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Walker v. Sisto


December 7, 2009



Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the application for relief pending before this court, petitioner challenges the decision of the California Board of Prison Terms, now the California Board of Parole Hearings (hereinafter "Board"), to deny him parole for one year at his fourteenth parole consideration hearing held on April 4, 2006. Specifically, petitioner claims that the decision violated his federal constitutional rights to due process, equal protection, and a jury trial and was also issued in violation of the Ex Post Facto and Double Jeopardy Clauses and state law. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be granted with respect to his due process claim.


Petitioner is confined pursuant to a judgment of conviction entered in the Alameda County Superior Court on November 14, 1977 on charges of first degree murder and kidnapping. (Pet. at consecutive p. 1.) Pursuant to that state court conviction, petitioner was sentenced to life in state prison with the possibility of parole. (Id.)

The parole consideration hearing at issue was held on April 4, 2006. (Pet., Ex. entitled "2006 Transcripts" (hereinafter Transcript).) It was petitioner's fourteenth parole consideration hearing. (Pet., Ex. entitled "preliminary statement," at 2.) On that date, a panel of the Board found petitioner not suitable for parole and denied parole for one year. (Id.)

Petitioner challenged the Board's decision in a petition for a writ of habeas corpus filed in the Alameda County Superior Court. (Answer, Ex. 2.) That petition was denied by order dated March 1, 2007, with the following reasoning:

The Petition for writ of habeas corpus is denied. The Petition fails to state a prima facie case for relief. While not submitting a transcript of the entire hearing, Petitioner has submitted numerous documents in support of his Petition, review of the transcripts provided and documents pertaining to the April 4, 2006 hearing, indicate that there was no abuse of discretion by the Board of Prison Terms. The factual basis of the BPT's decision granting or denying parole is subject to a limited judicial review. A Court may inquire only whether some evidence in the record before the BPT supports the decision to deny parole. The nature of the offense alone can be sufficient to deny parole. (In re Rosenkrantz (2002) 29 Cal.4th 616, 652, 658, 682; In Re Dannenberg (2005) 34 Cal.4th 1061. The record presented to this Court for review demonstrates that there was certainly some evidence, including, but not limited to the committing offense, including Petitioner's continuing denial of culpability for that offense, and the conclusions contained in the psychologist's report about the future dangerousness of Petitioner based on his insistence of not being the perpetrator of the committing offense. There is nothing in the record that indicates that the Board's decision was arbitrary or capricious, nor that Petitioner's equal protection or due process rights were violated. Thus, Petitioner has failed to meet his burden of sufficiently proving or supporting the allegations that serve as the basis for habeas relief.

(Answer, Ex. 1.)

Petitioner subsequently filed a petition for a writ of habeas corpus in the California Court of Appeal. (Answer, Ex. 3.) Although the record before this court does not contain a copy of the Court of Appeal's decision in response to this petition, respondent represents that it was summarily denied. (Answer at 2 & Ex. 4.) On June 20, 2007, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (Answer, Ex. 5.) That petition was summarily denied by order dated August 8, 2007. (Answer, Ex. 6.)


The Board described the facts of petitioner's offenses, which have not changed over the years, at the April 4, 2006 parole suitability hearing, as follows:

On October 20th, 1976, Walker sought revenge after learning from a third party (Timothy Vaughn, V-A-U-G-H-N) that the victim McWoodson... had burglarized his apartment. Walker armed himself with a revolver, asked the witness to direct himself to the McWoodson residence. After arriving, Walker began beating McWoodson. Testimony indicates the victim made a futile attempt to apologize for the burglary. He was taken by gunpoint and was forced to drive his car to a remote area near the Oakland Coliseum. Witness Vaughn was told by Walker to exit the vehicle and 'run and not look back.' Victim McWoodson was found shot to death in the rear seat of his vehicle the following day. He had been shot four times at close range and had expired from the gunshot wounds. Later investigation revealed a leather jacket belonging to Walker with bloodstains that matched samples of the deceased blood." And this summarizes information more further set forth in the resume authored by the District Attorney's office, which is presented, and counsel had knowledge. The prisoner's version in the report is as follows: "Walker stated that October 20th, 1976, a third party Timothy Vaughn informed him that McWoodson (the victim) had burglarized his place of residence. Vaughn accompanied Walker to McWoodson's residence where Walker confronted McWoodson about the burglary. A conversation resulted in McWoodson admitting the burglary and agreeing to return all stolen property. Walker left and claims he had no further contact with McWoodson, and that he knows nothing about the murder." This matter proceeded to jury trial, and Mr. Walker was convicted for the offense for which he is now in custody, and his denial has been consistent all along.

(Transcript at 7-9.) Petitioner declined to discuss his offense of commitment at the April 4, 2006 parole consideration hearing, maintaining that he was innocent of the murder of Timothy Vaughn. (Id. at 5.)


I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(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.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

II. Petitioner's Claims

Petitioner claims that the Board's decision finding him unsuitable for parole at the April 4, 2006, hearing violated his federal constitutional rights to due process, equal protection, and a jury trial. He also claims that the Board's decision violated the Ex Post Facto Clause, the Double Jeopardy Clause and state law. (Pet., Ex. entitled "Exhibits & Contents.") Petitioner argues that his inability to be found suitable for parole has transformed his sentence into life without the possibility of parole in the absence of a jury "finding the special circumstances," in violation of his Sixth Amendment right to a jury trial. (Pet., Ex. entitled "tolling" at I, Ex. entitled "preliminary statement" at 2, 4-5, Ex. entitled "Memorandum - Points & Authorities" at 10.) Petitioner contends that he has been a "model inmate," has made a sincere attempt to rehabilitate himself, and has served more time than other prisoners convicted of first degree murder. (Pet., Ex. entitled "preliminary statement" at 2-3.) He also argues that the parole suitability regulations are unconstitutionally vague. (Pet., Ex. entitled "Memorandum - Points & Authorities" at 9.) Petitioner contends that his continued incarceration constitutes an Ex Post Facto violation because his sentence has been increased to one of life without parole. (Pet., Ex. entitled "Argument I" at 12.) In this regard, he argues that he is being retained in prison pursuant to an illegal "no parole policy." (Pet., Ex. entitled "Argument V" at 21.) Petitioner also makes numerous arguments throughout the petition that his continued incarceration violates state law.

As set forth below, this court will recommend that the instant habeas corpus petition be granted with respect to petitioner's due process claim. In light of that recommended disposition, the court will not address petitioner's remaining challenges to the Board's 2006 decision finding him unsuitable for parole.

A. Due Process in the California Parole Context

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).

A protected liberty interest may arise from either the Due Process Clause of the United States Constitution "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin 545 U.S. 209, 221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, "a state's statutory scheme, if it uses mandatory language, 'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." McQuillion, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 12 (1979)). California's parole scheme gives rise to a cognizable liberty interest in release on parole, even for prisoners who have not already been granted a parole date. Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); McQuillion, 306 F.3d at 903; see also In re Lawrence, 44 Cal. 4th 1181, 1204, 1210, 1221 (2008). Accordingly, this court must examine whether the state court's conclusion that California provided the constitutionally required procedural safeguards when it deprived petitioner of a protected liberty interest is contrary to or an unreasonable application of federal law.

Because "parole-related decisions are not part of the criminal prosecution, the full panoply of rights due a defendant in such a proceeding is not constitutionally mandated." Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987) (internal quotations and citation omitted). Where, as here, parole statutes give rise to a protected liberty interest, due process is satisfied in the context of a hearing to set a parole date where a prisoner is afforded notice of the hearing, an opportunity to be heard and, if parole is denied, a statement of the reasons for the denial. Id. at 1390 (quoting Greenholtz, 442 U.S. at 16). See alsoMorrissey v. Brewer, 408 U.S. 471, 481 (1972) (describing the procedural process due in cases involving parole issues). Violation of state mandated procedures will constitute a due process violation only if the violation causes a fundamentally unfair result. Estelle, 502 U.S. at 65.

In California, the setting of a parole date for a state prisoner is conditioned on a finding of suitability. Cal. Penal Code § 3041; Cal. Code Regs. tit. 15, §§ 2401 & 2402. The requirements of due process in the parole suitability setting are satisfied "if some evidence supports the decision." McQuillion, 306 F.3d at 904 (citing Superintendent v. Hill, 472 U.S. 445, 456 (1985)). See also Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994) (citing Perveler v. Estelle, 974 F.2d 1132, 1134 (9th Cir. 1992)). For purposes of AEDPA, Hill's "some evidence" standard is "clearly established" federal law. Sass, 461 F.3d at 1129 (citing Hill, 472 U.S. at 456). "The 'some evidence' standard is minimally stringent," and a decision will be upheld if there is any evidence in the record that could support the conclusion reached by the factfinder. Powell, 33 F.3d at 40 (citing Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987)); Toussaint v. McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986). However, "the evidence underlying the board's decision must have some indicia of reliability." Jancsek, 833 F.2d at 1390. See also Perveler, 974 F.2d at 1134. Determining whether the "some evidence" standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or the weighing of evidence. Toussaint, 801 F.2d at 1105. The question is whether there is any reliable evidence in the record that could support the conclusion reached. Id.

When a federal court assesses whether a state parole board's suitability determination was supported by "some evidence" in a habeas case, the analysis "is framed by the statutes and regulations governing parole suitability determinations in the relevant state." Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007) This court must therefore: look to California law to determine the findings that are necessary to deem a prisoner unsuitable for parole, and then must review the record in order to determine whether the state court decision holding that these findings were supported by "some evidence" in [petitioner's] case constituted an unreasonable application of the "some evidence" principle articulated in Hill.


The state regulation governing parole suitability findings for life prisoners states as follows with regard to the statutory requirement of California Penal Code § 3041(b): "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." Cal. Code Regs. tit. 15, § 2281(a). In California, the overriding concern in determining parole suitability is public safety. In re Dannenberg, 34 Cal. 4th at 1086. This "core determination of 'public safety'... involves an assessment of an inmates current dangerousness." In re Lawrence, 44 Cal. 4th at 1205 (emphasis in original). Accordingly, when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.

Id. at 1212 (citing In re Rosenkrantz, 29 Cal. 4th at 658; In re Dannenberg, 34 Cal. 4th at 1071; and In re Lee, 143 Cal. App. 4th 1400, 1408 (2006)).

Under California law, prisoners serving indeterminate prison sentences "may serve up to life in prison, but [] become eligible for parole consideration after serving minimum terms of confinement." In re Dannenberg, 34 Cal. 4th at 1078. The Board normally sets a parole release date one year prior to the inmate's minimum eligible parole release date, and does so "in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public." In re Lawrence, 44 Cal. 4th at 1202 (citing Cal. Penal Code § 3041(a)). A release date must be set "unless [the Board] determines that the gravity of the 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... and that a parole date, therefore, cannot be fixed...." Cal. Penal Code § 3041(b). In determining whether an inmate is suitable for parole, the Board must consider all relevant, reliable information available regarding 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.

Cal. Code Regs., tit. 15, § 2281(b).

The regulation identifies circumstances that tend to show suitability or unsuitability for release. Id., § 2281(c) & (d). The following circumstances have been identified as tending to show that a prisoner is suitable for release: the prisoner has no juvenile record of assaulting others or committing crimes with a potential of personal harm to victims; the prisoner has experienced reasonably stable relationships with others; the prisoner has performed acts that tend to indicate the presence of remorse or has given indications that he understands the nature and magnitude of his offense; the prisoner committed his crime as the result of significant stress in his life; the prisoner's criminal behavior resulted from having been victimized by battered women syndrome; the prisoner lacks a significant history of violent crime; the prisoner's present age reduces the probability of recidivism; the prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release; institutional activities indicate an enhanced ability to function within the law upon release. Id., § 2281(d).

The following circumstances are identified as tending to indicate unsuitability for release: the prisoner committed the offense in an especially heinous, atrocious, or cruel manner; the prisoner had a previous record of violence; the prisoner has an unstable social history; the prisoner's crime was a sadistic sexual offense; the prisoner had a lengthy history of severe mental problems related to the offense; the prisoner has engaged in serious misconduct in prison. Id., § 2281(c). Factors to consider in deciding whether the prisoner's offense was committed in an especially heinous, atrocious, or cruel manner include: multiple victims were attacked, injured, or killed in the same or separate incidents; the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; the victim was abused, defiled or mutilated during or after the offense; the offense was carried out in a manner that demonstrated an exceptionally callous disregard for human suffering; the motive for the crime is inexplicable or very trivial in relation to the offense. Id., § 2281(c)(1)(A) - (E).

In the end, under current state law as recently clarified by the California Supreme Court, the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes. (Dannenberg, supra, 34 Cal. 4th at pp 1083-84 [parallel citations omitted].) Nor is it dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense. Rather, the 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 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. [citations omitted].

In re Lawrence, 44 Cal. 4th at 1221.

In addition, in recent years the Ninth Circuit Court of Appeals has concluded that, given the liberty interest that California prisoners have in release on parole, a continued reliance upon an unchanging factor to support a finding of unsuitability for parole over time may constitute a violation of due process. The court has addressed this issue in three significant cases, each of which will be discussed below.

First, in Biggs, the Ninth Circuit Court of Appeals recognized that a continued reliance on an unchanging factor such as the circumstances of the offense could at some point result in a due process violation.*fn1 While the court in Biggs rejected several of the reasons given by the Board for finding the petitioner in that case unsuitable for parole, it upheld three: (1) petitioner's commitment offense involved the murder of a witness; (2) the murder was carried out in a manner exhibiting a callous disregard for the life and suffering of another; and (3) petitioner could benefit from therapy. Biggs, 334 F.3d at 913. However, the court in Biggs cautioned that continued reliance solely upon the gravity of the offense of conviction and petitioner's conduct prior to committing that offense in denying parole could, at some point, violate due process. In this regard, the court observed:

As in the present instance, the parole board's sole supportable reliance on the gravity of the offense and conduct prior to imprisonment to justify denial of parole can be initially justified as fulfilling the requirements set forth by state law. Over time, however, should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of Biggs' offense and prior conduct would raise serious questions involving his liberty interest in parole.

Id. at 916. The court in Biggs also 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." Id. at 917.

In Sass, the Board found the petitioner unsuitable for parole at his third suitability hearing based on the gravity of his offenses of conviction in combination with his prior offenses. 461 F.3d at 1126. Citing Biggs, the petitioner in Sass contended that reliance on these unchanging factors violated due process. The court disagreed, concluding that these factors amounted to "some evidence" to support the Board's determination. Id. at 1129. The court provided the following explanation for its holding:

While upholding an unsuitability determination based on these same factors, we previously acknowledged that "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." Biggs, 334 F.3d at 917 (emphasis added). Under AEDPA it is not our function to speculate about how future parole hearings could proceed. The evidence of Sass' prior offenses and the gravity of his convicted offenses constitute some evidence to support the Board's decision. Consequently, the state court decisions upholding the denials were neither contrary to, nor did they involve an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d).


In Irons the Ninth Circuit sought to harmonize the holdings in Biggs and Sass, stating as follows:

Because the murder Sass committed was less callous and cruel than the one committed by Irons, and because Sass was likewise denied parole in spite of exemplary conduct in prison and evidence of rehabilitation, our decision in Sass precludes us from accepting Iron's due process argument or otherwise affirming the district court's grant of relief.

We note that in all the cases in which we have held that a parole board's decision to deem a prisoner unsuitable for parole solely on the basis of his commitment offense comports with due process, the decision was made before the inmate had served the minimum number of years required by his sentence. Specifically, in Biggs, Sass, and here, the petitioners had not served the minimum number of years to which they had been sentenced at the time of the challenged parole denial by the Board. Biggs, 334 F.3d at 912; Sass, 461 F.3d at 1125. All we held in those cases and all we hold today, therefore, is that, given the particular circumstances of the offenses in these cases, due process was not violated when these prisoners were deemed unsuitable for parole prior to the expiration of their minimum terms.

Furthermore, we note that in Sass and in the case before us there was substantial evidence in the record demonstrating rehabilitation. In both cases, the California Board of Prison Terms appeared to give little or no weight to this evidence in reaching its conclusion that Sass and Irons presently constituted a danger to society and thus were unsuitable for parole. We hope that the Board will come to recognize that in some cases, indefinite detention based solely on an inmate's commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process, given the liberty interest in parole that flows from the relevant California statutes. Biggs, 334 F.3d at 917.

Irons, 505 F.3d at 853-54.*fn2

B. Analysis

In addressing the factors it considered in reaching its 2006 decision that petitioner was unsuitable for parole, the Board in this case stated as follows:

PRESIDING COMMISSIONER FARMER: All right, Mr. Walker, we reviewed the information contained in your file and the information received from the public, the arguments of counsel. We rely upon the following circumstances to conclude that we believe that you remain unsuitable for parole and continue to pose an unreasonable risk of danger to society or a threat to public safety if released. You know, you present a conundrum, sir, in that, yes, you've been in a long time and you appear to be reasonable as you sit here before us, but the law tells me that I have to look at you as someone who 29 years ago when confronted with the burglary of your house decided to be police, prosecutor, judge, jury, executioner, and for a burglary, you took somebody out and beat him to a pulp and then shot him. Such an offense was carried out in an especially cruel and callous manner. The offense was carried out in a dispassionate or calculated murder, resembling an execution style murder. The victim was abused, defiled, and mutilated during the course of the events. It was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering, and the motive for the crime, albeit I understand that burglary is a disrupting event, the manner in which this crime was carried out, I believe to be -- that the burglary in relation to the magnitude of this crime can be described as clearly trivial. So the dilemma that we're put in is that we're asked to, in essence, give you credit for standing up for what you believe when you deny it. On the other hand, we have somebody who has committed a crime of this magnitude who has denied it. And one of the psychologists in essence said, well, if he -- he has great insight if he didn't commit the crime because if he didn't commit the crime he shouldn't be in prison and he shouldn't of been convicted, but a jury found otherwise, the appellate court found otherwise, and we're not in a position to refute that. So we look at you as that person who is then denying responsibility, and so because we have to accept as true the findings of the court, the other things the psychiatrists are saying you're denying it because you're either not being truthful with yourself and/or us or you're psychotic, and either of those -- I mean, put yourself in our situation. You got somebody sitting across from you who you believe did something of this magnitude and denies it, you know. I would think that it would cause you a great concern, as it causes us. I understand your frustration with that, but that reality keeps coming back to us. And so given that situation, yes, I do, I continue to have serious concerns for public safety about that person, which the law tells me is you, so that's why you are denied. Your prior record, although you had some brushes with the law, doesn't seem necessarily to relate to this offense, in that you had been holding a good job and had been crime free for a number of years. It represents exposure to the system. There's some degree of violence, but not of this magnitude. Programming, I think you've -- I can't recommend that you program any more than you have because you haven't come to the realization now, or I'm not going to persuade you to change your mind, and I don't really intend to try. That's the position that you've taken, and so, you know -- I mean, program if you wish to. It's always good for us, if nothing else, just for our own mental health, but I'm not assuming that your position is going to change. And we considered the psychologist's, Dr. Davis's report of August 17th of '05. He basically says that -- some of the same things that I've said, you know, your level of dangerousness kind of depends upon whether you did it or didn't do it. The law tells us that we have to accept that you did it, so that is taken from our hands. Over our concerned input and the city of Oakland and the District Attorney's office, we're going to deny you for a year, just for no other reason then, you now, you've been in a long time. You're getting old and other Panels have just -- have given you year denials, and we don't feel that we ought to be any worse than that. However, I'll say with candor that, you know, if you're in the same situation in a year that you have now, I'd come up with the same decision, and that's not personal against you. It's against the situation that I'm presented with. We have to be convinced that you don't pose a risk, and given a crime of this magnitude and that lack of insight, you know, I just can't go there. So I think you justifiably be denied for a longer period, but I'm not going to do that. We'll let another Penal look at it next year. What you do need to do, sir, is make sure that you have the letters that somehow aren't there now, and why that's not true, I don't know, but it is important that that documentation of the support that you state you have be in the file, and it's not there now. Make sure for your next hearing that you do have that in hand because a part from what I have talked about that could be a justifiable way for you to be denied, just if the documents aren't there, so we want to make sure that you have the documents and all the other things that you've been told by lots of other Panels. Still hold true, stay disciplinary free, and all of that, you know. You're in a difficult situation. I'm in a difficult situation with that set of facts. You're a gentleman when appearing before us, and I thank you for that. I wish you good luck with your cancer surgery or your treatment. That's a tough thing to go through, and I wish you well.

(Transcript at 43-47.) After taking into consideration the Ninth Circuit decisions in Biggs, Sass, and Irons, and for the reasons set forth below, this court concludes that petitioner is entitled to federal habeas relief with respect to his due process challenge to the Board's April 4, 2006, decision denying him parole.

At the time of his suitability hearing in 2006, petitioner was sixty-one years old and suffering from leukemia. (Pet., Ex. entitled "tolling," at iii.) He had served almost 30 years in prison for his commitment offense. (Id.) He has never had a disciplinary conviction while in prison. The Board recognized, and this court finds, that petitioner's past criminal history does not provide any evidence that petitioner poses a current danger to society. The Board also noted that petitioner had behaved and programmed exceptionally well in prison. Although not all of the documentation regarding the prison programs petitioner had participated in was before the Board, petitioner described the numerous vocational programs he had been involved in and/or completed. (Transcript at 27-34.) Petitioner also explained to the Board that he had not participated in any programming for the past year because he was undergoing chemotherapy. (Id. at 24-25.) At the time of the 2006 hearing, petitioner had been married for nearly thirty years and had an adult son who was attending college. He had a place to live and a job with his mother-inlaw upon his release from prison.*fn3

The Board addressed few factors in announcing its decision to deny petitioner a parole date. First, the Board stated that the commitment offense was carried out in an especially cruel and callous manner, with an "exceptionally callous disregard for human suffering," and the motive was very trivial in relationship to the offense. The Board also noted that the district attorney had opposed petitioner's release on parole. However, the Board's decision as a whole reflects that petitioner was in fact denied release on parole because he maintained his innocence of the crime. In this regard, the presiding commissioner told petitioner that, although he appeared to be "reasonable," the Board was required to view petitioner as the perpetrator of the crime. (Tr. at 43.) The commissioner noted the "dilemma" of being asked on one hand to give petitioner "credit" for standing up for what he believed in by continuing to maintain his innocence, while on the other hand being required to consider that petitioner had "committed a crime of this magnitude" and was still denying it. (Id. at 44.) The Board resolved that dilemma by assuming that petitioner was "denying responsibility" for the murder. (Id.) The commissioner explained that, given petitioner's continued refusal to admit his guilt, he would not receive a parole date at that hearing or at any future parole suitability hearing either. (Id. at 45.) The commissioner concluded that given petitioner's protestation of innocence, "I do, I continue to have serious concerns for public safety about [the perpetrator], which the law tells me is you, so that's why you are denied." (Id.) The commissioner also characterized petitioner's assertion of innocence as a "lack of insight." (Id. at 46.)

The Board's concerns regarding petitioner's lack of insight and self-understanding clearly constituted the imposition of a requirement in this case that he admit his guilt in the murder in order to be released on parole. In essence, all of the Board's comments and conclusions were focused on only one factor - that petitioner refused to admit that he was guilty of the murder of Mr. McWoodson. The Board, however, was not entitled to rely on the fact that petitioner refused to admit guilt in finding him unsuitable for parole.

California Penal Code § 5011(b) states that in determining eligibility for parole, the Board "shall not require an admission of guilt to any crime for which an inmate was committed." When appearing before the Board, an inmate "may refuse to discuss the facts of the crime in which instance a decision shall be made based on the other information available and the refusal shall not be held against the prisoner." Cal. Code Regs., tit. 15, § 2236. See also In re Palermo, 171 Cal. App. 4th 1096, 1110-1111 (2009) (Board's denial of parole reversed where court was "not persuaded" that Board's concerns about inmate's "insight" were not an "indirect" "requirement he admit he is guilty of second degree murder"); In re Aguilar, 168 Cal. App. 4th 1479, 1491 (2008) (an inmate "'need not admit his guilt or change his story to be found suitable for parole by the Board'"). In the present case, the Board's decision improperly "held against" petitioner his refusal to admit guilt and discuss the circumstances of his crime, in direct violation of California law. See Cal. Code Reg., tit. 15, § 2236. Further, the clear import of the presiding commissioner's remarks at the hearing on April 4, 2006 was that petitioner could never be found suitable for parole unless and until he admitted his guilt with respect to his commitment offense. This was improper under California law and the imposition of such an unlawful condition violated petitioner's federal right to due process. Put another way, petitioner's failure to admit his guilt of his crime of conviction, without more, does not constitute "some evidence" that he would pose a current danger to society if released and does not support the Board's finding that he currently remains a danger to public safety. Cf. Evans v. Carey, No. CIV S-06-0376 LKK GGH P, 2007 WL 1182937 (E.D. Cal. Apr. 20, 2007) (unchanging circumstances of petitioner's crime of conviction constituted "some evidence" to support Board's unfavorable suitability decision, apart from petitioner's protestation of innocence, where past psychiatric evaluations concluded that petitioner had narcissistic personality disorder and lacked insight).

With respect to the circumstances of the crime of conviction, committed nearly thirty years earlier the panel articulated no nexus, and this court can find none, between those circumstances and petitioner's current dangerousness. The murder in question was not committed in such an especially heinous, atrocious, or cruel manner as to undermine the fact that petitioner's rehabilitative efforts and performance over nearly thirty years in prison demonstrate he no longer would pose a danger to society if released on parole. The circumstances of petitioner's commitment offense do not continue to be predictive of his current dangerousness when considered in light of the other factors in the record, all of which indicate that he is not a current danger to society. Accordingly, this court considers the Board's findings concerning the circumstances of the commitment offense only insofar as they interrelate with petitioner's perceived lack of insight. However, as discussed above, petitioner declined to discuss the offense, maintaining that he was innocent. Under California law, petitioner's decision to decline to discuss his crime, other than to maintain his innocence, cannot be relied upon as evidence indicating that he lacks insight into the commitment offense. Nothing in the record supports a finding that a lack of insight makes petitioner a danger to the public if released from prison.

The psychological reports relied upon by the Board in 2006 likewise provide no evidence that petitioner would pose a current danger to society if released. In 2000, Dr. Dean J. Clair opined that, "all things considered, the likelihood is minimal that this very reasonable man would do anything if released that would guarantee his spending the rest of his life in prison." (Ex. 1 to "Objection to October 26, 2009 Court Order," filed November 9, 2009.) Similarly, in 2005 Dr. P. Davis reached the following conclusions regarding petitioner's suitability for parole:

He has spent 28 years in prison for the instant offense that he said he is innocent of committing. If that is true, then he continues to be non-violent. Chances of him becoming violent in the future would be low according to his history.

If Mr. Walker is guilty of the instant offense and is psychologically defended against remembering the incident, one might wonder if he could repeat that act or another act of violence due to his not working through whatever it was that made him commit the act in the first place. If he is guilty and he knows that he is guilty and just outright denying his guilt, then one might wonder about his stubbornness.

Nonetheless, he has spent approximately 28 years in prison without being violent. Whether he was psychologically repressing the memory of the murder or not he has not acted on any violent or dangerousness impulses within the prison system, according to information reviewed.

Given his recorded history in the files reviewed and from interview and psychological evaluation of this inmate on 08/17/05, he appears to show a low risk of dangerousness and violence when compared to the general inmate population. (Id., Ex. 2.)

As described above, the conclusions reached by Drs. Clair and Davis were summarized by the Board at the 2006 hearing.*fn4 Both doctors knew that petitioner continued to maintain his innocence but nevertheless concluded that his risk of current dangerousness was low. No evidence placed before the Board at the parole hearing in 2006 contradicted the ultimate finding of both physicians that petitioner posed a low risk of danger to society if released.*fn5

In sum, this court concludes that there is insufficient evidence to support the Board's ultimate conclusion that petitioner would pose an unreasonable risk of danger if released on parole. Petitioner had no criminal history prior to the commitment offense; the killing of the victim was not so calculated and heinous as to indicate, without more, that petitioner remains a continuing danger to the public thirty years later; it is impressive that during his many years of imprisonment petitioner has received no disciplinary write-ups; petitioner has effectively participated in rehabilitative programs; psychological evaluations opine that he no longer represents a danger to public safety if released on parole; petitioner has job skills and a job offer if released; and he has a supportive family willing to ease his transition back into society. Applying the federal due process principles expressed in the cases cited above, this court is compelled to conclude that, in light of the period of time that has elapsed since the commitment crime, the affirmative evidence of petitioner's pre- and post-conviction conduct and his rehabilitative efforts and psychological evaluations, and his stable parole plans, there is no competent evidence to support the Board's finding that petitioner poses a danger to public safety if released on parole. Under these circumstances, the decision of the Alameda County Superior Court denying habeas relief and upholding the Board's 2006 decision to deny petitioner parole violated due process.



1. Petitioner's application for a writ of habeas corpus be granted; and

2. Within thirty days from the date of service of this order, the California Board of Parole Hearings calculate a term for petitioner in accordance with the requirements of California Penal Code § 3041, with credit for time since the April 4, 2006, decision as if parole date had been granted, and any other term credit to which petitioner is entitled by law.

These findings and recommendations are 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-one days after being served with these findings and recommendations, 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." Any reply to the objections shall be served and filed within fourteen days after service of the objections. 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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