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Satchell v. Sisto

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 2, 2009

PERRY SATCHELL, PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.

The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge

REPORT AND RECOMMENDATION

I. SUMMARY

Petitioner Perry Satchell is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted by a jury of second degree murder with a firearm enhancement in Los Angeles County Superior Court in May 1991, and sentenced to 20-years-to-life with the possibility of parole. He has filed a petition for writ of habeas corpus, together with relevant portions of the state court record, under 28 U.S.C. § 2254 challenging his 2006 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Docket 7, Part 1 at 1-33.)*fn2 Respondent has filed an answer to the petition, and petitioner has filed a reply to the answer. (See Dkt. 12; Dkt. 15.) The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends the Court deny the petition, and dismiss this action with prejudice.

II. BACKGROUND

The Los Angeles County Superior Court set forth the following relevant facts: The record reflects that on May 5, 1990, the Petitioner was in his bedroom when he heard noise outside and guessed that the victim, Reginald Carter, was fighting with someone. He armed himself with a gun and went out to the other room. The Petitioner discovered that there was no fight, but began to argue with Mr. Carter, because he had invited someone in who the Petitioner had previously argued with. At some point during the argument, Mr. Carter and the other man struggled with the Petitioner to get the gun. During the struggle, the gun discharged and fired at the ceiling. The victim then jumped back and the Petitioner shot him in the neck, killing him. The Petitioner claims that he shot the victim in self-defense, because he was afraid the victim was going to use the gun on him if he was able to get it. (Dkt. 7, Part 1 at 36.) In addition, the Board noted during the hearing that petitioner's girlfriend, who was also the victim's sister, had taken her two children into the kitchen during the altercation. (See id., Part 2 at 91-92.) After the shooting, petitioner walked into the kitchen while holding his gun, and looked at her for approximately one minute before leaving the house. (See id. at 92.)

The commitment offense occurred on May 5, 1990, when petitioner was thirty-two years old. He was incarcerated two days after the incident, and subsequently convicted by a jury of second degree murder with a firearm enhancement in Los Angeles County Superior Court. Petitioner was sentenced to 20-years-to-life with the possibility of parole, and his minimum eligible parole date was set for March 17, 2003. (See id., Part 1 at 36.) The parole denial which is the subject of this petition took place after a parole hearing held on November 7, 2006. This was petitioner's first subsequent parole consideration hearing, as his initial application for parole in 2002 was denied for three years. (See id. at 7.) As of the date of the 2006 parole hearing, petitioner was forty-nine years of age, and had been in custody for approximately sixteen years.

After denial of his 2006 application, petitioner filed habeas corpus petitions in the Los Angeles County Superior Court, California Court of Appeal, and California Supreme Court. (See Dkt. 12, Ex. A at 2-21; id., Ex. C, Part 1 at 2-45; and id., Ex. E at 2-23.) Those petitions were unsuccessful. (See Dkt. 7, Part 1 at 34-38.) This federal habeas petition followed. Petitioner contends his 2006 denial by the Board violated his Fifth and Fourteenth Amendment Due Process rights. Thus, petitioner does not challenge the validity of his conviction, but instead challenges the Board's 2006 decision finding him unsuitable for parole.

III. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. denied, 543 U.S. 991 (2004) (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction."). Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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)(1) and (2).

As a threshold matter, this Court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

The Court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply because [it] 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 [objectively] unreasonable." Id. at 411.

In each case, the petitioner has the burden of establishing that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).

Finally, AEDPA requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir. 1993)).

IV. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS

A. Due Process Right to be Released on Parole

Under the Fifth and Fourteenth Amendments to the United States Constitution, the government is prohibited from depriving an inmate of life, liberty or property without the due process of law. U.S. Const. amends. V, XIV. A prisoner's due process claim must be analyzed in two steps: the first asks whether the state has interfered with a constitutionally protected liberty or property interest of the prisoner, and the second asks whether the procedures accompanying that interference were constitutionally sufficient. Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006).

Accordingly, our first inquiry is whether petitioner has a constitutionally protected liberty interest in parole. The Supreme Court articulated the governing rule in this area in Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 482 U.S. 369 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying "the 'clearly established' framework of Greenholtz and Allen" to California's parole scheme). The Court in Greenholtz determined that although there is no constitutional right to be conditionally released on parole, if a state's statutory scheme employs mandatory language that creates a presumption that parole release will be granted if certain designated findings are made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 12; Allen, 482 U.S. at 377-78.

As discussed infra, California statutes and regulations afford a prisoner serving an indeterminate life sentence an expectation of parole unless, in the judgment of the parole authority, he "will pose an unreasonable risk of danger to society if released from prison." Title 15 Cal. Code Regs., § 2402(a). The Ninth Circuit has therefore held that "California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion, 306 F.3d at 902. To similar effect, Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) held that California Penal Code § 3041 vests all "prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause." This "liberty interest is created, not upon the grant of a parole date, but upon the incarceration of the inmate." Biggs v. Terhune, 334 F.3d 910, 915 (2003). See also Sass, 461 F.3d at 1127.

Because the Board's denial of parole interfered with petitioner's constitutionally- protected liberty interest, this Court must proceed to the second step in the procedural due process analysis and determine whether the procedures accompanying that interference were constitutionally sufficient. "[T]he Supreme Court [has] 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.'" Irons, 505 F.3d at 851 (citing Superintendent v. Hill, 472 U.S. 445, 457 (1985) (holding the "some evidence" standard applies in prison disciplinary proceedings)). The "some evidence" standard requires this Court to determine "whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56. Although Hill involved the accumulation of good time credits rather than release on parole, later cases have held that the same constitutional principles apply in the parole context because both situations directly affect the duration of the prison term. See e.g., Jancsek v. Or. Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987) (adopting the "some evidence" standard set forth by the Supreme Court in Hill in the parole context); accord, Sass, 461 F.3d at 1128-29); Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904.

"The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact," however. Hill, 472 U.S. at 456. Similarly, the "some evidence" standard is not an invitation to examine the entire record, independently assess witnesses' credibility, or re-weigh the evidence. Id. at 455. Instead, it is there to ensure that an inmate's loss of parole was not arbitrarily imposed. See id. at 454. The Court in Hill added an exclamation point to the limited scope of federal habeas review when it upheld the finding of the prison administrators despite the Court's characterization of the supporting evidence as "meager." See id. at 457.

B. California's Statutory and Regulatory Scheme

In order to determine whether "some evidence" supported the Board's decision with respect to petitioner, this Court must consider the California statutes and regulations that govern the Board's decision-making. See Biggs, 334 F.3d at 915. Under California law, the Board is authorized to set release dates and grant parole for inmates with indeterminate sentences. See Cal. Penal Code § 3040 and 5075, et seq. Section 3041(a) requires the Board to meet with each inmate one year before the expiration of his minimum sentence and normally set a release date in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, as well as comply with applicable sentencing rules. Subsection (b) of this section requires that the Board set a release date "unless it determines that the gravity of 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." Id., § 3041(b). Pursuant to the mandate of § 3041(a), the Board must "establish criteria for the setting of parole release dates" which take into account the number of victims of the offense as well as other factors in mitigation or aggravation of the crime. The Board has therefore promulgated regulations setting forth the guidelines it must follow when determining parole suitability. See 15 CCR § 2402, et seq.

Accordingly, the Board is guided by the following regulations in making a determination whether a prisoner is suitable for parole:

(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of 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.

(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.

15 CCR § 2402(a) and (b). Subsections (c) and (d) also set forth suitability and unsuitability factors to further assist the Board in analyzing whether an inmate should be granted parole, although "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." 15 CCR § 2402(c).

In examining its own statutory and regulatory framework, the California Supreme Court in In re Lawrence recently held that the proper inquiry for a reviewing court is "whether some evidence supports the decision of the Board . 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 (2008). The court also asserted that the Board's decision must demonstrate "an individualized consideration of the specified criteria, but "[i]t is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." Id. at 1204-05, 1212. As long as the evidence underlying the Board's decision has "some indicia of reliability," parole has not been arbitrarily denied. See Jancsek, 833 F.2d at 1390. As the California courts have continually noted, the Board's discretion in parole release matters is very broad. See Lawrence, 44 Cal.4th at 1204. Thus, the penal code, corresponding regulations, and California law clearly establish that the fundamental consideration in parole decisions is public safety and an assessment of a prisoner's current dangerousness. See id.,at 1205-06.

C. Summary of Governing Principles

By virtue of California law, petitioner has a constitutional liberty interest in release on parole. The parole authorities may decline to set a parole date only upon a finding that petitioner's release would present an unreasonable present risk of danger to society if he is released from prison. Where the parole authorities deny release, based upon an adverse finding on that issue, the role of a federal habeas court is narrowly limited. It must deny relief if there is "some evidence" in the record to support the parole authority's finding of present dangerousness. The penal code, corresponding regulations, and California law clearly support the foregoing interpretation.

V. PARTIES' CONTENTIONS

Petitioner contends that the Board violated his state and federal due process rights by finding him unsuitable for parole without any evidence that he poses an unreasonable risk of danger to society if released from prison.*fn3 (See Dkt. 7, Part 1 at 9-33.) Specifically, petitioner claims that the Board found him unsuitable based upon the immutable facts of the commitment offense. (See id. at 24-27.) In addition, petitioner argues the Board failed to consider or give appropriate weight to evidence suggesting that petitioner was suitable for parole. (See id. at 31-32.) Although petitioner cites the United States Court of Appeals for the Ninth Circuit's decision in Hayward v. Marshall as support for his petition, the panel decision in that case has been withdrawn and the case is currently being reheard en banc by that court. As a result, the panel decision cannot be cited as precedent. See 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008) (providing that "the three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."). (See also Dkt. 7, Part 1 at 24, 27-30.)

Respondent claims that petitioner does not have a constitutionally protected liberty interest in being released on parole, that the "some evidence" standard is inapplicable in this context, and that even if he does have a protected liberty interest, the Board adequately predicated its denial of parole on "some evidence." (See Dkt. 12 at 2-3, and 6-8.) Accordingly, respondent argues that petitioner's due process rights were not violated by the Board's 2006 decision, and the Los Angeles County Superior Court's Order upholding the Board's 2006 parole denial was not an unreasonable application of clearly established federal law. (See id. at 4, and 7-8.)

VI. ANALYSIS OF RECORD IN THIS CASE

A. Analysis

The Board based its decision that petitioner was unsuitable for parole primarily upon his commitment offense, as well as petitioner's past criminal history, escalating pattern of criminal conduct, institutional behavior, failure to demonstrate adequate insight regarding the commitment offense, insufficient documentation of participation in self-help programming, and the psychological report's failure to provide an assessment of petitioner's ability to function within the community, if released. (See Dkt. 7, Part 2 at 91-95.) See also 15 CCR § 2402(c)(1) (providing that a commitment offense carried out "in an especially heinous, atrocious, or cruel manner" constitutes a factor tending to indicate unsuitability for parole); 15 CCR § 2402(b) (requiring the Board to consider a prisoner's "past criminal history, including involvement in other criminal misconduct which is reliably documented," "the base and other commitment offenses, including behavior before, during, or after the crime," "past and present attitude toward the crime," as well as "any other information which bears on the prisoner's suitability for release"); 15 CCR § 2402(c)(6) (providing that "serious misconduct" committed in prison or in jail constitutes a factor tending to indicate unsuitability for parole). After considering all reliable evidence in the record, the Board concluded that evidence of petitioner's positive behavior in prison did not outweigh evidence of his unsuitability for parole. (See Dkt. 7, Part 2 at 94.)

With regard to the circumstances of the commitment offense, the Board concluded that the offense was carried out in an especially heinous, atrocious, or cruel manner. (See id. at 91.) See also 15 CCR § 2402(c)(1). Petitioner armed himself with a handgun, and engaged in an altercation with his unarmed victim. (See Dkt. 7, Part 2 at 91.) When the victim and another individual attempted to take the gun from petitioner, the gun discharged at the ceiling. (See id.,Part 1 at 36.) Although the victim jumped back, petitioner fired a second shot at the victim at a close range, hitting him in the neck and killing him. (See id., Part 2 at 91.) Petitioner then followed his girlfriend, who had fled to the kitchen with her two children to avoid the fight, and looked at her for about a minute while continuing to hold his gun in his hands. (See id. at 90, and 98.)

Because the jury, by its verdict, found petitioner did not kill the victim in self-defense, this provided some evidence to support the Board's conclusion that the murder was carried out in a dispassionate and calculated manner, as well as a manner which demonstrates an exceptionally callous disregard for human suffering. (See id. at 91, and 95.) See also 15 CCR § 2402(c)(1)(B) and (D). The Board also concluded that the motive for the crime was inexplicable or very trivial in relation to the offense, because there were opportunities for petitioner to walk away from the fight. (See Dkt. 7, Part 2 at 97.) See also 15 CCR § 2402(c)(1)(E). He chose instead to resort to violence, even though his girlfriend, who was the victim's sister, and her two children were also in the house. (See Dkt. 7, Part 2 at 97-98.) The evidence of the circumstances surrounding petitioner's commitment offense and the trivial motive therefore provide some evidence to support the Board's finding that the murder was carried out in an especially heinous, atrocious, or cruel manner.

In conjunction with this claim, petitioner requests that this Court take judicial notice of several superior court orders in unrelated habeas cases because they contain statistical evidence concerning the Board's reliance upon the commitment offense unsuitability factor to deny parole in other cases. (See Dkt. 7, Part 1 at 26-27.) See also Fed. R. Evid. 201(b)(2) (permitting the court to take judicial notice of a fact that is "not subject to reasonable dispute in that it is . (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."). Petitioner does not provide the Court with these state court orders, however. Petitioner also fails to explain how the orders, even if construed by the Court as supplemental briefing, are relevant to this Court's determination of whether there is some evidence to support the Board's finding that the commitment offense in this case was carried out in an especially heinous, atrocious, or cruel manner by petitioner. Judicial notice of unrelated state court orders is therefore inappropriate. The Board's findings regarding petitioner's offense were based upon an "individualized consideration of the specified criteria," and were amply supported by evidence in the record. See Lawrence, 44 Cal.4th at 1212.

The second and third factors relied upon by the Board were petitioner's past criminal history and escalating pattern of criminal conduct. (See Dkt. 7, Part 2 at 92.) The applicable guidelines direct the Board to consider "a prisoner's past criminal history, including involvement in other criminal misconduct which is reliably documented," and "behavior before, during, and after [the base and other commitment offenses]." See 15 CCR § 2402(b). Petitioner challenges the Board's consideration of his prior arrests for purchasing a gun that had been stolen from the New York Treasury Department, and an assault with a deadly weapon for backing a vehicle, the deadly weapon, into a fence and causing a gate to fall on someone, because he was not ultimately convicted of those offenses. In support of his argument, petitioner cites § 2326 of Title 15 of the California Code of Regulations. (See Dkt. 7, Part 1 at 16.) But that section relates to the selection of parole dates, not the determination of suitability for parole. In contrast, the California Court of Appeal has approved the consideration of arrests (without convictions) in determining suitability for parole. See In re Gilbert Fuentes, 37 Cal.Rptr.3d 426, 433-34 (Cal. Ct. App. 2005). As a result, the Board properly considered petitioner's previous arrests, as well as his prior misdemeanor conviction for carrying a concealed weapon. (See Dkt. 7, Part 2 at 24.) Petitioner's prior misdemeanor conviction and arrests provide some evidence to support the Board's finding that petitioner has a past criminal history, and has demonstrated an escalating pattern of criminal conduct which culminated in the commitment offense.

The fourth factor relied upon by the Board was petitioner's institutional behavior. (See id. at 92-93.) See also 15 CCR § 2402(c)(6) (providing that serious misconduct in prison or jail constitutes a factor indicating unsuitability for parole). Specifically, the Board noted that since his incarceration, petitioner has received seven 128A chronos and three 115 reports for disciplinary violations. (See Dkt. 7, Part 2 at 30-32, and 92-94.) Petitioner's most serious disciplinary violation was a 115 report received on October 22, 1995, for threatening force and violence against a new cellmate because petitioner objected to his sexual orientation. (See id. at 31-32.) Petitioner's most recent disciplinary violation occurred in 2002 when he failed to obtain permission to keep onions grown by inmates for donation to food banks.*fn4

(See id. at 30-31.) Petitioner's disciplinary violations in prison provide some evidence to support the Board's finding that petitioner's institutional behavior constitutes a factor indicating unsuitability for parole.

The fifth and sixth factors relied upon by the Board were petitioner's failure to demonstrate adequate insight regarding the commitment offense, and insufficient documentation of his participation in self-help programming in prison. (See id. at 92-93.) The Board is required to consider a petitioner's "past and present attitude toward the crime." See 15 CCR § 2402(b). Petitioner maintains that he killed the victim as an act of self-defense, and therefore disputes his murder conviction. (See Dkt. 7, Part 2 at 101.) The Board instructed petitioner "not to try to accommodate the Board by changing his story to a non-truth," but encouraged him to shift his focus away from the trial toward his own self-help programming in prison. (See id.) The Board commended petitioner for participating in some self-help and therapy programs such as anger and stress management, but found that his participation in such programs at the time of the hearing "failed to demonstrate evidence of positive change." (Id. at 92, and 95; see also Dkt. 7, Part 1 at 41-48). As a result, the Board asserted that petitioner needed "additional documented self-help in order to face, discuss, understand, and cope with stress in a nondestructive manner . [because] [u]ntil progress is made the prisoner continues to be unpredictable and a threat to others." (Dkt. 7, Part 2 at 95; see also id. at 33-39.) The Board found that petitioner needed to "look deep inside yourself to have an understanding of what motivated you to [murder the victim]. Why you did it. Why you went through the motions that you did . and why given a similar situation you would not repeat that." (Id. at 99.) Petitioner's statements to the panel during the hearing, as well as the record,provide some evidence to support the Board's conclusion that petitioner failed to demonstrate sufficient insight regarding the commitment offense, or provide sufficient documentation of his participation in self-help programming in prison.

Finally, the Board found that the most recent psychologist's report was inconclusive, because it did not include an assessment of petitioner's risk of violence compared to an average citizen in the community. (See id. at 94, and 110.) Although the report asserted that petitioner presents a low risk of dangerousness and violence when compared to other life term inmates, the Board regarded the report as inconclusive as to petitioner's dangerousness, as the report did not compare petitioner's dangerousness with that of average citizens. (See id. at 46, and 110.) The report also included the following qualifications, "If [petitioner] is provided with a stable living environment, employment, and remains illegal drug and alcohol substance free, and does not associate with negative individuals, he would have a better chance of coping with his release." (See id. at 110.) Based upon the above, the Board found that the psychological report failed to provide a clear assessment of petitioner's ability to function within the community if released. (See id. at 94.) Thus, the most recent psychological report's omission of this assessment, coupled with the above-mentioned constraints on petitioner's release environment, constitute some evidence to support the Board's finding that the most recent psychological report was inconclusive regarding petitioner's ability to function within the community without reoffending if released on parole.

As stated above, it is beyond the authority of a federal habeas court to determine whether evidence of suitability outweighs the circumstances of the commitment offense, together with any other reliable evidence of unsuitability for parole. While petitioner contends that the Board should have considered the "significant stress" suffered by petitioner as a result of living in a "gang and crime infested neighborhood," the Board's failure to do so was permissible. (See id., Part 1 at 31-32.) See 15 CCR § 2402(d)(4). The Board has broad discretion to determine how suitability and unsuitability factors interrelate to support its conclusion of current dangerousness to the public. See Lawrence, 44 Cal.4th at 1212.

Contrary to petitioner's argument that the Board failed to consider or give appropriate weight to most of the parole suitability rules which favored petitioner, the Board acknowledged that petitioner has made strong residential and employment plans for release, and has marketable skills as a subcontractor. (See Dkt. 7, Part 2 at 50-53.) See also 15 CCR § 2402(d)(8). Specifically, the Board cited petitioner's employment offer to work as a subcontractor doing emergency board ups and fire repair work. (See Dkt. 7, Part 2 at 50.) The Board considered petitioner's acquisition of his GED, completion of his building maintenance vocation, lack of a juvenile criminal record, letters submitted by family members in support of his release, and his relatively stable social history. (See id. at 23, 26-29, 36-39, 54-55, and 95.) The Board also commended petitioner for the progress he has made through his involvement with Buddhism, and encouraged him to document the self-help and religious books he reads in preparation for future parole hearings. (See id. at 49, and 95-96.) It is therefore an inaccurate characterization of the record to say that the Board failed to consider evidence that favored petitioner, or found him unsuitable for parole based solely upon the commitment offense. (See id., Part 1 at 31-32.) Although the Board praised petitioner's progress in prison, it determined that his commitment offense, past criminal history, escalating pattern of criminal conduct, institutional behavior, failure to demonstrate adequate insight regarding the commitment offense, insufficient documentation of his participation in self-help programming, and the psychological report's failure to provide an assessment of petitioner's ability to function within the community if released, indicate that he remains an unreasonable risk of danger to society if released on parole.

B. State Court Proceedings

Petitioner's habeas petitions filed in the California Court of Appeal and California Supreme Court contained the same claims as his Los Angeles Superior Court petition, and both petitions were summarily denied. (See Dkt. 12, Ex. A at 2-21; id., Ex. C, Part 1 at 2-45; id., Ex. E at 2-23;Dkt. 7, Part 1 at 34-35.) The parties agree that petitioner has properly exhausted his state court remedies, and timely filed the instant petition. (See Dkt. 7, Part 1 at 1-8; Dkt. 12 at 2.) This Court reviews the Los Angeles County Superior Court's Order upholding the Board's decision to determine whether it meets the deferential AEDPA standards, as it is the last reasoned state court decision. See Ylst, 501 U.S. at 803-04.

In a reasoned decision denying petitioner's request for habeas relief, the Los Angeles County Superior Court asserted that based upon its review of the record, the Board's decision was supported by some evidence. (See Dkt. 7, Part 1 at 36.) The superior court reviewed the facts of the commitment offense, the record of the parole hearing, and the Board's findings regarding both suitability and unsuitability factors. (See id. at 36-37) Specifically, the court noted that the Board based its decision primarily upon the commitment offense, but also considered petitioner's prior arrest for assault with a deadly weapon, his three 115s, as well as his limited self-help programming. (See id. at 37.) It concluded that "although these factors, alone, may not justify a finding of unsuitability, the Board may properly consider them as relevant to the determination of whether the Petitioner is suitable for parole." (Id.) The superior court also agreed with the Board's finding that the motive was very trivial in relation to the offense because "[a]lthough the Petitioner claims that he believed that he was acting in self-defense, the record indicates that the victim did not provoke the Petitioner in any way when he initially brought the gun into the room. Additionally, the victim was unarmed and was not struggling with the Petitioner when he fired the second shot, which killed the victim." (Id.) Thus, based upon the fact that "there is some evidence that his motive was very trivial in relation to the offense; because of his limited self-help program participation; and because of his somewhat recent serious discipline in 2002,"*fn5 the superior court concluded that the Board's decision to deny the petitioner parole for a period of two years was within its broad discretion. (Id.) Because the decisions of both the state court and the Board were supported by "some evidence," there is no need to reach respondent's argument that another standard applies.

VII. CONCLUSION

Given the totality of the Board's findings, there is some evidence that petitioner's release as of the date of the Board's decision, November 7, 2006, would have posed an unreasonable risk to public safety. The Los Angeles County Superior Court's Order upholding the Board's decision was therefore not contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of facts. Accordingly, I recommend the Court find that petitioner's federal due process rights were not violated and that the petition be denied, and this action be dismissed with prejudice.

This Report and Recommendation is submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with this Report and Recommendation, any party may file written objections with this Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Report and Recommendation." Failure to file objections within the specified time may waive the right to appeal the District Court's Order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). A proposed order accompanies this Report and Recommendation.


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