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Freeman v. Sisto


September 15, 2009


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



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.


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.


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)).


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); Sass, 461 F.3d at 1128-29 (holding the same); Biggs, 334 F.3d at 915 (holding the same); McQuillion, 306 F.3d at 904 (holding the same). "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." Id., 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 this definition of the issues.


Petitioner contends that the Board violated his federal due process rights by finding him unsuitable for parole without "some evidence" that he posed an unreasonable risk of danger to society if released from prison as of November 2, 2005, the date of the hearing. (See Dkt. 1 at 6.) Specifically, petitioner claims the Board improperly relied upon immutable facts, such as the nature of the commitment offense, to deny him parole. (See id. at4-6.) He also argues that the Board's parole denial "offends due process and deprives Petitioner and those similarly situated of equal protection under the law," because the Board should have conducted a "proportionality analysis" before finding him unsuitable for parole. (Id. at 7-9.) Finally, petitioner asserts that the Board and Governor of California have implemented a "no-parole policy" for life prisoners, in violation of his constitutional rights. (See id. at 6-7.)

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. 8 at 3-12.) Accordingly, respondent argues that petitioner's constitutional rights were not violated by the Board's 2005 decision, and the Santa Clara County Superior Court's Order upholding the Board's 2005 parole denial was not an unreasonable application of clearly established federal law. (See id. at 11-12.)


A. State Court Proceedings

After the Santa Clara County Superior Court denied his habeas petition, petitioner filed habeas petitions in the California Court of Appeal and California Supreme Court. (See id., Exs. 3-5.) Both petitions were summarily denied. (See id.) Respondent admits that petitioner's habeas petition was timely, and petitioner properly exhausted each of his claims before the California Supreme Court. (See id. at 3.) This Court reviews the Santa Clara County Superior Court's Order upholding the Board's decision to determine whether it meets the deferential AEDPA standards, as it is the last reasoned state court decision. See Ylst, 501 U.S. at 803-04.

B. Petitioner's Due Process Claim

The Board based its decision that petitioner was unsuitable for parole primarily upon his commitment offense and history of severe mental problems related to the offense, but also cited petitioner's prior criminal record and opposition by law enforcement and the victim's surviving spouse. (See Dkt. 8, Ex. 2 at 98-105.) The Board's findings tracked 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 104.)

1. Petitioner's Commitment Offense and Psychological Problems

The Board primarily relied upon the circumstances of petitioner's commitment offense, as well as petitioner's history of severe mental problems related to the offense, to find him unsuitable for parole. (See id. at 98-102.) Specifically, the panel found that the offense "was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering, in that the victim's nine-year-old son discovered her bloodied and unconscious body and had to call for help, and indeed, this must [have] caused him significant emotional problems and trauma . most likely throughout his life." (Id. at 99.) See also 15 CCR § 2402(c)(1)(D). In addition, the Board found that "the motive for the crime was inexplicable or very trivial in relation to the offense . as, according to the record, it was because the victim had repeatedly called [petitioner] by the wrong name." (Dkt. 8, Ex. 2 at 98-99.) See also 15 CCR § 2402(c)(1)(E). The Board therefore concluded that "the offense was carried out in an especially cruel and callous manner." (Dkt. 8, Ex. 2 at 98.)

The Board also "not[ed] that [petitioner was] subsequently found to have significant mental health issues and that might [have] played a part in this crime." (Id. at 99.) California law provides that "psychological factors," including a prisoner's "lengthy history of severe mental problems related to the offense," must be considered by the Board as a factor tending to indicate unsuitability for parole. See 15 CCR § 2402(c)(5). Petitioner was diagnosed in the mid-1980s as a paranoid schizophrenic with auditory and visual hallucinations, as well as antisocial personality disorder. (Dkt. 1, Ex. C at 2.)*fn2 His most recent psychological evaluation, dated October 21, 2005, described petitioner as a "solitary child who heard and saw 'demons,'" and who attempted to commit suicide at least three times by driving a motorcycle off a mountain, swallowing a fork, and hanging himself. (Id.) The psychologist observed that petitioner "currently takes Celexa and Vistaril," medications which "[have] assisted him greatly," and noted that "[c]ontinuing with this program is indicated, if parole is granted." (Id. at 2-3.) Despite petitioner's history of mental illness, the psychologist asserted that petitioner would pose "less risk of violence than the average citizen in the community. The substantial number of years he has served, along with his work and living plans, should hold him in good stead." (Id. at 4.) Thus, the psychologist's assessment that petitioner has an "[above-average] likelihood of . remaining violence and crime-free" appears largely dependent upon petitioner's ability to continue his current regime of psychiatric medication once released into the community. (See id. at 2-4.)

During the hearing, the Board questioned petitioner about the drug administration process at CTF Soledad, and asked whether he would ever consider "going off the meds." (See Dkt. 8, Ex. 2 at 59 and 63.) Petitioner responded, "I know that I need my medicine. And [there have been] a lot of incidents . since I've been incarcerated . [such as] the medicine being tampered with or me not having it." (Id. at 59.) After a certain period of time without proper medication, "I start to feel something and so I immediately go in and talk to them [to obtain the proper dosage of medicine]." (Id.) Petitioner also explained that although the medical personnel at the prison have expressed a desire to reduce petitioner's dosage, or even wean him off the medication altogether, petitioner does not think it is a good idea. (See id. at 63.) When challenged on this point by the Santa Clara County District Attorney, petitioner insisted, "I'm not going to stop taking my meds." (Id. at 69.)

The record contains ample evidence that petitioner's paranoid schizophrenia was a leading cause of his commitment offense. Because the psychologist's favorable risk assessment was apparently based upon the assumption that petitioner would continue to take the proper dosage of his psychiatric medications if released on parole, the Board's one-year parole denial to give petitioner additional time to "demonstrate an ability to maintain [his] gains over an extended period of time" was reasonable. (Id.) The Board could reasonably conclude that it was uncertain whether petitioner could maintain hisrecent gains outside the structured environment of CTF Soledad, especially because there was apparent disagreement between petitioner and the medical personnel at CTF Soledad regarding the "correct" dosage of petitioner's medications. In its decision, the Board noted that petitioner had been incarcerated for approximately twenty years, but had only remained discipline-free since 1999. Although 1999 marked petitioner's start "on this path of progress . approximately six years [of discipline-free behavior] out of 20 is fairly recent [improvement]." (Id. at 103.) As a result, the Board found that "we definitely need to make sure that you keep on the good track that you are currently on." (Id.) Accordingly, the Board's conclusion that petitioner's behavior if released would be "unpredictable," and therefore present an unreasonable risk of danger to society, was supported by "some evidence" in the record.

Although the Santa Clara County Superior Court disagreed with the Board's discussion of petitioner's commitment offense, it agreed that petitioner's history of severe mental illness necessitated additional observation before he should be released on parole.

Specifically, the superior court asserted that "the Board erred in calling the crime 'exceptional' and finding a 'disregard for human suffering'" because "the only evidence was that the victim was rendered unconscious almost immediately.." (Dkt. 8, Ex. 3 at 1.) In addition, the superior court stated that the Board was precluded from "finding that Petitioner's motive was inexplicable or trivial (because the motive was rooted in Petitioner's mental illness).." (Id.) Because petitioner does have a "lengthy history of severe mental problems related to the offense," however, the superior court also concluded that the Board's "parole denial, for one year, can withstand constitutional scrutiny" on that basis. (Id.)

2. Petitioner's Criminal Record

The Board also relied upon petitioner's previous criminal record to find him unsuitable for parole. The Board is required to consider a prisoner's "past criminal history, including involvement in other criminal misconduct which is reliably documented" when making a determination regarding a prisoner's suitability for parole. See 15 CCR § 2402(b). Furthermore, the California Court of Appeal has approved the consideration of arrests, without convictions, in determining suitability for parole. See In re Gilbert Fuentes, 135 Cal.App.4th 152, 163 (2005) (finding "some evidence, based on the nature of the commitment offense and [the prisoner's] prior criminality, to support the Board's denial of parole.").

The Board noted that although petitioner was only seventeen-years-old at the time of the commitment offense, he already "had six juvenile arrests for burglary, grand theft, and malicious mischief, [he] had a stay at the juvenile ranch [prior to the commitment offense], and [was] actually on a ranch for a while at the time of this offense." (Dkt. 8, Ex. 2 at 102.) Petitioner admitted to the panel that he was staying at the California Youth Authority, which he calls the "boy's ranch," during the week of the commitment offense, and claimed he "kept having visions and stuff coming in [his] mind.." (See id. at 24-25.) Thus, there was "some evidence" in the record to support the Board's finding that petitioner's criminal history tends to indicate unsuitability for release on parole.

3. Opposition by Law Enforcement and the Victim's Surviving Spouse

During the hearing, the Board also considered opposition to petitioner's release on parole by the Santa Clara County District Attorney, San Jose City Police Department, and the victim's surviving spouse. (See id. at 47-49 and 102-03.) Specifically, the district attorney attended the hearing, and described petitioner's "documented history of some difficulty controlling impulses.." (Id. at 80.) The victim's husband did not attend the hearing, but wrote a letter to the Board describing the pain he and his son suffered as a result of the victim's sudden death and absence from their lives. (See id. at 48-49.) He also asked the Board to keep petitioner in prison for the duration of his life sentence. (See id. at 49.)

In making its suitability determination, the Board must "take into account all pertinent information and input about the particular case from the inmate's victims, the officials familiar with his or her criminal background, and other members of the public who have an interest in the grant or denial of parole to this prisoner." In re Dannenberg, 34 Cal.4th 1061, 1086 (2005). California law affords a deceased victim's next of kin or immediate family members the opportunity to make a statement at the prisoner's parole hearing. See 15 CCR § 2029. In addition, a prosecutor may attend a parole hearing to represent "the interests of the people," and may "comment on the facts of the case and present an opinion about the appropriate disposition." See Cal. Penal Code § 3041.7; 15 CCR § 2030. See also Rosenkrantz v. Marshall, 444 F. Supp. 2d 1063, 1080 n.14 (C.D. Cal. 2006) (noting that in the absence of other reliable evidence of unsuitability in the record, opposition by law enforcement based upon the nature of the commitment offense does not constitute "some evidence" to support parole denial). Because the Board relied upon other reliable evidence of petitioner's unsuitability for parole, in addition to its consideration of opposition by law enforcement and the victim's surviving spouse, its finding that petitioner would present an unreasonable risk of danger to society if released on parole was not arbitrary and capricious.

4. Petitioner was Afforded Due Process of Law

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 noted that petitioner appears to have realistic parole and employment plans in Solano County, as well as the marketable skill of vocational janitorial maintenance. (See Dkt. 8, Ex. 2 at 102.) In addition, the Board commended petitioner for remaining discipline free since 1999, and completing substantial self-help programming in prison, such as Alcoholics Anonymous and other substance abuse education classes, Buddhist meditation study, the lifers' group, creative writing and play writing, the prison arts project, Breaking Barriers, Framework for Recovery, anger management courses, and earning laudatory chronos for his work in several vocations. (See id. at 103-04.) It is therefore an inaccurate characterization of the record to say that the Board failed to provide petitioner with an individualized consideration of all relevant factors, and only relied upon immutable facts such as the commitment offense to find him unsuitable for parole. (See Dkt. 1 at 4-6.)

As mentioned above, however, 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 found that "these positive aspects of [petitioner's] behavior do not outweigh the factors of unsuitability." (Dkt. 8, Ex. 2 at 104.) The Board issued a one-year denial, which reflected the "significant progress" made by petitioner since his previous hearing, at which he received a three-year denial. (See id. at 98.) Although "[petitioner has] done amazingly well, amazingly well," the Board ultimately determined that it needed "to see at least some more time in evidence that [he is] going to continue on this path.." (Id. at 104-05.) It also asserted that petitioner should seek additional "therapy in order to face, discuss, understand, and cope with stress in a nondestructive manner. Until progress is made, [petitioner] continues to be unpredictable and a threat to others." (Id. at 103.) In light of petitioner's lengthy history of severe mental illness related to the offense, the Board could reasonably conclude that "a longer period of observation and evaluation is required before the Board should find that [petitioner is] suitable for parole." (Id. at 98.) The Board's parole decision was therefore supported by "some evidence" in the record.

This court is aware that in 2007, approximately two years after the denial challenged in this case, the Board denied a subsequent application by petitioner for parole. Petitioner filed a separate federal habeas petition on April 24, 2009, challenging that 2007 denial. See Freeman v. Sisto, case no. 2:09-cv-01180-KJM. This court has not reviewed, however, the evidence presented to the Board at the 2007 hearing, as the issue in this case is whether there was "some evidence" in the record before the 2005 Board to support its decision. Certainly, the degree to which petitioner has been successful in dealing with his mental illness, and his positive or negative institutional behavior during the interim between parole hearings, would be highly relevant to the decision of the Board in 2007 decision. Indeed, by deferring any further parole consideration for a year, the 2005 Board was affording petitioner the opportunity to demonstrate his sustained progress in all of these respects. But evidence as to whether he was successful in doing so during the interim period was not and could not have been considered by the 2005 Board, so is not properly considered by this court in reviewing the 2005 denial.

C. Petitioner's Equal Protection Claim

Petitioner contends that his right to equal protection under the law was violated by the Board, because "proportionality must be considered as part of the suitability determination in order to determine what length of term does fit the crime." (Dkt. 1 at 7-10.) Specifically, he claims that "[t]he Board is required to find [an] inmate suitable and set a release date . with the exception being a very limited class of cases where the crime is so egregious in comparison to other similar offenses that a parole date cannot be fixed . [at the] initial parole consideration hearing." (Id. at 8.) Petitioner also argues that his period of incarceration has exceeded the "Matrix Category for his offense.." (See id. at 5.)

The petition offers little support for petitioner's equal protection claim, and respondent fails to address this issue on the merits. (See id. and Dkt. 8). Contrary to petitioner's assertions, California law does not require the Board to conduct a comparative analysis of the period of confinement served by other prisoners with similar crimes, nor does it require the Board to refer to the sentencing matrices. See In re Dannenberg, 34 Cal.4th 1061, 1083-84 (2005) (holding whether an inmate poses a current danger is not dependent upon whether his commitment offense was more or less egregious than other, similar crimes). Instead, the Board is required to review the specific facts of each case and to make an individualized determination of whether that prisoner is suitable for parole. See Lawrence, 44 Cal.4th at 1221. Petitioner's allegations, without more, fail to establish an equal protection violation. The Court therefore finds that petitioner's equal protection claim lacks merit.

D. Petitioner's "No Parole Policy" Claim

Finally, petitioner contends that "the Board has ignored the [governing] statute[s], adopting its own policy of denying parole to virtually all term-to-life inmates." (Dkt. 1 at 5.) In addition, he argues that "the Executive Branch has also implemented an illegal policy under which it fails to follow the mandate of Penal Code § 3041 that parole dates 'shall normally' be set, resulting in routine summary denials of parole without meaningful review of the facts." (Id. at 5-6.)

As discussed above, petitioner's case received individualized consideration by the Board during his 2005 parole hearing. Furthermore, petitioner failed to provide any facts to support his claim that the Board or Governor of California has instituted a "no-parole policy" for prisoners with indeterminate life sentences. (See id. at 6-7.) Conclusory allegations, without more, cannot provide a basis for habeas relief. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (stating that conclusory allegations are not sufficient to support habeas relief). Accordingly, petitioner's claim is unavailing.

E. Santa Clara County Superior Court Decision

In a reasoned decision denying petitioner's request for habeas relief, the Santa Clara County Superior Court concluded that the Board's 2005 "parole denial, for one year, can withstand constitutional scrutiny." (See Dkt. 8, Ex. 3 at 1.) As discussed above, the superior court found that although the Board was precluded from finding that petitioner's motive for the offense was inexplicable or trivial because it was rooted in petitioner's mental illness, there was "some evidence" to support the Board's unsuitability determination because petitioner has a "lengthy history of severe mental problems related to the offense." (See id.)


As stated above, it is beyond the authority of a federal habeas court to determine whether evidence of suitability outweighs the circumstances of the commitment offense, together with any other reliable evidence of unsuitability for parole. 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. Although the Board praised petitioner's recent progress in prison, it determined that petitioner remains unpredictable, and therefore an unreasonable risk of danger to society if released. Because the state court decision upholding the Board's findings satisfies the "some evidence" standard, there is no need to reach respondent's argument that another standard applies.

Given the totality of the Board's findings, there is "some evidence" that as of November 2, 2005, the date of the parole decision challenged in this case, petitioner's release on parole would have posed an unreasonable risk of danger to society or threat to public safety if released from prison. The Santa Clara County Superior Court's Order upholding the Board's decision was not contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of facts. I therefore recommend that the Court find that petitioner's due process rights were not violated, and that it deny his petition and dismiss this action 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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