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Velasquez v. Carey

July 7, 2009


The opinion of the court was delivered by: Charlene H. Sorrentino United States Magistrate Judge



Petitioner David Velasquez 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 15 years to life following a 1982 conviction for second degree murder in the Los Angeles County Superior Court. Petitioner does not challenge the propriety of his conviction; rather, he challenges the Governor's reversal of the 2003 decision of the Board of Parole Hearings ("Board") finding him suitable for parole. As set forth below, it is recommended that relief be granted on the claim. The Governor's reversal of the Board's decision finding petitioner suitable for parole was not supported by some evidence in the record, in violation of his due process rights, and the state court decision determining otherwise constitutes an unreasonable application of clearly established federal law.


Petitioner's offense was described in the probation officer's report prior to sentencing as follows:

On November 13, 1981, the defendant became involved in an altercation at the residence of Linda Benjamin. There have been various accounts as to the cause of the altercation between the defendant and the victim Pam Martinelli. The account that most witnesses seem to agree upon is that the deceased victim indicated that she was going to inform on the defendant. It appears she was leaving when co-defendant Allen Ochoa stopped her outside and began striking her with his fists. It appears that the defendant then approached her with an ice pick that he kept in his van and began stabbing her. She was stabbed 16 times in the chest with wounds puncturing her heart, aorta, and lungs. Her throat was also slashed three times. Her body was then dumped in a trash bin in Culver City. It was discovered there the following morning. Witnesses who were present at the time the altercation broke out and who later heard this defendant and co-defendant say they had killed her, informed the police and investigation led to the arrest of the defendant and co-defendant approximately one month later. (Exhibit C at 5-6.*fn1

Petitioner was sentenced to a prison term of 15 years to life; his minimum eligible parole date passed on February 26, 1990. (Exhibit B at 1.) On September 23, 2003, the Board of Parole Hearings conducted a hearing and determined that petitioner was suitable for parole. The Board cited petitioner's stable social history, positive prison programming, vocational accomplishments, and the fact that he had remained discipline free in prison for over 20 years. (Exhibit B at 55-56, 61.) The Board noted that, although his life crime was horrendous, it was committed as a result of significant stress while under the influence of PCP, alcohol, and depressants or barbiturates. (Id. at 56.) It also found that petitioner lacked a significant history of violent crime, characterizing his prior criminal record as insignificant. (Id. at 56, 60.) Finally, the Board found that petitioner showed remorse, indicated that he understood the nature and magnitude of the offense, and showed a desire to change toward good citizenship. (Id. at 56.)

On February 20, 2004, Governor Schwarzenegger invoked his authority to reverse the Board's grant of parole. Petitioner sought habeas corpus relief in the Los Angeles County Superior Court. In a brief reasoned decision, the superior court concluded that some evidence supported the governor's reversal.*fn2 (Exhibit F.) Petitioner subsequently filed petitions in the California Court of Appeal and California Supreme Court; both were summarily denied. (Exhibits H & J.)


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). This 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. In addition, the Ninth Circuit has made clear that, as a matter of clearly established law, "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 2003 parole hearing, an opportunity to appear, and copies of the decisions rendered by the Board and Governor. Thus the only remaining question is whether there was some evidence to support the Governor's reversal.

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. The evidence relied upon 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.

Petitioner has set forth several factors and circumstances favoring his suitability for parole. This court is precluded by the some evidence standard of review from comparing and contrasting the evidence in favor of parole suitability and the evidence disfavoring parole suitability in order to decide this case. See Hill, 472 U.S. at 455. The task at hand is limited to determining whether there is at least ...

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