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Perkins v. Sisto


June 26, 2009




Petitioner Eric Perkins is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. He is currently serving a sentence of 10 years and four months, plus life with the possibility for parole, following convictions in the Alameda County Superior Court for various offenses relating to the kidnaping and assault of a drug debtor. Petitioner does not challenge the propriety of his conviction; rather, he challenges the 2007 decision of the Board of Parole Hearings ("Board") finding him unsuitable for parole. For the reasons that follow, petitioner is not entitled to relief. The Board's decision finding him unsuitable for parole was supported by some evidence in the record. Petitioner has not suffered a violation of his due process rights, nor a breach of his negotiated plea agreement, as alleged in his petition.


Petitioner's offense was summarized at his 2007 Board hearing as follows: In the week preceding March 18, 1988, Camille Johnson, the victim, entered into a drug deal on credit with Devonne Johnson, co-defendant, and his girlfriend for purchase of three cocaine rocks worth $10.00 each, in exchange for $50.00 to be paid on March 18, 1988.

Because the victim was late in payment, Devonne Johnson assembled a group called the Wrecking Crew to collect the debt and to burn the victim's hair. After learning the victim was at home, Devonne Johnson and four other men, including [petitioner] and two juveniles, went to the victim's residence. On arriving at the victim's residence, the five men entered and brutally beat the victim with their fists, sticks, and bats, and demanded the money.

After not finding any money in the victim's purse, the five men abducted the victim and forced her into the trunk of Perkins' car.

They drove around Oakland in [petitioner's] car for between ten and thirty minutes, threatening to kill the victim all the while before returning to the victim's residence. While she was in the trunk of the car, the victim begged the men for more time to pay off the debt. On returning to the victim's residence, the victim was released from the trunk. However, as she started to walk away from the car, the men brutally knocked her to the ground and one fo the men broke her leg with a bat while the others beat her with fists and sticks. Following the beating, one of the men poured gasoline on the victim's head and set it ablaze. One of the men prevented the victim from removing her blouse which was on fire.

All five men then fled. Neighbors ran to the victim's aid and extinguished the fire. The victim was severely burned from her waist to her head and in addition, suffered a broken leg and finger.

After leaving the victim's residence, three of the five men, including Perkins, went to a female associate's apartment. While there, Perkins admitted to "burning the bitch", stating "she deserved to burn." The victim subsequently gave a description of the man who burned her which matched that of [petitioner].

(Exhibit A at 159-60.*fn1

Petitioner was charged with five felony counts including burglary, attempted robbery, kidnap for ransom, kidnap for robbery, and attempted murder. He was sentenced pursuant to a negotiated plea agreement whereby he received a total determinate term of ten years, four months, plus a consecutive sentence of life with the possibility of parole. (Id. at 8-10.) Petitioner completed serving his determinate sentence on January 19, 1994 and began serving his indeterminate life term the next day, on January 20, 1994. His minimum eligible parole date passed on February 22, 2001.

On March 1, 2007, the Board held petitioner's third subsequent parole hearing. At the hearing, petitioner admitted all facts as set forth above, except that he denied being the one who poured gasoline on the victim. (Id. at 160.) Otherwise, he admitted full responsibility for the crime, stating that he was a willful and active participant. (Id. at 161.) The Board found petitioner unsuitable for parole.

Petitioner challenged the Board's decision in a petition for habeas corpus filed in the Alameda County Superior Court. In a brief reasoned decision, the superior court concluded that some evidence supported the Board's decision. (Exhibit B.) Petitioner subsequently filed petitions in the California Court of Appeal and California Supreme Court; both were summarily denied. (Exhibits D & F.)

In his application for writ of habeas corpus, petitioner asserts that the Board's decision finding him unsuitable for parole violated his due process rights. He also asserts that his contractual plea agreement has been breached by the Board's refusal to set a parole date. As set forth below, neither allegation has merit.


An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).


A. Due Process and Parole

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't. of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).

A protected liberty interest may arise from either the Due Process Clause or from state laws. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create a protected liberty interest in a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, where a state's statutory scheme uses mandatory language, it "'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." McQuillion, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 12 (1979)).

The Ninth Circuit has conclusively determined that California state prisoners who have been sentenced to prison with the possibility of parole have a clearly established, constitutionally protected liberty interest in receipt of a parole release date." Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007) (citing Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); McQuillion, 306 F.3d at 903; and Allen, 482 U.S. at 377-78 (quoting Greenholtz, 442 U.S. at 12)). Thus, the issue for consideration is whether petitioner was afforded adequate procedural protections before being deprived of his parole release date.

B. "Some Evidence" Standard

The full panoply of rights afforded a defendant in a criminal proceeding is not constitutionally mandated in the context of a parole proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The Supreme Court has held that a parole board's procedures are constitutionally adequate if the inmate is given an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. Greenholtz, 442 U.S. at 16. The Ninth Circuit has also made clear that Supreme Court law clearly establishes that some evidence must support a parole decision. Sass, 461 F.3d at 1128-29; McQuillion, 306 F.3d at 904.

Petitioner does not contest that he received notice of his March 1, 2007 parole hearing, an opportunity to appear, and a copy of the decision rendered by the Board. Thus, the only remaining issue is whether there was some evidence to support the decision.

Under the some evidence standard, a decision cannot be "without support" or "arbitrary." McQuillion, 306 F.3d at 904 (citing Superintendent v. Hill, 472 U.S. 445, 457 (1985)); Biggs, 334 F.3d at 915. It must have some indicia of reliability. Id. The standard is "minimally stringent," and a decision must be upheld if there is any evidence in the record that could support the conclusion reached. Powell v. Gomez, 33 F.3d at 40 (citing Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987)); Toussaint v. McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986). Examination of the entire record is not required. Id. The Supreme Court has specifically directed reviewing courts not to assess the credibility of witnesses or re-weigh the evidence.

Hill, 472 U.S. at 455. The only relevant question is whether there is any reliable evidence in the record that could support the decision reached. See Id.; Toussaint, 801 F.2d at 1105.

C. California Law on Parole Suitability Determinations

In evaluating whether the Governor's reversal of petitioner's grant of parole was supported by some evidence, the analysis "is framed by the statutes and regulations governing parole suitability determinations in the relevant state." Irons, 505 F.3d at 851. The court "must look to California law to determine the findings that are necessary to deem [a petitioner] unsuitable for parole, and then must review the record to determine whether the state court decision holding that these findings were supported by 'some evidence' [ ] constituted an unreasonable application of the 'some evidence' principle." Id. This court is bound by California's construction of its own laws in this regard. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

Title 15, Section 2281 of the California Code of Regulations sets forth factors to be considered by the Board regarding parole suitability findings for life prisonerd. The regulation is designed to guide the Board's assessment of whether the inmate poses "an unreasonable risk of danger to society if released from prison," and thus whether he or she is suitable for parole. In re Lawrence, 44 Cal.4th 1181, 1214, 1202 (2008). The Board is directed to consider all relevant, reliable information available regarding 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.

Cal. Code Regs. tit. 15, § 2281(b). The regulation also lists various circumstances that may tend to show suitability or unsuitability for parole. Cal. Code Regs. tit. 15, § 2281 (c) and (d).

Circumstances that may tend to show unsuitability for release are as follows: (1) the offense was committed in an especially heinous, atrocious, or cruel manner; (2) previous record of violence; (3) unstable social history; (4) the crime was a sadistic sexual offense; (5) lengthy history of severe mental problems related to the offense; and (6) serious misconduct in prison. Cal. Code Regs. tit. 15, §2281(c). Circumstances that may tend to show suitability for parole are set forth as follows: (1) no juvenile record; (2) stable social history; (3) signs of remorse; (4) significant stress as a motivation for the crime; (5) battered woman syndrome; (6) lack of criminal history; (7) age; (8) understanding and plans for future; (9) positive institutional behavior. Cal. Code Regs. tit. 15, §2281(d).

The overriding concern in determining parole suitability is public safety and the focus is on the inmate's current dangerousness. In re Lawrence, 44 Cal. 4th at 1205. Thus, "the proper articulation of the standard of review is not whether some evidence supports the reasons the Board cites for denying parole, but whether some evidence indicates that a parolee's release unreasonably endangers public safety. See In re Lawrence, 44 Cal.4th at 1254.

D. The Board's Decision

The Board determined that petitioner would pose an unreasonable risk to public safety if released from prison, and thus that he was unsuitable for parole. While commending him for his recent programming and educational achievements (Exhibit A at 248-49), the Board expressed confusion about his stated involvement in the crime, because there were "two different stories, and maybe three, about why the gasoline was in [petitioner's] trunk... Those are issues we're going to need some resolution to." (Exhibit A at 245.) The Board concluded:

So you have done a lot. What you need to be working on this next year is don't get any more 115s or 128s. So distance yourself from those. Continue your self-help and your education as you have told us you would, and move your goals forward. Shore up those parole plans so that they are the strongest for you possible. Your gains are recent, we're still not sure how much you are minimizing about your participation in your commitment offense and your substance abuse use, you need to be consistently involved in AA and I'm glad to hear what you said today about your feelings about that, and I agree with you... But I'm still concerned, we want to follow up with some issues with regard to the psychological evaluation and how you treat and feel about women.

(Id. at 249.) All in all, the Board relied upon the following circumstances in finding petitioner unsuitable for parole: (1) the nature of the commitment offense; (2) his history of violent behavior and escalating criminal conduct; and (3) his institutional behavior.

Although the focus under California law is the current dangerousness of the inmate, the gravity of the commitment offense alone can be a sufficient basis for denying parole where the facts are especially heinous or particularly egregious. In re Rosenkrantz, 29 Cal.4th 616, 682 (2002); see also Biggs v. Terhune, 334 F.3d 910, 913-16 (9th Cir. 2003); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1126 (9th Cir. 2006); Irons v. Carey, 505 F.3d 846, 852-53 (9th Cir. 2007).*fn2 As set forth by the Alameda County Superior Court, petitioner's victim was tortured and abused during commission of the offense. Overall, it is true that the offense was committed in a manner that demonstrates an exceptionally callous disregard for human suffering. This is one of the circumstances that the California legislature has determined may tend to show unsuitability for release. See Cal. Code Regs. tit. 15, §2281(b).

In order to rely on the circumstances of petitioner's offense as an unsuitability factor for parole, however, there must be some rational nexus between those facts and the ultimate conclusion that he continues to be a threat to public safety. In re Lawrence, 44 Cal.4th at 1214, 1227 ("the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or [ ] current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety") (emphasis in original). The relevant inquiry is an individualized one: "whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense." In re Lawrence, 44 Cal.4th at 1221. The passage of time and attendant changes in the inmate's psychological or mental attitude are relevant considerations. Id.

In this case, the Board did not rely solely on the commitment offense in finding petitioner unsuitable for parole; it also cited his history of violent behavior (see Cal. Code Regs. tit. 15, §2281(c)(2)), escalating criminal conduct, and institutional behavior (see Cal. Code Regs. tit. 15, §2281(c)(2)(6). As a juvenile, he was convicted of theft for knocking down a 62 year old female in a purse snatching. (Exhibit A at 169.) His disciplinary history while incarcerated includes two 128 (minor) disciplinary reports received in the 1990s, and two more recent 115 (major) disciplinary reports received in November and December of 2003. (Id. at 166-67.) The 115 disciplinary reports received in 2003 were for unauthorized business activity and possession of contraband (cards depicting explicit sexual images). (Id. at 167.) Petitioner was caught attempting to start a pornography business; he had solicited friends and relatives on the outside to find models to pose for photographs which he intended to distribute within the institution. (Id. at 199-204.) The Board characterized this offense as "extremely serious" (Id. at 250) and found it "troubling" that petitioner still claimed he had not understood that his actions were against institutional rules. (Id. at 251.) Based on the commitment offense (which involved a female victim), petitioner's prior offense (which also involved a female victim), and the attempted pornography business, the Board questioned petitioner's attitude and actions towards women:

[Another issue is] the fact of how you deal with women. You had a 62 year old victim, you had very vulnerable victim in the current commitment offense, and what's this whole deal about pornographic business? And the first words out of your mouth to us today at one point along was "most of the letters I got were from women." Something's going on there and we want it checked out.

(Exhibit A at 247.)

The Board also noted that many of petitioner's gains were relatively recent. He had been discipline free for a few years but had received his last two major disciplinary reports as recently as 2003. The bulk of his self-help programming was completed in the two years immediately prior to the hearing. (Exhibit A at 220, 223.) He had participated continuously in AA and NA for only a short time, having denied that he even had a substance abuse problem until sometime after 2004. (Exhibit A at 223.) The Board concluded that petitioner needed more time to get substance abuse treatment, solidify his recovery, and "make sure that this time he is serious and that it does stick." (Exhibit A at 223-24.)

Under the minimally stringent some evidence standard, only a modicum of reliable evidence of petitioner's unsuitability is required. Based on the foregoing, that modicum is present in this case. There is some evidence to support the Board's conclusion at petitioner's 2007 hearing that, if released, he would pose an unreasonable risk to public safety based, in part, on the heinous and cruel nature of his commitment offense, in conjunction with his history of violent behavior, escalating criminal conduct, and his more recent institutional behavior. The Board's decision finding him unsuitable for parole is supported by some evidence in the record.

E. Plea Agreement

Petitioner's additional allegations that the Board's decision breached his negotiated plea agreement are without merit. (Petition at 5-1.) He claims that the Board is not allowed to rely on "facts not admitted as part of the [plea] agreement" (petition at 5-1) in its parole suitability decision. He also sets forth that prior to the trial court's approval of his negotiated plea agreement and sentencing, his trial counsel stated "hopefully, Mr. Perkins will do his time and be out as soon as possible on this, Your Honor.*fn3 " (Petition at 5-3, 5-4.)

A plea agreement is between the prosecutor and defendant, subject to acceptance by the court. Brown v. Poole, 337 F.3d 1155, 1159-60 (9th Cir. 2003). Any promises in regard to future parole proceedings would have been unlawful, since the prosecutor was without authority to usurp the prerogative of the parole authority. See United States v. Anderson, 970 F.2d 602, 608 (9th Cir. 1992), as amended on denial of rehearing, 990 F.2d 1163 (9th Cir. 1993) ("The agreement seemingly contemplates either limiting the information made available to the parole board or dictating the action to be taken by the parole board in a particular case. Either course frustrates the Parole Commission's duty to determine when release is appropriate for a particular defendant."). In any event, petitioner's allegations in this regard have failed to show that his negotiated plea agreement was conditioned in any way upon a favorable parole decision or a limitation of the facts to be considered by the Board. See generally Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (petitioner's burden to show he is in custody in violation of the Constitution). Petitioner is not entitled to relief.


For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.

These findings and recommendations are 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 these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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