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Svelund v. Sisto

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 15, 2009

JOHN D. SVELUND, 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 John Svelund is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted by a jury of one count of second degree murder in Los Angeles County Superior Court on October 23, 1987. He is currently serving a sentence of fifteen-years-to-life with the possibility of parole and has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2005 parole denial by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Docket 1.)

Respondent has filed an answer to the petition contending that the Court should dismiss the petition as untimely under the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (See Dkt. 10 at 12-14.) In addition, respondent contends petitioner has failed to exhaust his state court remedies. (See id. at 5.) Petitioner filed a traverse in reply to the answer asserting that the petition was timely and that he properly presented his federal claims to the California state courts. (See Dkt. 12.)

The briefing in this case also includes respondent's response to the Court's October 2, 2008, Order directing the parties to show cause why this action should not be administratively stayed pending the Ninth Circuit Court of Appeals' decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008). (See Dkt. 15 at 2.) That Order was entered by the Hon. Gregory G. Hollows before this case was transferred to the Hon. Robert S. Lasnik. Respondent asserts that an administrative stay is in the best interest of the parties. (See Dkt. 16.) Petitioner did not respond to the Court's Order. The court neither entered a stay, nor ruled that a stay is inappropriate.

Finally, petitioner moves the Court to take judicial notice of a Santa Clara Superior Court Order entered in an unrelated habeas case that contains statistical evidence suggesting that the Board regularly applies the commitment offense unsuitability factor in an arbitrary manner. (See Dkt. 13.) Because petitioner brings this evidence to the Court's attention as further support for the arguments set forth in his petition, I recommend petitioner's request for judicial notice be construed as supplemental briefing in support of his petition.

Thus, the briefing is now complete and this matter is ripe for review. The Court, having thoroughly considered the record, recommends the Court find that while the petition is timely, a stay is not warranted at this late stage in the proceedings, and the petition should be denied on the merits and this action dismissed with prejudice.

II. TIMELINESS

Respondent contends the petition should be dismissed as it is barred by the one-year statute of limitation set forth in AEDPA. (See Docket 10 at 5 & 12-14.) Specifically, respondent contends that the limitations period began to run the day after the Board rendered its May 25, 2005, decision and, thus, when petitioner filed his federal habeas corpus petition in this Court on June 12, 2007, 747 days had passed, well-exceeding the one-year limitations period. (See id. at 13.) Petitioner claims respondent "misrepresents the timetable" and that his petition was timely filed. (See Dkt. 12 at 4.) Petitioner is correct.

First, it is undisputed that AEDPA's provisions are applicable in this case, as Congress enacted AEDPA on April 24, 1996, and made it applicable to all federal habeas corpus petitions filed on or after its effective date. See 28 U.S.C. § 2244(d)(1). As stated above, petitioner filed his federal habeas corpus petition in 2007.

AEDPA provides a one-year period of limitations on all petitioners seeking to file federal habeas corpus petitions. 28 U.S.C. § 2244(d)(1). According to § 2244(d)(1) and (2), as amended, the limitation period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Id.

Typically, the period of limitations begins to run from the date the petitioner's state court judgment became final. Where a petitioner is challenging an administrative decision, as in this case, the Ninth Circuit has held that direct review is completed and the statute of limitations begins to run when the final administrative appeal is denied. See Shelby v. Barlett, 391 F.3d 1061, 1063 & 1066 (9th Cir. 2004) (holding the "factual predicate" for habeas challenges of parole board decisions is the day the administrative decision becomes final, assuming the petitioner received proper notice); Redd v. McGrath, 343 F.3d 1077, 1080 n.4 (9th Cir. 2003) (the same).

Here, the evidence shows that the Board conducted petitioner's third subsequent parole hearing on May 25, 2005. (See Dkt. 10, Exh. 4.) At the bottom of the parole hearing transcript it states that the Board's decision became final on September 22, 2005. (See id. at 61.) Up until that date, the Board's decision was subject to modification. (See id.) See also Perez v. Sisto, 2007 WL 3046006, *4-5 (E.D. Cal. 2007) (unpublished) (holding that the "factual predicate" underlying petitioner's claims is not discoverable until the final decision date, which is set forth at the end of the hearing transcript). Thus, contrary to respondent's calculation, the one-year statute of limitation began to run in this case on September 23, 2005, the day after the Board's decision became final. Thus, absent any applicable tolling, petitioner had 365 days from that date, or until September 22, 2006, within which to file his federal habeas corpus petitioner in this Court.

As set forth above, petitioner filed his federal petition on June 12, 2007, nearly nine months after the one-year period of limitations expired. Thus, unless the tolling provision is applicable, the petition is untimely. Section 2244(d)(2), the tolling provision set forth above, states that "[t]he time during which a properly filed application for post conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted" toward the AEDPA statute of limitations. According to the state court record, petitioner filed his state habeas corpus petition with the Los Angeles County Superior Court on April 13, 2006, approximately seven months from the date the Board's decision became final. (See Dkt. 10, Exh. 8 at 1.) That petition was denied on January 9, 2007. (See id. at 2.) Petitioner then filed his petition in the California Court of Appeal on February 23, 2007. (See id., Exh. 9.) That petition was denied on February 26, 2007. (See id., Exh. 10.) Petitioner then filed his petition in the California Supreme Court on March 9, 2007, and that petition was denied on May 9, 2007. (See id., Exhs. 11 &12.) Thus, as long as the state court petitions were "properly filed," the limitations period would be tolled for approximately thirteen months, from April 13, 2006, until May 9, 2007. See Carey v. Saffold, 536 U.S. 214, 222-24 (2002) (a state habeas petition is "pending" during a full round of review in the state courts, including the time between a lower court decision and the filing of a new petition in a higher court, as long as the intervals between petitions are "reasonable").

Respondent contends that because petitioner delayed filing his first state habeas petition in the Los Angeles County Superior Court for twelve months (based upon the miscalculated date of May 25, 2005, and April 13, 2006), his delay was unreasonable and he is not entitled to statutory tolling. Respondent relies upon two Ninth Circuit cases to support his petitioner, neither of which is on point. (See Dkt. 10, at 13.) See Gaston v. Palmer, 447 F.3d 1165, 1166-67 (9th Cir. 2006) (holding petitioner was not entitled to "interval" tolling when there were lengthy gaps between his state court filings); Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005) (holding statutory tolling was inapplicable where the state court dismissed the petition as untimely).

In this case, petitioner did not create gaps in between his state court filings nor did any state court consider his petitions untimely or improperly filed. Petitioner timely pursued all available state court remedies, filing his subsequent state court petitions soon after each state court denial. The issued raised by respondent -- that he delayed filing his first habeas corpus petition in the Los Angeles County Superior Court -- is not of grave concern. Petitioner waited approximately seven months after the Board decision became final to file his initial habeas corpus petition. That was his first attempt to articulate his state habeas corpus claims. This Court is unaware of any authority to support the proposition that a seven-month delay in filing an initial state petition deprives a petitioner of statutory tolling when all other state petitions were properly filed. See Rios v. Dep't of Corr. & Rehab., 2009 WL 2990243, *5, n.4 (E.D. Cal. Sept. 11, 2009) (unpublished) (stating "[n]either the Ninth Circuit nor the United States Supreme Court has addressed whether a [initial] delay in filing may deprive a petitioner of statutory tolling for the pendency of an otherwise properly filed state petition....")

I therefore recommend the Court find petitioner is entitled to statutory tolling during the period between his April 13, 2006, filing in the Los Angeles County Superior Court and May 9, 2007, the date upon which the California Supreme Court denied his petition. Accordingly, the statute of limitations began to run on September 23, 2005, and ran for 203 days until April 13, 2006, when petitioner filed his petition in superior court. The statute then began to run again on May 10, 2007, for 34 days, until petitioner filed his federal habeas petition in this Court on June 12, 2007. Thus, approximately 237 days had passed and petitioner was within the one-year period of limitations when he filed his federal habeas corpus petition in this court. I therefore recommend the Court find that petitioner's federal petition was timely filed.

III. PRUDENCE OF ENTERING A STAY

As mentioned in Part I, supra, respondent filed supplemental briefing in response to this Court's June 2, 2008, Order directing both parties to show cause why this action should not be administratively stayed pending the Ninth Circuit Court of Appeals' decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008). (See Dkts. 15 & 16.) Respondent requested that this matter be stayed and petitioner does not appear to have responded. (See Dkt. 16.) Because the Hayward decision is unlikely to affect the outcome of the case, I recommend this Court deny respondent's request for a stay and rule on the merits of the petition without further delay.

A. Hayward v. Marshall

The Hayward case involved a habeas petition filed by a sixty-four-year-old prisoner serving a sentence of fifteen-years to life. Hayward, 512 F.3d at 536. Ronald Hayward was convicted by a jury of second degree murder for killing a man he had stabbed twelve times. Id. Although Hayward was granted parole by the Board at his eleventh parole consideration hearing held on June 19, 2003, the Governor reversed the Board's decision on the basis that there was "some evidence" the prisoner remained an unreasonable risk of danger to society if released on parole. Id. at 540. Specifically, the Governor's findings were based upon Hayward's "especially grave" commitment offense, refusal to accept adequate responsibility for the victim's death, history of escalating criminality and violence, unstable social history, history of gang activity, negative psychological evaluations, and opposition by the Los Angeles County District Attorney. Id.

Hayward initially filed a habeas petition with the Los Angeles County Superior Court seeking relief from the Governor's decision. Id. Although the court rejected the Governor's findings regarding Hayward's failure to accept responsibility, criminal history, and unstable social history, it ultimately found "some evidence" to support the Governor's conclusion. Id. Hayward's habeas petition with the California Supreme Court was also denied on July 27, 2005. Id.

Hayward then filed a petition in the U.S. District Court, contending that the Governor's reversal of the Board's parole grant violated his right to due process of law. Id. at 541. The district court found that, under clearly established precedent of the U.S. Supreme Court, petitioner had no constitutionally-protected liberty interest in parole. Id.

A three-judge panel of the Ninth Circuit Court of Appeals reversed, holding that the Governor's reversal of the Board's finding that Hayward was suitable for parole violated Hayward's due process right and entitled him to habeas relief. Id. at 548. Specifically, the panel found that there was no evidence in the record to support the grounds relied upon by the Governor, except for the immutable factors of Hayward's criminal history, unstable social history, and commitment offense. Id. at 544-45. Because these immutable factors, "whether analyzed individually or collectively, do not constitute evidence that Hayward would [currently] pose a danger to public safety if released from prison," the Board granted Hayward's request for habeas relief. Id. at 545-46.

On May 16, 2008, the Ninth Circuit granted en banc review in Hayward to consider, among other issues, whether prisoners have a constitutionally protected liberty interest in parole, and if so, what process is due under clearly established U.S. Supreme Court authority. See Hayward v. Marshall, 527 F.3d 797 (9th Cir. 2008). Although oral argument was completed on June 24, 2008, as of the date of this Report and Recommendation, the Ninth Circuit has not issued a decision.

B. Application of a Stay in This Case

This Court "may, with propriety, find it is efficient for its own docket and the fairest course, for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case." Leyva v. Certified Grocers of Cal. Ltd., 593 F.2d 857, 863 (9th Cir. 1979). As the Ninth Circuit has pointed out, however, habeas proceedings "implicate special considerations that place unique limits on a district court's authority to stay a case in the interests of judicial economy." INS v. Yong, 208 F.3d 1116, 1120 (9th Cir. 2000). Specifically, judicial economy cannot justify "an indefinite, potentially lengthy stay in a habeas case." Id.

If this Court were to enter a stay in the instant case, it would be indefinite and potentially lengthy as it is unclear when a decision in Hayward will be forthcoming. The delay has already been substantial, as oral argument in Hayward concluded more than a year ago. It is also worth repeating that petitioner filed his federal habeas petition on June 12, 2007. (See Dkt. 1.)

As discussed infra, I recommend that this Court conclude petitioner does have a constitutionally-protected liberty interest in parole. This is the first issue before the en banc panel in Hayward. Although this Court should resolve this legal issue in petitioner's favor, I nevertheless recommend this Court deny the petition on the facts of this case. If this Court agrees with these recommendations there would be little if anything to be gained by delaying this case further to await the en banc decision in Hayward.

In addition, although it is likely that Hayward will provide general guidance for analyzing parole denial cases like this one, any decision will ultimately remain only persuasive authority. Under AEDPA, this Court must decide petitioner's case based upon "clearly established" U.S. Supreme Court precedent. It also seems most prudent to address the merits of the petition based upon existing precedent because the facts of petitioner's case are significantly distinguishable from Hayward. Specifically, and unlike Hayward, the Board's decision denying parole in this case was not solely supported by evidence of immutable factors. As discussed below, the Board's decision was also based upon the mutable factor of petitioner's participating in self-help and educational programs and his prison conduct, a finding that was supported by "some evidence" in the record.

In sum, a substantial delay has already occurred in this case, it is unclear when the en banc panel will decide Hayward, and a decision in Hayward is unlikely to directly affect the outcome here. Accordingly, I recommend that the Court deny respondent's request for a stay and rule on the merits without further delay.

IV. EXHAUSTION

Respondent contends that petitioner failed to exhaust his state court remedies and that his petition should therefore be dismissed, or that he should be directed to file an amended petitioner absent the unexhausted claims. (See Dkt. 10 at 16.) Petitioner claims in his traverse that he has exhausted his state court remedies. (See Dkt. 12 at 3.)

In order to properly exhaust state court remedies, California state prisoners must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his federal habeas corpus petition. See 28 U.S.C. § 2254(b) & (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971). Petitioners must notify the state courts that they are presenting a federal claim in order to satisfy the fair opportunity rule. See Duncan, 513 U.S. at 365-66. More specifically, in this Circuit, petitioners must "make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citing Lyons v. Crawford, 232 F.3d 666, 668, 670 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (stating that the law in this Circuit requires petitioners to "make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law.")).

Here, petitioner's federal habeas corpus claims fall into two general categories: 1) violation of his federal due process rights (Issues 1-8 and 10-12); and 2) violation of his federal constitutional rights under the Double Jeopardy, Equal Protection and Ex Post Facto Clauses (Issue 9) and the Eighth Amendment (Issue 13). (See Dkt. 1 at 3-31.) Petitioner presented these same federal constitutional claims to the Los Angeles County Superior Court and the California Court of Appeal. (See Dkts.10, Exh. 7 & 9.) When petitioner filed his habeas corpus petition with the California Supreme Court, however, he chose to summarize all thirteen claims. In so doing, he omitted any reference to the federal constitutional basis of his claims, with the exception of a single citation to California Department of Corrections v. Morales, 514, U.S. 499 (1995), a United States Supreme Court case addressing an alleged Ex Post Facto Clause violation. (See Dkt. 11.) Petitioner single citation to a federal case and use of phrases such as "due process rights," "double jeopardy," "equal protection" and "constitution" do not technically satisfy the exhaustion requirements. See Insyxiengmay, 403 F.3d at 668. The record includes no opinion filed by the California Supreme Court. (See Dkt. 10, Exh. 12.) It seems likely the Court summarily denied the habeas corpus petition, without discussing the merits of any claims, federal or state. (See id.)

In general, petitions that contain unexhausted claims must be dismissed. Rose v. Lundy, 455 U.S. 509, 522 (1982). But federal courts have the discretion to deny a habeas application on the merits, notwithstanding a petitioner's failure to fully exhaust his state court remedies. For reasons discussed infra, petitioner's claims must fail on the merits. I therefore recommend the Court proceed to the merits of all thirteen of petitioner's claims and deny the petition. See 28 U.S.C. § 2254(b)(2). To require him to return to the California Supreme Court would further delay an already protracted case, for no other purpose.

V. STANDARD OF REVIEW

As discussed above, AEDPA governs this petition as it was filed after the enactment of this Act. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). 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) & (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 normally looks to the last reasoned state court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). Where, as in this case, the state trial court courts only addressed petitioner's due process claim, this Court must conduct an independent review of the record to determine whether the state courts' decisions were contrary or involved an unreasonable application of Supreme Court holdings with regard to petitioner's remaining double jeopardy, equal protection, ex post facto and eighth amendment claims. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000).

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)). Thus, while our review of the record is conducted independently with regard to some claims, we continue to show deference to the state court's ultimate decision. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

VI. BACKGROUND

The Board's 2005 report relied entirely upon the 1987 Probation Officer's Report in summarizing the facts of the crime as follows:

Defendant and victim Cynthia Parrish, P-A-R-R-I-S-H, previously had been acquainted through a neighborhood bar.

Reportedly, a fellow patron had heard defendant threaten the victim about a month prior to the murder. On the night of the offense, defendant and the victim were at his apartment. He strangled her. Defendant than [sic] drove into the mountains and dumped the victim's body where a park ranger later found it after a snowfall. When arrested, inmate admitted to the killing, but claims he was acting in self-defense, defending himself from a knife attack by the victim when the death occurred without him using excessive force. (Dkt. 10, Exh. 4 at 10.) During the 2005 parole hearing petitioner agreed with the above facts. He expanded upon the record, however, stating that he had become engaged to be married to his wife on the date of the offense (they were married for more than nineteen years at the time of the 2005 hearing) and that he was at the neighborhood bar celebrating his engagement when the victim decided to come back to his apartment with him "to smoke a joint." (See id. at 10-12.) He claims that when the victim arrived at his apartment she offered him sex for hire. (See id. at 12-13.) When he refused her offer, she allegedly became very angry and a fight ensued. (See id.) He says she then went after him with a knife and he tried to defend himself, resulting in her strangulation. (See id.)

Petitioner was tried by a jury and convicted of second degree murder on October 23, 1987, in Los Angeles County Superior Court. (See id, Exh. 1.) He began serving his sentence of fifteen-years-to-life with the possibility of parole on December 30, 1987. (See id., Exh. 4 at 1.) His minimum eligible parole date was set for October 11, 1997. (See id.) Petitioner has now been incarcerated for approximately twenty-two years for this offense.

The parole denial, which is the subject of this petition, followed a parole hearing held on May 25, 2005. This was petitioner's third subsequent parole release hearing.*fn2 (See Dkt. 1 at 1-2.) His previous requests for parole were also denied. After his 2005 denial, petitioner filed habeas corpus petitions in the Los Angeles County Superior Court and the California Court of Appeal and Supreme Court. (See Dkt. 10, Exhs. 7, 9 & 11.) As discussed, supra, those petitions were unsuccessful. (See id., Exhs. 8, 10 & 12.) This federal habeas petition followed. Petitioner contends the 2005 denial by the Board violated his federal constitutional rights. Thus, the habeas petition before this Court does not attack the propriety of his conviction or sentence.

VII. 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) & (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.

VIII. PARTIES' CONTENTIONS

Petitioner challenges the Board's 2005 decision to deny parole on the grounds that the decision violated his federal right to due process (Issues 1-8 and 10-12), as well as his federal constitutional rights under the Double Jeopardy, Equal Protection and Ex Post Facto Clauses (Issue 9) and the Eighth Amendment (Issue 13). (See Dkt. 1.) Petitioner's first contention alleges that the Board's decision violated his federal constitutional due process rights because there is no evidence to support its decision. Specifically, he contends the Board improperly relied upon immutable factors (Issue 1), failed to support its findings with "some evidence" (Issues 2-8), and improperly relied upon the district attorney and sheriff's department opposition to his parole (Issues 10). Petitioner also contends his due process rights were violated when the Board relied upon a disciplinary charge (of which he was found guilty) that should have been removed from his central prison file by the California Department of Corrections (Issue 12). (See id. at 27.) In addition, he claims the Board has placed him "under 'double jeopardy' and violated his equal protection rights by assessing a four-year parole denial because of a disciplinary charge that was disproved and exempted by the legislature as determined by the U.S. Supreme Court" (Issue 9). (See id. at 24.) Finally, petitioner contends his constitutional rights were violated when the Board failed to engage in a proportionality or comparative review process in evaluating his suitability for parole, thereby violating his right to be free from cruel and unusual punishment under the Eighth Amendment (Issue 13). (See id. at 28.)

Respondent claims 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. 10 at 5 & 11-12.) In addition, respondent asserts that petitioner's double jeopardy, equal protection, and eighth amendment claims are without merit. (See id. at 17-19.) Respondent fails to address petitioner's remaining claims for relief with any specificity. In conclusion, respondent argues that petitioner's constitutional rights were not violated by the Board's 2005 decision and that the state court's decision was not contrary to or an unreasonable application of United States Supreme Court law, nor was it an unreasonable determination of the facts. (See id. at 12.)

IX. ANALYSIS OF RECORD IN THIS CASE

A. Due Process Claims (Issues 1-8 & 10-12)

1. The Commitment Offense and Related Factors (Issues 1-8 & 11)

The Board based its decision that petitioner was unsuitable for parole primarily upon his commitment offense, as well as upon his escalating pattern of criminal activity, unstable social history, failure to profit from society's previous attempts to correct his criminality, institutional behavior, and insufficient participation in self-help programming.*fn3 (See Dkt. 10, Exh. 4 at 51-54.) As to suitability factors, the Board noted that petitioner had upgraded himself educationally and vocationally, stayed out of trouble "for all these years," involved himself in self-help programming, and "kept in contact with his family, and has a strong support group." (See id. at 54.) The Board's findings track the applicable unsuitability and suitability factors listed in Section 2402(b), (c) and (d) of Chapter 15 of the California Code of Regulations. After considering all reliable evidence in the record, the Board denied petitioner a parole release date and reset his parole suitability hearing for four years. (See id. at 56.)

With regard to the circumstances of the commitment offense, the Board concluded that this crime was carried out in an especially cruel, callous, dispassionate, and calculated manner, demonstrating an exceptionally callous disregard for human suffering, and that the motive for the crime was inexplicable or very trivial in relation to the offense. (See id. at 51.) See 15 CCR § 2402 (c)(1)(B), (D), & (E). As discussed supra, the night the murder occurred, petitioner was out celebrating his engagement to his fiancé (now-wife) at a neighborhood bar. (See Dkt. 10, Exh. 4 at 12 & 51.) Petitioner then invited the victim, whom he believed had previously stolen from him, back to his apartment to "smoke a joint." (See id. at 12.) According to petitioner, the victim then offered petitioner sex for hire and when he refused, "she went crazy" and came at him with a knife. (See id. and Exh. 3 at 2.) Petitioner claims he strangled her in his own defense. (See id., Exh. 4 at 52.) He then dumped her body in the mountains. (See id., Exh. 3 at 2.) The evidence of the circumstances surrounding petitioner's commitment offense and the trivial motive provide some evidence to support the Board's finding that the murder was carried out in an especially heinous, atrocious, or cruel manner.

As mentioned above, petitioner moves the Court with regard to this particular factor to take judicial notice of a Santa Clara County Superior Court Order entered in an unrelated habeas case. (See Dkt. 13.) That Order contains statistical evidence suggesting that the Board regularly applies the commitment offense unsuitability factor in an arbitrary manner. (See id.)

See also Fed. R. Evid. 201(b)(2) (permitting the court to take judicial notice of a fact that is "not subject to reasonable dispute in that it is . (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."). Because petitioner brings this evidence to the Court's attention as further support for the arguments set forth in his petition, this Court recommends petitioner's request for judicial notice be construed as supplemental briefing in support of his petition. Accordingly, the Court has considered the Santa Clara County Superior Court's Order, but finds the statistical evidence does not alter the above conclusions that the Board, in this case, provided some evidence to support its finding regarding the commitment offense.

The second factor cited by the Board to deny parole was petitioner's escalating pattern of criminal activity or violence. (See Dkt. 10, Exh. 4 at 52.) Specifically, the Board found petitioner had a prior record of "violence and assaultive behavior" and stated that there was some information that he had assaulted his fiancé and that he was carrying a gun while on probation. (See id.) Petitioner claims that because the probationary period at issue began after he was in custody, he could not have violated it. (See Dkt. 1 at 22.) In addition, he claims the Board was not authorized to consider probation violations, but even if it was, he does not have a prior record of violent or assaultive behavior. (See id.)

Contrary to petitioner's contention, the 2004 "Life Prisoner Evaluation" indicates that in 1985 petitioner was placed on probation for three years for carrying a loaded firearm. (See Dkt. 10, Exh. 6 at 3.) The 1987 probation officer's report states that "in November 1986, defendant reportedly assaulted his present wife in the parking lot of the same bar where he had met the victim previously, knocking her to the ground and kicking her. Defendant says he in fact slapped her, and she fell down, but this was after he hit her first." (See id., Exh. 3 at 9.) In addition, the report indicates that petitioner "supposedly threatened the manager [of his apartment complex] by telling the manager's 66-year-old wife that he would punch out her husband regarding notes the manger had been leaving on cars about visitors parking in the complex and visiting him." (Id.)

The applicable guidelines direct the Board to consider all relevant and reliable information, which includes a prisoner's involvement in any criminal misconduct which is reliably documented. See 15 CCR § 2402(b). Thus, the Board properly considered petitioner's prior record on probation and his alleged acts of violence. Its findings are supported by "some evidence" in the record.

The third unsuitability factor relied upon by the Board was petitioner's unstable social history. (See Dkt. 10, Ex. 4 at 53.) An "unstable social history" is defined as a "history of unstable or tumultuous relationships with others." See 15 CCR § 2402(c)(3). The Board failed to cite any facts to support its conclusion. (See Dkt. 10, Ex. 4 at 53.) Moreover, the Board states elsewhere that petitioner has maintained good relationships with his family and has a strong support system. (See id. at 54.) Accordingly, the Board failed to provide "some evidence" to support its finding that petitioner's relationship history was unstable or tumultuous.

The fourth factor cited by the Board was petitioner's failure to profit from society's previous attempts to correct his criminality. Specifically, the Board cites petitioner's prior failure when granted probation for possession of a weapon. (See id. at 53.) As mentioned above, petitioner's 2004 "Life Prisoner Evaluation" indicates that in 1985 petitioner was placed on probation for three years for carrying a loaded firearm. (See id., Exh. 6 at 3.) Thus, when he murdered the victim in 1987 he was within the three-year probationary period. Petitioner's criminal record therefore provides "some evidence" to support the Board's finding. (See id. at 16-25 and Ex. 4 at 5.)

The fifth and sixth factors cited by the Board were petitioner's "lack of programming" and prison disciplinary record. While the Board commended petitioner for his involvement in self-help programming, for upgrading himself educationally and vocationally, and for "staying out of trouble all these years," it made clear that petitioner needed to continue to pursue his education, participate more fully in self-help therapy to address any alcohol-related issues and to avoid any further disciplinary violations. (Id., Exh. 4 at 54 & 55-56.)

Petitioner contends that he has participated fully in all self-help programming, including Alcoholics Anonymous ("AA"), and that the Board is not authorized to deny him parole based upon his lack of self-help programming or require him to participate in AA. (See Dkt. 1 at 22.) In addition, he contends his 2004 prison disciplinary violation, a California Department of Corrections ("CDC") 115 charged for possession or manufacture of a dangerous weapon, was downgraded to possession of dangerous contraband and that the Board violated his due process right when it relied upon the more serious weapon charge to deny him parole.*fn4 Petitioner also claims the Board was "unduly biased" by the more serious weapons charged and that the CDC required that an audit be performed and this charge removed from his central prison file. This claim is addressed in Section 3, infra.

The Board spent a substantial amount of time during the hearing questioning petitioner regarding his involvement in AA and attempting to understand why petitioner had failed to continue to pursue his bachelor's degree. In addition, the Board listened to petitioner's explanation regarding his 2004 CDC 115 rule violation. The Board ultimately found petitioner had not fully benefited from the self-help therapy he had taken, nor had he accepted responsibility for the role that alcohol had played in his prior criminal misconduct. Moreover, it found petitioner's explanation regarding the CDC 115 violation less than credible. Because there is "some evidence" to support the Board's findings, this Court should not find to the contrary.

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. It is therefore within the Board's authority to determine the weight or value of the evidence presented. The Board in this case noted petitioner's progress, but concluded that he needed additional time to demonstrate his suitability for parole. Thus, under the minimally stringent "some evidence standard," petitioner's prison record supports the Superior Court Order upholding the Board's decision.

2. District Attorney & Sheriff Department's Opposition to Parole (Issue 10)

Petitioner contends that the Board erred when it considered the Deputy District Attorney and Sheriff Department's opposition to his parole. (See Dkt. 1 at 26.) Read liberally, petitioner's claim challenges the Board's reliance upon any input provided by the deputy district attorney during his parole release hearing. Pursuant to California Penal Code Regulation § 3041.7, a prosecutor may attend a parole hearing to represent "the interests of the people." Petitioner is correct, 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. See Rosenkrantz v. Marshall, 444 F.Supp.2d 1063, 1080 n.14 (C.D. Cal. 2006) (providing that where a district attorney and sheriff's department opposed parole based solely upon the gravity of the commitment offense, their opposition did not constitute "some evidence" because it was "merely cumulative" of the Board's findings regarding the offense). Because the Board relied upon other reliable evidence of petitioner's unsuitability for parole, however, its additional consideration of law enforcement's opposition was not arbitrary or capricious. See id.

3. The Board was unduly Biased (Issue 12)

Petitioner claims that his due process rights were violated when the Board denied him parole based upon a CDC 115 rule violation for possession of a weapon -- a charge he claims was later found to be without merit and should have been removed from his central prison file. (See Dkt. 1 at 27.) While it is unclear from the petition exactly what relief petitioner seeks, he appears to be seeking release on parole or to reduce his four-year parole denial. (See id. at 24.) Even were this Court to assume the accuracy of petitioner's factual representations, under the reduced "contraband" charge petitioner still received a CDC 115 rule violation within eleven months of his parole hearing. In addition, the Board makes clear that its decision to deny him parole was based upon a multitude of factors, only one of which was the allegedly erroneous weapon charge. Accordingly, I recommend the Court deny petitioner's claim. Should petitioner wish to expunge the allegedly erroneous information from his central prison file or receive a new hearing with the erroneous information removed from his file, he is advised to first pursue all available administrative prison and state court remedies.

B. Remaining Constitutional Claims

1. Double Jeopardy Claim (Issue 9)

Petitioner contends the Board violated his right to be free from "double jeopardy" when it found him guilty of a rule violation, which forfeited his goodtime credits and consequently lengthened his term of confinement. (See id. at 24.) He claims that because the rule violation also served as the basis for his parole denial, it resulted in him being punished twice for the same offense. (See id.) Respondent asserts that prison disciplinary prosecutions do not constitute criminal prosecutions and therefore the Double Jeopardy Clause does not prohibit the Board from relying upon his disciplinary violation twice. (See Dkt. 10 at 17.) Respondent is correct.

The Double Jeopardy Clause provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. While the Double Jeopardy Clause protects against "successive punishment and successive prosecution" for the same crime, Witte v. United States, 515 U.S. 389, 395-96 (1995) (internal citations omitted), respondent is correct that prison disciplinary violations are not considered criminal prosecutions. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (finding "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply."); Ramirez v. Clark, 2009 WL 2905728, *5 (E.D. Cal. Sept. 4, 2009) (unpublished) (holding "double jeopardy protection is not triggered in a review of parole decisions"). Accordingly, the Double Jeopardy Clause does not prevent the Board from denying a prisoner parole based, in part, upon a disciplinary violation after the prison disciplinary board has reduced or forfeited a prisoner's good time credits. I therefore recommend the Court find petitioner's double jeopardy claim is without merit.

2. Equal Protection Claim (Issue 9)

Petitioner further asserts that the Board's practice of relying on a disciplinary rule violation to deny parole violates the Equal Protection Clause as his "class" of prisoners (life-prisoners) is being punished twice for the same rule offense. (See Dkt. 1 at 24.) He contends non-life prisoners are not subject to parole suitability hearings and therefore are not punished twice. (See id.) The petition offers little analysis in support of his claim. (See id.) Respondent correctly contends that petitioner's claim is without merit. (See Dkt. 10 at 17-18.)

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)); Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir.2005) (evidence of different treatment of unlike groups does not support an equal protection claim). In this case, petitioner compares prisoners with life sentences to prisoners with non-life sentences. Because these groups on their face are not similarly situated, petitioner's conclusory assertion, without more, is not cognizable. Accordingly, I recommend the Court deny petitioner's equal protection claim on the merits.

3. Ex Post Facto Claim (Issue 9)

Petitioner contends that he falls within a legislative exemption for multi-year parole denials that bars the Board from denying him a subsequent parole release hearing for more than one year. (See Dkt. 1 at 24-25.) While the constitutional underpinnings of petitioner's claim is unclear, he cites the U.S. Supreme Court's decision in United States v. Morales, 514 U.S. 499 (1995), an Ex Post Facto Clause case, in support of this argument. Accordingly, the Court construes petitioner's claim in this context.

Article I of the United States Constitution provides that neither Congress nor any state shall pass an ex post facto law. U.S. Const. Art. I, § 9, cl. 3, Art. I, §10, cl. 1. The Ex Post Facto Clause is "aimed at laws that 'retroactively alter the definition of crimes or increase punishment for criminal acts.'" Morales, 514 U.S. at 504 (citations omitted). In Morales, the U.S. Supreme Court considered whether a 1981 amendment to California Penal Code § 3041.5 authorizing the Board to defer subsequent suitability hearings for up to three years, could be applied retroactively to prisoners who committed their offenses prior to its enactment without violating the Ex Post Facto Clause. Id. at 501-503. The Court held that because "[t]he amendment had no effect on the standards for fixing a prisoner's initial date of 'eligibility' for parole . . . or for determining his 'suitability' for parole and setting his release date," the 1981 amendment did not increase the "punishment" attached to the petitioner's offense and, thus, did not violate the Ex Post Facto Clause. Id. at 507 (citations omitted). The Court made much of the fact that the 1981 amendment at issue in Morales made a single change, "[i]t introduced the possibility that after the initial parole hearing, the Board would not have to hold another hearing the very next year, or the year after that, if it found no reasonable probability that [petitioner] would be deemed suitable for parole in the interim period." Id. Accordingly, the Court concluded that the 1981 amendment "create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient under any threshold we might establish under the Ex Post Facto Clause." Id. at 509.

Here, petitioner claims that the Board's four-year denial violates his constitutional rights because the amendments to § 3041.5(b)(2)(B), authorizing the Board to defer his parole release hearing for up to five years, retroactively increased his punishment from the statute in effect when he committed his crime in 1987. In 1987, when the petitioner committed the offense, this section provided, in pertinent part:

The board shall hear each case annually thereafter, except the board may schedule the next hearing no later than (A) two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year and states the bases for the finding or, (B) three years after any hearing at which parole is denied if the prisoner has been convicted, in the same or different proceedings, of more than one offense which involves the taking of a life, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding.

Cal. Penal Code § 3041.5(b)(2)(A) & (B) (1985). The 1994 amendment to §3041.5, which was in effect in 2005 when the Board deferred petitioner's subsequent parole release hearing for four years, provided, in pertinent part:

The board shall hear each case annually thereafter, except the board may schedule the next hearing no later than the following: . . . (B) Up to five years after any hearing at which parole is denied if the prisoner has been convicted of murder, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing. If the board defers a hearing five years, the prisoner's central file shall be reviewed by a deputy commissioner within three years at which time the deputy commissioner may direct that a hearing be held within one year. The prisoner shall be notified in writing of the deputy commissioner's decision. The board shall adopt procedures that relate to the criteria for setting the hearing between two and five years.

Cal. Penal Code § 3041.5(b)(2)(B) (1994).

As is apparent from the statutes cited above, in 1987 the Board was authorized to deny petitioner a new parole hearing date for up to two years from the date parole had previously been denied. In 2005 when the Board denied petitioner a subsequent hearing date for four years, however, it was authorized do so for up to five years from the date of his last parole hearing denial. Thus, in order for the Board to issue a four-year denial, it had to have applied § 3041.5 (as amended) retrospectively. The substantive question is therefore whether applying this law retroactive "produces a sufficient risk of increasing the measurement of punishment attached to the covered crimes" from what petitioner would have received under this same section in 1987. Morales, 514 U.S. at 509.

As the U.S. Supreme Court concluded in Morales, the 1994 amendment to § 3041.5 did not "increas[e] the measure of punishment attached to the covered crimes." Id. Specifically, the 1994 amendment "ha[d] no effect on the date of any prisoner's initial parole suitability hearing; it affect[ed] the timing only of subsequent hearings[;]" it left the annual parole hearing as the default option, and it continue[d] to provide the Board with "the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner." Id. at 511. See Torricellas v. Davison, 519 F.Supp.2d 1040 (C.D. Cal. 2007) (upholding the retroactive application of the 1994 amendment to § 3041.5 where the Board denied petitioner parole for four years on the ground that it did not increase the punishment attached to a murder committed in 1984 and, thus, did not violate the Ex Post Facto Clause). Accordingly, the Board's decision to defer petitioner's subsequent parole release hearing for four years based upon the 1994 version of § 3041.5 did not increase petitioner's punishment. I therefore recommend this Court find that the Board's decision denying petitioner a parole release date for four years did not violate the Ex Post Facto Clause and, thus, his claim should be denied.

4. The Eighth Amendment (Issue 13)

Petitioner argues that the Board's decision to deny him a parole release date constitutes cruel and unusual punishment in violation of the Eighth Amendment. (See Dkt. 1 at 28-31.) Specifically, he asserts that his length of confinement is disproportionate in comparison to his crime as evidenced by the fact that other inmates have served less time for greater offenses. (See id. at 29.) Respondent correctly argues that petitioner's claim is without merit. (See Dkt. 10 at 17.)

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) (holding that "the length of the sentence actually imposed is purely a matter of legislative prerogative"); Harmelin v. Michigan, 501 U.S. 957, 962-64 (1990). Accordingly, a life sentence for a murder such as that committed by petitioner would not constitute cruel and unusual punishment. See Banks v. Kramer, 2009 WL 256449, *2 (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). To the extent petitioner is asserting that his sentence should be less than other life prisoners, 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. Thus, petitioner's allegations, without more, fail to establish an Eighth Amendment violation.

X. CONCLUSION

Given the totality of the Board's findings, there is "some evidence" in the record that petitioner's release date as of the Board's May 25, 2005, decision would have posed an unreasonable risk to public safety. The Los Angeles County Superior Court's Order upholding the Board's decision was therefore not contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of facts. Because the Board and the state courts' ultimate decisions were supported by "some evidence," there is no need to reach respondent's argument that another standard applies. Accordingly, I recommend the Court decline to stay these proceedings; rule on the merits without further delay; find that petitioner's constitutional rights were not violated; construe petitioner's request for judicial notice as a request for supplemental briefing; and deny the 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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