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Nestle v. Davison

United States District Court, Central District of California


September 11, 2009

MARIA NESTLE, PETITIONER,
v.
DAWN DAVISON, ACTING WARDEN, RESPONDENTS

The opinion of the court was delivered by: Christina A. Snyder, District Judge.

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge, and the objections filed by Respondent and Petitioner, de novo. The Court concurs with and adopts the findings, conclusions, and recommendations of the Magistrate Judge.

IT IS ORDERED that Judgment be entered: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered granting a writ of habeas corpus as follows: The Board shall find Petitioner suitable for parole at a hearing to be held within 30 days of the finality of this decision, unless new, relevant and reliable evidence of her conduct in prison or change in mental status subsequent to the March 24, 2006, parole consideration hearing is introduced that is sufficient to support a finding that Petitioner currently poses an unreasonable risk of danger to society if released on parole; and in the absence of any such new relevant and reliable evidence showing Petitioner's unsuitability for parole, the Board shall calculate a prison term and release date for Petitioner in accordance with California law. Further, if the release date already has lapsed, Respondent shall, within ten days of the Board's hearing, either release Petitioner forthwith if his release date lapsed more than three years earlier, or release Petitioner on parole for that period of her three year parole term that remains if the release date lapsed less than three years earlier.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE OSWALD PARADA, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

I. PROCEEDINGS

On July 3, 2007, Maria Nestle ("Petitioner"), filed the current Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner challenges the California Board of Parole Hearings' ("BPH" or "Board") decision finding her unsuitable for parole after a subsequent parole suitability hearing conducted on March 24, 2006. On October 22, 2007, Respondent filed an Answer to the Petition. On November 1, 2007, Petitioner filed a Traverse to the Answer. Thus, this matter is ready for decision.

II. FACTUAL BACKGROUND

A. Commitment Offense.*fn1

The Board incorporated by reference the statement of facts as set forth in the California Court of Appeal's reasoned decision. It then read into the record the summary of the crime from the probation officer's report:

On or about July 16th, 1977, Ms. Nestle shot both victims in the head with a .22 caliber rifle. She then had her son and two of his friends dig a large hole, a grave by the motel which the victims owned. She and her son then placed both victims in the grave and covered it with dirt. Between July 16th, 1977 and July 22nd, 1977, Ms. Nestle had taken over the running of the victim's motel. On July 16th, 1977 she reported to the Fresno County Sheriffs that six male Mexicans had taken money from her and demanded a car for which they would return the following day. Four of the six male suspects were arrested on July 16th, 1977. July 17, 1977, Ms. Nestle contacted Fresno Sheriff and turned over a .22 caliber rifle identified as the murder weapon. On July 22nd, 1977, Ms. Nestle again contacted the sheriff's department concerning a foul odor outside the motel where she believed the two bodies might possibly be buried. Excavation of the grave site revealed both victims' bodies. Later the appellant was arrested on July 28th, 1977. Her son Peter was arrested on July 2nd, 1977.

(Pet. Ex. A at 15-16.)

The Board also read these additional facts from the appellate decision:

The appellant was arrested on July 28th, 1977 and her son Peter was arrested on August 2nd, 1977. A tape recorded conversation in the Fresno County Jail with her daughter Janette Juanita ..., on August 6, appellant urged her to convince Peter not to admit that he'd buried the victim's bodies. Appellant also conceded to daughter Felicia ... that "Mr. Morris wouldn't give us no money ."

( Id. at 18-19.)

Petitioner declined to speak about the crime at the hearing. ( Id. at 16.) Her attorney noted for the record that she did not agree with the recitation of the circumstances of the events, but recognized that that had been the operative version of the offense at all times since her conviction. ( Id. at 16.) He also noted that she denies culpability or involvement in the crime as she had for many years. ( Id. at 17.) Petitioner has always denied murdering the victims. Her account is that the victims were probably killed in retaliation for a drug transaction gone bad, that she was raped by the murderers and held in a hostage situation for several days, and that they ordered her to bury the victims' bodies which she did with Peter's help. Petitioner states that she did not report the crimes because of threats against her family. (Pet. at 3 .)

B. Sentencing.

Petitioner was sentenced to seven-years-to-life with a minimum eligible parole date of August 3, 1984. (Pet. Ex. A at 1.)

C. March 24, 2006, Parole Denial.

On March 24, 2006, Petitioner appeared for her thirteenth parole consideration hearing. (Pet. at 6.) Petitioner was denied parole at each of these hearings. ( Id.)

The Board's March 24, 2006, decision finding Petitioner unsuitable for parole is the decision challenged by the current Petition. In denying Petitioner parole, the Board stated as follows:

[T]he crime you committed, we believe you committed was a horrific crime, in which two people were beaten and murdered, eventually buried, bodies attempted to be hidden and later found. You were then arrested and convicted on two counts of first-degree murder. [The victims] were owners of a motel that you were working at. This occurred on or about the 16th of July 1977. Both of the victims were shot with a .22 caliber rifle. At least one of the victims was beaten with a blunt object. In fact, both of them appeared to have been beaten in or around the head area. The offense was carried out in an exceptionally violent and brutal and cruel manner. There were multiple victims killed in the same incident. The victims were abused, tied up, one of the reports indicated the male was hogtied, beaten, and shot to death. They were then taken out to a shallow grave and buried. They weren't dug up for almost a week once they started emanating a foul odor. The motive of the crime was truly inexplicable. While you did not have a criminal history in your background, we believe you had an unstable social history. We believe you had a chaotic childhood, multiple moves, hard to define who brought you up, it appears it may have been your godparents. You would never learn how to read or write. If you went to school, you went to school at a very low level and didn't complete your schooling. You have multiple marriages, the last being as late as 1997 while you were in prison.

(Pet. Ex. A at 74-75.)

The Board continued:

You have failed to develop certified marketable skills since you've been in prison. However, we do understand you have well developed sewing skills that you could possibly take into the marketplace and be able to earn income. You have failed to upgrade yourself educationally or vocationally while you have been in prison, though you have participated in self-help programs..... In regard to parole plans, she does not have residential plans in her last county of legal residence. Now you do have an opportunity to live with a lady by the name of Aral ... Braman .... Does she have acceptable employment plans? Well, no, you do not.

(Pet. Ex. A at 75-79.)

The Board reviewed the many self-help programs with which Petitioner was involved, her work at the prison in the Forestry Department, and the fact that she had done "plenty of volunteer work." ( Id. at 81-82.) It also mentioned Petitioner's excellent disciplinary record while in prison-her last 128 *fn2 was in 1988; her last 115 was in 1981 for initiating and spreading rumors. ( Id. at 75-76.) With respect to her psychological reports, the Board noted that the last report, dated March 1, 2006, was favorable. ( Id. at 76.) It noted, however, two prior reports, one in January 2004 and the other in July 2001, both of which found "that it would be impossible to make any prediction regarding her potential for violence from a psychological perspective given her advanced age and her decreasing cognitive capacity." ( Id. at 77.) The 2006 report, and two 2005 reports, specifically rejected the finding of these two previous reports, stating that "[i]t is not `impossible' to make a prediction of future risk, and it is noted that declining cognitive capacity and advancing age both operate to lower the risk of violence." (Pet. Ex. B at 8.)

D. Denials of Habeas Corpus Relief in State Courts.

On October 13, 2006, the Fresno County Superior Court denied Petitioner's habeas petition in a reasoned decision. (Pet.Ex. M.)

On March 15, 2007, the California Court of Appeal summarily denied Petitioner's habeas petition. (Pet.Ex. N.)

On June 20, 2007, the California Supreme Court summarily denied Petitioner's habeas petition. (Pet.Ex. O.)

III. PETITIONER'S CLAIMS

Petitioner contends her due process rights have been violated because:

1. The Board failed to state a nexus between her current risk of danger to public safety and its decision to deny parole;

2. The Board impermissibly based its decision on the unchanging factors of the commitment offense;

3. The Board amended her prison term to life without the possibility of parole;

4. The some evidence test is inapplicable to review of parole decisions on federal habeas corpus review;

5. The Board and California's executive branch of government have applied a no-parole policy to all indeterminately sentenced inmates who deny guilt; and

6. The Board's application of parole suitability factors under California's current Determinate Sentencing Law, rather than the former Indeterminate Sentencing Law, constitutes an ex post facto violation.

( See generally Pet.)

IV. STANDARD OF REVIEW

The standard of review applicable to Petitioner's claims is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 proceedings.

28 U.S.C. § 2254(d). Further, a State court factual determination must be presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Under the AEDPA, the "clearly established Federal law" that controls federal habeas review of State court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To determine what, if any, "clearly established" United States Supreme Court law exists, the court may examine decisions other than those of the United States Supreme Court. LaJoie v. Thompson, 217 F.3d 663, 669 n. 6 (9th Cir.2000); Van Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir.2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Ninth Circuit cases "may be persuasive." Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.1999). On the other hand, a state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law, if no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court. Brewer v. Hall, 378 F.3d 952, 955 (9th Cir.2004); see also Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 654, 166 L.Ed.2d 482 (2006) (in the absence of a Supreme Court holding regarding the prejudicial effect of spectators' courtroom conduct, the state court's decision could not have been contrary to or an unreasonable application of clearly established federal law).

Although a particular State court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. Williams, 529 U.S. at 403. A State court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); Williams, 529 U.S. at 405-06. When a State court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is "unconstrained by § 2254(d) (1)." Id. at 406. However, the State court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early, 537 U.S. at 8.

State court decisions which are not "contrary to" Supreme Court law may only be set aside on federal habeas review "if they are not merely erroneous, but `an unreasonable application' of clearly established federal law, or are based on `an unreasonable determination of the facts.' " Early, 537 U.S. at 11 ( citing 28 U.S.C. § 2254(d)). Consequently, a State court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413 (e.g., the rejected decision may state Strickland rule correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). However, to obtain federal habeas relief for such an "unreasonable application," a petitioner must show that the State court's application of Supreme Court law was "objectively unreasonable." Woodford, 537 U.S. at 27. An "unreasonable application" is different from an erroneous or incorrect one. Williams, 529 U.S. at 409-10; see also Woodford, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685, 686, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

Where, as here, the California Supreme Court denies a petitioner's claims without comment or citation to authority, the state high court's "silent" denial is considered to be "ohn the merits" and to rest on the last reasoned decision on these claims, in this case, the grounds articulated by the Fresno County Superior Court in its decision. (Lodgment 5.) See Ylst v. Nunnemaker, 501 U.S. 797, 803-06, 111 S.Ct. 2590, 2594-96, 115 L.Ed.2d 706 (1991); Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.1992): see also Kennedy v. Lockyer, 379 F.3d 1041, 1052 (9th Cir.2004); Gill v. Ayers, 342 F.3d 911, 917 n. 5 (9th Cir.2003).

V. DISCUSSION

A. The Current State of the Law on "Some Evidence".

1. Ninth Circuit and Federal Law.

As a matter of clearly established Supreme Court law, the Board's decision to deny parole must be supported by "some evidence" with some indicia of reliability and cannot otherwise be arbitrary. Irons v. Carey, 505 F.3d 846, 851 (2007); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1129 (9th Cir.2006) ( quoting Superintendent v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)); 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 ); see also Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir.2003); McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir.2002).

In denying parole, the Board may rely solely on unchanging factors such as the circumstances or gravity of the commitment offense, and the prisoner's conduct prior to imprisonment. See Irons, 505 F.3d at 851-53; Sass, 461 F.3d at 1129; Biggs, 334 F.3d at 916; Jancsek, 833 F.2d at 1390-91. The Ninth Circuit has observed that reliance on such unchanging factors to deny parole might eventually constitute a violation of due process. See Biggs, 334 F.3d at 916-17; see also Irons, 505 F.3d at 853; Sass, 461 F.3d at 1129. However, that observation by the Ninth Circuit in Biggs constituted merely dicta. See Kunkler v. Muntz, 226 Fed. Appx. 669, at *2 (9th Cir.2007) (referring to the Ninth Circuit's comments in Biggs about the continued reliance on the gravity of the commitment offense as dictum).

By way of contrast to the Ninth Circuit's explicit holding in Irons that the "some evidence" standard is clearly established under Supreme Court law for AEDPA purposes, the Ninth Circuit has never held that, as a matter of clearly established Supreme Court law, due process is violated by the Board's or the Governor's continued reliance on the unchanging circumstances of the commitment offense to deny parole.*fn3 See Medway v. Schwarzenegger, 257 Fed. Appx. 44 (9th Cir.2007) ("there is no `clearly established Federal law' ... that limits the number of times a parole board or the governor may deny parole based on the brutality of the commitment offense") (citation omitted); Culverson v. Davison, 237 Fed. Appx. 174, at *3 (9th Cir.2007) (same).*fn4

2. California Law.

Under Irons, the Court's analysis of whether the Board's or the Governor's unsuitability determination is supported by some evidence is framed by the "statutes and regulations governing parole suitability" determinations in California. See Irons, 505 F.3d at 851. First, the Court must determine the findings "necessary to deem a prisoner unsuitable for parole." Id. Then, the Court must review the record to determine whether the state court's decision holding that these findings were supported by "some evidence" constituted an unreasonable application of the "some evidence" standard. Id. However, "[t]o determine whether the some evidence standard is met `does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence.' " Sass, 461 F.3d at 1128.

California law mandates that a parole release date be set unless the pan el determines that "the gravity of the current convicted offense or offenses, or the timing and gravity of the current or past convicted offense or offenses, is such that consideration of public safety requires a more lengthy period of incarceration ...." Cal.Penal Code § 3041(b). The Board is charged with determining "whether the life prisoner is suitable for release on parole," and whether "the prisoner will pose an unreasonable risk of danger to society if released from prison." Cal.Code Regs. tit. 15, § 2402(a). In determining suitability for parole, the pan el is directed to consider "all relevant, reliable information," and is guided by circumstances tending to show suitability and unsuitability for parole.*fn5 Id. at § 2402(b)-(d).

Title 15, section 2402, of the California Code of Regulations sets forth, as a guide, a non-exhaustive list of factors that are to be considered by the Board in evaluating parole suitability or unsuitability for life prisoners convicted of murder. Factors that weigh against parole include that a prisoner: (1) carried out the offense in an especially heinous, atrocious, or cruel manner, e.g., the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering, involved an attack on multiple victims, involved abuse or mutilation of the victim, or the motive for the crime was inexplicable or trivial in relation to the offense; (2) has a prior record of violence; (3) has an unstable social history; or (4) has engaged in serious misconduct in prison. Cal.Code Regs. tit. 15, § 2402(c).

Factors that weigh in favor of parole include that the prisoner: (1) has shown signs of remorse, including attempting to repair the damage or indicating that he understands the nature and magnitude of the offense; (2) has no juvenile record; (3) has a stable social history; (4) is of an age that reduces the probability of recidivism; (5) committed the crime as a result of significant stress in his life; (6) has made realistic plans for release or has developed marketable skills that can be put to use upon release; or (7) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. Id. § 2402(d).

It has now been clarified under recent California law *fn6 that the task of the Board is to determine whether the prisoner would be a danger to society if he or she was paroled:

[A] parole release decision authorizes the Board (and the Governor) to identify and weigh only the factors relevant to predicting "whether the inmate will be able to live in society without committing additional antisocial acts." These factors are designed to guide an assessment of the inmate's threat to society, if released, and hence could not logically relate to anything but the threat currently posed by the inmate. ....

[U]nder the statute and the governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It 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.

In re Lawrence, 44 Cal.4th 1181, 1205-06, 1212, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008) (citations omitted) (abrogating prior California Supreme Court decisions in In re Rosenkrantz, 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002) and In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005), to the extent that those decisions implied that a particularly egregious commitment offense always will provide the requisite modicum of evidence supporting the Governor's decision).

The California Supreme Court clarified that "the relevant inquiry is 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" and a parole decision is not "dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense." In re Lawrence, 44 Cal.4th at 1221, 82 Cal.Rptr.3d 169, 190 P.3d 535. "Accordingly, when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings" supporting suitability or unsuitability for parole. Id . at 1212, 82 Cal.Rptr.3d 169, 190 P.3d 535; see also In re Shaputis, 44 Cal.4th 1241, 82 Cal.Rptr.3d 213, 190 P.3d 573 (2008) (companion case to In re Lawrence ).

With respect to the Board's or Governor's reliance solely on the commitment offense to deny parole, the California Supreme Court also held:

[T]he 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 his or her 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.

In re Lawrence, 44 Cal.4th at 1214, 82 Cal.Rptr.3d 169, 190 P.3d 535. The court went on to note that in the case where i) evidence of an inmate's rehabilitation and suitability for parole is overwhelming, ii) the only evidence related to unsuitability is the gravity of the commitment offense, and iii) that offense is both temporally remote and mitigated by circumstances indicating the conduct is unlikely to recur, the immutable circumstance that the commitment offense involved aggravated conduct does not provide some evidence that inevitably supports the ultimate decision that the inmate remains a threat to public safety. Id. at 1191, 82 Cal.Rptr.3d 169, 190 P.3d 535. Under California law, therefore, "the proper articulation of the standard of review is whether there exists `some evidence' that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor." In re Shaputis, 44 Cal.4th at 1254, 82 Cal.Rptr.3d 213, 190 P.3d 573.

Thus, the California Supreme Court has expressly rejected the notion that the mere existence of one or more unsuitability factors described in the State's regulations is itself necessarily sufficient to support the ultimate conclusion that the inmate currently poses an unreasonable risk of danger if released, which is the "focus" of and only relevant determination underpinning the parole decision. Id. at 1210, 82 Cal.Rptr.3d 213, 190 P.3d 573. As a matter of California law, the individualized consideration of the specified factors that is due an inmate "requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision-the determination of current dangerousness." Id.

This Court is bound by the California Supreme Court's construction of its own laws. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see also Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005). Moreover, as noted above, the Irons decision itself explicitly instructs that the California statutes and regulations frame the application of the some evidence standard.*fn7

B. California Court Opinions.

In denying Petitioner's habeas petition, the Fresno County Superior Court stated as follows:

The stated basis for this denial included the horrific nature of the crime, in which the victims were tied up, beaten, shot, and buried; the petitioner's continued denial of responsibility, despite evidence to the contrary; her unstable social history, including a marriage while in prison to a person with whom she has little contact; her failure to upgrade educationally or vocationally or to develop certifiable marketable skills while in prison; concerns expressed in prior psychological reports; opposition from the District Attorney; and the need for additional information on petitioner's parole plans. The Board reached this conclusion despite other evidence related to petitioner's age (currently listed as 79), her medical restrictions, petitioner's crime-free past (aside from this murder conviction), her exemplary record while in prison, the restrictive impact of her extremely limited educational background, her stated sources of financial support, and a positive psychological report rating her current threat to society as very low. Whether or not this court agrees with the Board's conclusion, its decision may not be overturned so long as it is supported by "some evidence."

(Pet. Ex. Mat 1-2.)

Although not explicitly stated, in denying Petitioner's petition, the superior court implicitly found that some evidence supported the Board's conclusion.

C. Analysis.

1. Commitment Offense.

In its decision, the Board cites to Petitioner's commitment offense as its primary evidentiary support for the finding that she is not suitable for parole. The Board noted that the crime was "horrific" and carried out in an "exceptionally violent and brutal and cruel manner." (Pet. Ex. A at 1-2.) The Board, however, relied on Petitioner's commitment offense as "some evidence" of unsuitability without proper consideration of the impact of twenty-eight years of incarceration on the reliability of these factors in determining Petitioner's current dangerousness. ( Id.)

The Court finds Petitioner's case to be just the sort of case the Ninth Circuit envisioned in Biggs, Sass, and Irons, and that the California Supreme Court envisioned in In re Lawrence: where the commitment offense is relied on to deny parole notwithstanding the prisoner's exemplary behavior and evidence of rehabilitation since the commitment offense.

The crime here was aberrant behavior, and not part of a pattern of continuing violent criminality.*fn8 See Cal.Code Regs. tit. 15, §§ 2402(d)(6) (no significant history of violent crime as a suitability factor). The murders, while terrible, were not notably worse than other murders. Most importantly, there was nothing articulated by the Board to support a nexus between this factor and a conclusion that Petitioner posed a current risk of violence. In fact, the evidence was all to the contrary.

Since 1983, Petitioner's psychological evaluations have all indicated a "low" level of dangerousness. ( See Pet. Ex. B at 7 (presenting a compilation of all prior psychological results).) In her March 1, 2006, forensic psychological evaluation, the psychologist concluded:

In terms of foreseeable violence risk, there is no immediate threat of dangerousness, should this inmate be released to the community The inmate is mentally stable, and there is no stated threat against persons or property in the community.

This woman's risk of dangerousness/violent recidivism over three to five years following release is judged to be in the "Very Low" range (estimated less tha[n] 5% probability of violent recidivism) in relation to the overall distribution of risk among the population of released female offenders.

....

This woman's risk of dangerousness is mitigated by her maturity since the time of the crime, her age [then 79] being well beyond the age of highest violence risk.

(Pet. Ex. B at 6.) *fn9

Moreover, as reflected by the psychological evaluations and the hearing transcript, during her entire incarceration Petitioner's only serious disciplinary action was received in 1981 for spreading rumors. For many years, she worked as a seamstress in the Forestry Department at the prison but was medically unassigned on January 20, 2005, due to advancing age, medical restrictions, and confinement to a walker. Petitioner received many laudatory chronos for ongoing participation in the Happy Hats for Kids project, Sharing Our Stitches, the Mexican American Resource Association, Long Termers Organization, Breaking Barriers, Inmate Assistant Module, Anger Management, Forestry Department volunteer, and Legion of Mary. (Pet. Ex. A at 38-40.) Petitioner attempted unsuccessfully to earn her GED and participated in Adult Basic Education classes for seven years, "trying hard," according to her teachers. ( Id. at 43, 82 Cal.Rptr.3d 169, 190 P.3d 535.) Her native language is French, she can speak and understand English, but she reads and writes English with difficulty. ( Id.) Petitioner's parole plans include residing with a longtime friend, Social Security retirement (for which she qualifies at $700 per month), savings of $3,000, financial assistance from her children as needed, and possible income as a part-time seamstress.*fn10 ( Id. at 21, 25-28 33-34, 82 Cal.Rptr.3d 169, 190 P.3d 535.)

With respect to the circumstances of the commitment offense, committed almost thirty years prior to the hearing, the Board articulated no nexus whatsoever between those circumstances and Petitioner's current dangerousness. As noted by the court in In re Lawrence, the aggravated nature of the crime itself does not provide some evidence of current dangerousness unless the record also establishes that something in Petitioner's pre- or post-incarceration history, or her current demeanor and mental state, indicates that the implications regarding her dangerousness that derive from her commission of the commitment offense remain probative to a determination of a continuing threat to public safety. There is no such evidence in the record in this case.

As the Ninth Circuit has noted:

While relying upon petitioner's crime as an indicator of his dangerousness may be reasonable for some period of time, in this case, continued reliance on such unchanging circumstances-after nearly two decades of incarceration and half a dozen parole suitability hearings-violates due process because petitioner's commitment offense has become such an unreliable predictor of his present and future dangerousness that it does not satisfy the "some evidence" standard. After nearly twenty years of rehabilitation, the ability to predict a prisoner's future dangerousness based simply on the circumstances of his or her crime is nil.

Rosenkrantz v. Marshall, 444 F.Supp.2d 1063, 1084 (C.D.Cal.2006); *fn11 see also In re Burdan, 169 Cal.App.4th 18, 29, 86 Cal.Rptr.3d 549 (2008). In Burdan, the court noted that the murder involving the deliberate shooting of the petitioner's wife multiple times at close range did not constitute "some evidence" of an exceptionally callous disregard for human suffering or that petitioner's release would pose an unreasonable risk of danger to society in the face of overwhelming evidence of his suitability for parole. Id. at 36, 86 Cal.Rptr.3d 549. As discussed by the court, all murders involve some degree of callousness, but the measure of atrociousness is whether the crime was particularly heinous, atrocious, or cruel. Id.

This case is similar to Burdan. Here, the Board recited the facts of the murders, terming the facts "horrific." (Pet. Ex. A at 74.) Pursuant to the California Code of Regulations, examples of a crime that is especially heinous, atrocious, or cruel include those with multiple victims, offenses carried out in a dispassionate and calculated manner, those in which the victim was abuse, defiled or mutilated, where the manner of committing the offense showed an exceptionally callous disregard for human suffering, or where the motive was inexplicable or trivial in relation to the offense. Cal.Code Regs. tit. 15, § 2281(c)(1). While there certainly were multiple victims in this case, and the victims appeared to have been beaten prior to being shot and buried, Petitioner disputes that the murders were "especially" heinous or that the motive was inexplicable given the fact that they were allegedly committed to accomplish a robbery. (Pet. at 12.) She also disputes that any of these factors translate to her being a current parole risk or unreasonable danger to public safety. ( Id. at 14, 86 Cal.Rptr.3d 549.)

The Court agrees. As in In re Burdan, it is evident that Petitioner's crime was "horrific," and even assuming it was more heinous, atrocious, or cruel than the typical first degree murder, the bigger issue is that there still was no evidence cited by the Board that this determination supported a finding that Petitioner remains a current threat to public safety. In fact, when considered in light of the full record, the nature of the offense by itself does not rationally support the ultimate conclusion that Petitioner continues to pose an unreasonable risk to public safety. In re Lawrence, 44 Cal.4th at 1211-12, 82 Cal.Rptr.3d 169, 190 P.3d 535 (there must be a rational nexus between the facts relied upon by the Board and the ultimate conclusion of current dangerousness).

Accordingly, in light of the extensive evidence of Petitioner's in-prison rehabilitation and exemplary behavior, the Board's reliance on the unchanging circumstances of the offense is not based on "some [relevant and reliable] evidence" in the record and, therefore, does not support a conclusion that Petitioner is a current danger to society.

2. Unstable Social History.

The Board also relies on Petitioner's "unstable social history" as a factor in its denial. In support, the Board notes that Petitioner had a "chaotic childhood" with multiple moves, was raised by her godparents, never learned how to read or write, did not complete schooling, and had multiple marriages. (Pet. Ex. A at 75.)

This particular unsuitability factor as set forth in the California Code of Regulations requires a finding that the prisoner "has a history of unstable or tumultuous relationships with others." Cal.Code Regs. tit. 15, § 2281(c)(3). While the incidents above as cited by the Board may be indicative of some instability, particularly in Petitioner's childhood some seventy years prior to the hearing, they certainly are not evidence that has any sort of bearing on whether Petitioner would be an unreasonable risk of danger if paroled now. And, as with its reliance on the commitment offense, the Board fails to articulate any nexus whatsoever between this "unstable" social history and Petitioner's current dangerousness.

Moreover, Petitioner clearly has developed or maintained at least some stable relationships during her incarceration. She has reasonable parole plans which include living with a "longtime friend" near her family, and at the time of the 2006 psychological evaluation, she had an offer of employment. Her children have offered financial support and a place to live. (Pet. Ex. A at 23, 33-35.) Her work chronos have been laudatory and she was described by her supervisors as "eager" and "industrious." The psychologist described her as attentive, talkative, and as trying to make good efforts to cooperate during the evaluation. There is no evidence before the Court that Petitioner was not able to maintain stable relationships, either work-related or social, during the thirty years of her incarceration. In fact, her lack of disciplinary actions is some evidence that she has been able to get along well with others for the past thirty years.

Accordingly, this Court does not find relevant or reliable evidentiary support for a finding of an unstable social history sufficient to support a finding of current dangerousness.

3. Failure to Upgrade Vocationally.

The Board, in its decision, made the sweeping statements that Petitioner had "failed to develop certified marketable skills," and "failed to upgrade [her]self educationally or vocationally" while she had been in prison. *fn12 (Pet. Ex. A at 75.) Petitioner terms these findings "absurd and Orwellian." (Pet. at 16.) The Court agrees. Moreover, to the extent the Board intended to include these factors as reasons for unsuitability, once again, it failed to articulate any nexus between these alleged circumstances and Petitioner's current dangerousness.

The record clearly reflects that Petitioner made use of her seamstress skills while incarcerated. The Forestry Department for whom she worked while in prison, described her as an "excellent seamstress and hard worker." (Pet. Ex. A at 44-45.) The Board itself noted this laudatory chrono, stating that "we do understand you have well developed sewing skills that you could possibly take into the marketplace and be able to earn income." ( Id. at 75, 82 Cal.Rptr.3d 169, 190 P.3d 535.) The Board also commented on the sheer number of chronos in her file commending her for the work she had done for the Forestry Department. ( Id. at 44, 82 Cal.Rptr.3d 169, 190 P.3d 535.) Educationally, Petitioner apparently attempted for several years to obtain her GED but had difficulties given that her first language is not English. ( Id. at 43, 82 Cal.Rptr.3d 169, 190 P.3d 535.)

In light of Petitioner's current skill base and programming, as well as the additional fact that she was almost eighty years old with various medical problems at the time the Board heard her case, if the Board was suggesting that Petitioner learn new vocational and educational skills before her next parole hearing, such a suggestion is not only arbitrary but, as Petitioner succinctly put it, absurd. ( Id. at 116, 82 Cal.Rptr.3d 169, 190 P.3d 535.)

Nor is there "some evidence" relating to Petitioner's vocational or educational status bearing any "indicia of reliability" to support an unsuitability finding. See McQuillion, 306 F.3d at 904; see also Tash, 2008 WL 3984597, at *12 (finding Governor's parole reversal based on circumstances of commitment offense unsupported by some evidence and arbitrary in light of "the extensive evidence of Petitioner's in-prison rehabilitation and exemplary behavior" after 22 years of incarceration on a 17-year-to-life sentence); see also Adams, 2008 WL 4224561, at *11 (finding that "petitioner's age, health, religious beliefs, stable family history and present relationships, lack of prison disciplinaries since 1997, commitment to sobriety, and psychologists' reports demonstrate he no longer poses an unreasonable risk to public safety" and that parole rescission based on circumstances of commitment offense and criminal record was not supported by some evidence where petitioner had served fourteen years past minimum eligible parole date).*fn13

Accordingly, the Court finds that any recommendation that Petitioner obtain additional vocational and/or educational programming before the next parole hearing was not supported by any relevant evidence having any indicia of reliability and fails to support that she is a current danger if paroled. Put another way, there was no evidence before the pan el to support a finding that further vocational or educational programming was even remotely necessary to Petitioner's rehabilitation and any such recommendation would be completely arbitrary. See, e.g., In re Singler, 169 Cal.App.4th at 1242, 87 Cal.Rptr.3d 319 (psychologist opined that inmate was "free from the customary concerns with regard to public safety, emotional stability and personal responsibility" and that limited clinical services were more wisely used on other prisoners).

4. Parole Plans.

Respondent contends that Petitioner's inadequate parole plans were a reason used by the Board to find Petitioner unsuitable for parole. (Answer at 16.) In its decision, the Board noted that the parole plans were "somewhat incomplete" with regard to detail, as the plans included living outside her last county of legal residence, and possibly included living with other parolees. (Pet. Ex. A at 79.) It also noted concerns about the details of Petitioner's financial arrangements and plans if paroled, and requested additional assurances from her family as to the assistance they would be willing to provide. ( Id. at 80, 87 Cal.Rptr.3d 319.) The Court is not convinced the Board was using this reason to deny parole.

Even if it was a reason for denying parole, the "concerns" again fail to create a nexus between the allegedly incomplete financial details and whether Petitioner is currently a danger to society. Further, the information the Board found incomplete can easily be supplemented prior to release.

5. Psychological Evaluations.

The Board acknowledged that Petitioner's most recent psychological report had been positive.*fn14 (Pet. Ex. A at 76.) The Board also noted, however, that two prior reports, one in 2004 and one from 2001, both found it difficult to predict Petitioner's potential for violence given her advanced age and decreasing cognitive capacity.*fn15 ( Id. at 77, 87 Cal.Rptr.3d 319.) The Board commented that these two prior evaluators specifically showed some concern as to the kind of support Petitioner was going to get once she leaves prison, i.e., whether Petitioner would have a "comfortable and predictable parole environment." ( Id. at 79, 87 Cal.Rptr.3d 319.) All of Petitioner's prior evaluations, however, apparently found that Petitioner was a low or below average risk of violence if released. (Pet. Ex. B at 7 (compiling prior evaluations).)

It is unclear to this Court whether the Board actually was using the 2001 and 2004 reports to support its parole denial, or whether it merely was using those reports to support their finding that the parole plans should be more complete.*fn16 If the latter, the Court notes that at the time of the 2001 and 2004 evaluations, and even at the time of the 2006 evaluation, Petitioner's parole plans did not include living with her friend Ms. Braman. As a result, any concerns of the prior evaluators about her 2001 and 2004 parole plans were moot at the time of this hearing. Indeed, the Court has previously discussed the Board's findings regarding Petitioner's parole plans and found them not to support any finding of dangerousness.

If the reports were being used as a reason to deny parole, they provide no relevant, reliable evidence to support any conclusion other than that Petitioner's risk of violence if released is low.

D. Petitioner's Other Claims.

Because the Court finds that the 2006 Board decision violated Petitioner's constitutional rights for the reasons stated herein, it declines to consider Petitioner's additional claims.

E. The State Court's Denial of Petitioner's Habeas Petition Was an Unreasonable Application of Clearly Established Federal Law.

The Fresno County Superior Court denied Petitioner's habeas petition on the ground that the Board had "some evidence" that Petitioner was not suitable for parole. (Pet.Ex. M.) In affirming the Board's decision, the court relied on the factors set forth above as well as other factors discussed during the hearing but not set forth in the Board's decision. ( Id. at 1-2, 87 Cal.Rptr.3d 319.)

Because there was no reliable and relevant evidence before the 2006 Board pan el supporting its conclusion that Petitioner's release posed an unreasonable risk to public safety, the Court finds that (a) the Board's decision resulted in an arbitrary deprivation of Petitioner's liberty interest in parole and violated due process, and (b) the State courts' determination to the contrary was based on an unreasonable determination of the facts in light of the evidence presented and involved an unreasonable application of the "some evidence" standard.

VI. RECOMMENDATION

IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered granting a writ of habeas corpus as follows: The Board shall find Petitioner suitable for parole at a hearing to be held within 30 days of the finality of this decision, unless new, relevant and reliable evidence of her conduct in prison or change in mental status subsequent to the March 24, 2006, parole consideration hearing is introduced that is sufficient to support a finding that Petitioner currently poses an unreasonable risk of danger to society if released on parole;*fn17 and in the absence of any such new relevant and reliable evidence showing Petitioner's unsuitability for parole, the Board shall calculate a prison term and release date for Petitioner in accordance with California law. Further, if the release date already has lapsed, Respondent shall, within ten days of the Board's hearing, either release Petitioner forthwith if his release date lapsed more than three years earlier, or release Petitioner on parole for that period of her three year parole term that remains if the release date lapsed less than three years earlier.


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