The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Robert P Barron, a prisoner incarcerated at Avenal State Prison in Avenal, California, seeks a writ of habeas corpus pursuant to 28 USC § 2254. In his petition, he challenges the October 28, 2003, decision of the California Board of Prison Hearings ("the board") to deny him parole.
In 1992, petitioner shot and killed his wife. He was convicted of second-degree murder later that year. In 1993, petitioner was sentenced to an indeterminate term of 15 years to life for the murder plus four years consecutive thereto for the use of a firearm.
About ten years later, petitioner appeared before the board for his initial parole hearing. In rendering its decision denying parole, the board discussed the circumstances of petitioner's crime, noting that petitioner planned his crime, as evidenced by the fact that he broke into his safe to obtain a gun and loaded it before walking to the crime scene; that petitioner shot his victim in her chest at extremely close range, evidencing a lack of regard for the life and suffering of another; and that petitioner's motive for his crime - he wanted to scare his wife into discussing their marital problems - was trivial, even inexplicable.
In addition to the circumstances of petitioner's crime, the board cited as a factor in its decision petitioner's failure to participate sufficiently in beneficial self-help programs while incarcerated. Such participation was found lacking even though it was necessary for petitioner to come to terms with the causative factors of his crime and to develop skills that would allow him to remain clean and sober, given that petitioner attributed his crime to the influence of alcohol and the gains he had made through participating in Alcoholics Anonymous were recent.
Petitioner appealed the board's decision and sought review at all three levels of the state-court system. In each case, relief was denied. In the present federal action, petitioner contends that, in denying him parole, the board deprived him of liberty without due process of law in violation of his rights under the Fourteenth Amendment to the United States Constitution.
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 argues that the board failed to provide specific reasons denying him parole and did not establish that he was a threat to public safety; moreover, he contends, various factors, such as his lack of a prior criminal record or prison disciplinary record, his remorse, his plans for parole and a favorable mental-health evaluation weighed in favor of granting parole. As noted above, the record shows that the board discussed thoroughly, and accordingly found, two factors tending to show petitioner's unsuitability for parole - the circumstances of his crime and his failure to participate sufficiently in beneficial self-help programs while incarcerated - and that these circumstances formed the basis for the board's conclusion that petitioner posed "an unreasonable risk of danger to society and a threat to public safety if released from prison." 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 ...