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Englund v. Sisto

October 23, 2009


The opinion of the court was delivered by: Consuelo B. Marshall, District Judge.


The matter before the Court *fn1 is Petitioner David Englund's (hereinafter, "Petitioner") Petition for a Writ for Habeas Corpus (hereinafter, "Petition") challenging the Board of Prison Terms's (hereinafter, "the Board") denial of parole at Petitioner's October 4, 2006, suitability hearing. The Court hereby GRANTS the Petition because the Board's denial was entirely predicated upon the offense Petitioner committed thirty years before.


This Petition arises out of Petitioner's 1976 conviction for thirteen counts of criminal misconduct, including four counts of kidnapping to commit robbery with bodily harm pursuant to California Penal Code section 209, first degree robbery, assault with a deadly weapon with force likely to produce great bodily injury, and attempted murder, for which he was sentenced to seven years to life.

I. Petitioner's Commitment Offense

Petitioner was raised in Oregon. His family life was normal until his parents divorced when he was 16, at which point his life became "scattered." The Record (hereinafter, "TR") at p. 6:2-11. Petitioner had "no direction": he started socializing with the wrong crowd, used drugs and alcohol, dropped out of school and eventually ran away from home. Id. at p. 9.

Petitioner was twenty years old when he ended up in San Diego and met Steve Caswell. Id. at pp. 11-12. The two traveled together to Lake Shasta in Shasta County. Id. at p. 12:21-23. Out of money for drugs and alcohol, they decided to rob people in the Lake Head, Antlers Campground where they were staying.

Four college students entered the campground on May 20, 1976. Petitioner and Caswell, who were drunk and under the influence of drugs, decided to rob these students. Id. at p. 15:14-27. Petitioner and Caswell approached the students while they were parking their vehicle. Petitioner brandished a gun at the students and ordered them out of the car. Id. at p. 13:18-23.

The students gave Petitioner and Caswell all their money. Afterwards, Petitioner and Caswell tied the students up to prevent them from escaping and calling for help. Id. at p. 14:11-20. Petitioner and Caswell ordered the students to disrobe and Caswell tied them up with twine, rope and the student's own clothing. Id. at pp. 14:24 to 15:2, 20:11-21.

Petitioner and Caswell decided to kill the students. Caswell struck one of the male students over the head with a gun and pushed him over an embankment. Id. at pp. 15:2-5, 46:3-5. Petitioner then walked over to the side of the embankment and shot the male student at least twice. Id. at p. 15:5-15. The student survived.

Petitioner then shot the other three students, all of whom survived. Id. at p. 16:5-9. The first student he shot in the stomach. Then second student he shot in the chest. The third student he struck over the head several times with a gun and then shot twice, the first bullet barely missing the ear and second hitting the student's hands. Id. at p. 46:9-12.

Petitioner and Caswell fled the scene in the students' car. The duo were later apprehended by police and taken into custody.

II. Denial Of Parole And Petition For Habeas Corpus

The Board found Petitioner unsuitable for release at his twelfth parole suitability hearing (hereinafter, "the Hearing") on October 4, 2006. Petitioner was fifty years old (50) and had served thirty years of his sentence.

Petitioner subsequently initiated state-court challenges to the Board's decision. First, on May 1, 2007, Petitioner filed a petition for a writ for habeas corpus in Shasta County Superior Court, asserting the same grounds for relief as in the instant Petition. The court denied the petition on June 25, 2007, in a written decision. [Shasta County Superior Court Order.] Next, Petitioner filed a petition for a writ for habeas corpus in the California Court of Appeal on July 20, 2007, which was summarily denied on August 20, 2007. [Court of Appeals Order.] Petitioner then filed a petitioner for a writ for habeas corpus with the California Supreme Court on August 13, 2007, which was summarily denied en banc on October 17, 2007. [California Supreme Court Order.] Petitioner now seeks habeas relief in this Court.


Petitioner challenges the Board's denial of parole on due process grounds. He contends that the Board's October 4, 2006, decision violated his Fifth and Fourteenth Amendment Rights to due process because it was based solely on the nature of his commitment offense.


An application for a writ for habeas corpus on behalf of a person in custody pursuant to a state court "judgment" "shall not be granted with respect to any ground adjudicated on the merits" in state court unless that "adjudication" either:

(1) 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

(2) 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). The phrase "clearly established law" refers to the "holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006).

A state court decision is "contrary to" the clearly established Supreme Court precedent if it: (1) "applies a rule that contradicts the governing law set forth in [Supreme Court] cases"; or, (2) "confronts a set of facts that are materially indistinguishable from a decision of the [Supreme] Court and nevertheless arrives at a result different from [that] precedent." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). State court decisions that are not contrary to clearly established Supreme Court precedent warrants federal habeas relief "only if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or based on 'an unreasonable determination of the facts.' " Id. at 11, 123 S.Ct. 362; see also Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (an unreasonable application of federal law is distinct from an incorrect application).

A state court decision is an "unreasonable application of" Supreme Court precedent if the court "correctly identifie[d] the governing legal rule but applie[d] it unreasonably to the facts" of the case. Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (quoting Williams v. Taylor, 529 U.S. 362, 407-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

A reviewing federal court may "look through" "subsequent unexplained orders" to the last reasoned state court judgment. Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). ...

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