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Bousamra v. Sisto

February 16, 2010

GARY RUSSELL BOUSAMRA, PETITIONER,
v.
D.K. SISTO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole in August 2005. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), respondent's answer (Doc. 11), petitioner's reply (Doc. 12), and the parties' supplemental briefs (Docs. 15 and 17). Also before the court is respondents' request for a stay of proceedings (Doc. 16).

I. BACKGROUND

Petitioner is serving a sentence of fifteen years to life following his conviction for second degree murder in 1986. At a third parole consideration hearing in August 2005, the Board of Parole Hearings ("Board") found petitioner unsuitable for parole. The Board cited the following factors: (1) the nature of the commitment offense; (2) insufficient participation in substance abuse and self-help programming; (3) lack of parole plans in California; and (4) opposition to release submitted by the district attorney's office and the victim's family.

Petitioner challenged the 2005 denial of parole by way of a habeas corpus petition filed in the San Diego County Superior Court. That petition was denied in a reasoned decision issued on May 17, 2006. The state court held:

Petitioner argues he was deprived of his constitutionally protected liberty interest in parole because there is no evidence to support the Board's decision denying him parole. However, this claim is without merit.

The parole board in this case did not rely solely on Petitioner's commitment offense in denying him parole. The BPH gave due consideration to all the applicable factors regarding suitability for parole as set forth in [the regulations]. First, the BPH considered the underlying commitment offense. . . . [¶] The Board also considered Petitioner's prior criminal history and social history. . . .

The Board next considered Petitioner's institutional behavior, and commended Petitioner for remaining disciplinary-free. (citations omitted). However, the Board also noted Petitioner has not sufficiently participated in substance abuse programs, even after the recommendation of the prior [parole suitability] panel. (citation omitted). The Board states Petitioner's involvement in those programs has been recent, and that Petitioner requires more time to explore those issues. (citation omitted).

The Board next considered Petitioner's parole plans. (citation omitted). Petitioner has an offer of residence and employment in Michigan, but no residence or employment offers in California. Since there is no guarantee Petitioner will be able to parole to Michigan, the Board recommended Petitioner make parole plans within California. (citation omitted).

The Board also noted the responses to 3042 notices indicate opposition to a finding of parole suitability, specifically from the San Diego County District Attorney. (citation omitted).

After weighing the above factors, the BPH determined the positive aspects did not outweigh the unsuitability for parole, and denied parole for four years. The Board stated:

We believe that you need, to the extent available, to involve yourself in continued self-help or therapy as available, to continue to explore underlying reasons as underneath -- underlying this offense. you appear to us to be willing to discuss it more than you've indicated before. We view that as a positive direction for you to gain further insight into why this occurred. And we encourage you to continue to do that. However, at this point we feel until further progress is made, we believe you continue to pose a threat, again because of the crime that you incurred. You must further -- and this relates specifically, not only to self-help generally, but also to the -- the NA, AA, substance abuse concerns that we have. And whatever gains you've made are recent and need to be developed over a period of time.

Based on the above, there is "some evidence" in the record to support the Board's finding that Petitioner is unsuitable for parole. This Court finds no abuse of the Board's discretion is apparent in this case.

The California Court of Appeal denied relief in a reasoned decision issued on July 31, 2006. The court stated:

Gary Bousamra is serving a 15 years-to-life sentence after pleading guilty to second degree murder in 1986. The victim was his former wife, Lois Bousamra (Lois). On August 24, 2005, the Board of parole Hearings (Board) conducted a subsequent parole consideration hearing and declined to set a parole date for Bousamra on the ground he would pose an unreasonable risk to society or public safety if released. The Board based its decision on the violent, cruel and callous manner of the offense, the fact the victim was abused or defiled and the motive for the crime was trivial. The Board noted Bousamra has been a "good prisoner" and "disciplinary free" but expressed its concern Bousamra was not deeply involved in NA or AA and needed concrete parole plans in San Diego. The Board set the next hearing in 4 years.

Bousamra contends the Board's decision is arbitrary, capricious, unreasonable, and unsupported by reliable evidence. He claims he is entitled to parole under an express condition of his plea agreement.

The Court of Appeal rejected petitioner's claim for the same reasons cited by the San Diego County Superior Court. The California Supreme Court denied relief without comment or citation on October 11, 2006.

Respondents concede that petitioner's federal ...


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