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Brown v. Carey

May 5, 2009

BARRY AUSTIN BROWN, PETITIONER,
v.
THOMAS L. CAREY,*FN1 RESPONDENT.



The opinion of the court was delivered by: Lonny R. Suko United States District Judge

ORDER DENYING § 2254 PETITION

BEFORE THE COURT is the Petitioner's Petition for Habeas Corpus Reliefpursuant to 28 U.S.C. Section 2254 (Ct. Rec. 1).

I. BACKGROUND

Petitioner Brown is in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his November 1, 1974 conviction in the Santa Cruz County Superior Court of first degree murder and his October 22, 1974 convictions in the San Mateo County Superior Court for two counts of first degree murder for which he was sentenced to seven years to life. (Ct. Rec. 8, at 1.) Petitioner does not challenge the propriety of his convictions; instead his Petition challenges the Board's 2005 decision finding him unsuitable for parole. Petitioner does not contest that he received notice of his 2005 parole hearing, had an opportunity to appear at the hearing, and received a copy of the Board's decision finding him unsuitable for parole.

II. DISCUSSION

A. Federal Habeas Standards

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 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 proceedings. 28 U.S.C. § 2254(d).

Under Section 2254(d)(1), a state court decision is "contrary to" clearly established Supreme Court precedent 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 a different result. Williams v. Taylor, 529 U.S. 362, 413 (2000). The term "unreasonable application" has a meaning independent from that of the term "contrary to." A state court's decision is an unreasonable application of clearly established Supreme Court precedent "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." Id. 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 411. A federal habeas court making an "'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This is a "'highly deferential standard for evaluating state court rulings'" and "'demands that state court decisions be given the benefit of the doubt.'" Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003)(citations omitted).

In determining whether a state court decision is "contrary to" or an "unreasonable application" of federal law under §2254(d)(1), the federal court looks to the last reasoned state court decision as the basis for the state court judgment. Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). In the captioned matter, the last reasoned state court decision is that rendered by the Santa Cruz County Superior Court, on May 30, 2006. The California Court of Appeal summarily denied Petitioner's petition for review on August 14, 2006. On October 25, 2006, the California Supreme Court subsequently and summarily denied Petitioner's petition for review.

Under Section 2254(d)(2), a federal habeas court may grant a writ if it concludes a state court's adjudication of a claim "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." An unreasonable determination of the facts occurs where the state court fails to consider and weigh highly probative, relevant evidence, central to a petitioner's claim, that was properly presented and made part of the state court record. Taylor v. Maddox, 366 F.3d 992, 1005 (9th Cir. 2004). A district court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. Section 2254(e)(1).

B. "Some Evidence"

California's parole scheme gives rise to a cognizable liberty interest in release on parole, even for prisoners who have not already been granted a parole date. Sass v. California Board of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006). The U.S. Supreme Court has clearly established that a parole board's decision deprives a prisoner of due process with respect to his constitutionally protected liberty interest in a parole release date if the board's decision is not supported by "'some evidence in the record,' or is 'otherwise arbitrary.'" Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007)(quoting Superintendent v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768 (1985)).*fn2 "To determine whether the some evidence standard is met 'does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached'" by the parole board. Sass, 461 F.3d at 1128 (quoting Hill, 472 U.S. at 455-56). The "some evidence standard is minimal, and assures that 'the record is not so devoid of evidence that the findings of the . . . board were without support or otherwise arbitrary.'" Id. at 1129 (quoting Hill, 472 U.S. at 457).

The Board of Parole Hearings ("BPH") must 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 . . . and that a parole date therefore, cannot be fixed . . . ." Cal. Penal Code ยง 3041(b). The overriding concern in determining parole suitability is public safety and the focus is on the inmate's ...


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