credit cards and identification. (Supp. Brief, C-File, at 723.)

Petitioner has participated in numerous prison programs, demonstrated his ability to work hard, and made positive contributions at the prison. In 1990, petitioner completed 30 hours of program participation in a self-help program called "Breaking Barriers." (Supp. Brief, C-File at 732, 2177.) Since January of 1992, petitioner has been a member of the Victims/ Offenders Reconciliation Group ("VORG"). (Supp. Brief, CDC, at 51, 96, 100, 106; C-File, at 614, 680.) In 1994, the Catholic Chaplain who facilitated VORG noted petitioner's participation had "served not only himself but the group at large. VORG looks forward to his continued attendance." (Supp. Brief, C-File, at 680.) In 1993, petitioner successfully completed the following VORG workshops: Stress Management, Decision-Making and Conflict Resolution, Parenting Skills and Values Clarification. (Supp. Brief, C-File, at 704, 2182.)

Petitioner has participated in Narcotics Anonymous consistently and actively since 1990. (Supp. Brief, CDC at 36-37, 68-69, 92- 96, 100, 111, 115; C-File at 555-56, 559-60, 562, 570-71, 603, 607, 609 & 612.) Petitioner's Narcotics Anonymous sponsor has frequently noted that petitioner "has been an active participant and has shown an honest desire to help himself through the self-help program." (Supp. Brief, CDC at 87, 98, 105; C-File at 612-13.) Petitioner has acknowledged his gambling addiction and "been awakened to the amount of damage to the community and to the individual caused by gambling." (Psychological Report, Pet., Ex. J, at 2-3.) Petitioner acknowledged that gambling was an addiction for him much like drinking alcohol is an addiction for an alcoholic, and that he needs to forever abstain from gambling. (Id. at 3.)

In 1999, petitioner successfully completed the Men's Violence Program seminar. (Supp. Brief, CDC, at 69.) This program was described as follows: an extensive training seminar and self-help group for men who want to end their violence. . . . Specific procedures for handling and averting the expression of violence is taught. Accompanying signs of anger are studied and techniques for changing attitudes are learned. (Supp. Brief, CDC, at 605.)

Petitioner earned his high school diploma in prison in 1972. Prior to February, 1993, petitioner participated in the Solano College Sociology Program. (Supp. Brief, C-File at 705.) In 1991, petitioner received an "A" in a three unit Introduction to Computers class. (Supp. Brief, C-File at 716.) In 1992, petitioner received an "A" in Sociology I," and his professor stated petitioner was "very interested, motivated and did all of his homework. He really paid attention. A very rewarding student to teach." (Supp. Brief, C-File, at 717.)*fn5

From 1989 to 1990, petitioner successfully completed several units within a Vocational Industrial Electric class and his "progress . . . [was] above average." (Supp. Brief, CDC, at 101, 104; C-File at 727, 2178-81.) In 1992, petitioner earned a certificate of completion for a Residential-Electrical Wiring program. (Supp. Brief, C-File, at 711, 2648.) That same year, petitioner received a Certificate of Achievement for work in Electricity 3, DC Motors, and Vocational Industrial Electric. (Supp. Brief, C-File, at 2647.) The instructor noted that petitioner "has consistently demonstrated good study habits, work performance and an excellent attendance record. (Supp. Brief, C-File at 845.) Petitioner was also commended in 1992 on his success in installing fluorescent lights in the Vocational Welding Shop. (Supp. Brief, C-File at 712.) His instructor observed that petitioner "had a professional demeanor, cleaned up after the job, and ended up with a satisfied customer. Keep up the good work." (Id.)

From September of 1989 to the present, petitioner maintained Medium A custody status,*fn6 worked at various positions within the Department of Corrections, received reports ranging from exceptional to satisfactory from his supervisors, and had no serious rules violations. (Supp. Brief, CDC at 36-37, 42-43, 48-49, 50, 56, 62, 68, 74, 79, 86, 88, 98, 104, 111 & 115.) From 1982 to 1983, petitioner worked as an Occupational Therapy Aide; his supervisor described petitioner as a consistently excellent worker. Carr has a wide range of capabilities which he was able to utilize to some degree while working in the O.T. Shop. He gets along exceptionally well with both Staff and Inmates, and is a capable teacher of Crafts. Carr was also extremely valuable in keeping the Shop a peaceful place in which to work . . . . In working with the A-3 inmates, Carr was kind, attentive, and demonstrated a great deal of self-control. He was the best aide who has ever worked in the O.T. PTU Shop, and his work is greatly appreciated. (Supp. Brief, C-File, at 779.) In 1985, petitioner worked in the CMF-South law library. Petitioner received an "excellent" performance rating and his supervisor noted petitioner was important to the effectiveness of the library and described petitioner as "dependable, conscientious, and responsive to inmate and staff needs." (Supp. Brief, C-File at 862-63.)

From 1986 to 1987, petitioner worked in P.I.A. micrographics, and his supervisor noted petitioner had: shown the ability to get along well with his peer employees as well as all free staff personnel alike within his place of assignment.

Throughout the period he has been assigned, Mr. Carr has never shown any type of negative behavior, and he has always been very polite and courteous to everyone. His demonstrated work performance and applied skills are "above average", . . . . Along with performing all tasks in a diligent manner, Inmate Carr does not have any problem accepting instruction from our Production Leadmen or his Supervisor . . . [he] has shown enthusiasm in learning all aspects of this highly technical professional field.

(Supp. Brief, C-File, at 764.)

During petitioner's previous work as a clerk, petitioner received excellent work reports. Between 1987 and 1989, petitioner worked as a clerk in the dental department of Old Folsom prison, where he again received an "exceptional" grade in all areas of performance and attitude. (Supp. Brief, C-File, at 755, 856.) His supervisor described petitioner as "an asset to the dental office. Continue[s] to get the job done." (Id.) In 1990, his supervisor noted petitioner "has a strong work ethic. He is well-mannered, exhibits a willingness to accommodate reception center staff in any assignments that may arise, while maintaining a positive attitude." (Supp. Brief, C-File at 729.) Another supervisor noted in February of 1991 that petitioner "demonstrates an uncommon demand to get the most out of his work product." (Supp. Brief, C-File at 851.) In May of 1991, a Work Supervisor's Report "commented highly" on petitioner's "clerical skills and work assignment participation." (Supp. Brief, CDC at 111.) Petitioner's supervisor wrote petitioner was an "excellent unit clerk. Helped unit run very smooth and organized. Maintained records, typed reports, and was an asset to the unit." (Supp. Brief, C-File at 849.)

A Prison Industries Administrator wrote petitioner a laudatory chrono in May of 1995, stating that petitioner is to be commended for the excellent job performance. He has displayed a sense since his assignment in May 1994. During this time, inmate Carr has learned all phases of the PIA Accounting Procurement Department. This has allowed Carr to be able to fill in when another inmates [sic] were not at works [sic]. Carr has continuously displayed excellent work habit in all assignments given to him. He has worked well ...


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