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Thompson v. Carey

February 20, 2009



Petitioner is a former state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He challenges decisions made in 2000, 2001, 2003 and 2004 to deny him release on parole. On September 27, 2007, after this action was submitted, petitioner was released on parole. Pet.'s Not. of Release on Parole at 1. Thereafter, the court directed the parties to address whether petitioner had exhausted all available state remedies and whether petitioner was entitled to be discharged from parole. Briefing on those matters is submitted. For the reasons stated below, the court finds that petitioner exhausted his state remedies and that petitioner is entitled to habeas relief (in the form of discharge from parole). Accordingly, the court recommends that petitioner's application for a writ of habeas corpus be granted.*fn1


On December 9, 1983, petitioner was convicted in Los Angeles County Superior Court of second degree murder with a firearm for having shot and killed his ex-wife, Gladys Thompson. Ans., Ex. 1. The court sentenced him to serve a term of 15 years to life in prison. Id. The state appellate court affirmed the judgment and the California Supreme Court declined to review the appellate court's decision. Petitioner commenced his prison term in January 1986. Pet. at 16.

On May 4, 2000, the Board of Prison Hearings ("Board"), then the Board of Prison Terms, found petitioner not suitable for parole. App. Ct. Rec., at 26-27.*fn2 On April 25, 2001, petitioner filed a petition for a writ of habeas corpus in Kern County Superior Court, challenging the Board's decision. Ans. at 3. On May 15, 2001, the court issued a reasoned decision denying the petition. Id.

On July 20, 2001, petitioner filed a petition for a writ of habeas corpus with the California Court of Appeal for the Fifth Appellate District, challenging the May 4, 2000 denial of parole. Id. While that action was pending, petitioner had subsequent parole determination hearings in 2001, 2003, and 2004. In each of those hearings he was found suitable for parole but California Governors Davis and Schwarzenegger rejected the Board's findings and concluded that petitioner was not suitable for parole.*fn3 The state appellate court directed the California Attorney General to supplement the record with the proceedings leading to each of these denials, and consolidated consideration thereof with the initial petition. Ultimately, on February 23,

Respondent argues the motion for summary judgment should be stricken and/or denied because it "is duplicative of the Traverse; it simply reiterates Petitioner's assertion that there is not 'some evidence' to support" the decisions to deny him parole. Because this court recommends that petitioner's application for a writ of habeas corpus be granted, petitioner's motion for summary judgment is denied as moot.

2005, that court denied relief without any explanation. Ans. at 3, Ex. 4 at 28.

Petitioner sought review in the California Supreme Court, challenging the Board's 2000 denial of parole and the reversals of parole by Governors Davis and Schwarzenegger in 2001, 2003, and 2004. Ans. at 10. On February 23, 2005, that petition was summarily denied. Id.

On September 28, 2005, the Board again found petitioner suitable for parole, but on February 15, 2006, Governor Schwarzenegger again reversed the Board's decision. Pet.'s Jan. 16, 2008 Status Report, Ex. A. Petitioner challenged that reversal in a petition for writ of habeas corpus, and on August 20, 2007, the Los Angeles County Superior Court found that the Governor's 2006 reversal was not based on some evidence that petitioner presents an unreasonable risk of danger to public safety, reinstated petitioner's parole date, and allowed the Governor to review that grant anew in compliance with due process. Id. On September 19, 2007, the Governor declined to review the Board's parole grant; therefore, petitioner was released on parole on September 27, 2007 for a maximum parole period of five years. Pet.'s Status Rep., Exs. B, C. When petitioner was released on parole, he had spent nearly 22 years in prison.


This court takes the facts of the offense, which have not changed over the years, from a report prepared in anticipation of petitioner's 1993 parole suitability hearing:

On February 11, 1983, [petitioner] observed his wife, Gladys Thompson, riding in a vehicle with a male companion. When the vehicle stopped for a traffic signal, [petitioner] drove alongside the car and fired a handgun into the car, striking Gladys Thompson in the head. The companion who was driving the car, drove from the scene and was pursued by [petitioner] who continued to fire shots at the vehicle. The victim's companion subsequently evaded [petitioner] and called the paramedics. Glady[s] Thompson was later pronounced dead at a hospital. The victim was the estranged wife of [petitioner]. The victim and [petitioner] had been married for more than 15 years and were the parents of two teenage children.

App. Ct. Rec., at 339.


I. Standards of Review Applicable to Habeas Corpus Claims

Pursuant to 28 U.S.C. § 2254, a person in custody under a state court judgment may apply for a writ of habeas corpus "on the ground he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Because petitioner filed his application for a writ after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the writ may not be granted with respect to any claim that was adjudicated on the merits in state court 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.

Id. § 2254(d) (referenced herein as § 2254(d) or AEDPA); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

Under the "contrary to" clause of § 2254(d)(1), a writ may be granted if the state court "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 a different result." Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams, 529 U.S. at 405-06). Under the "unreasonable application" clause, a writ may be granted 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.

In determining whether the state court's decision is contrary to, or an unreasonable application of, clearly established federal law, a federal court looks to the last reasoned state court decision addressing the merits of the petitioner's claim. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If, however, there is no reasoned state court decision, the district court must independently review the record to determine whether the state court's ruling was contrary to or an unreasonable application of clearly established federal law. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000).

II. Effect of Petitioner's September 2007 Release on Parole

After petitioner was released on parole, his counsel notified the court of his release and argued that the matters raised in the petition are not moot because petitioner must serve a five-year term on parole, and that, but for the constitutional violations asserted in the petition, he already would have been discharged therefrom. Pet.'s Not. of Release on Parole at 1-2. Petitioner asserted that he "still urgently requires relief from this Court in the form of an order that he be discharged from his parole term." Id. at 2. The court then issued an order stating that "[t]he law is clear that the conditions and restrictions imposed on a parolee constitute 'custody' so as to vest a federal court with jurisdiction over the petitioner under 28 U.S.C. § 2254," but noting that "petitioner has not alleged that he has exhausted the claim he now wishes to pursue or that there is any basis in law for granting the relief he seeks." Nov. 16, 2007 Order at 2. Therefore, the court requested briefing on those issues. Id.

A. Mootness

Petitioner contends that his claims are not moot because, if the petition is granted, "it would render [petitioner's] custody on parole unconstitutional, for he would be entitled to have his excess time in prison confinement applied to his parole period and his discharge from parole." Pet.'s Jan. 16, 2008 Status Report at 2. As discussed below, the question is fundamental to this court's jurisdiction.

Federal courts have jurisdiction to hear cases and controversies. U.S. CONST. art. III, § 2. They "have no jurisdiction to hear a case that is moot, that is, where no actual or live controversy exists." Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003). "To avoid dismissal on mootness grounds, the court must determine that the habeas petitioner continues to have a 'personal stake in the outcome of the lawsuit.'" Bush v. Solis, 2004 WL 2600141, at *2 (N.D. Cal. Nov. 16, 2004) (quoting United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2000)). What this means is that, "throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable decision." Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation marks and citations omitted).

In short, a case loses its quality as a "present, live controversy" and becomes moot when the court cannot grant any effective relief. Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001).*fn4 Therefore, in evaluating whether petitioner's habeas petition is moot, the court must first consider the nature of habeas corpus relief and then determine whether it can grant petitioner any effective habeas relief. See Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005).

At its core, a petition for a writ of habeas corpus seeks relief from restraint on liberty. It "is an attack by a person in custody upon the legality of that custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Thus, "the traditional function of the writ is to secure release from illegal custody." Id. Within the rubric of habeas corpus, however, the federal courts are "free to fashion the remedy as law and justice require," and can do more than just "order petitioner's immediate release from physical custody." Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994).

The remedial reach of a writ of habeas corpus is not limited to petitions challenging the legality of confinement in a prison. The law is well-settled that the restrictions a state imposes on a parolee are sufficient to satisfy the "in custody" requirement of 28 U.S.C. § 2254. Jones v. Cunningham, 371 U.S. 236, 238 (1963); see also Spencer, 523 U.S. at 7 ("An incarcerated convict's (or a parolee's) challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction."). Whether the restrictions on the petitioner's liberty are due to his confinement in a cell or due to confinement of his activities and movement outside of the prison, the principle of redressibility is the same. The existence of a case-or-controversy will therefore turn on whether the limitations on the petitioner's freedom would not be present if his petition were granted. Thus, the habeas action of a prisoner challenging the validity of his conviction is not rendered moot by his release to parole.

The Ninth Circuit has visited this very question. In McQuillion v. Duncan, 306 F.3d 895, 912 (9th Cir. 2002) ("McQuillion I"), the Ninth Circuit determined that the appropriate remedy for a state prisoner whose parole date had been rescinded in violation of due process was immediate release. However, there had been at least a three-year delay between the constitutional injury, i.e., the illegal restraint, and the grant of habeas relief. McQuillion v. Duncan, 342 F.3d 1012, 1015 (9th Cir. 2003) ("McQuillion II"). Thus, in response to the California Attorney General's later assertion that the appropriate relief was release to a state-mandated three-year period of parole, the Ninth Circuit explained:

This argument overlooks the fact that if McQuillion had been released on the date to which he was entitled, he would have been released in May 1994. The three-year parole, which he would have been required to serve if he had been released on time, has long since expired.

McQuillion II, 342 F.3d at 1015. Thus, the reach of remedy extends not only to addressing physical confinement in an institution, but also to addressing restrictions on liberty imposed as conditions of release on parole. Id.; see also Bush, 2004 WL 2600141, at *2 ("This court's power to grant habeas relief includes the ability to . . . change the conditions of his supervised release"); Carlin v. Wong, 2008 WL 3183163, at *2 (N.D. Cal. Aug. 4, 2008) ("Here, petitioner is entitled to credit against his parole period for his time in confinement that was in violation of his due process rights. Had respondent not violated petitioner's due process rights by denying parole on December 15, 2003, petitioner would have been released when the parole suitability determination became final after the 150 day review period."). Accordingly, where a prisoner should have been paroled but unconstitutionally is held in prison, the unconstitutional confinement can consume the period of time the state could have lawfully subjected the prisoner to the lesser restraint of parole.

That principle applies here. Petitioner challenges his denials of parole in 2000, 2001, 2003, and 2004. Given that petitioner's maximum parole term is five years, if petitioner had been paroled in 2000, as he contends he should have, he would have been discharged from parole in 2005. Likewise, if he had been paroled in 2001, he would have been discharged in 2006; if he had been paroled in 2003, he would have been discharged in 2008; and if he had been paroled in 2004, he would be discharged in 2009.

Respondent argues that the "fundamental flaw" in petitioner's claim is his premise that he served an excess term. According to respondent, "unlike the inmate in the cases [petitioner] cites, [petitioner] did not serve more time than he should have; he was still properly serving his life term, and therefore, he is still properly on parole now." Resp.'s Jan. 23, 2008 Status Report at 7-8; see, e.g., In re Bush, 161 Cal.App.4th 133, 144-45 (2008) (quoting McQuillion II) (internal citations omitted) ("In effect, the McQuillion court determined that the prisoner was not lawfully in custody during the nine years following his original parole date because the rescission of that date was not supported by 'some evidence.' The prisoner was therefore entitled to a credit of this unlawful custody time against his three-year parole period. Bush, by contrast, was lawfully in custody pending a determination that he could be safely paroled, and he was not entitled to be released until the Board's suitability determination became final . . . ."). However, respondent's argument fails to consider that any time petitioner served beyond the date that he properly should have been paroled is excessive. Fundamentally, if petitioner should have been paroled in 2000, 2001, 2003, or 2004, any time that he served beyond that would have been "in excess." In other words, respondent does not account for the possibility that petitioner might prevail on his due process claims.

As this court may still grant petitioner effective relief, he still has a "personal stake" in the outcome of this litigation and it is not moot.*fn5

B. Exhaustion

Respondent argues that petitioner has not exhausted his claim that he should be discharged from parole. Therefore, he argues, petitioner is barred from pressing that claim in this action. Resp.'s Jan. 23, 2008 Status Report at 2-3. Thus, parsing the challenge to the parole denial in this fashion, respondent contends that petitioner "never fairly presented the operative facts and legal theories he now offers." Id. at 3. Petitioner counters that his petition necessarily encompassed within it "a challenge that each day he spent in prison beyond the date of the decision refusing to parole him constituted unconstitutional confinement" and that "[t]he State courts, in denying [petitioner's] challenges to the refusals to parole him, necessarily pretermitted [his] claims as to when his parole period should rightfully have begun." Pet.'s Jan. 16, 2008 Status Report at 4-5. Therefore, petitioner argues, his claims were exhausted. Id. at 5.

Respondent's parsing of the challenge to the parole denial that petitioner presented in the state court is an unduly narrow construction of that challenge. The petitioner has repeatedly asserted in his several state court petitions that the persistent denial of parole without some evidence of danger to public safety violates due process. As discussed above, any relief to which he might be entitled would include relief from the constrictions of parole if it is determined that his release date should have been early enough that he has now served a period of excessive incarceration that exceeds the parole term. Petitioner does not make any new and unexhausted claims in this action. He only seeks to show that this court can grant effective relief. His claim was and continues to be that the repeated denial of parole was not supported by any evidence that he presents an unreasonable risk of danger. That claim is unchanged by his release. Rather, the intervening release simply raised the question of whether granting the petition would remedy a live case or controversy.

There is no doubt that, to properly exhaust his claim, petitioner needed to fairly present that claim to the state courts before seeking relief in federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir. 1999). It is also clear that "a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." Picard, 404 U.S. at 271; Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). Petitioner has met those requirements here. But a petitioner may also support his claims in federal court with facts not alleged in state court, as long as those facts do not "fundamentally alter the legal claim already considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260 (1986); Davis, 511 F.3d at 1009. Petitioner presented to the state courts the constitutional claims he raises herein about his 2000, 2001, 2003, and 2004 parole denials, as well as the facts that would entitle him to relief. There is simply no merit to the contention that he was also required to present to the state courts a separate request to be discharged from parole restrictions. Such a remedy would necessarily flow from a decision to grant those claims that he was wrongfully denied parole. Although petitioner's recent release from prison has mooted part of the remedy sought in this case, his petition still encompasses a request for relief from the parole restrictions. The latter is not a separate claim, but simply a narrower remedy.

The new facts regarding petitioner's release and the narrowing of the specific relief now requested by petitioner do not "fundamentally alter the legal claim already considered by the state courts" -- specifically, that the 2000, 2001, 2003, and 2004 denials of parole violated petitioner's due process rights. Vasquez, 474 U.S. at 260. Therefore, petitioner has properly exhausted the claims raised in his petition.

C. Question of State Law

Respondent further argues that the petition should be denied because "the question whether [petitioner] must serve his entire five-year parole period is a question of the proper interpretation of state law, and therefore, not amenable to federal habeas relief." Resp.'s Jan. 23, 2008 Status Report at 4. Respondent also contends that the petition should be denied because petitioner's parole period could not commence until he was actually released on parole, and that public safety concerns require the parole period to be served. Id. at 5-6.

A federal court may grant a prisoner's petition for writ of habeas corpus under 28 U.S.C. ยง 2254 if the prisoner is being held in custody in violation of the federal constitution or a federal law. As discussed above, a parolee is considered "in custody" for habeas purposes. Therefore, if this court finds that petitioner's current custody violates his federal due process rights, it is free to fashion a remedy "as law and justice require," and its authority ...

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