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Pagan v. Hartley


October 21, 2009


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge


Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.


Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Monterey, following his conviction by plea of guilty to first degree murder in violation of Cal. Penal Code § 187 with a weapon enhancement. See Petition at 3. On January 5, 1981, Petitioner was sentenced to serve an indeterminate term of twenty-five years to life in state prison with the possibility of parole. Id.

On September 10, 2007, a parole suitability hearing was held before the California Board of Parole Hearings ("Board") to determine Petitioner's eligibility for parole. (HT*fn1 at 1.) Petitioner attended the hearing and was represented by an attorney. (HT at 1-2.) At the conclusion of the hearing, the Board denied parole and deferred rehearing for three years. (HT at 113.)

On May 30, 2008, Petitioner filed a petition for writ of habeas corpus in the Monterey County Superior Court. See Answer, Exhibit A. On July 25, 2008, the petition was denied in a reasoned decision. See Answer, Exhibit B. Petitioner then filed a habeas petition in the California Court of Appeals, Sixth Appellate District. See Answer, Exhibit C. The petition was denied on August 21, 2008. See Answer, Exhibit D. On September 19, 2008, Petitioner filed a petition for review in the California Supreme Court. See Answer, Exhibit E. On March 18, 2009, the petition was denied. See Answer, Exhibit F.

On April 22, 2009, Petitioner filed the instant federal petition for writ of habeas corpus. The petition challenges the 2007 decision of the Board of Parole Hearings denying parole. Petitioner contends the Board of Parole Hearings violated his due process rights in denying him parole based on unchangeable factors. He argues the decision bears no nexus to his current risk of danger to public safety. On July 20, 2009, Respondent filed an answer to the petition. Petitioner filed a traverse to Respondent's answer on October 8, 2009.


On September 27, 1980, at 12:04 a.m., the Salinas Police were dispatched to Chinatown to investigate a possible homicide. In a vacant lot at 37 Soledad Street they discovered an unconscious victim, Dominador Sagun, with a single stab wound to his chest. Sagun died within an hour without regaining consciousness.

Two male witnesses indicated they observed two Puerto Rican males approach the victim who had been sitting in his car. Both suspects grabbed Sagun and pulled him from the car. Both suspects hit Sagun. Both witnesses could not identify any weapons. The confidential informant immediately told police that Petitioner and Ernest Quinones were suspects. The informant also indicated that Petitioner had a knife. The police arrested Petitioner and Quinones one block from the crime scene at 12:30 a.m. Petitioner dropped a lettuce knife with blood on it as the police approached the suspects.

At 3:15 p.m., Ernest Quinones made a statement to the police. Quinones indicated that Petitioner had killed the victim with a knife and had taken his wallet and watch. Quinones claimed he was unaware that Petitioner was planning a robbery and denied any involvement in the struggle.


I. Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Petitioner is in custody of the California Department of Corrections pursuant to a state court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 U.S.C. § 2254 remains the exclusive vehicle for her habeas petition because she meets the threshold requirement of being in custody pursuant to a state court judgment. Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir.2006), citing White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.2004) ("Section 2254 'is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petition is not challenging [her] underlying state court conviction.'").

The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that 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); see Lockyer, 538 U.S. at 70-71; see Williams, 529 U.S. at 413.

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id., quoting Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. Finally, this Court must consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Lockyer, 538 U.S. at 72, quoting 28 U.S.C. § 2254(d)(1). "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 413; see also Lockyer, 538 U.S. at 72. "Under the 'reasonable 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." Williams, 529 U.S. at 413.

"[A] federal court may not issue the writ simply because the court 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 unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).

AEDPA requires that we give considerable deference to state court decisions. The state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). We are bound by a state's interpretation of its own laws. Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir.2002), cert. denied, 537 U.S. 859 (2002), rehearing denied, 537 U.S. 1149 (2003).

In this case, because the California Supreme Court summarily denied the habeas petition, this Court must "look through" that decision to the decisions below. Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n.3 (1991).

II. Review of Petition

A parole release determination is not subject to all the due process protections of an adversary proceeding. Pedro v. Oregon Parole Board, 825 F.2d 1396, 1398-99 (9th Cir. 1987); see also Greenholtz, 442 U.S. at 12 (explaining that due process is flexible and calls for procedural protections that particular situations demand). "[S]ince the setting of a minimum term is not part of a criminal prosecution, the full panoply of rights due a defendant in such a proceeding is not constitutionally mandated, even when a protected liberty interest exists." Pedro, 825 F.2d at 1399; Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir.1987). At a state parole board proceeding, the only procedural process to which an inmate is entitled is: 1) the inmate must receive advance written notice of a hearing, Pedro, 825 F.2d at 1399; 2) the inmate must be afforded an "opportunity to be heard," Greenholtz, 442 U.S. at 16; and 3) if the inmate is denied parole, the inmate must be told why "he falls short of qualifying for parole." Id.

As to these procedural protections, Petitioner was provided with all that is required. He was given advanced written notice of the hearing, an opportunity to submit materials for the Board's consideration, an opportunity to be heard, representation by an attorney, and a written decision explaining the reasons parole was denied.

"In Superintendent v. Hill, the Supreme Court held that 'revocation of good time does not comport with 'the minimum requirements of procedural due process,' unless the findings of the prison disciplinary board are supported by some evidence in the record.' 472 U.S. 445, 454 (1985), quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)." Sass v. California Board of Prison Terms, 461 F.3d 1123, 1128 (9th Cir.2006) (italics added); Irons v. Carey, 505 F.3d 846, 851 (9th Cir.2007), quoting Hill, 472 U.S. at 457 ("We have held that 'the Supreme Court ha[s] 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,' or is 'otherwise arbitrary.'"). In assessing "whether a state parole board's suitability determination was supported by 'some evidence' in a habeas case, our analysis is framed by the statutes and regulations governing parole suitability determinations in the relevant state." Irons, 505 F.3d at 851. Here, the Court must look to California law and review the record. In reviewing the record and determining whether the "some evidence" standard is met, the Court need not examine the entire record, independently assess the credibility of witnesses, or re-weigh the evidence. Sass, 461 F.3d at 1128.

Further, the California Supreme Court more recently stated: "[T]he relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after the commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude.

In re Lawrence, 44 Cal.4th 1181, 1221 (2008). The nature of the commitment offense "does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." Id. at 1214.

In denying parole in this case, the Board based its decision on the following factors: 1)

The nature and gravity of the commitment offense; 2) Previous criminal record; 3) Institutional behavior; 4) Lack of programming; and 5) Psychological report. (HT at 106-113.)

First, the Board determined that Petitioner committed the offense in an especially heinous, atrocious or cruel manner.*fn3 The Board found that the offense was carried out in especially cruel manner and that the death of the victim demonstrated an exceptional callous disregard for human suffering. 15 Cal. Code Regs. § 2402(c)(1)(D). The superior court rejected this determination, finding no evidence to support this factor. See Answer, Exhibit B. The Board further determined that the offense was carried out in a dispassionate manner. 15 Cal. Code Regs. § 2402(c)(1)(B). The superior court found there was at least some evidence to support this finding. The court noted that the victim died from a single stab wound to the chest. The court noted that there was evidence that the killing was committed as part of a robbery to secure the victim's wallet and watch. See Answer, Exhibit B. The court also noted that there was evidence that Petitioner had committed a series of robberies using a knife in the past. Id. In light of the facts of the offense, the superior court's determination that some evidence supported the Board's finding that the offense was especially heinous, atrocious or cruel as to be a sufficient basis to deny parole was not unreasonable.

The Board also found Petitioner's prior offenses to be an indicator of unsuitability. 15 Cal. Code Regs. § 2402(c)(2). While serving in the United States Army, Petitioner suffered a conviction for assault with a deadly weapon for placing a knife to the neck of a man. See Answer, Exhibit B. The superior court's determination that there was some evidence to support this finding was reasonable.

The Board also determined that Petitioner's extensive and serious misconduct during incarceration indicated he remained a current risk of danger to the community. 15 Cal. Code Regs. § 2402(c)(6). The Board noted that Petitioner had received somewhere between 48 to 51 negative counseling chronos ("CDC 128") during his incarceration. Further, he had sustained 19 serious rules violations ("CDC 115") during his incarceration. The most recent occurred in 2003, and one that occurred in 2000 was for violent behavior, i.e., assaulting a visitor. (HT at 109.) The Board also found significant a 1993 violation for being under the influence, because this incident occurred well within the time period Petitioner stated he had been drug-free. (HT at 109.) The superior court found Petitioner's institutional record provided some evidence of serious misconduct pursuant to § 2402(c)(6). The court's determination was reasonable.

The Board next considered the lack of sufficient self-help programming. While this is not a specific circumstance indicating unsuitability, it can be considered as relevant evidence in determining suitability. 15 Cal. Code Regs. § 2402(b). The Board noted that Petitioner had admitted to a substance abuse problem; however, his self-help programming in this area was limited to the last 21 months of his incarceration. This fact is certainly relevant to determining whether Petitioner would pose a risk to public safety if released, and the state court's finding as to this issue was also reasonable.

Finally, the Board considered the psychological report pursuant to 15 Cal. Code Regs. § 2402(c)(5). The report was deemed not supportive of release because it concluded Petitioner still posed a moderate risk of committing violence if released. The state court finding on this issue was also not unreasonable.

The Board also considered the positive factors favoring parole release. The Board commended Petitioner for having obtained his GED and two different trades including optical technician and welding. The Board also considered his participation in Alcoholics Anonymous and Narcotics Anonymous. Although participation had been limited up to that point, his attendance was promising for the future. The Board also lauded Petitioner for his educational programming. Nevertheless, the Board concluded Petitioner remained an unreasonable risk of danger to the public in light of his crime, his past criminal behavior, and his misconduct in prison. The state court finding that some evidence supported this determination was not unreasonable.

Petitioner also argues that the Board's continuing reliance on the unchanging circumstances of the underlying offense violates his due process rights. In Biggs v. Terhune, 334 F.3d 910, 916-17 (9th Cir.2003), the Ninth Circuit stated that "[a] continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." As discussed above, however, the circumstances of the offense, while significant, were not the only reasons for the Board's decision. The Board found Petitioner's prior criminal history, his serious disciplinary problems, his lack of programming, and his psychological issues to be of great importance in concluding he would pose an unreasonable danger to public safety should he be presently released.

In light of the above, it cannot be said that the state court resolution of Petitioner's claims "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that 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).


Based on the foregoing, it is HEREBY RECOMMENDED that:

1. The petition for writ of habeas corpus be DENIED; and

2. Judgment be entered in favor of Respondent.

This Findings and Recommendations is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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