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Jones v. Carey

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 30, 2009

CALVIN JONES, PETITIONER,
v.
TOM L. CAREY, WARDEN, RESPONDENT.

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

REPORT AND RECOMMENDATION

I. SUMMARY

Petitioner Calvin Jones is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted by a jury of first-degree murder in Placer County Superior Court in 1973, and sentenced to seven-years-to-life with the possibility of parole. He has filed a petition for writ of habeas corpus, together with relevant portions of the state court record, under 28 U.S.C. § 2254 challenging his 2005 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Docket 1 at 1-24.) Respondent has filed an answer to the petition, and petitioner has filed a traverse in reply to the answer. (See Dkt. 9; Dkt. 10.) The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends the Court deny the petition, and dismiss this action with prejudice.

II. BACKGROUND

The Life Prisoner Evaluation Report relied upon by the Board during the 2005 parole hearing set forth the following relevant facts:

"In 1969, Calvin Jones and Rosalio Estrada were co-owners of Port City Liquors in Stockton, California. During 1970, Jones and his partner (Estrada) decided to venture into the construction business and took a third partner, Anthony C. Virgilio (the victim) to form the Port City Construction Company. The construction company was suffering financially. On December 31, 1973, at approximately 7 p.m., the Stockton Police found the victim lying in the street on the 400 block of North Sutter Street, near his automobile, suffering from multiple gunshot wounds to the arm, leg, chest, and abdomen, coupled with lacerations to the face. The victim, prior to death, informed authorities that Calvin Jones and Rosalio Estrada were responsible for the shooting; however, he stated neither had actually shot him. According to the victim, he had arrived for a meeting with Calvin Jones at 920 North Hunter Street, but was accosted by another man who shot him. Anthony C. Virgilio died at St. Joseph's Hospital at 9:15 p.m. on December 31, 1973.

Per the Probation Officer's Report (POR), autopsy revealed the victim had been shot at least six times from a .38 caliber handgun. Furthermore, it was learned Jones and Estrada had secured a $100,000 life insurance policy on the victim, shortly before the murder. Jones was not arrested for this offense until April 3, 1980. On June 28, 1983, Jones was found guilty by jury trial of Section 187, California Penal Code, First-Degree Murder. The case was heard in Placer County as a result of a change of venue from San Joaquin County. Charges against Rosalio Estrada were dismissed by the San Joaquin County District Attorney's Office."

(See Docket 9, Exhibit D at 1.)

As discussed above, although the commitment offense occurred on December 31, 1973, petitioner was not convicted by a jury of first-degree murder in Placer County Superior Court until 1983. (See id. at 2.) Petitioner was sentenced to seven-years-to-life with the possibility of parole, and his minimum eligible parole date was set for January 20, 1989. (See Dkt. 1, Ex. A at 1.) The parole denial which is the subject of this petition took place after a parole hearing held on August 1, 2005. This was petitioner's seventh subsequent and eighth overall parole consideration hearing, and his application for parole was denied for three years. (See id. at 21 and 39.) As of the date of the 2005 parole hearing, petitioner was approximately sixty-one-years-old, and had been in custody for twenty-two years. (See id. at 25.)

After denial of his 2005 application, petitioner filed habeas corpus petitions in the Placer County Superior Court, California Court of Appeal, and California Supreme Court. (See Dkt. 9, Exs. E, F, and G.) Those petitions were unsuccessful. (See id.) This federal habeas petition followed. Petitioner contends his 2005 denial by the Board violated his Fifth and Fourteenth Amendment Due Process rights, as well as his Eighth Amendment right to be free from cruel and unusual punishment. 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 "the 'clearly established' framework of Greenholtz and Allen" to California's parole scheme). The Court in Greenholtz determined that although there is no constitutional right to be conditionally released on parole, if a state's statutory scheme employs mandatory language that creates a presumption that parole release will be granted if certain designated findings are made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 12; Allen, 482 U.S. at 377-78.

As discussed infra, California statutes and regulations afford a prisoner serving an indeterminate life sentence an expectation of parole unless, in the judgment of the parole authority, he "will pose an unreasonable risk of danger to society if released from prison." Title 15 Cal. Code Regs., § 2402(a). The Ninth Circuit has therefore held that "California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion, 306 F.3d at 902. To similar effect, Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) held that California Penal Code § 3041 vests all "prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause." This "liberty interest is created, not upon the grant of a parole date, but upon the incarceration of the inmate." Biggs v. Terhune, 334 F.3d 910, 915 (2003). See also Sass, 461 F.3d at 1127.

Because the Board's denial of parole interfered with petitioner's constitutionally-protected liberty interest, this Court must proceed to the second step in the procedural due process analysis and determine whether the procedures accompanying that interference were constitutionally sufficient. "[T]he Supreme Court [has] clearly established that a parole board's decision deprives a prisoner of due process with respect to this interest if the board's decision is not supported by 'some evidence in the record.'" Irons, 505 F.3d at 851 (citing Superintendent v. Hill, 472 U.S. 445, 457 (1985) (holding the "some evidence" standard applies in prison disciplinary proceedings)). The "some evidence" standard requires this Court to determine "whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56. Although Hill involved the accumulation of good time credits rather than release on parole, later cases have held that the same constitutional principles apply in the parole context because both situations directly affect the duration of the prison term. See e.g., Jancsek v. Or. Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987) (adopting the "some evidence" standard set forth by the Supreme Court in Hill in the parole context); accord, Sass, 461 F.3d at 1128-29); Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904.

"The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact," however. Hill, 472 U.S. at 456. Similarly, the "some evidence" standard is not an invitation to examine the entire record, independently assess witnesses' credibility, or re-weigh the evidence. Id. at 455. Instead, it is there to ensure that an inmate's loss of parole was not arbitrarily imposed. See id. at 454. The Court in Hill added an exclamation point to the limited scope of federal habeas review when it upheld the finding of the prison administrators despite the Court's characterization of the supporting evidence as "meager." See id. at 457.

B. California's Statutory and Regulatory Scheme

In order to determine whether "some evidence" supported the Board's decision with respect to petitioner, this Court must consider the California statutes and regulations that govern the Board's decision-making. See Biggs, 334 F.3d at 915. Under California law, the Board is authorized to set release dates and grant parole for inmates with indeterminate sentences. See Cal. Penal Code § 3040 and 5075, et seq. Section 3041(a) requires the Board to meet with each inmate one year before the expiration of his minimum sentence and normally set a release date in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, as well as comply with applicable sentencing rules. Subsection (b) of this section requires that the Board set a release date "unless it determines that the gravity of current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration." Id., § 3041(b). Pursuant to the mandate of § 3041(a), the Board must "establish criteria for the setting of parole release dates" which take into account the number of victims of the offense as well as other factors in mitigation or aggravation of the crime. The Board has therefore promulgated regulations setting forth the guidelines it must follow when determining parole suitability. See 15 CCR § 2402, et seq.

Accordingly, the Board is guided by the following regulations in making a determination whether a prisoner is suitable for parole:

(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.

(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.

15 CCR § 2402(a) and (b). Subsections (c) and (d) also set forth suitability and unsuitability factors to further assist the Board in analyzing whether an inmate should be granted parole, although "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." 15 CCR § 2402(c).

In examining its own statutory and regulatory framework, the California Supreme Court in In re Lawrence recently held that the proper inquiry for a reviewing court is "whether some evidence supports the decision of the Board . that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." In re Lawrence, 44 Cal.4th 1181, 1212 (2008). The court also asserted that the Board's decision must demonstrate "an individualized consideration of the specified criteria, but "[i]t is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." Id. at 1204-05, 1212. As long as the evidence underlying the Board's decision has "some indicia of reliability," parole has not been arbitrarily denied. See Jancsek, 833 F.2d at 1390. As the California courts have continually noted, the Board's discretion in parole release matters is very broad. See Lawrence, 44 Cal.4th at 1204. Thus, the penal code, corresponding regulations, and California law clearly establish that the fundamental consideration in parole decisions is public safety and an assessment of a prisoner's current dangerousness. See id.,at 1205-06.

C. Summary of Governing Principles

By virtue of California law, petitioner has a constitutional liberty interest in release on parole. The parole authorities may decline to set a parole date only upon a finding that petitioner's release would present an unreasonable present risk of danger to society if he is released from prison. Where the parole authorities deny release, based upon an adverse finding on that issue, the role of a federal habeas court is narrowly limited. It must deny relief if there is "some evidence" in the record to support the parole authority's finding of present dangerousness. The penal code, corresponding regulations, and California law clearly support the foregoing interpretation.

V. PARTIES' CONTENTIONS

Petitioner contends that the Board violated his state and federal due process rights by finding him unsuitable for parole without any evidence that he poses an unreasonable risk of danger to society if released from prison.*fn2 (See Dkt. 1 at 5.) In addition, petitioner argues the Board failed to consider or give appropriate weight to evidence suggesting that petitioner was suitable for parole. (See id. at 4-7.) He also claims that the Board improperly considered views expressed by the San Joaquin District Attorney, including a letter alleging "elements that [were] not proven by a jury [at the] trial." (Id. at 20-21.) Finally, petitioner contends that the Board "has failed to 'reset' petitioner's term . as an indeterminate sentence prisoner (ISL) whose crime was committed before July 1, 1977," and that his indeterminate life sentence constitutes cruel and unusual punishment because it is disproportionate to his crime. (Id. at 9-20.)

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. 9 at 6-9.) Accordingly, respondent argues that petitioner's due process rights were not violated by the Board's 2005 decision, and the Placer 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 7-9.)

VI. ANALYSIS OF RECORD IN THIS CASE

A. State Court Proceedings

After the Placer County Superior Court denied his habeas petition, petitioner filed habeas petitions in the California Court of Appeal and California Supreme Court. (See id., Exs. E-G.) Both petitions were summarily denied. (See id. at F and G.) 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 Placer 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, but also cited petitioner's pattern of criminality, insufficient psychological evaluation, and opposition from the San Joaquin District Attorney. (See Dkt. 1, Ex. A at 35-40.) 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 35.)

1. Petitioner's Commitment Offense

The Board primarily relied upon the circumstances of the commitment offense to find petitioner unsuitable for parole. (See id. at 35-36.) Petitioner hired a "hit man" to murder the victim in order to collect proceeds from a life insurance policy he had taken out without the victim's knowledge. The panel explained that petitioner has "taken a position that [he] did not do it, but as [the Board] indicated all along, we have to take the position that [petitioner] did. That's what the record indicates and that's what we have to go on.." (Id. at 35.)

After reviewing the facts of the crime, the Board concluded the offense was "carried out in [an especially] cruel and callous manner. [It was also] carried out in a dispassionate and calculated manner, such as an execution style murder." (Id.) See 15 CCR § 2402(c)(1)(B) and (D). In addition, the Board found "[t]he motive for the crime [to be] inexplicable or very trivial in relation to the offense.." (Dkt. 1, Ex. A at 35-36.) See 15 CCR § 2402(c)(1)(E). Specifically, petitioner was motivated by the possibility of financial gain, because after petitioner "hired or engaged somebody else to do the killing, [he] later went back [and attempted] to collect on the life insurance policy" for approximately ten years following the victim's death. (Dkt. 1, Ex. A at 36.) The Board concluded that "the aggravated nature of [petitioner's] offense and the circumstances [in] which [petitioner] committed [it] caused us great concern." (Id.) Thus, the facts of petitioner's commitment offense, a premeditated murder carried out by a hired killer for financial gain, provide "some evidence" to support the Board's conclusion that petitioner would pose an unreasonable risk of danger to society or threat to public safety if released from prison. (Id. at 35.)

2. Petitioner's Pattern of Criminality

The Board also relied upon petitioner's lengthy pattern of criminality to find him unsuitable for parole. In order to make a suitability determination, the Board is required to consider "[a]ll relevant, reliable information available to the panel ... including [a prisoner's] past criminal history, [such as] involvement in other criminal misconduct which is reliability documented, [and] behavior before, during and after [the base and other commitment offenses]...." 15 CCR § 2402(b).

In its decision, the Board pointed out that after the victim's death, petitioner tried to recover the insurance proceeds "for some close to ten years after the incident. And during that period of time, [he was] not free from other involvement in criminal activity as indicated by [petitioner's] arrest for arson, arrest for insufficient funds, and both of those were ultimately dismissed, but they involved, again, criminal activity looking towards gaining money and by other means." (Dkt. 1, Ex. A at 36-37.) In addition, petitioner was "convicted of violations of federal narcotics laws [for] the sale of cocaine, an economic crime, and sentenced to three years in federal prison. [He was also charged with] assault with a deadly weapon during the time that [he was] out on appeal bond from [the narcotics] conviction." (Id. at 37.) Although petitioner's narcotics charge was ultimately dismissed as a result of the instant murder conviction, the Board noted that this dismissal "should not be considered as being indicative of the lack of the liability of that offense." (Id.) Finally, the Board considered petitioner's institutional history, including his most recent disciplinary violation for conspiracy to introduce a controlled substance into the prison, which the Board noted "indicates a pattern of criminality exceeding 20 years. That pattern of behavior [caused the Board] great concern and ultimately resulted in termination of suitability." (Id. at 37.) Thus, petitioner's pattern of criminality, including illegal conduct committed after the instant offense but prior to his conviction, provides "some evidence" to support the Board's conclusion that petitioner would pose an unreasonable risk of danger to society or threat to public safety if released from prison.

3. Petitioner's Insufficient Psychological Evaluation

The Board also considered petitioner's insufficient psychological evaluation during the hearing. The applicable regulations require the Board to consider a prisoner's "past and present mental state" and "past and present attitude toward the crime.." See 15 CCR § 2402(b). With respect to petitioner's October 17, 2002, psychological report prepared by Dr. VanCourving, which assessed petitioner's "present risk of danger to the community" as low, the Board found that it "can't give [the psychologist's assessment] that much credence because there are [problematic] factors that she relies upon . [For example,] she assumes [petitioner's] version of what occurred." (Dkt. 1, Ex. A at 38.) The Board also observed that the report is "either inaccurate or she has a lack of information to assess factors . [a]nd it's interesting to note [given petitioner's] history of narcotics traffic[king], the indication [in the report] somehow that [petitioner does] not have a narcotics problem. So, we discount the nature of the report although it's favorable.." (Id.) After reviewing the psychological report, this Court finds "some evidence" in the record to support the Board's finding that the psychological report, although positive, does not provide "relevant, reliable" evidence of petitioner's suitability for parole.

4. Opposition by the District Attorney

Petitioner contends that the Board erred by expressly considering a letter from the San Joaquin District Attorney dated July 16, 2005, which opposed petitioner's release on parole. (See Dkt. 1 at 19-20; id., Ex. A at 38.) In the letter, the District Attorney summarized the offense, and argued that petitioner should be found unsuitable for parole because, among other reasons, he "has failed to upgrade vocationally, [as his] last documented vocational program was drafting in 1985." (Id., Ex. A at 20.) The District Attorney also asserted that until petitioner "accepts responsibility for the death of [the victim], upgrades vocationally, and shows proof of employment opportunities, it is the opinion of our office that parole [should] be denied.." (Id.)

In addition to his argument regarding the January 2005 letter, petitioner asserts that the Board improperly considered another letter dated January 31, 2000, which was submitted by the District Attorney at a prior hearing. (See Dkt. 1 at 20-21; id., Ex. D.) Specifically, petitioner claims the January 2000 letter, which explained the reason for the delay of approximately ten years before petitioner was arrested for his crime, alleged "elements that [were] not proven by a jury [at the] trial." (Id. at 20-21.) Petitioner contends that due to the Board's consideration of the District Attorney's unsubstantiated allegations, "[an] evidentiary hearing must be Ordered [to] afford to Petitioner his constitutional rights under the Fifth, Sixth, and Fourteenth Amendment to have a jury trial on all issues raised by the Prosecution.." (See id. at 22.)

Petitioner's arguments regarding the July 2005 letter are unavailing. 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 provides that a prosecutor may represent "the interests of the people" at a parole hearing, 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 did not solely rely upon the District Attorney's statements to find petitioner unsuitable for parole, but also considered other reliable evidence of unsuitability, its consideration of the District Attorney's July 2005 letter during its analysis was not arbitrary and capricious.

Although the Board did not expressly discuss the District Attorney's January 2000 letter during the hearing, this Court can reasonably assume that the Board reviewed the letter as part of petitioner's central file at the institution. California law does not require the Board to limit its consideration to information "proven" at trial, as petitioner claims. Rather, the regulations require the Board to consider "[a]ll relevant, reliable information available to the panel" in order to determine whether, "in the judgment of the panel [a] prisoner will pose an unreasonable risk of danger to society if released from prison." See 15 CCR § 2402(a) and (b). Petitioner fails to provide any evidence demonstrating that the information contained in the District Attorney's January 2000 letter constitutes "unreliable" information.

Finally, regardless of whether the Board's consideration of the District Attorney's January 2000 letter constituted an error under California law, it cannot serve as a basis for federal habeas relief. As discussed above, the Board's parole denial does not violate due process unless there is no reliable evidence in the record which could support its finding that the petitioner presents an unreasonable risk to society. Although the January 2000 letter contained additional factual information regarding petitioner's offense which was unfavorable to him, the facts upon which the Board relied were also supported elsewhere in the record. (See Dkt. 1, Ex. D at 1-2.) As discussed below, there was sufficient evidence in the record to deny parole without any consideration of the District Attorney's allegations. Accordingly, petitioner is not entitled to an evidentiary hearing, or habeas relief, based upon this claim.

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's "institutional record is fine. [Petitioner has] done well in here. [He has] broken no law, other than as indicated. Apparently now, not a disciplinary problem, and [he is] commended for those activities." (Id., Ex. A at 37-38.) Despite the San Joaquin District Attorney's arguments to the contrary, the Board also found that petitioner's "parole plans, as indicated at this stage, seem to be viable. We understand that it's hard to assess what you might do with respect to your disability until that disability is fully assessed by (indiscernable). As it is, [petitioner seems] to have made [reasonable] plans should [he] be released." (Id. at 38-39.) 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, including factors which favored petitioner. (See Dkt. 1 at 4-7.)

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 asserted that "given the nature of [his] offense and the longevity of it . [petitioner needs to] demonstrate a continued period of crime free behavior within the institution to assure society that the egregious commitment offense and [petitioner's other] criminal history" will not be repeated upon his release. (Dkt. 1, Ex. A at 39.) It also ordered a new psychological evaluation to be completed before petitioner's next parole hearing. (See id. at 40.) Thus, the Board's finding that petitioner would pose an unreasonable risk of danger to society or threat to public safety if released on parole within the following three years was reasonable, and supported by "some evidence" in the record. (See id. at 39 and 35.)

C. Petitioner's Eighth Amendment Claim

Petitioner contends that the Board violated his constitutional rights, including his right to be free from cruel and unusual punishment under the Eighth Amendment, by failing "to 'reset' petitioner's term . as an indeterminate sentence prisoner (ISL) whose crime was committed before July 1, 1977.." (Dkt. 1 at 9.) Because petitioner committed his first- degree murder offense in 1973, when the ISL was still in effect, he received an indeterminate sentence of seven-years-to-life when he was convicted and sentenced in 1983. (See Dkt. 1 at 2; id., Ex. E at 1.) Here, petitioner specifically challenges the Board's failure to fix a definite term of "no more than 25 years . [because] there is no such thing as a life maximum for those who are serving a [term of] life with the possibility of parole.." (Id. at 14.) As support for his assertions, petitioner cites the California Supreme Court decision In re Rodriguez, which held that a prisoner whose maximum term was disproportionate to his individual culpability had a right to a proportionate sentence to avoid the imposition of cruel and unusual punishment. (See id. at 12.) See also In re Rodriguez, 14 Cal.3d 639, 651-52 (1975). As explained below, petitioner's arguments are based upon a misunderstanding of California's repealed ISL and relevant case law, and are therefore without merit.

Under the ISL, which was California's pre-1977 sentencing regime, "almost all convicted felons received indeterminate terms, often with short minimums and life maximums. Within this broad range, the parole authority was given virtually unbridled statutory power to 'determine and redetermine, after the actual commencement of the imprisonment, what length of time, if any, such person shall be imprisoned," and when to allow those prisoners to be released on parole. Dannenberg, 34 Cal.4th at 1088. The ISL did not require the parole authority to fix prisoners' terms at anything less than the statutory maximum. See Cal. Penal Code § 3041.

The unbridled discretion afforded to the parole authority by the ISL attracted criticism by reformers, and would eventually lead to the enactment of the Determinate Sentencing Law ("DSL") in 1977. While the ISL was still in effect, however, "[c]ontemporaneous court decisions and administrative developments, addressing problems in the indeterminate sentencing law," attempted to respond to some of these criticisms. Dannenberg, 34 Cal.4th at 1089. For example, petitioner cites the Chairman's Directive 75/20, which was issued by the parole authority in April 1975. (See Dkt. 1 at 12.) Directive 75/20 "creat[ed] a structure for setting parole dates based on listed ranges and factors. Following this directive, numerous hearings were conducted to abolish the [parole authority's] practice of deferring a decision on parole and to establish fixed parole dates for almost all inmates [under the ISL]." Dannenberg, 34 Cal.4th at 1089. See also In re Stanley, 54 Cal.App.3d 1030, *3 (1975) (providing that Directive 75/20 "establishes [for each prisoner] a base offense . [and] then directs selection of either a typical or aggravated range for the base offense."). The California Court of Appeal later invalidated Directive 75/20, however, because it failed to base prisoners' parole release dates upon all factors relevant to their suitability for parole, such as post-conviction behavior. See Stanley, 54 Cal.App.3d at *8-9.

In 1975 the California Supreme Court held that depending upon the particular circumstances of the offense, a life-maximum sentence may be so grossly disproportionate to the crime, such as assault with force likely to produce great bodily injury (under former Cal. Penal Code § 245(a)), as to constitute cruel or unusual punishment under the Eighth Amendment. People v. Wingo, 14 Cal.3d 169, 175-180 (1975). Specifically, the Wingo court held that if an actual release date has been set by the Board, the proportionality of an indeterminate sentence should be measured by that date. See id. at 183. The Supreme Court recognized that term-setting by the Board was not mandatory, however, when it provided that "[i]f the [parole authority], either by omission or by the exercise of its discretion, fails or declines within a reasonable time to set a term, the particular conduct will be measured against the statutory maximum [for the offense]." Id. at 184.

The case cited by petitioner, In re Rodriguez,was issued only two months after Wingo and expanded upon the parole authority's term-fixing responsibilities under the ISL. In that case, the California Supreme Court found that an inmate who had received the statutory sentence of one-year-to-life for a single incident of lewd and lascivious conduct upon a child under the age of fourteen had received a constitutionally disproportionate sentence for his crime. Rodriguez, 14 Cal.3d at 644; Dannenberg, 24 Cal.4th at 1089. The Rodriguez court then found that, as applied to that particular prisoner, the twenty-two years already served in prison was excessive, and constituted cruel and unusual punishment. Rodriguez, 14 Cal.3d at 653-54. In addition, the Rodriguez court reasoned that the ISL must be construed as requiring the parole authority to set actual maximum terms for all inmates that are proportionate to their culpability, a duty derived from former § 3020, which is distinct from the parole authority's power under § 3040 to decide if and when the prisoner is ready for parole. Id. at 652.

Thus, Wingo and Rodriguez established that the Board should set a term of years for ISL prisoners, which is presumed to be the statutory maximum of the prisoners' sentence if no other term has been set by the Board. In petitioner's case, no term of years beyond his indeterminate sentence of seven-years-to-life has been explicitly set by the Board. As a result, this Court presumes that petitioner's term is the statutory maximum, life imprisonment, for his first-degree murder offense.

To the extent that petitioner's argument that his life sentence is unconstitutionally disproportionate is based upon state law, his claim is not cognizable in this Court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Furthermore, to the extent that petitioner's claim is based upon federal law, it is also unavailing. The United States Supreme Court has held that a life sentence is constitutional, even for a non-violent property crime. See Rummel v. Estelle, 445 U.S. 263, 274 (1980) (upholding a life sentence with the possibility of parole, imposed under a Texas recidivist statute, for a defendant convicted of obtaining $120.75 by false pretenses, an offense normally punishable by imprisonment for two to ten years); Harmelin v. Michigan, 501 U.S. 957, 962-64 (1990) (upholding a sentence of life without the possibility of parole for a defendant convicted of possessing more than 650 grams of cocaine, although it was his first felony offense). Accordingly, a life sentence for a first-degree murder such as that committed by petitioner would not constitute cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. See Banks v. Kramer, 2009 WL 256449 (E.D. Cal. 2009) (unpublished) (holding that a Board's refusal to release a prisoner who was sentenced to sixteen years-to-life for murder does not constitute cruel and unusual punishment). The Board's parole denial, and failure to "fix" the duration of petitioner's sentence, did not violate his constitutional rights.

D. Placer County Superior Court Decision

The Placer County Superior Court's summation of the Board's findings during the 2005 hearing contained several inaccuracies. (See Dkt. 9, Ex. E at 2.) For example, the superior court erroneously stated that the Board found "Petitioner shot his business partner six times," and petitioner's "counselor found petitioner to be 'an unpredictable degree of threat to the public' if released." (Id.) The Board actually found that petitioner was convicted of first-degree murder for hiring another person to shoot the victim on his behalf, and that petitioner's October 17, 2002, psychologist's report assessed petitioner's "present risk of danger to the community" as low. (See Dkt. 1, Ex. A at 7-8, 35-36, and 38.)

The fact that petitioner hired someone else to commit a murder, however, does not diminish petitioner's commitment offense as a factor tending to indicate unsuitability for parole. Furthermore, the Board ultimately discounted "the nature of the [psychological] report although it's favorable" to petitioner because, among other reasons, the psychologist apparently assumed petitioner's version of the crime. (Id. at 38.) Thus, despite the inaccuracies in the Placer County Superior Court's summation, this Court finds that the superior court correctly concluded that there was "some evidence" in the record to support the Board's parole denial.

VII. CONCLUSION

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 August 1, 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 Placer 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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