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Thompson v. Sisto

April 12, 2010

FRANK THOMPSON, PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.



ORDER

Petitioner Frank Thompson filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge the denial of his parole in 2005. Pursuant to § 636(b)(1)(B) and Local Rule 302(c)(17), petitioner's writ was referred to a United States Magistrate Judge. On March 5, 2010, the Magistrate Judge recommended that the court grant petitioner's writ and direct respondents to release petitioner on parole forthwith. Respondent filed timely objections, and the court now reviews the Magistrate Judge's Findings and Recommendations de novo. 28 U.S.C. § 636(b)(1)(c); Fed. R. Civ. P. 72(b)(2)-(3).

I. Factual and Procedural Background

On August 6, 1979, petitioner was sentenced to life imprisonment without the possibility of parole after having been convicted of two counts of first-degree murder, two counts of robbery, and one count of burglary. (Answer Ex. A at 3-4; First Am. Pet. Ex. H.) The following day, petitioner was sentenced to a concurrent sentence of twenty-five years to life after having been convicted of two counts of conspiracy with overt acts, one count of attempted murder while using a firearm, and one count of attempted escape while using a firearm. (Answer Ex. A at 1-2; First Am. Pet. Ex. A at 79:5-7.) On September 10, 1987, the California Court of Appeal for the Fourth Appellate District held that petitioner's life sentence must be reduced to life imprisonment with the possibility of parole because petitioner was under the age of eighteen at the time he committed the capital offenses. (First Am. Pet. Ex. H.) Petitioner's sentence for two counts of first-degree murder, two counts of robbery, and one count of burglary was thus reduced to life imprisonment with the possibility of parole on July 5, 1988. (Answer Ex. A at 3-4.)

Petitioner's conviction for first-degree murder, robbery, and burglary resulted from his actions on November 1, 1978 when he was seventeen years old. Petitioner, with his fifteen-year-old brother, robbed a market in Helendale, California and murdered the two individuals working in the market by slashing one of the victim's throats and beating the other to death. (First Am. Pet. Ex. A at 91:16-24, Ex. L at 2.) Five months later when petitioner was in custody and being transported to court, petitioner obtained control of the gun belonging to the deputy sheriff who was driving the transport van and attempted to shoot the deputy and escape. (Id. Ex. L at 2.) Petitioner began serving his concurrent sentences on August 16, 1979. (Id. Ex. I at ¶ 1.A.)

The parole board held the Parole Consideration Hearing at issue in this writ on October 26, 2005 and found that petitioner was not suitable for parole. (Id. Ex. A.) Petitioner filed a writ of habeas corpus with the San Bernardino Superior Court, and the superior court denied his writ in a reasoned opinion. (Id. Ex. L.) The Court of Appeal for the Fourth Appellate District summarily affirmed the Superior Court's denial of petitioner's writ. (Id. Ex. M.) Having exhausted his state judicial remedies, petitioner filed the instant writ in federal court on November 28, 2007. In his Findings and Recommendations, the Magistrate Judge concluded that, given petitioner's "in-prison rehabilitation and exemplary behavior," the parole board's "reliance on the unchanging facts of the commitment offenses to deny petitioner parole" violated his right to due process and thus recommended that the court grant petitioner's writ and direct respondents to release petitioner on parole forthwith. (Findings & Recommendations at 22:4-12.)

II. Analysis

A. California's Parole Scheme "California Penal Code section 3041 vests... all []

California 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 II v. Carey, 505 F.3d 846, 850 (9th Cir. 2007). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, a federal court cannot grant habeas relief to a state prisoner challenging the denial of his parole unless the decision by the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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)(1)-(2). In determining whether the state court's decision was contrary to, or an unreasonable application of, clearly established federal law, a federal court looks to the last reasoned state court decision addressing the merits of the petitioner's claim. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

It is clearly established by the Supreme Court "that a parole board's decision deprives a prisoner of due process with respect to this interest if the board's decision is not supported by 'some evidence in the record,' or is 'otherwise arbitrary.'" Irons II, 505 F.3d at 851 (internal citations omitted).*fn1 "The some evidence standard is minimally stringent, such that a decision will be upheld if there is any evidence in the record that could support the conclusion reached by the [] board." Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994) (internal quotation marks omitted). In reviewing the denial of petitioner's parole, the 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...." Irons II, 505 F.3d at 851.

Under California law, the parole board is required to set a release date for an inmate serving an indeterminate sentence who is eligible for parole unless the parole board "concludes, on relevant grounds with support in the evidence, that the grant of a parole date is premature for reasons of public safety." In re Dannenberg, 34 Cal. 4th 1061, 1071 (2005); Cal. Penal Code § 3041(a)-(b); Cal. Code Regs. tit. 15, § 2402(a). In determining whether an inmate is suitable for parole, the parole board is instructed to consider [a]ll relevant, reliable information available[,]... includ[ing] 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, § 2402(b). Overall, "the core determination" in deciding whether an inmate is suitable for parole "involves an assessment of an inmate's current dangerousness" to the public if released, and the parole board must "identify and weigh only the factors relevant to predicting 'whether the inmate will be able to live in society without committing additional antisocial acts.'" In re Lawrence, 44 Cal. 4th 1181, 1205-06 (2008).

The California Code of Regulations for Parole Consideration Criteria and Guidelines ("regulations")*fn2 lay out factors for the parole board to consider that "are designed to guide an assessment of the inmate's threat to society, if released." Id. at 1206 (emphasis omitted). The regulations identify circumstances tending to show unsuitability for release as whether the prisoner 1) "committed the offense in an especially heinous, atrocious or cruel manner," such as attacking multiple victims, abusing the victim, carrying out the crime in a manner that "demonstrates an exceptionally callous disregard for human suffering," or having a trivial motive for the crime; 2) has a previous record of violence; 3) "has a history of unstable or tumultuous relationships with others"; 4) committed a sadistic sexual offense; 5) "has a lengthy history of severe mental problems related to the offense"; or 6) "has engaged in serious misconduct in prison or jail." Cal. Code Regs. tit. 15, § 2402(c)(1)-(6).

The regulations also identify circumstances that tend to show suitability for release, including whether the prisoner 1) does not have a violent juvenile record; 2) "has experienced reasonably stable relationships with others"; 3) has "performed acts which tend to indicate the presence of remorse; 4) "committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time"; 5) suffers from "Battered Woman Syndrome"; 6) "lacks any significant history of violent crime"; 7) has a reduced probability of recidivism based on his present age; 8) "has made realistic plans for release or has developed marketable skills that can be put to use upon release"; or 9) has engaged in institutional activities that "indicate an enhanced ability to function within the law upon release." Id. § 2402(d)(1)-(9).

B. Denial of Petitioner's Parole

In concluding that petitioner was not suitable for parole, the parole board gave significant weight to the circumstances of petitioner's commitment offense, explaining,

[T]hese offenses were carried out in especially cruel and callous manner. Multiple victims were attacked and two were killed in the same and separate incidents. The victims were abused, defiled during the course of the offense. The offense was carried out in a manner which demonstrated an exceptionally callous disregard for human suffering. And the motive for the crime was either inexplicable or very trivial, depending upon which circumstance you wish to look at. (First Am. Pet. Ex. A at 90:24-91:9.) The parole board further reasoned that petitioner was not deterred after committing and being arrested for the murders, as he later committed the additional offense of attempted murder while in custody. (Id.

Ex. A at 91:9-16.) As circumstances suggesting petitioner's unsuitability for parole, the parole board also discussed petitioner's absconding from probation before committing the offenses, the numerous disciplinary citations he received during his incarceration, and the District Attorney and ...


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