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Chattman v. Carey

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 13, 2009

ELMO CHATTMAN, PETITIONER,
v.
THOMAS L. CAREY, WARDEN, RESPONDENT.

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

REPORT AND RECOMMENDATION

I. SUMMARY

Petitioner Elmo Chattman is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted by a jury of first degree murder with a firearm enhancement in Ventura County Superior Court on May 30, 1979, and sentenced to 7-years-to-life with the possibility of parole. (See Docket 7, Exhibit 1 at 1.) He has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2004 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Dkt. 1, Attachment D.) 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 Dkts. 7, 8, and 9.) 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 July 31, 1978, petitioner Elmo Chattman's brother, Kenneth Chattman, got into an argument with the victim, L.B. Jackson, at a local park. (See Dkt. 7, Ex. 2 at 14.) Kenneth, who was high on PCP, then went to petitioner's house in search of a gun to use to confront the victim, who he claimed had brandished a knife during the altercation. (See id. at 16-17.) Petitioner claims he successfully persuaded Kenneth not to take a gun from the house, and decided to intervene in an attempt to calm the dispute. (See id. at 14, 16-17, and 80-81.) The brothers then drove around in their car looking for the victim. (See id. at 14-15.) When they failed to locate him, they drove to their father's bar, where they found the victim sitting in his parked car in the rear parking lot. (See id. at 15.)

At first, only petitioner exited the vehicle, and he walked to the victim's car window. (See id.) The two men began arguing, and petitioner became angry. (See id.) Petitioner told the victim to get out of the car, and opened the victim's car door because he expected to fight. (See id.) Kenneth then exited the other vehicle carrying a rifle he had concealed either in the trunk or backseat of his car wrapped in a blanket. (See id. at 16.) Kenneth jumped on top of another vehicle parked next to the victim's car, and although the victim was still seated in the driver's seat, Kenneth fired one round into the victim's right temple area. (See id. at 14.) The two brothers then got back in their vehicle, and petitioner drove away at a high rate of speed. (See id.)

Petitioner was convicted by a jury of first degree murder with a firearm enhancement in Ventura County Superior Court on May 30, 1979, for serving as his brother's accomplice.

(See id., Ex. 1 at 1 and 16.) At the time of the murder, petitioner was twenty-years-old. (See id. at 25.) His minimum eligible parole date was set for December 28, 1985. (See id. at 1.) The parole denial which is the subject of this petition took place after a parole hearing held on December 29, 2004. (See Dkt. 1, Att. D at 1.) This was petitioner's ninth parole consideration hearing. (See id.) As of the date of the 2004 parole hearing, petitioner had been in custody for approximately twenty-five years.

After denial of his 2004 application, petitioner filed habeas corpus petitions in the Ventura County Superior Court, California Court of Appeal, and California Supreme Court. (See Dkt. 7, Exs. 4, 6, 7, 9, and 10.) Those petitions were unsuccessful. (See id., Exs. 5, 8, and 11.) This federal habeas petition followed. Petitioner contends the 2004 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 2004 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 normally looks to the last reasoned state court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). Where, as in this case, the state courts issue summary denials without explaining their reasons, see infra, this Court must conduct an independent review of the record to determine whether the state courts' decisions were contrary to or involved an unreasonable application of Supreme Court holdings. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000).

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. PRIOR STATE COURT PROCEEDINGS

Petitioner's three state court habeas petitions filed in the Ventura County Superior Court, California Court of Appeal, and California Supreme Court contained identical claims, and all three petitions were summarily denied. (See Dkt. 1 at 1; id., Atts. A, B, and C; Dkt. 7, Exs. 5, 8, and 11.) The parties agree that petitioner has properly exhausted his state court remedies, and timely filed the instant petition. (See Dkt. 1 at 1; Dkt. 7 at 3-4.)

Typically, this Court looks to the state court's orders upholding the Board's decision to determine whether they meet the deferential AEDPA standard. See Ylst, 501 U.S. at 803-04. As discussed supra, when a state court issues a decision on the merits but does not provide a reasoned decision, we review the record independently to determine whether that decision was objectively reasonable. See Delgado, 223 F.3d at 982. Although our review of the record is conducted independently, we continue to show deference to the state court's ultimate decision. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

V. 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.

VI. 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. (See Dkt. 1 at 19.) Specifically, petitioner claims that the Board's denial of parole based upon the immutable circumstances of the commitment offense, as well as his disciplinary record in prison, were arbitrary and capricious. (See id. at 19-38, and 47-55.) In addition, petitioner contends that the Board failed to afford him an individualized consideration of all relevant suitability factors, such as petitioner's remorse, advancing age, participation in institutional activities which indicate an enhanced ability to function within the law upon release, and the nonviolent nature of his criminal record. (See id. at 43-47, and 55-63.) Finally, petitioner argues that the Board's retroactive application of amendments to the California Penal Code and California Code of Regulations enacted after petitioner's commission of the crime on July 31, 1978, violated his state and federal rights to be free from ex post facto laws.*fn2 (See id. at 66-87.)

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. 7 at 5-11.) In addition, respondent argues that petitioner's ex post facto claim regarding the 1979 amendment of the California Code of Regulations lacks merit because the amended parole suitability factors considered by the Board did not disadvantage petitioner. (See id. at 11-13.) Specifically, respondent contends that the parole-suitability guidelines require consideration of the same criteria in determining suitability for parole as they did prior to the enactment of the current guidelines. (See id.) Accordingly, respondent asserts that petitioner's rights were not violated by the Board's 2004 decision, and the Ventura County Superior Court's Order upholding the Board's 2004 parole denial was not an unreasonable application of clearly established federal law. (See id. at 5-6, and 13.)

VII. 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 escalating pattern of criminal conduct, criminal record, failure to profit from society's prior attempts to correct his criminality, history of unstable relationships with others, unfavorable disciplinary history in prison, inconclusive 2004 mental health evaluation, and insufficient participation in self-help programming. (See Dkt. 7, Ex. 2 at 91-94.) The Board's findings track the applicable unsuitability and suitability factors listed in § 2402(b), (c) and (d) of title 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 id. at 96.)

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 15 CCR § 2402(c)(1). The Board found that petitioner went looking for the victim with his brother, "who had had a problem with the victim earlier." (See Dkt. 7, Ex. 2 at 91-92.) When they could not locate the victim, they drove to their father's bar, where they found the victim sitting in his car in the rear parking lot. (See id. at 92.) After petitioner got out of the car to talk to the victim, "things escalated . at which time Kenneth Chattman exited the car they were in, armed with a gun, and shot the victim in the head." (Id.)

Based upon these facts, the Board found that the offense was carried out in a calculated and cruel manner, because petitioner had sought out the victim in order to confront him. (See id. at 96.) Even though petitioner's role in the commission of the murder did not involve shooting the rifle, "[h]is presence there and the fact that he immediately left the scene and did not take immediate responsibility for it was serious." (Id.) See also 15 CCR § 2402(c)(1)(B). The Board found that the victim was abused during the offense by being shot in the head. (See Dkt. 7, Ex. 2 at 96.) See also 15 CCR § 2402(c)(1)(C). Petitioner's failure to summon medical help after the shooting also demonstrated "total disregard for human suffering or even the consequences to follow," because petitioner was acquainted with the victim and the victim's large family. (See Dkt. 7, Ex. 2 at 96.) See also 15 CCR § 2402(c)(1)(D). In addition, the Board concluded that the motive for the crime was inexplicable or very trivial in relation to the offense, because petitioner and his brother killed the victim when he was not posing an imminent threat of harm. (See id. at 96-97.) See also 15 CCR § 2402(c)(1)(E). Rather, petitioner and his brother "actually put themselves in harm's way" by initiating the confrontation with the victim. (See Dkt. 7, Ex. 2 at 96-97.) The circumstances surrounding the commitment offense and the trivial motive for the crime 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).

The second, third, and fourth factors relied upon by the Board were petitioner's escalating pattern of criminal conduct, prior criminal record, and failure to profit from society's previous attempts to correct his criminality. (See Dkt. 7, Ex. 2 at 92-93.) See also 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 and after the crime...."). Specifically, the Board asserted that petitioner's escalating "history of criminality" included arrests and convictions for burglaries and drug use, and culminated in the instant commitment offense. (See Dkt. 7, Ex. 2 at 92 and 97.) Petitioner's drug use included downers, barbiturates, LSD, marijuana, heroin and alcohol. (See id. at 92 and 97.) In addition, petitioner "has had to pay restitution, has done time in county jail, CYA and was on CYA parole at the time this crime was committed." (Id. at 97.) The Board also concluded that petitioner has failed to profit from society's prior attempts to correct his criminality because petitioner's prior grants of parole were revoked as a result of his drug use, and petitioner committed the instant offense while he was released on parole. (See id.) Thus, there was clearly "some evidence" to support the Board's findings with respect to petitioner's escalating pattern of criminal conduct, prior criminal record, and failure to profit from society's previous attempts to correct his criminality.

The fifth factor relied upon by the Board was petitioner's unstable social history. (See id. at 92.) See also 15 CCR § 2402(c)(3). The Board found that petitioner "had a history of unstable relationships with others," especially with respect to his "relationship with the family that he had at home." (See Dkt. 7, Ex. 2 at 92.) The Board noted that petitioner was "raised in a home where his parents separated. He saw his mother being abused by his father. He was very strongly disciplined by his father [and] started the use of alcohol and marijuana at about the age of 13.." (Id.) During the hearing, petitioner also told the panel that he lacked guidance growing up because of his estrangement from his father. (See id. at 26.) Although petitioner went to live with his father when his mother had a nervous breakdown, he continued to blame his father for causing his mother's problems by abusing her. (See id. at 26-27.) Based upon the record, including petitioner's own testimony during the hearing, there was "some evidence" to support the Board's finding that petitioner had a history of unstable or tumultuous relationships with others.

The sixth factor relied upon by the Board was petitioner's disciplinary history in prison. A "CDC 115" form documents a prisoner's misconduct believed to be a violation of law or otherwise not minor in nature. See 15 CCR § 3312(a)(3); In re Gray, 151 Cal.App.4th 379, 389 (2007). Petitioner has received twenty-three CDC 115's for prison-rule violations since 1980, the most recent of which involved a serious prison-rule violation for possession of inmate-manufactured alcohol in 2002, only two years before the 2004 hearing. (See Dkt. 7, Ex. 2 at 93.) Petitioner's prison-rule violations have also involved fighting, sexual misconduct, performance, currency and drug trafficking, refusing showers, sexual behavior in the visiting room, excessive contact, possession of unissued material, being found under the influence, leaving the job without permission, illegal copying, resisting staff, and additional instances of possession of inmate-manufactured alcohol. (See id. at 32-33.)

When questioned by the panel during the hearing about his most recent CDC 115 for possession of squeezed fruit juice and pulp commonly used to make inmate-manufactured alcohol, or "pruno," petitioner claimed that he was just "squeezing some apples . to just drink it, you know. But that is not to say that I haven't made -- you know, on your birthday you might drink a little pruno to get a little bit.." (See id. at 35.) Petitioner then elaborated regarding his use of drugs and alcohol in prison over time. (See id. at 35-56.) He asserted, "For the first few years I was in prison, I didn't get high at all . for about five or six years. And I had the same kind of pattern on the streets. I can get high for so long and then I would (indiscernable) burnout, you know." (Id. at 35-36.) Eventually, however, "I started getting bored, you know. I might have got high. I might, you know, do a little drinking.." (Id. at 36.) Petitioner explained, "a beer buzz [is] no big deal to me. I don't get drunk . I smoke weed and I'm very self-conscious and I get paranoid. So I find I don't like getting high the way I did when I was a kid. But every now and then in here, you know, I got high." (Id. at 36-37.) Petitioner's extensive history of prison-rule violations, coupled with his comments to the panel during the hearing, provide "some evidence" to support the Board's finding that petitioner is unsuitable for release on parole.

The seventh factor relied upon by the Board was petitioner's inconclusive 2004 psychological evaluation. Although the Board noted that the evaluation was supportive of petitioner's release to some degree, the Board ultimately found the report "inconclusive" regarding petitioner's "potential for violence in the community." (Id. at 93.) Specifically, the psychologist asserted that despite certain negative factors, such as petitioner's juvenile record and conduct in prison, as long as petitioner remains "abstinent of drugs and alcohol, the potential [for violence] in the community is very low." (Id. at 93-94.) Because the psychologist indicated that petitioner's risk of dangerousness was largely dependent upon petitioner's abstinence from drugs and alcohol, the Board found petitioner's recent CDC 115's related to drug and alcohol use in prison, including his serious 2002 violation, "even more troublesome." (See id. at 93-94, and 97.) Although the psychologist observed that petitioner is capable of abstinence if he chooses such a course, the Board explained that "our trouble with that goes along with some of the comments that were made [by petitioner] during the hearing today." (Id. at 94.) Therefore, in light of petitioner's disciplinary record in prison and statements to the panel during the hearing, there was "some evidence" to support the Board's findings that the 2004 psychological evaluation was "inconclusive," and a "longer period of observation and evaluation" is necessary before petitioner is suitable for parole. (See id. at 97.)

The eighth factor relied upon by the Board was petitioner's insufficient participation in self-help programming. The Board noted that petitioner has participated in "Making Anger Work for You, Men's Advisory Council, Rational Behavior training, Men's Self-Help, the DEUCE program and psychoanalysis at Tehachapi back in 1992." (See id. at 95-96.) Despite petitioner's participation in these programs, however, the Board concluded that petitioner has "not sufficiently participated in beneficial self-help programs," and asked petitioner to participate in additional self-help before the next parole hearing. (Id. at 93 and 97.) As mentioned above, in light of petitioner's statements to the panel concerning his history of drug and alcohol use, as well as his recent prison-rule violations, there was "some evidence" to support the Board's conclusion that petitioner should complete additional self-help programming before he is found suitable for release on parole.

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 recently developed a "very good social structure and relationships." (See id. at 92.) See also 15 CCR § 2402(d)(2) ("The prisoner has experienced reasonably stable relationships with others."). The Board also commended petitioner for receiving "above average to exceptional work reports" for his work "as a hobby clerk, special order clerk, vocational program clerk, law library clerk. You've worked on the San Quentin News. You've been a SHU clerk, [and worked in] culinary and the furniture factory." (Dkt. 7, Ex. 2 at 95-96.) The Board noted that petitioner has obtained his A.A. and B.A. degrees, and although he has not yet completed a certificate in any one vocation, he has participated in several, including auto body, masonry, silkscreen, photograph training, cabinet and furniture making. (See id. at 95.) Furthermore, the Board asserted that petitioner has "good" parole plans, as long as he locates a substance abuse program in the area where he will be living. (See id. at 94-95.)

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 19 and 55.) Contrary to the petitioner's assertion that the Board failed to consider petitioner's nonviolent criminal record, remorse for the crime, advancing age, or participation in institutional activities, the panel considered each of these subjects during petitioner's hearing. (See Dkt. 7, Ex. 2 at 29-30, 20-21, and 94-96.) As mentioned above, 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. Despite petitioner's recent gains, the Board determined that he remains an unreasonable risk of danger to society if released on parole, and these findings were supported by "some evidence" in the record. (See Dkt. 7, Ex. 2 at 91-96.)

B. Petitioner's First Ex Post Facto Claim

Petitioner contends that a 1979 amendment to section 2281(c) of title 15 of the California Code of Regulations required the Board to consider circumstances it was not obligated to consider under the governing regulations in 1978, the year of his commitment offense, such as his unstable social history and details about the circumstances of the commitment offense. (See Dkt. 1 at 66-78.) See also 15 CCR § 2281(c)(1)(A)-(E) and (c)(3). Petitioner also asserts that the Board's retroactive application of the amended regulations increased his punishment for his offense because the Board relied upon the circumstances of his commitment offense and unstable social history in finding him unsuitable for parole during his 2004 hearing. (See Dkt. 1 at 77.) As a result, he argues the 1979 amendment to section 2281(c), as applied to him, constitutes an ex post facto law. (See Dkt. 1 at 66.) See also U.S. Const., art. I, § 10.

The Ex Post Facto Clause of the United States Constitution prohibits the states from passing any "ex post facto Law," a prohibition that "is aimed at laws 'that retroactively alter the definition of crimes or increase the punishment for criminal acts.'" Cal. Dept. of Corrections v. Morales, 514 U.S. 499, 504 (1995). See also Weaver v. Graham, 450 U.S. 24, 28 (1981) (providing that "[t]he ex post facto prohibition forbids the Congress and the States to enact any law 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'"). The United States Supreme Court has held that "[r]etroactive changes in laws governing parole of prisoners, in some instances, may be violative of this precept." Garner v. Jones, 529 U.S. 244, 250 (2000). In order for a law to violate the Ex Post Facto Clause, "it must disadvantage the offender affected by it." Weaver, 450 U.S.at 29.

The provisions of the California Code of Regulations governing parole were initially promulgated in 1976. After the Determinate Sentencing Law ("DSL") came into effect on July 1, 1977, DSL regulations called the Board of Prison Terms Rules were promulgated approximately one year later. See In re Duarte, 143 Cal.App.3d 943, 946-948 (1983); In re Seabock, 140 Cal.App.3d 29, 37-38 (1983). Section 2281(c) of title 15 of the California Code of Regulations provides "general guidelines" for the Board's determination of a life-term prisoner's parole suitability, and sets forth "Circumstances Tending to Show Unsuitability" that the Board should consider during a parole hearing. See 15 CCR § 2281(c)(1)-(6). See also 15 CCR § 2402(c)(1)-(6) (same). The text of section 2281(c) was altered by the enactment of the new DSL regulations, and more specifically, by an amendment that became effective in July 1979. See Cal. Admin. Register 79, No. 26, p. 230.2 -- 231 (June 30, 1979); Duarte, 143 Cal.App.3d at 948-49; Seabock, 140 Cal.App.3d at 38-39.

The California Court of Appeal has previously considered the Board's retroactive application of amended section 2281(c) to prisoners whose crimes were committed prior to the enactment of the 1979 amendment, and concluded the Board did not increase their punishment. See Duarte, 143 Cal.App.3d at 950-51; Seabock, 140 Cal.App.3d at 40. Specifically, after comparing the original regulations promulgated in 1976 with the superseding DSL regulations, the California Court of Appeal concluded that the Board was required to consider the same general criteria in determining suitability for parole under both sets of regulations. See Duarte, 143 Cal.App.3d at 950; Seabock, 140 Cal.App.3d at 40.

"Under both sets of rules the parole suitability decision involves a case-by-case analysis of all relevant factors, the basic criteria being whether the prisoner's release creates 'an unreasonable risk of danger to society.'" See Duarte, 143 Cal.App.3d at 950. Furthermore, although "the current regulations specify in much greater detail the criteria to be examined in determining suitability, both sets of regulations contemplate a consideration of all relevant information, and the factors mentioned are merely examples." Id. (citing 15 CCR § 2281(b) and (c)). Thus, despite the inclusion of more detail in section 2281(c) under the DSL regulations, "the relevant criteria in determining suitability for parole have remained substantially unchanged.." See id. at 951. See also Seabock, 140 Cal.App.3d at 40 ("Retrospective application of DSL regulations . does not violate the ex post facto clause of either the United States or the California Constitution. What these newer . rules do is spell out what was always the fact and the law.."). The United States Court of Appeals for the Ninth Circuit has also expressed agreement with the California Court of Appeal in Duarte and Seabock, and held that "application of the DSL parole-suitability guidelines to prisoners sentenced under the [prior law] does not disadvantage them, and therefore does not violate the federal constitutional prohibition against ex post facto laws." Connor v. Estelle, 981 F.2d 1032, 1033-34 (9th Cir. 1991).

In light of the conclusion of the California Court of Appeal and Ninth Circuit that retroactive application of amended section 2281(c) does not constitute an ex post facto law, petitioner's arguments to the contrary are unavailing. Although section 2281(c), as amended in 1979, required the Board to consider petitioner's commitment offense in detail, as well as petitioner's unstable social history, both the 1978 and 1979 versions of the rule required the Board to consider "all relevant, reliable information" and determine whether petitioner's release would present an unreasonable risk of danger to society. See Cal. Admin. Register 78, No. 31, p. 230 (August 5, 1978); Cal. Admin. Register 79, No. 26, p. 230.2 -- 231 (June 30, 1979). Thus, the Board's retroactive application of amended section 2281(c) during petitioner's 2004 parole hearing did not violate petitioner's rights by increasing his punishment in violation of the Ex Post Facto Clause.

C. Petitioner's Second Ex Post Facto Claim

Petitioner's next claim concerns the Board's rescission of his parole date following a grant of parole at his 1984 hearing.*fn3 In addition to the Board's authority to grant parole and set parole dates, it is authorized to postpone or rescind a parole date upon a showing of good cause at a rescission hearing. See Cal. Penal Code § 3040 (1978); 15 CCR § 2450 (1978). See also In re Fain, 139 Cal.App.3d 295, 301 (1983) ("A typical parole rescission is based upon prison misconduct or some other cause for rescission."). Under the governing regulations, "rescission proceedings" refer to "any proceeding which may result in the postponement or rescission of a release date." 15 CCR § 2450 (1978). Conduct by a prisoner "which may result in rescission proceedings" includes certain disciplinary conduct identified in the regulations, as well as "[o]ther conduct which seriously disrupts institutional routine, which strongly indicates that the prisoner is not ready for release or is a danger to himself or others, or which department staff believes should be reported to the board." See id. at § 2451(a). During a rescission hearing for life prisoners, a "hearing panel [comprised of three members] shall decide whether the prisoner engaged in the conduct charged and, if so, what action should be taken." See id. at § 2467(b). See also In re Powell, 45 Cal.3d 894, 902 (1988) (noting the Board's broad discretion to rescind a parole grant).

According to petitioner, the Board found him suitable for parole during his October 31, 1984, parole consideration hearing, and originally set a parole release date for May 27, 1990. (See Dkt. 1 at 81.) Following a series of prison-rule violations, however, the Board held several rescission hearings. (See id. at 81-82.) At a rescission hearing held in January 1987, the Board postponed petitioner's release date for eighteen months in response to disciplinary action taken by the prison for two CDC 115's petitioner received in 1986. (See id.) During a subsequent rescission hearing held in April 1989, "the Board fully rescinded petitioner's release date due to additional disciplinary action petitioner received in 1988." (See id. at 82.) Twelve months later, the Board held a parole consideration hearing during which petitioner was found unsuitable for parole. (See id.)

Petitioner contends that following the Board's rescission of his parole date in April 1989, the Board should have "re-set" his parole date rather than hold a parole consideration hearing twelve months later. (See id. at 79.) In support of his argument, petitioner cites the 1978 version of the California Penal Code § 3041.5(b)(4), which provided that the Board shall "set the prisoner's parole release date in accord with the provisions of Section 3041 and this section" within six months of "any board action resulting in the rescinding of a previously set parole date.." See Cal. Penal Code § 3041.5 (1978). Petitioner argues the Board should have applied the 1978 version of this provision rather than the provision as amended in 1985, which instead required the Board to "schedule the prisoner's next hearing within 12 months" of "any board action resulting in the rescinding of a previously set parole date .." Stats. 1985, ch. 1511, § 1, p. 5570-71. Petitioner asserts that when the Board retroactively applied amended section 3041.5(b) and held a parole consideration hearing, rather than setting his parole date, the Board effectively increased his punishment by returning him "to the status of being unsuitable for parole," thereby creating a significant risk that petitioner would serve a longer sentence. (See Dkt. 1 at 78-80.)

In their briefing, petitioner and respondent both fail to reference the provisions of the California Code of Regulations that relate to petitioner's claim. (See Dkt. 1 at 78-87; Dkt. 7 at 11-13). In fact, respondent fails to acknowledge petitioner's second ex post facto claim in the answer. (See Dkt. 7.) Inspection of the applicable regulations, however, reveals that petitioner's arguments lack merit. California Penal Code § 3041.5(b)(4) cannot be interpreted in isolation from its implementing regulations. The administrative construction of governing laws through the promulgation of regulations is entitled to great weight in determining what the Legislature intended when it enacted the statutory scheme in controversy. DiPirro v. Bondo Corp., 153 Cal.App.4th 150, 192 (2007).

The governing regulations discussed below were in effect at the time of petitioner's commitment offense. These regulations set forth three possible outcomes that may result from a parole rescission hearing. If the charges against the prisoner are dismissed or the prisoner is found not guilty by the panel, the prisoner shall normally be released on the scheduled release date. See 15 CCR § 2468 (1978). Alternatively, if the Board takes action "resulting in the postponement of a parole date," the prisoner is entitled to written notice of "the new parole date and the reasons for the postponement," as well as the right to a review of the postponement decision within 90 days. Id. at § 2469. Finally, the Board may instead decide to take action "resulting in the rescission of a parole date." Id. at § 2470. If the Board rescinds a parole date, the prisoner is entitled to a written statement "setting forth the reasons for the rescission" within ten days, as well as notification "that a parole consideration hearing will be held six months after the rescission hearing." See id. A "parole consideration hearing" refers to "[a]ny hearing at which a prisoner is considered for parole including an initial parole hearing, progress hearing, subsequent hearing, and rehearing." See id. at § 2000(b). When the Board is considering a prisoner for parole, "[t]he panel shall first determine whether a prisoner is suitable for release on parole." See 15 CCR § 2281(a). Thus, the regulations drew clear distinctions between the "postponement" and "rescission" of a prisoner's parole date, the latter of which requires the prisoner's participation in a subsequent parole consideration hearing before a new parole date will be set by the Board.

As a result, the governing regulations clearly authorized the Board to hold a subsequent parole consideration hearing rather than set a new parole date for petitioner following the Board's rescission of petitioner's parole date in April 1989. Petitioner has therefore failed to demonstrate that the 1985 amendment to the California Penal Code disadvantaged him by increasing his punishment, because the amendment followed the procedure already set forth by the governing regulations. See Stats. 1985, ch. 1511, § 1, p. 5570-71; 15 CCR § 2470 (1978).

Furthermore, although the 1985 amendment to the California Penal Code required the Board to schedule the prisoner's next parole consideration hearing within twelve months, rather than six months as specified in the regulations, the U.S. Supreme Court has consistently held that amendments to the law which increase the period of time between a prisoner's parole consideration hearings constitutes a "procedural" rather than "substantive" change if it is unlikely the prisoner would have been found suitable for parole during the interim. See Morales, 514 U.S. at 506-13 (holding that an amendment to California law allowing the Board to hold subsequent parole consideration hearings for certain life prisoners every three years instead of annually did not increase the prisoners' punishment); Garner, 529 U.S. at 256 (holding that the Georgia parole board's amended rule, changing the frequency of required reconsideration hearings for life prisoners from every three years to eight years, did not violate the Ex Post Facto Clause, and noting that "our analysis rests upon the premise that the Board exercises its discretion in accordance with its assessment of each inmate's likelihood of release between reconsideration dates."). The U.S. Supreme Court has also noted that "[a]ccording to the California Supreme Court, the possibility of immediate release after a finding of suitability for parole is largely 'theoretical' . in many cases, the prisoner's parole release date comes at least several years after a finding of suitability . it follows that 'the practical effect' of a [parole consideration] hearing postponement is not significant." Morales, 514 U.S. at 513.

Based upon these principles, the fact that the Board held petitioner's parole consideration hearing within twelve months of the Board's 1989 rescission of his parole date, rather than six months, did not disadvantage petitioner by increasing his punishment. (See Dkt. 1 at 82.) Petitioner has therefore not satisfied his burden of demonstrating that the Board's retroactive application of amended California Penal Code § 3041.5(b)(4) violated his rights under the Ex Post Facto Clause.

VIII. CONCLUSION

Given the totality of the Board's findings, there is "some evidence" in the record that petitioner's release date as of the Board's December 29, 2004, decision would have posed an unreasonable risk to public safety. The Ventura 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. Because the Board and the state courts' ultimate decisions were supported by "some evidence," there is no need to reach respondent's argument that another standard applies. 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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