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Banks v. Shepherd

May 6, 2010




Petitioner Patrick William Banks 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 sixteen years to life following a 1989 offense and subsequent conviction in San Joaquin County for second degree murder with use of a deadly weapon. Here, petitioner does not challenge the constitutionality of that conviction, but rather, the execution of his sentence, and specifically, the July 25, 2003 decision of Governor Davis and the November 15, 2004 decision of Governor Schwarzenegger, each reversing a separate and distinct decision of the Board of Prison Terms that petitioner was suitable for parole. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.


The facts of petitioner's life crime were summarized at his February 26, 2003 parole suitability hearing:

[O]n February 19, 1989 at approximately 5:50 p.m., a California Highway Patrol responded to a traffic collision on a highway in San Joaquin County in which the victim, Lisa Rees..., died. Banks and the victim, his live-in girlfriend, had an argument which was followed by Banks following the victim with his vehicle at a high rate of speed. He was tailgating her vehicle, driving recklessly and speeding at approximately... 80 to 90 miles per hour in a 50 mile per hour zone. At one point, he ran through a red light at a high rate of speed. Banks' vehicle then either bumped the victim's vehicle from behind or they both couldn't handle a tight curve at the high rate of speed which they were driving. Both vehicles went off the embankment approximately 25 feet high causing the death of the victim from receiving head and neck injuries. (Transcript of the February 26, 2003 Subsequent Parole Hearing ("2003 Transcript") at 10.)

Petitioner was convicted of second degree murder with use of a deadly weapon and sentenced to a term of sixteen years to life in state prison. His minimum eligible parole date passed on March 20, 2000. On February 26, 2003, a panel of the Board of Prison Terms ("Board") conducted a second subsequent (third overall) hearing to determine petitioner's suitability for parole and concluded that he was suitable for parole because he would not pose an unreasonable risk of danger to society or a threat to public safety if released. On July 25, 2003, Governor Davis reversed the Board's decision.

Petitioner challenged Governor Davis's reversal in the Sacramento County Superior Court; his petition was transferred to San Joaquin County and denied in a reasoned decision. The California Court of Appeal, Third District, denied petitioner's claims on appeal without written explanation, and the California Supreme Court denied review.

In the meantime, petitioner came before the Board for another suitability determination on June 28, 2004, at which time he was again found to be suitable for parole and given a parole date in December of 2004. In a decision dated November 15, 2004, Governor Schwarzenegger exercised his discretion to reverse this second grant of parole. Petitioner challenged Governor Schwarzenegger's reversal in an original petition for writ of habeas corpus to the California Supreme Court, which was denied with citation to In re Rosenkrantz, 29 Cal.4th 616 (2002).

The pending federal petition was filed on April 22, 2005. Respondent filed a motion to dismiss based on this court's holding in Sass v. California Bd. Of Prison Terms, 376 F. Supp. 2d 975 (E.D. Cal. 2005) that a prisoner such as petitioner had no protected liberty interest in parole. Respondents's motion to dismiss was granted and the petition dismissed in an order filed on January 4, 2006. Petitioner appealed the decision to the Ninth Circuit Court of Appeals, and on January 8, 2008, the judgment was vacated and the case remanded to this court with instructions to reconsider the petition in light of the Ninth Circuit's decision in Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123 (9th Cir. 2006), which reaffirmed that California inmates serving sentences with the possibility of parole have a liberty interest in receipt of a parole release date.


For his first ground, petitioner contends that both governors' reversals were without support in the record, in violation of his right to due process and the Eighth Amendment's prohibition on cruel and unusual punishment. For his second ground, petitioner claims a "[v]violation of federal due process because Governor arbitrarily violated Cal. Pen. Code 3041 & its implementing regulations in considering Petitioner for parole, simultaneously arbitrarily violating the separation of powers doctrine in the Calif. Constitution." For his third ground, petitioner claims a "[v]violation of federal due process because Calif. Executive (Governor & Board) retrospectively changed parole policy & standards for release to Ptnr's detriment in application of PC 3041."

For purposes of this opinion, petitioner's claims will be analyzed as follows: (A) whether petitioner has suffered a due process violation; (B) whether petitioner has suffered an Eighth Amendment violation and (C) whether petitioner is entitled to relief for alleged violations of state law.


Respondent admits that petitioner has exhausted his state court remedies with respect to his claim that no evidence supported Governor Davis's 2003 reversal. Respondent denies that petitioner exhausted his claim that Governor Davis's 2003 decision violated his Eighth Amendment rights. Respondent does not contest the exhaustion of petitioner's claims as they relate to Governor Schwarzenegger's 2004 reversal.


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 AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).


A. Due Process

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't. of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).

A protected liberty interest may arise from either the Due Process Clause itself or from state laws. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create a protected liberty interest in the receipt of a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, if a state's statutory parole scheme uses mandatory language, it "creates a presumption that parole release will be granted" when or unless certain designated findings are made, thereby giving rise to a constitutional liberty interest. McQuillion, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 12 (1979)).

California Penal Code section 3041 sets forth the legislative standards for determining parole for life-sentenced prisoners such as petitioner. Subsection (a) provides that "[o]ne year prior to the inmate's minimum eligible parole release date a panel... shall meet with the inmate and shall normally set a parole release date." Cal Penal Code §3041(a). Subsection (b) provides an exception to the regular and early setting of a lifer's term, if the Board 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. Penal Code §3041(b). The Ninth Circuit has accordingly determined that California state prisoners who have been sentenced to prison with the possibility of parole have a clearly established, constitutionally protected liberty interest in receipt of a parole release date. Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007) (citing Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006)); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); McQuillion, 306 F.3d at 903; and Allen, 482 U.S. at 377-78 (quoting Greenholtz, 442 U.S. at 12)).

The full panoply of rights afforded a defendant in a criminal proceeding is not constitutionally mandated in the context of a parole proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The Supreme Court has held that a parole board's procedures are constitutionally adequate if the inmate is given an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. Greenholtz, 442 U.S. at 16.

Additionally, as a matter of state constitutional law, denial of parole to California inmates must be supported by "some evidence" demonstrating future dangerousness. Hayward v. Marshall, No. 06-55392, slip op. at 34-35 (9th Cir. April 22, 2010) (en banc) (citing In re Rosenkrantz, 59 P.3d 174, 210 (Cal. 2002), In re Lawrence, 190 P.3d 535, 549 (Cal. 2008), and In re Shaputis, 190 P.3d 573, 582 (Cal. 2008)). The federal Due Process Clause requires, in turn, that California comply with its own quantum of evidence requirement. See Hayward v. Marshall, No. 06-55392, (Berzon, J., concurring in part and dissenting in part at 13). In Hayward, the Ninth Circuit Court of Appeals directed reviewing courts in this circuit to "decide whether the California judicial decision approving the governor's decision rejecting parole was an 'unreasonable application' of the California 'some evidence' requirement, or was 'based on an unreasonable determination of the facts in light of the evidence.' Hayward Marshall, slip op. at 37.

The analysis of whether some evidence supports denial of parole to a California state inmate is framed by the state's statutes and regulations governing parole suitability determinations. See Irons, 505 F.3d at 851. This court "must look to California law to determine the findings that are necessary to deem [a petitioner] unsuitable for parole, and then must review the record to determine whether the state court decision holding that these findings were supported by 'some evidence' [ ] constituted an unreasonable application of the 'some evidence' principle." Id.

Title 15, Section 2402 of the California Code of Regulations sets forth various factors to be considered by the Board in its parole suitability findings for murderers. The regulation is designed to guide the Board's assessment of whether the inmate poses "an unreasonable risk of danger to society if released from prison," and thus whether he or she is suitable for parole. In re Lawrence, 44 Cal.4th 1181, 1214, 1202 (2008). The Board is directed to consider all relevant, reliable information available regarding 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.

15 Cal. Code Regs. §2402(b). The regulation also lists several specific circumstances which tend to show suitability or unsuitability for parole. 15 Cal. Code Regs. §2402(c)-(d). The overriding concern is public safety and the focus is on the inmate's current dangerousness. In re Lawrence, 44 Cal. 4th at 1205. Thus, the proper articulation of the standard of review is not whether some evidence supports the reasonscited for denying parole, but whether some evidence indicates that a parolee's release would unreasonably endanger public safety. In re Shaputis, 44 Cal.4th 1241, 1254 (2008). In other words, there must be some rational nexus between the facts relied upon and the ultimate conclusion that the prisoner continues to be a threat to public safety. In re Lawrence, 44 Cal. 4th at 1227.

The statutory procedure guiding the governor's review of a parole decision of an inmate sentenced to an indeterminate term for a murder conviction is contained in title 15, section 3041.2 of the California Code of Regulations. Although the governor undertakes an independent, de novo review of an inmate's suitability for parole, his decision must be based on the same statutory factors and the same evidentiary record that was before the Board. In re Rosenkrantz, 29 Cal.4th 616, 661 (2002). The governor is entitled, however, to weigh the suitability factors differently than did the Board. See Id. He may choose to be more stringent or cautious in determining whether an inmate poses an unreasonable risk to public safety. In re Shaputis, 44 Cal.4th at 1258. Nevertheless the governor's decision must still reflect due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, and must be supported by some evidence in the record. In re Lawrence, 44 Cal.4th 1181, 1204.

1. 2003 Grant of Parole and Subsequent Reversal by Governor Davis

a. The Board's 2003 Decision

The Presiding Commissioner for the 2003 panel of the Board indicated their reliance on several different statutory circumstances in reaching the conclusion ...

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