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Weir v. Curry

March 24, 2010

DUANE R. WEIR, PETITIONER,
v.
BEN CURRY, WARDEN, RESPONDENT



The opinion of the court was delivered by: Thelton E. Henderson, District Judge.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

Pro se Petitioner Duane Weir, a sixty-five-year-old state prisoner incarcerated at the Correctional Training Facility in Soledad, California who recently was diagnosed with lung cancer, seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging the California Board of Parole Hearings' ("BPH") March 13, 2006 decision denying him parole. Doc. # 1; see Doc.14 & 15.

On February 23, 1979, Petitioner was sentenced to seven-years-to-life following his conviction of felony-murder and related crimes arising from the death of Samuel Lowery. Doc. # 7-1 at 22-23, 26 & 35-36. His minimum eligible parole date was March 10, 1985. Id. at 26. At the time of his 2006 parole denial, Petitioner had served twenty-eight years in prison, over twenty-one years past his minimum eligible parole date.*fn1

The state superior court determined that BPH's decision denying Petitioner parole was supported by "some evidence." Doc. # 7-6 at 5. The court explained that the primary reason for Petitioner's parole denial was "the circumstances of [his] crime," which indicated that "he would pose an unreasonable risk or threat to society." Id. The court relied on BPH's "thorough[ ] discuss[ion] [of] the circumstances of the crime and its reasons," and without further elaboration, concluded that there was "more than 'some evidence' to support [BPH's] findings." Id.

The 2006 hearing was Petitioner's seventeenth parole suitability hearing and his sixteenth parole denial. Doc. # 1, "Introduction"; see id. at 9-11. Four years earlier, in 2002, Petitioner was found suitable for parole by BPH, but this determination was reversed by then-Governor Gray Davis.*fn2 Doc. # 1 at 10; see id. at Ex. # 51.

For the reasons that follow, the Court finds that at the time of Petitioner's 2006 parole suitability hearing, there was no evidence to support BPH's decision that he currently would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Petition will be granted.

I.

On February 23, 1979, Petitioner was sentenced to seven-years-to-life in state prison following his conviction by jury of first degree murder, robbery and grand theft. Doc. # 7-1 at 21-23; Doc. # 7-3 at 55-66. Petitioner's convictions stemmed from an incident where Petitioner and his brother went to the home of Samuel Lowery to steal some firearms. Petitioner's brother shot Lowery, who died from an infection about two months after he was hospitalized for two gunshot wounds. Doc. # 1, Ex. 4; Doc. 7-1 at 86.

The jury also found true a sentence enhancement allegation that Petitioner had personally used a firearm, but the trial court struck this finding "in the interest of justice." Doc. # 7-1 at 22; Doc. # 7-3 at 59-60. In striking the finding, the trial court stated:

I am aware that the jury who tried [Petitioner's] brother found [him] not guilty of the charge of murder. I cannot believe that any jury that heard the evidence that I heard in this trial would have found [Petitioner's] brother not guilty, but I didn't hear the evidence in the other trial and I didn't hear the arguments and I don't know how the jury may have been affected. I have heard speculation as to why they found they way they did, but I have heard speculation about a lot of other things in this and other cases.

....

I don't know why the jury didn't find your brother guilty on [the murder charge], and I said what I meant and I meant what I said; and I feel that he was just as guilty as you were and I don't understand how it was that he wasn't convicted and I don't know what evidence was presented to that jury and I don't know what arguments were made and I don't know how that jury reacted....

Doc. # 7-3 at 59 & 63.

The facts surrounding Petitioner's commitment offense as summarized by the California Court of Appeal in its unpublished opinion related to the appeal of the judgment are as follows:

Defendant and his brother wanted some guns. The brother said he knew of an old man who had some. They went to the home of 90 year old Samuel Lowery and, armed with a .22, told him to give them his money or his life. The old man would have none of this nonsense and he opened up on them with his .38. Unfortunately, his markmanship was not of the same caliber as his enthusiasm. He missed but they did not. He was shot twice in the abdomen and the defendant and his brother took the old man's .38. The defendant then placed a gun to the victim's head and ordered him to crawl under a truck and to remove his pants. Defendant and his brother showed a witness a .38 and other weapons-a shotgun and two rifles-and said they took them from Lowery.

Lowery then drove his truck to a public telephone and called the police. When they arrived, they found him in his truck. He was taken to the hospital and underwent surgery. He had two gunshot wounds in his abdomen and his spleen was removed. He was discharged two weeks later. He was readmitted to the hospital and died.

Defendant was arrested and found in possession of Lowery's guns. Defendant denied any knowledge or ownership of the guns and denied any part in the shooting.

An autopsy surgeon testified that the cause of the death was a subphrenic abscess which was caused by a gunshot wound which perforated the victim's stomach. The abscess produced poisonous substances which spread through the victim's body leading to his death. The pathologist also testified that the gunshot wound which perforated the stomach could have caused the urinary infection which was found in the old man's body at his death.

Doc. # 1, Ex. 4.

The facts as presented at Petitioner's seventeenth parole suitability hearing held on March 13, 2006 were briefer and somewhat less detailed. Absent from this version of the facts was any mention that Lowery fired the first shot:

Mr. Samuel Lowery ... who was age eighty at the time, was shot in the chest and abdomen while he was [in] the yard at his residence in Fontana. Mr. Lowery was interviewed by police at the hospital regarding the shooting. Lowery reported that he had been robbed and then shot by two white males, both between the ages of twenty-five and thirty. Lowery states that he was knocked to the ground, could not remember what had happened .... Lowery had been living in a camper in the back of his truck because his residence had recently been burned. Mr. Lowery said he believed it was Tony and Tyrone Weir who had shot him. Mr. Lowery died on April 25, 1978 and his death was caused by [s]ubphrenic ... abscess [sic] due to gunshot wounds to the diaphragm, stomach and spleen.

Doc. # 7-1 at 35-36.*fn3 At the hearing, BPH noted that Petitioner's "liability for murder is based on his involvement in the attempted robbery" and was therefore based on "felony-murder." Id. at 33. BPH acknowledged that Lowery "was shot twice ... by [Petitioner's] brother." Id. at 86.

At the conclusion of the hearing, BPH found Petitioner was "not yet suitable for parole and would pose an unreasonable risk of danger if released from prison." Doc. # 7-1 at 86. BPH cited several reasons to support its decision, specifically the "cruel manner" in which the offense was carried out, in that there was a "trivial reason" for the murder and that Petitioner failed to "profit from society's previous attempts to correct his criminality" and "sufficiently participate[ ] in beneficial self-help and therapy programs" while in prison. Id. at 86-87. BPH also found that Petitioner's "lack of meaningful self-help programming does not demonstrate[ ] to the panel that [Petitioner will] have the necessary tools to maintain [his] gains outside of a controlled setting." Id. at 90. Petitioner's parole was deferred for one year. Id. at 86.

Petitioner challenged BPH's 2006 decision denying him parole by filing a petition for a writ of habeas corpus in San Bernardino County Superior Court, which the court denied on May 25, 2007. Doc. # 7-6 at 2-6. The court determined that BPH's decision denying Petitioner parole was supported by "some evidence," and explained as follows:

It is plain and the Board stated in its decision that the primary basis for the finding of Petitioner being unsuitable for parole and that he would impose an unreasonable risk or threat to society was the circumstances of the crime. The Board thoroughly discussed the circumstances of the crime and its reasons and there is no need for this court to reiterate those reasons stated, except to say that there is more than "some evidence" to support the Board's finding.

Id. at 5.

Petitioner then filed a petition for a writ of habeas corpus in the California Court of Appeal, which was summarily denied on July 13, 2007. Doc. # 7-10 at 2-3. Finally, Petitioner filed a petition for review in the California Supreme Court, which was summarily denied on October 10, 2007. Doc. # 7-14 at 2. This federal Petition for a Writ of Habeas Corpus followed. Doc. # 1.

Per order filed on March 26, 2008, this Court found Petitioner's claim that BPH violated his due process rights, when liberally construed, colorable under 28 U.S.C. ยง 2254, and ordered Respondent to show cause why a writ of habeas corpus should not be granted. Doc. # 3. ...


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