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Freeman v. Sisto

September 15, 2009

CLIFTON FREEMAN, PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.



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

REPORT AND RECOMMENDATION

I. SUMMARY

Petitioner Clifton Freeman is currently incarcerated at the California Training Facility in Soledad, California ("CTF Soledad"). He was convicted of second degree murder in Santa Clara County Superior Court on April 9, 1986, and was sentenced to fifteen-years-to-life with the possibility of parole. (See Docket 8, Exhibit 1.) He has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging the 2005 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Dkt. 1.) 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. 8 and 12.) 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 petition be denied and this action be dismissed with prejudice.

II. BACKGROUND

On June 22, 1985, Mark Heyberz was awakened at 11:30 p.m. when his next door neighbor, petitioner, knocked on his door. (See Dkt. 8, Ex. 2 at 17.) Petitioner asked to borrow an air pump, and Mr. Heyberz advised petitioner that he did not own one. (See id.) After petitioner's discussion with Mr. Heyberz concluded, petitioner saw another neighbor, Toshiko Tojima, doing yard work in front of her residence. (See id. at 18.) Petitioner then "decided he was going to hurt her as she had angered him on previous occasions during the past six to seven years, calling him Frank instead of Clifton. He made the decision to use [a] rock against her as he was crossing the street to her residence." (Id.)

While the victim was busy gardening, petitioner sneaked up behind her and momentarily hid behind a tree to avoid being seen. (See id. at 19.) He picked up a large sharp rock and threw it at her, but the rock missed her. (See id.) He then immediately grabbed another rock and moved within five feet of the victim. (See id.) When he threw the second rock, it hit the victim in the back of the head and knocked her unconscious. (See id.) He started to move the victim, but when she began to move her body and moan petitioner "became scared" and decided to move her back to where she had originally fallen. (See id.) Before returning to his residence, petitioner discarded the two rocks. (See id.) When he got home, he admitted to his brother that he had "hit" the victim. (See id.)

The victim, who was fifty-years-old, was discovered by her nine-year-old son. (See id. at 16.) He summoned the police. (See id.) When officers arrived at the scene, they "observed a woman lying in a pool of blood in a walkway.." (Id.) Although the officers initially believed the victim had received a gunshot wound to the back of her head, x-rays at the hospital revealed that the wound, which measured three-inches around and one-and-a-half to three-quarters of an inch deep and exposed the victim's skull, actually resulted from her being struck by a large blunt object. (See id. at 16-17.) The victim never regained consciousness before she died on June 26, 1985. (See id. at 16.) When questioned by the police, petitioner initially denied having any knowledge regarding the offense. (See id. at 18.) As the interrogation continued, however, petitioner admitted striking her in the head with a rock. (See id.)

During the 2005 parole hearing, petitioner "accept[ed] the [above statement of] facts" regarding the commitment offense. (See id. at 20.) He also explained that he "became very angry at another neighbor, [Mr. Heyberz,] and then [he] took all [his] anger out on Mrs. Tojima." (See id. at 20.) Although petitioner claims he "never intended to kill Mrs. Tojima . [he admits that he] did intend to throw a rock at her, which [he] did stupidly out of anger." (Id. at 21.)

Petitioner was convicted of one count of second degree murder in Santa Clara County Superior Court on April 9, 1986, and sentenced to fifteen-years-to-life with the possibility of parole. (See Dkt. 8, Ex. 2 at 1.) His minimum eligible parole date was set for September 14, 1994. (See id.) The parole denial which is the subject of this petition took place after a parole hearing held on November 2, 2005. (See id. at 105-06.) This was petitioner's third overall parole consideration hearing. (See Dkt. 1 at 4.) As of the date of the 2005 parole hearing, petitioner was thirty-eight-years-old, and had been in custody for approximately twenty years. (See Dkt. 8, Ex. 2 at 32.)

After denial of his 2005 application, petitioner filed habeas corpus petitions in the Santa Clara County Superior Court, California Court of Appeal, and California Supreme Court. (See Dkt. 8, Exs. 3-5.) Those petitions were unsuccessful. (See id.) This federal habeas petition followed. Petitioner contends the 2005 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 2005 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 looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).

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. 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 ...


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