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McCoy v. Sisto

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 10, 2009

ROBERT MCCOY, 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 Robert McCoy 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 San Mateo County Superior Court on January 7, 1993, and sentenced to 16-years-to-life with the possibility of parole. He has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2005 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Docket 1, Exhibits A-L.) Respondent has filed an answer to the petition, together with relevant portions of the state court record, and petitioner has filed a traverse in reply to the answer. (See Dkt. 6; Dkt. 7.) 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

On June 14, 1991, petitioner engaged in a verbal dispute with the victim over a five-dollar debt. (See Dkt. 1, Ex. H at 1.) Petitioner took a swing at the victim with his fist, but missed. In response, the victim punched petitioner, knocking him to the ground. (See id. at 1-2.) Two bystanders broke up the fight, and petitioner told the victim, "I'll be back to fix you up real good." (Id. at 2.) He went home and retrieved a 12-inch knife from the kitchen, and hid it in the front of his pants. (See id.) While at home, he also told his 16-year old grandson that he was going "looking for Blue," which was the victim's street name. (Id.) McCoy returned to the victim, who was still standing on the street. (Id.) Despite efforts by his grandson to stop him, petitioner walked up to the victim and said, "I am going to stab you." (Id.) Petitioner drew his knife and swung it at the victim, and when the victim attempted to retreat, petitioner chased him. (See id.) The victim picked up a stick and swung it at petitioner, breaking it on petitioner's face and hand, but petitioner simultaneously stabbed him in the chest. (See id.) The victim attempted to flee once more, but staggered and fell face-first on the sidewalk. (See id. at 2-3.) As the victim fell, petitioner yelled, "I got you now and I'm going to kill you." (Id. at 3.) Petitioner then jumped on the victim's back and stabbed him ten times, killing him. (See id., Ex. A at 3.) When police located petitioner near his house shortly after the murder, petitioner told them, "I'm the guy you want." (See id., Ex. H at 3.) Both petitioner and the victim had been drinking prior to the fight, and had high blood alcohol levels. (See id., Ex. A at 3.)

The commitment offense occurred in 1991, when petitioner was fifty-one-years-old. Petitioner was originally convicted by a jury of second degree murder with a prior murder conviction and weapons enhancement, and sentenced to life without the possibility of parole. (See Dkt. 1, Ex. A at 1; Dkt. 6, Ex. 2 at 1.) In the sanity phase of petitioner's 1993 murder trial, the jury heard testimony regarding a prior head injury suffered by petitioner during an automobile accident. (See Dkt. 1 at 5-4.) Despite petitioner's injury, the jury found that petitioner was sane at the time of the instant offense. (See id.)

Petitioner also had an earlier, entirely separate conviction for murder, following a trial in 1972. (See id.) In a federal habeas challenge to his 1993 murder conviction, petitioner claimed that his trial counsel in his 1972 murder trial was ineffective because he failed to inform him of the viability of a diminished capacity defense before he entered a guilty plea. (See id. at 5-5.) Petitioner argued that his 1972 murder conviction was therefore improperly used to enhance his sentence in his 1993 murder conviction. (See id.) The U.S. District Court for the Northern District of California granted his habeas petition, and the United States Court of Appeals for the Ninth Circuit affirmed. See McCoy v. Hubbard, 232 F.3d 895, 2000 WL 1023208, at *2 (9th Cir. 2000) (unpublished disposition). (See also Dkt. 6, Ex. 3 at 1-2.) Accordingly, petitioner was resentenced for his 1993 murder conviction to 16-years-to-life with the possibility of parole for second degree murder with a firearm enhancement. (See id., Ex. 1 at 1-2; Dkt. 1, Ex. H at 1.) His minimum eligible parole date was set for February 13, 2002. (See Dkt. 1, Ex. H at 1.)

The parole denial which is the subject of this petition took place after a parole hearing held on December 5, 2005. (See id.) This was petitioner's first subsequent parole consideration hearing, as his initial application for parole in 2001 was denied for four years.

(See id., Ex. F at 1.) As of the date of the 2005 parole hearing, petitioner was sixty-five-years-old, and had been in custody for approximately twelve years.

After denial of his 2005 application, petitioner filed habeas corpus petitions in the San Mateo County Superior Court, California Court of Appeal, and California Supreme Court. (See id., Exs. I; Dkt. 6, Exs. 8 and 10.) Those petitions were unsuccessful. (See Dkt. 1, Exs. I, K, and L.) This federal habeas petition followed. Petitioner contends his 2005 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 2005 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.*fn2 (See Dkt. 1, at 3-4.) Specifically, petitioner claims that the Board found him unsuitable based upon the immutable facts of the commitment offense. (See id. at 8-9 and 17-19.) In addition, petitioner contends that the Board failed to afford him an individualized consideration of all relevant suitability factors, such as the use of special conditions of parole under which petitioner could be safely released into the community. (See id. at 22-25.) Finally, petitioner argues that the Board violated his due process rights by holding his 2005 parole hearing six months late, in violation of the statutorily prescribed time limits set forth in California Penal Code § 3041.5. (See id. at 2 and 25-29.)

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. 6 at 4-5 and 8-14.) In addition, respondent argues that petitioner's claims regarding the Board's failure to consider special conditions of parole or hold petitioner's 2005 parole hearing in a timely manner are based upon state law, and are therefore not cognizable in federal habeas corpus proceedings. (See id. at 14.) Respondent contends that petitioner's untimely parole hearing claim is also moot, because the Board conducted petitioner's parole hearing on December 5, 2005. (See id. at 14-15.) Accordingly, respondent asserts that petitioner's due process rights were not violated by the Board's 2005 decision, and the San Mateo County Superior Court's Order upholding the Board's 2005 parole denial was not an unreasonable application of clearly established federal law. (See id. at 7, and 15.)

VI. ANALYSIS OF RECORD IN THIS CASE

A. Commitment Offense

The Board based its decision that petitioner was unsuitable for parole primarily upon his commitment offense, as well as petitioner's record of previous violence, failure to profit from society's previous attempts to correct his criminality, unstable social history, insufficient participation in self-help programming, failure to demonstrate adequate insight regarding the commitment offense, unfavorable 2001 mental health evaluation, failure to upgrade vocationally or develop marketable skills, and insufficient documentation of viable parole plans. (See Dkt. 1, Ex. H at 37-39.) The Board's findings track the applicable unsuitability and suitability factors listed in § 2402(b), (c) and (d) of Chapter 15 of the California Code of Regulations. 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. 1, Ex. I at 37.)

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 37.) See also 15 CCR § 2402(c)(1). Petitioner had initiated the physical dispute with the victim, and when their fight was broken-up by bystanders, he threatened the victim with violence. (See Dkt. 1, Ex. H at 1-2.) Petitioner went home and retrieved a 12-inch knife from his kitchen, and after ignoring his grandson's efforts to stop him, returned to the victim and swung the knife at him. (Id. at 2.) When the victim attempted to run away, petitioner chased him, and eventually overcame the victim's efforts to defend himself with a stick by stabbing the victim in the chest. (Id.) When the victim fell face-first on the sidewalk, petitioner jumped on the victim's back and stabbed him ten times, killing him. (See id., Ex. A at 3; Ex. H at 2-3.)

Based upon these facts, the Board found that the offense was carried out in an especially cruel and callous manner, because the petitioner "had a clear opportunity to stop, but [he] continued" to violently attack the victim. (See Dkt. 1, Ex. H at 37.) The Board concluded that the motive for the crime was inexplicable or very trivial in relation to the offense, because the dispute involved a five-dollar debt. (See id.) See also 15 CCR § 2402(c)(1)(E). The Board also originally found that the victim was mutilated by petitioner, and that the offense was carried out in a dispassionate and calculated manner as well as a manner which demonstrates an exceptionally callous disregard for human suffering, because the petitioner used "two weapons, a stick and a knife," to murder the victim. (See Dkt. 1, Ex. H at 37.) Petitioner objected to the panel's characterization of the facts during the decision and asserted that the victim had used the stick, and the Deputy District Attorney agreed. (See id. at 37, 39-40, and 42-43.) The panel admitted their mistake, and reaffirmed their finding that the victim had been mutilated by petitioner, because "[t]he victim was stabbed multiple times." (See id. at 43.) See also 15 CCR § 2402(c)(1)(C). Although the Board did not also expressly reaffirm its findings that the offense was carried out in a dispassionate and calculated manner or a manner demonstrating an exceptionally callous disregard for human suffering, the circumstances surrounding the commitment offense, including petitioner's mutilation of the victim and his trivial motive, provide "some evidence" to support the Board's finding that the murder was carried out in an especially heinous, atrocious, or cruel manner. See 15 CCR § 2402(c)(1)(B) -- (E).

The second and third factors relied upon by the Board were petitioner's previous record of violence and failure to profit from society's prior attempts to correct his criminality. (See Dkt. 1, Ex. H at 38.) See also 15 CCR § 2402(b) and (c)(2). The Board found that "on many previous occasions, [petitioner] inflicted or attempted to inflict serious injury on victims, including a prior murder attempt, multiple ADW's, attack with deadly weapons, plus spousal abuse situations." (See Dkt. 1, Ex. H at 38.) The Board asserted that petitioner's record of violence and assaultive behavior "has continued unabated over 19 years, culminating in the instant crime committed when [he was] a 51-year old adult." (Id.) Petitioner also failed to profit from society's previous attempts to correct his criminality, such as prior grants of adult probation and parole. (See id.) Furthermore, the Board noted that petitioner "put a 16-year-old at risk in conducting this crime, and then at least in part, blamed the juvenile for that" during his initial parole hearing. (Id. at 29, and 40.) Petitioner's extensive history of violence and failure to learn from society's previous attempts to correct his criminality, such as grants of adult probation and parole, provide "some evidence" to support the Board's findings.

The fourth factor relied upon by the Board was petitioner's unstable social history. (See id., Ex. H at 38.) See also 15 CCR § 2402(c)(3). Specifically, the Board found that petitioner has "a history of unstable and tumultuous relationships with others, including spousal corporal injuries." (See Dkt. 1, Ex. H at 38.) During the hearing, the Board noted that petitioner had two prior marriages, both of which involved domestic violence and ended in separation. (See id. at 16.) Petitioner was also incarcerated in 1985 for assaulting his second wife. (See id., Ex. E at 2.) When the second marriage ended, petitioner's children were placed in foster care due to his commitment to the CDC. (See id.) Based upon these facts, there was clearly "some evidence" in the record to support the Board's finding that petitioner has a history of unstable or tumultuous relationships with others.

The fifth, sixth, and seventh factors relied upon by the Board were petitioner's failure to demonstrate adequate insight regarding the commitment offense, unfavorable 2001 mental health evaluation, and insufficient participation in self-help programming. (See id., Ex. H at 38.) The Board is required to consider a petitioner's "past and present attitude toward the crime." See 15 CCR § 2402(b). When asked about his past alcohol use, petitioner responded, "drinks -- I knew that might have been the trigger. But if I hadn't ran out of cigarettes and gone -- and left home and go get them, I believe I'd still been home. I wasn't thinking rationally, and I was (indiscernible) because of the alcohol. I was in no position to defend myself or think clearly." (See Dkt. 1, Ex. H at 27.) He stated that "[a]lcohol, every time I think about it, it scares me. I never been so close to reality and so close to dying in my life and alcohol was the cause of it." (Id. at 26.)

In addition, the Board noted that the most recent psychological report, which was prepared in 2001, was very unfavorable. Specifically, the psychologist diagnosed petitioner as suffering from anti-social personality disorder, and assessed petitioner's "prognosis for successful community living [as] lower than average. (See id. at 38-39; id., Ex. E at 3-4.) The psychologist stated that "whether or not [petitioner's] injury has any bearing on his violent behavior, he. [is] an individual with a low tolerance for stress and frustration, and very lacking in impulse control. If not in a controlled setting, [petitioner] has an extremely high potential for involvement in future violent behavior." (See id., Ex. E at 3.) The Board also relied upon the psychologist's observation that petitioner "presents a somewhat superficial naïve attitude about returning to society," and shows "only limited insight into what had happened during the crime regarding his own behavior." (See id., Ex. H at 39; id., Ex. E at 5.) Furthermore, the Board found that petitioner had not participated in any self-help or therapy programs in prison as of the date of the hearing. (See id., Ex. H at 22 and 38.) Thus, the record provides "some evidence" to support the Board's findings regarding petitioner's failure to demonstrate adequate insight regarding the commitment offense, unfavorable 2001 mental health evaluation, and insufficient participation in self-help or therapy programs in prison.

Finally, the Board noted petitioner's failure to sufficiently upgrade vocationally or develop marketable skills, as well as his insufficient documentation of viable parole plans. See 15 CCR § 2402(d)(8). The Board asserted that petitioner has programmed in a limited manner while incarcerated, and although petitioner worked "on and off" as a painter and truck driver prior to his imprisonment, it questioned whether this employment history constituted marketable skills. (See Dkt. 1, Ex. H at 19 and 38.) The Board also found that petitioner has failed to sufficiently upgrade vocationally in prison, because he told the panel during the hearing that he was "just beginning to. get the feel" of vocational painting. (See id. at 20.) In addition, the Board found that petitioner lacked realistic parole plans, such as acceptable employment plans and viable residential plans in the last county of his legal residence. (See id. at 17-18 and 38-39.) Accordingly, there was "some evidence" to support the Board's findings that petitioner failed to develop marketable skills, upgrade vocationally, or arrange viable parole plans.

Contrary to petitioner's argument that the Board failed to consider or give appropriate weight to the parole suitability rules which favored petitioner, the Board acknowledged that petitioner has a very favorable disciplinary record in prison. (See id. at 38.) See also 15 CCR § 2402(d)(9) ("Institutional activities indicate an enhanced ability to function within the law upon release."). Specifically, the Board cited petitioner's "two minor 128s," and commended him "for serving for many years with discipline-free behavior." (See Dkt. 1, Ex. H at 38.) 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 Dkt. 1 at 8-9 and 17-19.) Despite petitioner's good behavior in prison, the Board determined that his commitment offense, record of previous violence, failure to profit from society's previous attempts to correct his criminality, unstable social history, insufficient participation in self-help programming, failure to demonstrate adequate insight regarding the commitment offense, unfavorable 2001 mental health evaluation, failure to upgrade vocationally or develop marketable skills, and insufficient parole plans, indicate that he remains an unreasonable risk of danger to society if released on parole. (See id., Ex. H at 37-39.)

B. Special Conditions of 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. Petitioner contends that the Board failed to provide "an individualized consideration of the specified criteria" by failing to discuss the possibility of using special conditions of parole to safely release petitioner into the community. (See Dkt. 1 at 22-25.)Under the governing regulations, however, the Board's failure to discuss this issue on the record was permissible because 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;15 CCR § 2402(b) ("All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include... any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community."). Due process protections of the U.S. Constitution do not require the Board to discuss special conditions of parole where the Board has concluded that petitioner would pose an unreasonable risk of danger to society if released, and to hold otherwise is to put the proverbial cart before the horse. Thus, the Board's findings with respect to petitioner 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.

C. Postponement of Parole Hearing

Petitioner also contends that his due process rights were violated because his 2005 parole hearing was held approximately six months late, in violation of the statutorily prescribed time limits set forth in California Penal Code § 3041.5. (See Dkt. 1 at 2 and 25-29.) As discussed supra, Supreme Court precedent has established only two requirements for due process in the parole context: (1) the inmate must receive an opportunity to be heard and a decision explaining the reasons for the parole denial, see Greenholtz, 442 U.S. at 16, and (2) the decision must be supported by "some evidence," see Hill, 472 U.S. at 455-57; Irons, 505 F.3d at 851. Petitioner received an opportunity to be heard at his parole hearing held on December 5, 2005, as well as a decision explaining the reasons for the denial that was supported by "some evidence." (See Dkt. 1, Ex. H at 37-43.) Because the Due Process Clause does not require more, such as adherence to statutory time limits set forth by state law, the postponement of petitioner's 2005 parole hearing for six months did not violate his due process rights. See Garvin v. Sisto, No. 2:06-cv-02266, 2009 WL 840395, at *1 (E.D. Cal. March 30, 2009) (holding that the Board's one month delay in holding a prisoner's parole hearing did not violate the Due Process Clause based upon the same grounds).

VII. STATE COURT DECISION

Petitioner's habeas petitions filed in the California Court of Appeal and California Supreme Court contained the same claims as his San Mateo County Superior Court petition, and both appellate petitions were summarily denied. (See Dkt. 1, Exs. I, K, and L.) The parties agree that petitioner has properly exhausted his state court remedies, and timely filed the instant petition. (See Dkt. 1 at 2-5; Dkt. 6 at 4.) This Court reviews the San Mateo 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 San Mateo County Superior Court asserted that based upon its review of the record, the Board's decision was supported by "some evidence." (See Dkt. 1, Ex. I at 2-3.) The superior court reviewed the facts of the commitment offense, and the record of the parole hearings. (See id. at 3.) Specifically, the superior court noted that the Board "considered the relevant factors under Title 15 of the California Code of Regulations §§ 2401 and 2402 relating to parole suitability," and properly denied petitioner a parole release date based upon those factors. (Id.) The superior court also concluded that the postponement of petitioner's parole hearing for six months did not merit habeas relief. (See id. at 3.) 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.

VIII. 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, December 5, 2005, would have posed an unreasonable risk to public safety. The San Mateo 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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