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Rucker v. Sisto

January 4, 2010

STEVEN RUCKER, PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Steven Rucker 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 serving an indeterminate sentence of 27 years to life following his 1982 conviction for first degree murder with use of a firearm in Butte County, case number BUT-77896. The pending petition challenges the execution of that sentence, and specifically, the October 19, 2007 decision of the Board of Parole Hearings that petitioner was not suitable for parole.

II. BACKGROUND

The facts of petitioner's life crime were summarized in a psychological evaluation prepared for the parole suitability hearing at issue:

According to Oroville Police Department, on March 24, 1982, Rucker's wife Lois became involved in an argument with Alice Cocking (the victim), after Rucker had stopped at a 7-11 Market on Oro Dam Boulevard in Oroville, California, to do some shopping. Rucker was in the store shopping when the argument between his wife, Lois, and Mrs. Cocking started. When Rucker exited the market, he tried to stop the argument and separated the two women. Charles Mortensen stated that when Rucker tried to separate the combatants, he started to pull out what appeared to Mortensen to be a gun. Mortensen pulled a knife and told Rucker he would stab him if he pulled a gun. At that point, Rucker departed telling Mortensen he would be back in 10 minutes. Approximately 10 minutes later Rucker returned [in] his car, which was occupied by the same people, Rucker's wife Lois, and Brian and Shelly Dial. The argument between Lois Rucker and Alice Cocking resumed. At that time, the store clerk called the police. When police arrived, Rucker and his passengers left the parking lot.

Mortensen stated that after the police left, he and Alice Cocking drove his motorcycle to the intersection of Stanford and Argonaut Avenues and stopped at the stop sign. Rucker's vehicle pulled along side of [the] motorcycle, a shot rang out, and Alice Cocking was killed by a single shotgun blast to the head.

(Resp. Ex. 1.) At his psychological evaluation, petitioner indicated that he had just been hired as a welder on the date of the offense after several months of unemployment. He and the other occupants of the car had been out celebrating, and he was under the influence of alcohol and drugs. (Id.) Petitioner further indicated that he was not lying in wait for Mortenson and the victim to come by, but rather, their paths crossed again by accident. Id. Petitioner stated that he did not mean to kill the victim, but rather, only intended to shoot Mortenson in the knee. (Id.)

Petitioner was found guilty by jury of first degree murder with use of a firearm. He was sentenced to an indeterminate term of 27 years to life, with the possibility of parole. His minimum eligible parole date passed on January 17, 1999.

On October 19, 2007, a panel of the Board of Parole Hearings ("Board") conducted a subsequent hearing to determine petitioner's suitability for parole. After evaluating the positive and negative factors for petitioner's release, the panel determined that petitioner would pose an unreasonable risk of danger to society, and thus that he was not suitable for parole. (BPHT at 99.*fn1 ) Petitioner sought habeas corpus relief in the Butte County Superior Court; his petition was denied in a form order with additional language stating "The Court finds the decision of the Parole Board to deny parole was supported by sufficient evidence." (Resp. Ex. 2.). The California Court of Appeal, Third District, denied petitioner's claim without written opinion (Resp. Ex. 4) and the California Supreme Court denied review (Resp. Ex. 2.)

III. ISSUES PRESENTED

Petitioner claims, generally, that the Board determined he was unsuitable for parole in the absence of any valid, reliable supporting evidence in the record. The petition sets forth six separate issues regarding whether the Board's decision comported with due process. Petitioner asserts that (1) the board improperly relied on the unchanging factors of his commitment offense; (2) the unchanging factors of his commitment offense do not justify denial of parole; (3) no reliable evidence indicates that he has not sufficiently participated in self-help therapy and/or Alcoholics Anonymous; (4) his parole plans were not a valid basis for denial; (5) the opposition of the District Attorney and/or victim's family is irrelevant to the determination; and (6) the Board improperly relied on his prison disciplinary history as a negative factor where he had been free of any discipline for nearly 15 years.

As set forth in the discussion below, the due process standard in the parole hearing context is minimally stringent. The Board's decision must be upheld so long as there is "some evidence" in the record that could support the conclusion reached. In this case, despite petitioner's assertions, that standard was met and he is not entitled to relief.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under ...


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