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Ramos v. Carey


August 6, 2009


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Petitioner, a state prisoner proceeding with counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are Petitioner's petition for a writ of habeas corpus (Doc. 1), Respondent's response (Doc. 13), and Petitioner's traverse (Doc. 22).*fn1


Petitioner pleaded guilty to second degree murder and was sentenced on July 12, 1991, to a total term of 17 years to life. Petitioner states his minimum eligible parole date was June 2, 2001. He had his initial parole consideration hearing on January 11, 2001. The Board of Prison Terms ("Board") denied Petitioner a parole release date for three years. He did not appeal that initial decision. Petitioner appeared before the Board for his first subsequent parole consideration hearing on May 25, 2004. Petitioner was again denied a parole release date for another three years. The 2004 parole denial is the subject of the current petition.

In it's decision, the Board denied Petitioner parole for three years citing the following reasons: (1) the facts of Petitioner's commitment offense; (2) Petitioner's prior criminal and social history; (3) Petitioner's prison disciplinaries and failure to program; and (4) Petitioner's unfavorable psychological report. Specifically, the board found:

Since his last hearing the prisoner has received additional disciplinaries. Sexual misconduct on 8-29; 3-4-02 for smoking in a State building; possession of dangerous contraband on 3-29-01 and an array of 128's. So certainly his behavior have (sp) not been the best. . . . The psychological report dated 3-19-04 by Dr. Van Couvering is not supportive of release at this time -- rates the prisoner as a moderate degree of threat to the public. (Board Decision at 3 (attached to Answer, Ex. B, parole hearing transcript at 43))

Petitioner filed a petition for a writ of habeas corpus in the Alameda County Superior Court challenging the 2004 denial of parole. In a decision denying the petition, the state court found the

[p]etition fail[ed] to state a prima facie case for relief. Even though Petitioner has submitted documents in support of his Petition, review of the transcript and documents pertaining to the May 25, 2004 hearing, indicate that there was no abuse of discretion by the Board of Prison Terms. The record presented to this Court for review demonstrates that there was certainly some evidence, including, but not limited to the committing offense, Petitioner's disciplinary record, and Petitioner's participation in rehabilitation programs, to support the Board's decision. There is nothing in the record that indicates that the Board's decision was arbitrary or capricious, nor the Petitioner's equal protection or due process rights were violated. (Response, Exhibit E).

Subsequent habeas petitions challenging the denial of parole were denied by the California Court of Appeal and California Supreme Court without comment or citation. Respondent concedes that Petitioner's claims are exhausted.


Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.

Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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 (2000); Lockhart v. Terhune, 250 F. 3d 1223, 1229 (9th Cir. 2001). Thus, under § 2254(d), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412) . "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 549 U.S. at 74.

In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is "contrary to" Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also "contrary to" established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the "contrary to" standard. See id. at 406. If a state court decision is "contrary to" clearly established law, it is reviewed to determine first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal habeas relief is warranted. See id. If the error was not structural, the final question is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id. (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

State court decisions are reviewed under the far more deferential "unreasonable application of" standard where it identifies the correct legal rule from Supreme Court cases, but unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested that federal habeas relief may be available under this standard where the state court either unreasonably extends a legal principle to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. See Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court decision is not an "unreasonable application of" controlling law simply because it is an erroneous or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). An "unreasonable application of" controlling law cannot necessarily be found even where the federal habeas court concludes that the state court decision is clearly erroneous. See Lockyer, 538 U.S. at 75-76. This is because "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. at 75. As with state court decisions which are "contrary to" established federal law, where a state court decision is an "unreasonable application of" controlling law, federal habeas relief is nonetheless unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6.

The "unreasonable application of" standard also applies where the state court denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). Such decisions are considered adjudications on the merits and are, therefore, entitled to deference under the AEDPA. See Green v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002); Delgado, 223 F.3d at 982. The federal habeas court assumes that state court applied the correct law and analyzes whether the state court's summary denial was based on an objectively unreasonable application of that law. See Himes, 336 F.3d at 853; Delgado, 223 F.3d at 982.


In his petition, Petitioner contends that the Board failed to support it's conclusion that his commitment offense was especially cruel, callous, calculated, executionary-style and inexplicable. In addition he claims the Board failed to consider substantial evidence supporting parole suitability and that the Board "is countermanding the purpose of the determinate sentence act . . . to provide uniform terms for offenses of similar gravity and magnitude." In the traverse, counsel clarifies the claims Petitioner raised in his pro se petition, arguing that Petitioner's due process rights were violated because the Board's decision did not meet the "some evidence" standard and countermanded the purpose of the determinate sentencing act.

A. Denial of Parole

1. Applicable Law

In Sass v. Bd. of Prison Terms, 461 F.3d 1123 (9th Cir. 2006), the Ninth Circuit held that California's parole statute does, in fact, create a federally cognizable liberty interest. See id. at 1127-28. On the merits, the court also rejected the argument that the "some evidence" standard does not apply in the parole context. See id. at 1128-29. Under Superintendent v. Hill, 472 U.S. 445, 455 (1985), due process requires that a prison disciplinary hearing decision be based on "some evidence" in the record as a whole which supports the decision. This standard, which the court has also applied in the parole context, is not particularly stringent and is satisfied where "there is any evidence in the record that could support the conclusion reached." Id. at 455-56. Additionally, this standard requires that the evidence underlying the Board's decision must have some indicia of reliability. See Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir. 2003).

In Sass, the Ninth Circuit also addressed the argument that the requirement of "some evidence" in the parole context has not been clearly established by the Supreme Court. The Ninth Circuit held:

Hill's some evidence standard is minimal, and assures that "the record is not so devoid of evidence that the findings of the . . . board were without support or otherwise arbitrary." (citation omitted). Hill held that although this standard might be insufficient in other circumstances, "[t]he 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." (citation omitted). To hold that less than the some evidence standard is required would violate clearly established federal law because it would mean that a state could interfere with a liberty interest -- that in parole -- without support or in an otherwise arbitrary manner. We therefore reject the state's contention that the some evidence standard is not clearly established in the parole context.

Sass, 461 F.3d at 1129.

Because Sass and Biggs are binding precedent, this court must also conclude the "some evidence" standard is clearly established law for purposes of habeas corpus relief under AEDPA.*fn2 Therefore, this court will apply the "some evidence" standard on the merits. See id.; see also Irons v. Carey, 505 F.3946, 851 (9th Cir. 2007).

In assessing whether the "some evidence" standard has been met, the analysis is framed by the state's statutes and regulations governing parole suitability. See Biggs, 334 F.3d at 915. Thus, this court looks to California law to determine the findings that are necessary to deem a prisoner unsuitable for parole and then reviews the record to determine whether there is "some evidence" supporting the decision to deny parole. Under California Penal Code § 3041(b) and California Code of Regulations, Title 15, § 2402(a), once the inmate has served the minimum term required, a release date shall be set unless release currently poses an unreasonable risk of danger to society.*fn3 It follows from this that, even though there may be some evidence that a particular unsuitability factor exists, this does not necessarily mean that there is some evidence of a current unreasonable risk of danger to the community if the inmate is released.*fn4

In addition to concluding that due process requires "some evidence" in the parole context based on Hill, the Ninth Circuit has addressed whether the continued reliance on immutable factors satisfies this standard and whether continued reliance solely on such factors ignores the goal of rehabilitation and violates due process. In Biggs, where the petitioner was challenging the first denial of parole based solely on the facts of the commitment offense, the Ninth Circuit concluded that the denial was based on some evidence -- the facts of the commitment offense -- even though other findings made by the Board in Biggs' case lacked evidentiary support. In dicta, however, the court acknowledged that, sometime in the future, the continued reliance on immutable factors could violate due process. See Biggs, 334 F.3d at 917. From this, it is clear that the Board may rely solely on immutable factors for the first denial of parole given the minimal passage of time between the commitment offense and parole decision.

As to subsequent denials of parole and the continued reliance on immutable factors, the Ninth Circuit has not drawn any bright line. In Sass, where the petitioner was challenging the third denial of parole, the Ninth Circuit affirmed the denial of the habeas petition. See Sass, 461 F.3d at 1129. The court did not conclude that reliance on immutable factors (the facts of the commitment offense and the petitioner's prior criminal history) -- even for a third time -- violated due process. See id. The court held:

In making a judgment call based on evidence of pre-conviction recidivism and the nature of the conviction offense, the Board cannot be categorized as acting arbitrarily. Here, the Board based its finding that Sass was unsuitable for parole on the gravity of his convicted offenses in combination with his prior offenses. These elements amount to some evidence. . . . Consequently, the state court decisions upholding the denials were neither contrary to, nor did they involve an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States.


In Irons v. Carey, 505 F.3d 846 (9th Cir. 2007), rehearing en banc denied, 505 F.3d 951 (9th Cir. 2007), the Ninth Circuit reversed the district court's grant of a habeas petition challenging the eighth denial of parole, concluding that the facts of the petitioner's commitment offense alone constituted some evidence of unsuitability under California law. The court in Irons noted that none of the Ninth Circuit's cases regarding reliance solely on immutable factors to deny parole involved inmates who had served the minimum terms of their sentences. Specifically, the court observed:

We note that in all the cases in which we have held that a parole board's decision to deem a prisoner unsuitable for parole solely on the basis of his commitment offense comports with due process, the decision was made before the inmate had served the minimum number of years required by his sentence. Specifically, in Biggs, Sass, and here, the petitioners had not served the minimum number of years to which they had been sentenced at the time of the challenged parole denial by the Board. Biggs, 334 F.3d at 912; Sass, 461 F.3d at 1125. All we held in those cases and all we hold today, therefore, is that, given the particular circumstances of the offenses in these cases, due process was not violated when these prisoners were deemed unsuitable for parole prior to the expiration of their minimum terms.

Id. at 853-54.

As to the continued reliance solely on immutable factors, the court noted in dicta:

Furthermore, we note that in Sass and in the case before us there was substantial evidence in the record demonstrating rehabilitation. In both cases, the California Board of Prison Terms appeared to give little or no weight to this evidence in reaching its conclusion that Sass and Irons presently constituted a danger to society and thus were unsuitable for parole. We hope that the Board will come to recognize that in some cases, indefinite detention based solely on an inmate's commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process, given the liberty interest in parole that flows from the relevant California statutes.

Id. at 854.

From Biggs, Sass, and Irons the court can conclude that, where the challenged parole denial occurs before the petitioner has served the minimum term of his sentence, the continued reliance solely on immutable factors to deny parole for up to eight times does not violate due process. It may be that, so long as the inmate has not served his minimum sentence, the Board may deny parole any number of times based solely on immutable factors.*fn5 Where the inmate has served the minimum term, the following rules apply: (1) California law creates a liberty interest in parole for prisoners who have served the minimum sentence, see Sass, 461 F.3d at 1127-28; Irons, 505 F.3d at 853-54; (2) the Board's decision to deny parole must be supported by "some evidence" that the prisoner's release would have posed an unreasonable risk of danger to the community at the time, see Sass, 461 F.3d at 1128-29; and (3) the evidence relied upon by the Board must have some indicia of reliability, see Biggs, 334 F.3d at 915. In some cases where the minimum term has been served, the continued reliance on immutable factors to deny parole may violate due process. See id. at 917; see also Irons, 505 F.3d at 854.

2. Analysis

Based on the principles discussed above, the question for this court is whether the state court's determination that the Board's decision was based on "some evidence" of a risk of danger to the community in 2005 is an unreasonable application of this standard.

Initially, the court observes that this case does not present the situation of reliance solely on immutable factors. The Board stated several reasons in support of the decision not to grant Petitioner a parole date, including the facts of the offense, his escalating pattern of conduct, his lack of programming, his prison disciplinary record, his psychological report, and his maturity. The court, however, must find that these reasons bear some indicia of reliability.

In addition to the facts of Petitioner's commitment offense, the Board reviewed the prison disciplinary actions Petitioner has received during his incarceration. The board found that during Petitioner's incarceration, he has received 16 Rule Violation Reports, "CDC 115's", the last one on April 29, 2002, and 26 counseling chronos, "CDC 128's", the last one on February 14, 2004.*fn6 The Board went through and discussed with Petitioner a number of these offenses. Although several of these rule violations were non-serious, such as violating grooming standard and inappropriately touching his wife during visits, they tend to show Petitioner's disrespect for rules, and inability to follow regulations. In addition, although Petitioner had been advised by the prior Board, when he was denied parole in 2001, to remain disciplinary-free, he has failed to do so. The Board stated he received three disciplinaries since his last hearing, but it appears to the undersigned that they actually identified eleven separate disciplinary actions since 2001. Petitioner acknowledged at the hearing that he had in fact received such disciplinary actions. The Board's reliance on Petitioner's disciplinary history certainly bears an indicia of reliability.

In addition, the Board relied on the psychological report by Dr. Van Couvering. The Board relied on Dr. Van Couvering's conclusion that Petitioner retains a moderate degree of threat to the public. Petitioner argues this conclusion is not supported by the report. However, reviewing the report, the undersigned finds that it does. Dr. Van Couvering stated that Petitioner "showed good judgment and anticipation of consequences, but there remain some issues of impulse control." (Petition, Ex. C, at 99). She also stated that Petitioner "has had a problem in accepting accountability for his behavior in the past," although she acknowledged Petitioner has had marked improvement in his conduct over the past year. (Petition, Ex. C, at 100). Given Dr. Van Couvering's statement that Petitioner's "life crime was an impulsive act," these reasons support her conclusion that Petitioner remains moderately dangerous to the community.

Petitioner contends that his due process rights were violated because the Board failed to support its conclusion that his offense was especially cruel, callous, calculated, execution style, or inexplicable compared to other second degree murder offenses, and that the Board failed to consider substantial evidence demonstrating his suitability for parole. However, the undersigned finds the opposite. The Board acknowledged Petitioner had met some of the criteria, including his parole plans, family support, and acknowledged his employment and religious work. The Board stated Petitioner had realistic parole plans and good family support. They commended him for obtaining his GED, and acknowledged the laudatory chronos in his file regarding his hard work and his participation in his faith. However, they weighed these positive aspects with the reasons weighing against granting parole, and determined that these positive aspects were outweighed.

Petitioner's argument that the Board failed to support it's conclusion that his commitment offense was especially cruel and callous, calculated and/or execution-style are similarly unavailing. This argument may have been more effective if the Board was solely relying on Petitioner's commitment offense. However, his commitment offense was not the only justification provided in denying Petitioner a parole date. In addition, although the Ninth Circuit has indicated that at some point, reliance solely on immutable factors to deny parole may at some point violate a prisoner's due process rights, the undersigned does not find Petitioner's due process rights were violated here. This is not a situation where Petitioner has been denied parole several times, with the Board relying solely on the unchanging facts of the commitment offense. This was only Petitioner's second parole suitability hearing, and the Board relied on additional factors in rendering their decision.

The California Superior Court decided that "some evidence" supported the Board's finding of unsuitability. This decision was neither contrary to nor an unreasonable application of clearly established United States Supreme Court law. There was "some evidence" before the Board which could indicate Petitioner's release would be an unreasonable risk to public safety.


Based on the foregoing, the undersigned recommends that Petitioner's petition for 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 20 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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