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Amaro v. Curry

United States District Court, Northern District of California


March 29, 2010

MIGUEL AMARO, 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 Miguel Amaro, a state prisoner incarcerated at the Correctional Training Facility ("CTF") in Soledad, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging the California Board of Parole Hearings' ("BPH") March 20, 2007 en banc summary decision denying him parole. Doc. # 1; see Doc. # 4-2 at 72. Petitioner's parole suitability determination went en banc after a February 14, 2007 split decision, with one commissioner finding Petitioner unsuitable for parole and another finding him suitable. See Doc. # 1-1 at 39-48. This was the second time Petitioner received a split decision regarding his parole suitability; the first was in 2004. Doc. # 1.

On June 27, 1984, Petitioner was sentenced to fifteenyears-to-life in state prison following his convictions of second degree felony-murder arising from the death of Eric Collier and of kidnapping Collier's two friends. Doc. # 4-1 at 46-47. Petitioner's life term began on or around July 3, 1984; his minimum eligible parole date was December 15, 1992. Id. at 46. At the time of his 2007 parole denial, Petitioner had served twenty-three years in prison for his commitment offense, fifteen 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. # 4-5 at 2. The court explained that BPH's decision "was based ... primarily on the commitment offense and on the Petitioner's previous criminal history." Id. The state appellate court agreed that there was "some evidence" to support BPH's decision. Doc. # 4-7 at 2. The California Supreme Court summarily denied Petitioner's request for review, although Justice Moreno would have granted Petitioner's request. Doc. # 4-9 at 2. This federal Petition for a Writ of Habeas Corpus followed. Doc. # 1.

For the reasons set forth below, the Court finds that at the time of Petitioner's 2007 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.

At Petitioner's February 14, 2007 parole suitability hearing, BPH read two factual summaries of Petitioner's commitment offense. Doc. # 4-1 at 61-67. The first was submitted by a correctional counselor at Petitioner's 2003 hearing. Id. at 61. The second was Petitioner's version. Id. at 64. Each is set forth below.

On December 5, 1982 at approximately 9:35 p.m., victim Eric Collier along with Russell Walker and James Tokumoto were visiting with Daniel Almarez, Jeff Sagmeister and [Petitioner] in an apartment located at 14724 Chadron Avenue in Lennos. Tokumoto and Daniel Almarez were in the kitchen talking when the fight started. Daniel Almarez produced a gun [with] which he struck Tokumoto several times in the head. Sagmeister saw the gun in Daniel's hand and took it away. The fight resumed and Daniel Almarez called to Robert Almarez for help. Robert shot and killed James Tokumoto. Daniel told Sagmeister to close the drapes and clean up the blood. At gunpoint Daniel then taped the mouths and hands of the victims Russell Walker and [Eric] Collier and took their wallets. [Petitioner] assisted in taping up Collier. Daniel told [Petitioner] to get some rope. [Petitioner] left and returned with a white bag. Daniel gave [Petitioner] some keys and told him to get the car. The two victims Walker and Collier with their hands tied [were] taken to a (inaudible) by Daniel and Robert Almarez. [Petitioner] was the driver of the vehicle. [Petitioner] eventually stopped the car on Marine Avenue in Manhattan Beach. Robert Almarez, the victims Walker and Collier got out of the vehicle. Walker was able to free his hand and escaped. Daniel threw Collier back into the car and told Robert to go after Walker. While running from his captors, Walker could hear two gunshots. Walker was able to hide and then at one of the residences in the area call the police. The police arrived, observed Robert Almarez, recovered the gun and took Almarez into custody. Meanwhile, Daniel told [Petitioner] to go look for Robert and he drove down two streets. Daniel told [Petitioner] to drive out of the area and eventually had him stop the car. Daniel took Collier out to a grassy area. [Petitioner] told Daniel to let Collier go but after hesitating, Daniel said, "Fuck, no," grabbed Collier, shot him three times. [Petitioner] and Daniel Almarez drove the victim Collier from the area and early the following morning Collier's body was found in the 1900 block of El Segundo Boulevard. Collier had been shot in the head. [Petitioner] and Daniel Almarez then returned to the apartment and carried Tokumoto's body into the station wagon and dumped it at an area near Gardenia.

[Petitioner's] version.

[Petitioner] stated that he had moved in with Daniel Almarez for only a few days before the homicide as he was looking for a place to stay and had been visiting with a girlfriend throughout most of the day of the homicide. Danny asked him to sample some cocaine which he intended to purchase (inaudible), and he sold the drug but didn't use it ( [Petitioner] returned to the residence and verified that the drug was good). [Petitioner] remained at Almarez'[s] residence drinking beer and eating pizza with Danny and his friends when he received a phone call from James Tokumoto. Tokumoto was invited to join the group and did so along with the other victims Russell Walker and Collier. Almarez learned from Tokumoto that Tokumoto was responsible for Almarez'[s] girlfriend moving out and a shouting match ensued that developed into a fight. The incident proceeded as described in the offense summary and [Petitioner] indicated that at no time was he a willing participant in the subsequent kidnappings and shootings. [Petitioner] stated that he was threatened by gunpoint by Daniel Almarez if he did not cooperate. [Petitioner] indicated that he unsuccessfully attempted to convince Almarez to release Walker and Collier during the course of the kidnapping. He was outside the immediate presence of Almarez only once throughout the incident and was quite fearful that he himself might be killed since he was aware that Almarez was heavily involved in gang activity and could be extremely violent. The one time [Petitioner] was away from the immediate presence of Almarez was when he was ordered to go outside and get the car. [Petitioner] stated that in hindsight he realizes he would have been able to flee. At this point the fear for his own life kept him from leaving. After dropping off Tokumoto's body, he was returning with Almarez to the residence when he was stopped by a peace officer at a road block which was set up. He was taken into custody as a result of having a six pack of beer open on the front seat. Almarez who was asleep in the back seat was allowed to remain in the vehicle. [Petitioner] was afraid to discuss the matter with anyone and since he had not been identified at that point[.] [H]e was released on his own recognizance the following day. He stayed with his girlfriend for several days during which he was drinking and using drugs heavily. He assumed that eventually he would be arrested in the matter and when this did occur he continued to maintain his silence.

Doc. # 4-1 at 61-67.

Following the evidentiary portion of the February 14, 2007 hearing, BPH rendered a decision regarding Petitioner's parole suitability, telling Petitioner:

there is a split of opinion in regard to your suitability for parole. I will read my factors and findings ... having reviewed all the information from the public and rel[ying] upon the circumstances of your life crime as well as your progress and programming in state prison [I] find that you are not suitable for parole and would pose an unreasonable risk of danger to society of a threat to public safety if released from prison on the grounds that this offense was carried out in an especially cruel and callous manner in that one victim, Tokumoto was invited over by Daniel Almarez to the residence. Mr. Tokumoto brought over two friends at the house. The justification for the killing ... indicates it was a drug transaction gone bad. There is other information that Mr. Tokumoto had some contact with Mr. Alvarez'[s] girlfriend that caused Mr. Alvarez to have ill feeling. But considering two people were killed that night the motive for the crime was inexplicable and very trivial in relationship to the loss of two lives. The way that the crimes were carried out shows a dispassionate, calculated manner in that it was almost execution style. Mr. Tokumoto was shot in the kitchen. The two other people Walker and Collier was [sic] found. Their wallets were taken from them at the house. They were taken in a car driven by you. The two Almarez brothers had handguns at the time. They drove to one location near Manhattan Beach where Mr. Walker was able to escape. Mr. Collier was put back in the car and shot three times in the head. His body was dumped. You were the driver of the car at the time. After that incident you went back over to the Almarez residence and assisted Daniel in taking Tokumoto's body and dumping him in Gardenia in a grassy area. The crimes indicate there were multiple victims ... attack[ed] and for these reasons including the fact that you have an escalating pattern of criminal conduct starting off with the incident in 1971 where you were involved in hitting a peace officer with a brick after a (inaudible). I find that in each instance your explanation was to blame other people or blame circumstances that were totally out of your control and yet you involved yourself voluntarily with assaultive behavior and it is more than other people's fault for the ingestion of alcohol or drugs that triggers this type of violent conduct. In addition, I find that you have not sufficiently participated in beneficial self-help. I praise you for participating in Alcohol[ics] Anonymous. I praise you for the therapy that you have obtained. However, it's clear that [the] manner in which the crime was committed in regard to having these three people two of which [sic] were killed taken [to] over three different locations in the Los Angeles area clearly involved an extended period in which you had hostile feelings regarding your participation or uncontrollable feelings regarding your participation in those crimes. And you need a little more therapy, a little more insight in regard to why you have this rage and how you have an easy answer that simply taking alcohol or drugs can cause you to have ... what I [call] an itchy trigger finger regarding your response and rage towards others. The district attorney of Los Angeles County ... indicates his opposition [to your release] ... as [does] the Los Angeles County Sheriff's Department. Further in regard to other factors ... you ingest mind altering substances and your risk for violence is very high. Simply telling the Board that you will refrain from alcohol does not address the underlying issues that appear to be your problem, and it is a finding that you could benefit from further therapy before being released back into society. For all of these reasons, I find you not suitable for parole at this time.

Doc. # 4-2 at 60-63.

The second commissioner, who heard and reviewed the same evidence at the February 14, 2007, hearing found that Petitioner was, in fact, suitable for parole, stating:

I have reviewed all of the information received from the public and relied on the following circumstances in concluding that [Petitioner] is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. [Petitioner] has no juvenile record of assaulting others, has a stable social history as exhibited by reasonably stable relationships with others. In particular, ... you've mentioned that you keep in contact with your brothers Joseph and Robert seeing them every other year, your sister Maria, seeing her twice a month and your sister Theresa, seeing her once a year. In addition you mentioned that you keep in contact with your niece, your nephew, your daughter, your wife and your mother. While in prison, [you have] enhanced [your] ability to function within the law upon release through participation in educational programs[,] specifically you have received your GED back in ... 1988 and you were close to getting your AA degree. Additionally you have provided many [l]audatory chronos indicating your participation in [Alcoholics Anonymous], [Narcotics Anonymous] and anger management. In addition to that, you've indicated that you did receive a certificate in welding, you do have your forklift license, and I'm incorporating by reference previous transcripts from previous hearings wherein it was indicated that you have vocational training in commercial laundry and dry cleaning. Prior to the life crime, [you] lacked a significant criminal history of violent crimes. Because of maturation, growth, great understanding and/or advanced age, [you have] reduced [the] probability of recidivism. And I refer to the psychological report of 2006 by Dr. Marek wherein he indicates that you have been free of [serious rules violations] for many years and your behavior has improved and your judgment has become clear and you have matured. If released to the community [your] violence potential is considered to be about the same as the average citizen in the community. All things considered [your] pre-incarceration record is not that severe. With the gains [you have] made here, [you] should be able to generalize those gains to the community. Then I'll go on to the report from Dr. Tout (phonetic) on June 6, 2000 wherein he indicated that should [you] at this time be given a parole or release date, [your] prognosis for maintaining [your] present gains in the community is excellent as long as [you] continue[ ] to abstain from substance use. And then finally, I will read into the record a 2000 report from Dr. Koch wherein he indicates that if released to the community [your] violence potential is estimated to be no higher than the average citizen in the community. I have also found that the prisoner has realistic parole plans which include a job offer and/or family support. [Petitioner] indicated that he would have a job at Gold's Gym and has other job opportunities lined up, has maintained close family ties while in prison via letters and/or visits and [Petitioner] has provided various letters from various family members indicating his close family ties, has maintained positive institutional behavior which indicates significant improvement in self control, shows signs of remorse. [Petitioner] has indicated that he understands the nature and magnitude of the offense and accepts responsibility for the criminal behavior and has a desire to change towards good citizenship. In reading the psychological report from Dr. Marek as well as the Board report from [correctional counselor] Arnold, it was indicated that you did express remorse for the crime.

Id. at 63-66.

On March 27, 2007, approximately six weeks after the February 14, 2007 split decision, BPH had an executive meeting. Doc. # 4-2 at 72. At that meeting, BPH, sitting en banc, by unanimous vote but without receiving any additional evidence, found Petitioner unsuitable for parole. Id. Petitioner's parole was deferred for one year. Id.

Petitioner challenged BPH's en banc decision denying him parole by filing a petition for a writ of habeas corpus in state superior court, which the court denied on October 2, 2007. Doc. # 4-3 at 2-3. The court determined BPH's decision denying Petitioner parole was supported by "some evidence," and explained as follows:

[BPH's] decision was based ... primarily on the commitment offense and on ... Petitioner's previous criminal history.

The Court finds that there is some evidence to support the Board's finding that the commitment offense was carried out in a dispassionate and calculated manner. Cal.Code Regs., tit. 15, § 2402, subd. (c)(1)(B). The kidnapping and subsequent murder of Mr. Collier was essentially an execution of the victim because he had been present when the killing of Mr. Takumoto occurred. The Petitioner participated in nearly every facet of the crime except for the killing itself. He had numerous opportunities to flee and call the police and did not do so. Furthermore, the motive for the crime was very trivial in relation to the offense. Cal.Code Regs., tit. 15, § 2402, subd. (c)(1)(E). The committing offenses were precipitated by an argument and the Petitioner was not even directly involved in the dispute.

The Court also finds there is some evidence to support the Board's finding that the Petitioner was previously convicted of assault for hitting a police officer in the face with a brick. Cal.Code Regs., tit. 15, § 2402, subd. (c)(2).

In addition [BPH] noted that the District Attorney's Office had opposed the Petitioner's release. While this is also not a factor on which the Board may rely to deny parole, such opposition may be properly considered. Penal Code § 3402.

Id.

Petitioner then filed a petition for a writ of habeas corpus in the state appellate court, which that court denied on February 21, 2008, in a decision that read, in its entirety:

The petition for writ of habeas corpus has been read and considered.

The petition is denied for failure to state sufficient facts demonstrating entitlement to the relief requested. There is "some evidence" to support the findings of the Board of Parole Hearings. ( See In re Dannenberg (2005) 34 Cal.4th 1061, 1071, 23 Cal.Rptr.3d 417, 104 P.3d 783).

Doc. # 4-7 at 2. The California Supreme Court summarily denied Petitioner's request for review, although Justice Moreno would have granted Petitioner's request. Doc. # 4-9 at 2. This federal Petition for a Writ of Habeas Corpus followed. Doc. # 1.

Per order filed on October 9, 2008, this Court found Petitioner's claim that BPH violated his due process rights, when liberally construed, colorable under 28 U.S.C. § 2254, and ordered Respondent to show cause why a writ of habeas corpus should not be granted. Doc. # 3. Respondent has filed an Answer and Petitioner has filed a Traverse. Doc.4 & 5.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified under 28 U.S.C. § 2254, provides "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction." White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.2004). Under AEDPA, this Court may entertain a petition for habeas relief on behalf of a California state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

The writ may not be granted unless the state court's adjudication of any claim on the merits: "(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). Under this deferential standard, federal habeas relief will not be granted "simply because [this] [C]ourt concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

While circuit law may provide persuasive authority in determining whether the state court made an unreasonable application of Supreme Court precedent, the only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) rests in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003).

The state court decision to which 28 U.S.C. § 2254 applies is the "last reasoned decision" of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir.2005). Although Ylst primarily involved the issue of procedural default, the "look through" rule announced there has been extended beyond that particular context. Barker, 423 F.3d at 1092 n. 3 (citing Lambert v. Blodgett, 393 F.3d 943, 970 n. 17 (9th Cir.2004) and Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir.2003)). The federal court also looks to any lower state court decision that was examined, and whose reasoning was adopted, by the highest state court to address the merits of a petitioner's claim, as is the case here. See Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir.2004).

Where, as here, the state courts cited only state law in their decisions, the federal court must ask whether state law, as explained by the state courts, is "contrary to" clearly established governing federal law. See, e.g., Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir.2001); Hernandez v. Small, 282 F.3d 1132, 1141 (9th Cir.2002) (state court applied correct controlling authority when it relied on state court case that quoted Supreme Court for proposition squarely in accord with controlling authority). If the state court, relying on state law, correctly identified the governing federal legal rules, the federal court must ask whether the state court applied them unreasonably to the facts. See Lockhart, 250 F.3d at 1232.

III.

A.

The Fifth and Fourteenth Amendments prohibit the government from depriving a prisoner of life, liberty or property without due process of law. U.S. Const. Amends. V & XIV. It is now settled that California's parole scheme, codified in California Penal Code section 3041, vests all "prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause." Irons v. Carey, 505 F.3d 846, 850 (9th Cir.2007) (citing Sass v. Calif. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir.2006)); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.2003); McQuillon v. Duncan, 306 F.3d 895, 903 (9th Cir.2002). It matters not that a parole release date has not been set for the prisoner because "[t]he liberty interest is created, not upon the grant of a parole date, but upon the incarceration of the inmate." Biggs, 334 F.3d at 915. Due process accordingly requires that a parole board premise its decision regarding a petitioner's parole suitability on "some evidence in the record" such that the decision is not arbitrary. Sass, 461 F.3d at 1128-29 (quoting Superintendent v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)). The "some evidence" standard is clearly established federal law in the parole context for purposes of § 2254(d). Id. at 1129.

The Supreme Court set forth the "some evidence" standard in Hill, which concerned the revocation of "good time" credits towards parole resulting from prisoner misconduct. Hill, 472 U.S. at 455. The Court rested its holding upon the procedural due process foundation it laid in Wolff v. McDonnell, 418 U.S. 539, 563-67, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). As the Court noted, Wolff required, among other things, that a prisoner receive "a written statement by the fact finder of the evidence relied on and the reasons" for the deprivation of his good time credits. Hill, 472 U.S. at 454 (citing Wolff, 418 U.S. at 565). The Court then added to the foundation it laid in Wolff: "[R]evocation of good time does not comport with 'the minimum requirements of procedural due process,' unless the findings of the prison disciplinary board are supported by some evidence in the record." Hill, 472 U.S. at 455 (quoting Wolff, 418 U.S. at 558).

The "some evidence" standard does not permit this Court to "reweigh the evidence." Powell v. Gomez, 33 F.3d 39, 42 (9th Cir.1994). Instead, the inquiry is "whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56. While this test is not stringent, it must at minimum protect a prisoner's "strong interest in assuring that the loss of [parole] is not imposed arbitrarily." Id. at 454.

Due process also requires that the evidence underlying the parole board's decision have some indicium of reliability. Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904. Relevant to this inquiry is whether the prisoner was afforded an opportunity to appear before, and present evidence to, the board. See Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir.1987). If BPH's determination of parole unsuitability is to satisfy due process, there must be some reliable evidence to support the decision. Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir.2005).

B.

When assessing whether a state parole board's suitability determination was supported by "some evidence," the Court's analysis is framed by the statutes and regulations governing parole suitability determinations in the relevant state. Irons, 505 F.3d at 850. Under California law, prisoners serving indeterminate life sentences, like Petitioner, become eligible for parole after serving minimum terms of confinement required by statute. In re Dannenberg, 34 Cal.4th 1061, 1069-70, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005). At that point, California's parole scheme provides that BPH "shall set a release date unless it 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." Cal. Pen.Code § 3041(b). Regardless of the length of the 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. xv, § 2402(a). In making this determination, BPH must consider various factors, including the prisoner's social history, past and present mental state, past criminal history, the base and other commitment offenses, including behavior before, during and after the crime, past and present attitude toward the crime and any other information that bears on the prisoner's suitability for release. See Cal.Code Regs. tit. xv, § 2402(b)-(d).

In considering the commitment offense, BPH must determine whether "the prisoner committed the offense in an especially heinous, atrocious or cruel manner." Cal.Code Regs. tit. xv, § 2402(c)(1). The factors to be considered in making that determination include: "(A) Multiple victims were attacked, injured or killed in the same or separate incidents; (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) The victim was abused, defiled or mutilated during or after the offense; (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering; (E) The motive for the crime is inexplicable or very trivial in relation to the offense." Id.

Under California law, the "core determination" regarding a prisoner's threat to public safety "involves an assessment of an inmate's current dangerousness." See In re Lawrence, 44 Cal.4th 1181, 1205, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008) (emphasis in original) (citing In re Rosenkrantz, 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002) and In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005)). According to the court:

to the extent our decisions in Rosenkrantz and Dannenberg have been read to imply that a particularly egregious commitment offense always will provide the requisite modicum of evidence supporting the Board's or the Governor's decision, this assumption is inconsistent with the statutory mandate that the Board and the Governor consider all relevant statutory factors when evaluating an inmate's suitability for parole, and inconsistent with the inmate's due process liberty interest in parole that we recognized in Rosenkrantz.

Lawrence, 44 Cal.4th at 1191, 82 Cal.Rptr.3d 169, 190 P.3d 535 (emphasis in original). The court continued:

In some cases, such as this one, in which evidence of the inmate's rehabilitation and suitability for parole under the governing statutes and regulations is overwhelming, the only evidence related to unsuitability is the gravity of the commitment offense, and that offense is both temporally remote and mitigated by circumstances indicating the conduct is unlikely to recur, the immutable circumstance that the commitment offense involved aggravated conduct does not provide "some evidence" inevitably supporting the ultimate decision that the inmate remains a threat to public safety.

Id. (emphasis in original).

C.

A critical issue in parole denial cases concerns BPH's use of evidence about the crime that led to the conviction. A trio of Ninth Circuit cases guide the application of the Superintendent v. Hill "some evidence" standard in determining whether a particular prisoner would pose an unreasonable risk of danger to society or a threat to public safety if released from prison, taking into account the circumstances of the commitment offense: Biggs, 334 F.3d 910, Sass, 461 F.3d 1123 and Irons, 505 F.3d 846. The first case, Biggs, explained that the value of the criminal offense fades over time as a predictor of parole suitability:

The Parole Board's decision is one of 'equity' and requires a careful balancing and assessment of the factors considered.... 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.

Biggs, 334 F.3d at 916-17. Although the court in Biggs upheld the initial denial of a parole date based solely on the nature of the crime and the prisoner's conduct before incarceration, it cautioned that "[o]ver time ..., 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.

Next came Sass, which criticized the court's statements in Biggs as improper and beyond the scope of the dispute before the court. Sass determined that the parole board is not precluded from relying on unchanging factors such as the circumstances of the commitment offense or the parole applicant's pre-offense behavior in determining parole suitability. See Sass, 461 F.3d at 1129 (commitment offenses in combination with prior offenses provided some evidence to support denial of parole at subsequent parole consideration hearing).

The last of the three cases, Irons, determined that due process was not violated by the use of the commitment offense and pre-offense criminality to deny parole for a prisoner sixteen years into his seventeen-to-life sentence. Irons emphasized, however, that in all three cases ( Irons, Sass and Biggs ) in which the court had "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." Irons, 505 F.3d at 853. The court, citing Biggs, then expressed "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." Id. at 854.

IV.

Petitioner seeks federal habeas corpus relief from BPH's March 27, 2007 en banc decision finding him unsuitable for parole and denying him a subsequent hearing for one year on the ground that the decision does not comport with due process.

After a careful review of the record, and as explained below, the Court finds that at the time of Petitioner's 2007 parole suitability hearing, there simply was no reliable evidence to suggest that he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. See Cal.Code Regs. tit. xv, § 2402(a). Rather, the Court finds the record was "so devoid of evidence that the findings of [BPH] were without support or otherwise arbitrary." Hill, 472 U.S. at 457, such that the state courts' determinations that there was "some evidence" in the record to support BPH's decision to deny Petitioner parole were objectively unreasonable applications of Hill. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. at 411; Williams v. Rhoades, 354 F.3d at 1106.

At his February 14, 2007 parole suitability hearing, one BPH commissioner found Petitioner was not suitable for parole and would pose an unreasonable risk to society or threat to public safety if released from prison; a second commissioner, who heard and reviewed the same evidence, reached the opposite conclusion. Doc. # 4-2 at 60-66. The commissioner who found Petitioner unsuitable for parole relied heavily on the circumstances of the commitment offense, describing them in great detail. Doc. # 4-2 at 60-62. This commissioner also concluded that Petitioner's "risk for violence is very high" and that he had an "itchy trigger finger regarding [his] response with rage and anger towards others." Id. at 63.

But according to the psychologist who evaluated Petitioner prior to his 2007 hearing, under the heading "ASSESSMENT OF DANGEROUSNESS":

As compared to the other Level II inmates, [Petitioner's] violence potential is regarded as lower. It has been many years since he has received a [serious rules violation] and his behavior has improved as has, apparently, his judgment and maturity. If released to the community, his violence potential is considered to be about the same as the average citizen in the community. All things considered, his pre-incarceration record is not that severe. With the gains he has made here, he should be able to generalize those gains to the community. Significant risk factors and precursors to violence for him would be a return to drug/alcohol use and a return to an irresponsible lifestyle. He says, however, that he "has changed and won't ever do that again. You can have fun without [drugs and alcohol]."

Doc. # 4-2 at 76. The psychologist concluded his evaluation of Petitioner by noting:

[Petitioner] is competent and responsible for his behavior. He has the capacity to abide by institutional rules and has generally done so during his incarceration. He does not have a mental health disorder that would necessitate treatment either during his incarceration or on parole. If paroled, he should have mandatory drug/alcohol testing and mandatory attendance at a drug treatment program. Parole decisions should be based on custody factors.

Id. at 76-77.

In light of the conclusion reached by a licensed psychologist, i.e., someone with the educational background and practical training that qualifies him to make these precise types of assessments, the Court dismisses the statements of the commissioner who found Petitioner unsuitable for parole, i.e., that Petitioner had an "itchy trigger finger regarding [his] response with rage and anger towards others" and that Petitioner's "risk for violence [was] very high," Doc. # 4-2 at 60-63, as based on sheer speculation, rather than on reliable evidence, as due process requires. See Rosas, 428 F.3d at 1232 (if BPH's determination of parole unsuitability is to satisfy due process, there must be some reliable evidence to support the decision).

Indeed, the second commissioner relied heavily on the psychologist's conclusions regarding whether Petitioner would pose an unreasonable risk of danger to society if released from prison, and quoted extensively from that evaluation in explaining his reasons for finding that Petitioner would not. Doc. # 4-2 at 65. Further, during the evidentiary portion of the hearing, this commissioner read the following laudatory chrono into the record:

We have a laudatory chrono here dated 9/30/06 and it's from Dave Rodriguez and he indicates you've been an active participant in [Alcoholics Anonymous ("AA") and Narcotics Anonymous ("NA") ] at CTF and he says that you've been a contributing member of the group since May of [19]88 and you positively participated and [have] shown ability to understand and comprehend all aspects of the 12-step programs through [your] own self-improvement techniques. [Petitioner] is to be lauded for his continued participation and positive contributions to AA and NA at CTF.

Doc. # 4-2 at 10. The commissioner than noted that Petitioner had received similar laudatory chronos from Rodriguez regarding his participation in AA and NA on March 31, 2005, April 1, 2005, June 30, 2005, October 6, 2005, December 27, 2005, December 30, 2005, March 31, 2006, April 1, 2006, June 30, 2006 and December 29, 2006. Id. at 10-13.

Petitioner's attorney then read into the record two laudatory chronos Petitioner had received from CTF staff the day before his hearing. Doc. # 4-2 at 13-14. The first was from Correctional Officer A. Salazar, who stated:

[Petitioner] has been housed in the east dorm facility for approximately 11 years now. The east dorm is a privileged facility that requires inmates to remain disciplinary free, follow housing regulations as they pertain to security/safety concerns and to program productively in a working environment. As a facility second watch dorm officer, I've had the opportunity to observe [Petitioner] throughout his daily activities during the past seven years. He's always respectful to his peers and staff alike by remaining disciplinary free in a sensitive environment such as east dorm facility[.][H]e demonstrates a mature level of responsibility, tactfulness and concern for himself, staff and inmates who live with him. He has earned the respect of many who know him. He has definitely earned mine.

Doc. # 4-2 at 13. The second was from M. Eucina, Industries Patrol Officer, who stated:

During the previous 11 years, [Petitioner] has been housed at the central facility east dorm. Having worked as an east dorm patrol officer, I have had the opportunity to observe the overall demeanor of countless inmates. While at work I ha[ve] observed [Petitioner] interact positively with both inmate and staff alike. Though living in a prison setting often makes inmate/staff (as well as inmate/inmate) interactions difficult, [Petitioner] has never allowed such difficulties to stop him from communicating in a positive fashion with everyone. His overall attitude is one of respect and his willingness to ... "Reach out" ... to others in this manner should be commended. He is conscientious and respectful in his dealing with staff and does not have any disciplinary problem. These are attributes deserving of recognition. It is my professional opinion that [Petitioner's] willingness to do well in this prison community is indicative of what is expected of a paroling inmate. These are attributes deserving of recognition. This [chrono] was written as a character reference of the person [Petitioner] is today and I believe [Petitioner] will continue to maintain his positive attitude upon release.

Doc. # 4-2 at 14-15. Petitioner's attorney also read into the record a February 7, 2007 memorandum from Correctional Officer P.K. Sterling, who stated:

On November 21, 2005, I wrote and submitted a memorandum to [BPH] on behalf of [Petitioner]. As I don't want to take up too much of your time nor repeat myself unnecessarily I ask that you refer once again to said memorandum which I've attached for your convenience. My reason for submitting the second memorandum is simple yet sincere. I wish to impress upon this Panel my continued belief in [Petitioner] and the fact that he would be a productive member of society if given the opportunity. In closing, I must reiterate the fact that I am not in the habit of writing Laudatory chronos/memos on behalf of inmates. Despite the various disappointments and struggles [Petitioner] has had to continually face in prison, he continues to demonstrate an ability to overcome such in a positive and healthy manner. As such, I believe [Petitioner] will continue to do so on his release. Thank you for your time.

Doc. # 4-2 at 15-16.

Thus, the record before the Court shows that at the time of his 2007 parole suitability hearing, Petitioner had the support not only of one BPH commissioner, but the psychologist who evaluated Petitioner in anticipation of his parole suitability hearing, as well as three CTF staff members, one of whom noted he was "not in the habit of writing Laudatory chronos/memos on behalf of inmates" but did so in Petitioner's case because of his firm belief Petitioner would transition successfully into the community. Also weighing heavily in favor of a finding of suitability were Petitioner's realistic parole plans, which included a solid offer of employment, a variety of vocational skills he could use, and a support system that awaited Petitioner upon his release, documented by numerous letters from his siblings, who visited Petitioner regularly throughout the duration of his imprisonment. Doc. # 4-2 at 64 & 66.

Finally, with respect to the commitment offense, the Court notes that Petitioner was convicted of second degree felony-murder, due to his limited involvement in the commitment offense-as noted by the state superior court, see Doc. # 4-3 at 2-3, in that he was not even present when the first victim, James Tokumoto, was killed by Robert Almarez. The Court further finds the commitment offense was an isolated aberration in Petitioner's past, "temporally remote"-committed some twenty-five years earlier-and certainly mitigated by various circumstances such as Petitioner's maturity and documented model behavior while in prison, indicating the conduct is unlikely to recur. See Lawrence, 44 Cal.4th at 1191, 82 Cal.Rptr.3d 169, 190 P.3d 535. At the time BPH denied Petitioner a parole date in 2007, he had served twenty-three years on his seven-to-life sentence, fifteen years past his minimum eligible parole date. Perhaps in some cases the circumstances of a prisoner's commitment offense reasonably may continue to predict his future even in spite of a prisoner's dramatic behavioral improvement while in prison. But, where, as here, Petitioner's "not that severe" prior criminal history, his strong and wide-spread support from one BPH commissioner, three correctional officers and family and friends, his realistic parole plans that included a firm employment offer, financial support and a place to live, his consistently favorable psychological evaluations and his lack of any recent serious disciplinary violations, his continued imprisonment based on the circumstances of his 1982 commitment offense rises to the level of a due process violation the Ninth Circuit envisioned. See Irons, 505 F.3d at 854 ("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").

After careful review of the law and the factual record now before the Court, it is difficult, if not impossible, to reconcile BPH's decision to deny Petitioner parole with the evidence upon which it relied to make that decision. The Court finds the record was "so devoid of evidence that the findings of [BPH] were without support or otherwise arbitrary." Hill, 472 U.S. at 457. The state courts' determinations that BPH's finding that Petitioner was unsuitable for parole and posed an unreasonable danger to society or threat to public safety if released from prison constituted "some evidence" of unsuitability were contrary to, and involved an unreasonable application of, clearly established federal law, and were based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. at 411; Williams v. Rhoades, 354 F.3d at 1106. There simply was no reliable evidence to suggest that if released on parole, Petitioner would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Cal.Code Regs. tit. xv, § 2402(a). As a result, Petitioner is entitled to federal habeas relief on his due process claim.

V.

For the reasons stated above, the Petition for Writ of Habeas Corpus is GRANTED. Within twenty (20) days of the date of this order, BPH must calculate a term for Petitioner and set an imminent date for his release in accordance with California Penal Code § 3041(a). See McQuillon v. Duncan, 346 F.3d 1012, 1015 (9th Cir.2003). Within ten (10) days of Petitioner's release, Respondent must file a notice with the Court confirming the date on which Petitioner was released.

IT IS SO ORDERED.


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