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Martinez v. Marshall

United States District Court, Central District of California

May 11, 2010


The opinion of the court was delivered by: Rosalyn M. Chapman, United States Magistrate Judge.


This Report and Recommendation is submitted to the Honorable Dean D. Pregerson, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.



On January 17, 1984, in Los Angeles County Superior Court case no. A371885, pursuant to a plea bargain, petitioner Arthur Martinez pleaded guilty to, and was convicted of, one count of second degree murder in violation of California Penal Code ("P.C.") § 187 (count 6), and petitioner was sentenced to 15 years to life in state prison. Lodgment nos. 1, 11.*fn1


On June 24, 2004, petitioner had a parole suitability hearing before a panel of the California Board of Prison Terms ("Board"),*fn2 at which time the Board found him "suitable for parole" on certain terms and conditions, effective October 22, 2004 .*fn3 Lodgment no. 3. These terms included precluding petitioner from using or possessing alcoholic beverages and requiring petitioner to submit to alcohol and drug testing, participate in a substance abuse program, report to an outpatient clinic for evaluation, and not actively participate in, promote or assist any prison gang, disruptive group or criminal street gang activity or violate any gang abatement order or injunction. Id. In finding petitioner suitable for parole, the Board calculated petitioner's base term as 216 months imprisonment, reduced to 144 months due to post-conviction sentencing credits. Id. On November 9, 2004, Governor Arnold Schwarzenegger reversed the Board's grant of parole,*fn4 stating:

At the time of the murder, [petitioner] was 18 years old and on probation due to an earlier adjudication as a juvenile for grand-theft person. He told the Board at his 2004 parole hearing that the offense occurred when he and some friends attacked a man walking on a street and demanded money from him. [Petitioner] also said at his hearing that he was first arrested at age 7, for throwing rocks at a car, and thereafter for possession of a deadly weapon with the intent to commit an assault and unlawfully taking a vehicle.

He described to the Board at the same hearing that he was at the time of the murders part of "a club with a gang-like mentality." [¶] Since entering prison, [petitioner] has been disciplined three times for serious-rules violations-including once for a stabbing assault on another inmate and once for possession of an inmate-manufactured weapon-and counseled twice for minor misconduct. He also was associated with a gang while in prison, as he told the Board at his 2004 hearing. [¶] But [petitioner] seemed to turn a corner during the mid-1980s. Based on the record before me, he has been gang-free since his debriefing in the mid-1980s and has remained discipline-free since 1986. Likewise, he has worked while in prison to enhance his ability to function within the law upon release. He obtained his GED, has taken FEMA classes, and has received vocational training in upholstery, office services, and dry cleaning. He has held several skilled institutional jobs such as his current position as the recreation coordinator for mentally-ill inmates. He has participated in an array of self-help and therapy, including various substance-abuse programs since 1989, Personal Growth Seminars, Criminal and Gang Members Anonymous, Process Group, Lifer Prisoner's Support Group, Alternatives to Violence, Stress Intervention Peer Program, Anger Management, Criminon, and IMPACT. He has been involved in the hospice-care program and has volunteered as an HIV Peer Educator and a literacy tutor. He has maintained relationships while in prison, been commended by various prison staff, and has received positive Life Prisoner and mental-health evaluations. He also has made realistic parole plans for himself that include confirmed offers of housing and employment. These are all factors supportive of [petitioner's] release from prison to parole. [¶] Nevertheless, [petitioner's] conduct went beyond the minimum necessary to sustain a single second-degree murder conviction because he participated in an armed robbery during which two men were shot and killed. As described by [petitioner] at the 2004 parole hearing, he and his partners felt "disrespected" because they were asked to get off of Mr. Umana's car. As a result, they went home to retrieve weapons, returned, and demanded money from Mr. Umana, Mr. Leon, and two other men who were present. According to a preliminary investigation report by the Los Angeles Police Department, one of the crime partners said, "If you want to live[,] give us your money." [Petitioner] fired the shotgun into the air, and a crime partner shot Mr. Umana and Mr. Leon in their heads, killing both men. In addition to the motive for the murders being exceedingly trivial, [petitioner's] conduct after the murders demonstrated an exceptional callousness and a complete lack of remorse and conscience. According to [petitioner], he went home to sleep after the slayings of Mr. Umana and Mr. Leon. And later, he met up with his crime partners and continued the crime spree, ultimately demanding beer from and then beating Mr. Rivas. The magnitude alone of [petitioner's] murderous conduct is a sufficient basis for me to conclude that his release from prison at this time would pose an unreasonable public-safety risk. The Los Angeles County District Attorney's Office apparently agrees. A representative from that office opposed [petitioner's] parole at the 2004 hearing based on, among other factors, the gravity of the crime he committed. [¶] [Petitioner] says he is now remorseful and accepts responsibility for the murders of Mr. Umana and Mr. Leon. Yet at his 2004 hearing, he told the Board that he "wasn't present" when his partners demanded money because he followed behind them approximately 20 to 25 feet. A Commissioner at the 2004 hearing said, "I find it difficult to believe that at the crime scene you didn't know it was a robbery...." I agree. [¶] After carefully considering the very same factors that the Board must consider, I believe [petitioner] would pose an unreasonable risk of danger to society if released from prison at this time. Accordingly, I REVERSE the Board of Prison Terms' June 2004 decision to grant parole to [petitioner].

Lodgment no. 4.

On August 25, 2005, petitioner filed a habeas corpus application in the Los Angeles County Superior Court, Lodgment no. 5, which denied the petition on September 9, 2005, stating:

[T]he Court concludes that the record contains "some evidence" to support the Governor's finding that petitioner is unsuitable for parole. ( In re Rosenkrantz (2002) 29 Cal.4th 616, 667, 128 Cal.Rptr.2d 104, 59 P.3d 174; see Cal.Code regs., tit. 15, § 2402.)[¶] The Governor concluded petitioner is unsuitable for parole because the circumstances of the commitment offense were beyond the minimum necessary to sustain a conviction for second-degree murder, the motive was "exceedingly trivial," and petitioner's conduct after the murders "demonstrated an exceptional callousness and a complete lack of remorse or conscience." [¶] Petitioner is serving fifteen years to life for murder in the second-degree. The record reflects that just after midnight on September 19, 1981, petitioner, who was a gang member, along with fellow gang members Perez and Marmol, became involved in a conflict with three men over a car owned by one of the men. Petitioner and his crime partners left but then returned. When they returned, Perez had a sawed-off rifle and petitioner had a shotgun. Perez and Marmol demanded money from one of the men and he handed over one dollar. Perez and petitioner then began shooting. Two of the men were struck and killed by rifle fire. Petitioner, Perez, and Marmol then fled the scene. Petitioner told the Board the three of them had felt "disrespected." Later on the night of September 19, petitioner, Perez, and Marmol, approached another victim, Ruben Rivas, and demanded beer. The three then took beer from Rivas and a fight ensued. Petitioner beat Rivas with his fists and a beer bottle before the three left the scene. Perez returned some time late with a rifle and shot Rivas twice in the back of each leg. Rivas survived all his injuries. [¶] The Governor may rely on the commitment offense alone to deny parole if the circumstances of it are more than the minimum necessary to sustain a conviction for second-degree murder. (Rosenkrantz, supra, 29 Cal.4th 616, 683, 128 Cal.Rptr.2d 104, 59 P.3d 174.) Petitioner participated in the premeditated murder of two victims. He could well have been convicted of first-degree murder. As such, the Governor can deny petitioner parole based on the commitment offense alone. Moreover, an inmate may be unsuitable for parole if the motive for the offense was "very trivial." (Cal.Code Regs., tit. 15, § 2402(c)(1)(E).) While the Governor described the life offense as an "armed robbery," by petitioner's own admission the murders were precipitated by the attackers' feeling that they had been "disrespected" by the victims. Thus, there is "some evidence" the motive was "very trivial." [¶] The Governor may also consider petitioner's "behavior before, during and after the crime" in assessing suitability for parole. (Cal.Code Regs., tit. 15, § 2402(b).) Here petitioner and his crime partners attacked yet another victim on the same day of the life offense, demanding beer from him. They then took the beer from him and petitioner beat him with his fists and a beer bottle. That violent behavior, committed after the murders of the first two victims, is "some evidence" he is unsuitable for parole. It demonstrates a lack of conscience and an utter disregard for the value of human life. [¶] The Court rejects petitioner's argument that the Governor's denial of parole violates petitioner's plea agreement. His argument rests on the premise that at the time of his plea agreement, Penal Code § 3041.2, allowing the Governor to reverse a finding of suitability by the Board, had not yet been enacted. However, petitioner agreed to an indeterminate sentence with a maximum of life. In addition, the California Supreme Court has already ruled that the Governor's power of reversal is not an ex post facto violation. ( Rosenkrantz, supra, 29 Cal.4th 616, 637-652, 128 Cal.Rptr.2d 104, 59 P.3d 174.) Just as the Governor is not barred from considering facts a jury did not find beyond a reasonable doubt, he is not precluded from considering such evidence in exercising his discretion to reverse a Board decision granting parole. ( See id. at 679, 128 Cal.Rptr.2d 104, 59 P.3d 174.) As such, petitioner should expect to serve the maximum term unless and until the Board and Governor agree he is suitable for parole. ( See In re Dannenberg (2005) 34 Cal.4th 1061, 1097-1098, 23 Cal.Rptr.3d 417, 104 P.3d 783.)[¶] Accordingly, the petition is denied.

Lodgment no. 6. On October 17, 2005, petitioner filed a habeas application in the California Court of Appeal, which denied the petition on October 20, 2005. Lodgment nos. 7-8. Finally, on December 27, 2005, petitioner filed a habeas corpus application in the California Supreme Court, which denied the petition on September 20, 2006. Lodgment nos. 9-10.


On November 7, 2006, petitioner filed the pending habeas corpus petition under 28 U.S.C. § 2254, challenging the Governor's reversal of his grant of parole, and on February 17, 2007, respondent filed his answer. On March 8, 2007, petitioner filed his traverse, and on April 18, 2008, petitioner filed a supplement to his traverse.

The petitioner raises the following claims in the pending habeas corpus petition:

Ground One-The Governor's reversal of the Board's grant of parole "is inapposite to the record and supported by no evidence"; thus, abrogating petitioner's "due process [rights] and ... liberty interest in parole";

Ground Two-The Governor's reversal of the Board's grant of parole violated petitioner's plea bargain "because at the time petitioner entered into his plea bargain with the state only the [Board] had final authority for parole";

Ground Three-The Governor's re-characterization of petitioner's commitment offense "violated Petitioner's plea agreement as well his rights under the sixth amendment of the U.S. Constitution";

Ground Four-"Petitioner's Juvenile record is not 'some evidence' for the Governor to reverse the [Board's] decision granting petitioner parole"; and

Ground Five-The Governor's authority to reverse petitioner's parole grant is unconstitutional and in violation of the ex post facto clause because "petitioner's commitment offense occurred in 1981, seven years prior to Art. V, 8(b) of the Cal. Const."



The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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). Further, under AEDPA, a federal court shall presume a state court's determination of factual issues is correct, and petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000); Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). "Avoiding these pitfalls does not require citation of [Supreme Court] cases-indeed, it does not require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 253 (2002) (per curiam) (emphasis in original).

"Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the [petitioner's] case." Williams, 529 U.S. at 413, 120 S.Ct. at 1523; Andrade, 538 U.S. at 75, 123 S.Ct. at 1174. "An 'unreasonable application of federal law is different from an incorrect application of federal law.' " Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002) (per curiam) (citations omitted; emphasis in original); Bell, 535 U.S. at 694, 122 S.Ct. at 1850. Thus, "even if [this Court] concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 792-93, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001); Wiggins, 539 U.S. at 520-21, 123 S.Ct. at 2535.

"Section 2254(d) (1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.' " Andrade, 538 U.S. at 71, 123 S.Ct. at 1172 (quoting Williams, 529 U.S. at 412, 120 S.Ct. at 1523). "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 71-72, 123 S.Ct. at 1172; Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 958 (2004). "Although the statutory formulation restricts federal law to Supreme Court precedent, ... 'Ninth Circuit precedent may be persuasive authority for purposes of determining whether a particular state court decision is an unreasonable application of Supreme Court law, and may also help us determine what law is clearly established.' " Sims v. Rowland, 414 F.3d 1148, 1151 (9th Cir.), cert. denied, 546 U.S. 1066, 126 S.Ct. 809, 163 L.Ed.2d 637 (2005); Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir.2004).

The California Supreme Court reached the merits of petitioner's claim when it denied his habeas corpus petition without comment or citation to authority. Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir.2005), amended by, 447 F.3d 1165 (9th Cir.2006), cert. denied, 549 U.S. 1134, 127 S.Ct. 979, 166 L.Ed.2d 742 (2007); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir.1992), cert. denied, 510 U.S. 887, 114 S.Ct. 240, 126 L.Ed.2d 194 (1993). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir.2007) (en banc), cert. denied, --- U.S. ----, 128 S.Ct. 1878, 170 L.Ed.2d 754 (2008). Thus, in addressing petitioner's claims, this Court will consider the reasoning of the Los Angeles County Superior Court, which denied the claims on the merits. Stenson v. Lambert, 504 F.3d 873, 884 (9th Cir.2007), cert. denied, --- U.S. ----, 129 S.Ct. 247, 172 L.Ed.2d 188 (2008); Bonner v. Carey, 425 F.3d 1145, 1148 n. 13 (9th Cir.2005), amended by, 439 F.3d 993 (9th Cir.), cert. denied, 549 U.S. 856, 127 S.Ct. 132, 166 L.Ed.2d 97 (2006).


"Article III of the Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants." Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 528, 98 L.Ed.2d 529 (1988); Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975); Defunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705, 40 L.Ed.2d 164 (1974) (per curiam). "[F]ederal courts may not 'give opinions upon moot questions or abstract propositions.' " Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 2067, 135 L.Ed.2d (1996) (per curiam) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed.2d 293 (1895)). "This means that, throughout the litigation, the [petitioner] 'must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision.' " Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 983, 140 L.Ed.2d 43 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990)); see also Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam) ("In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." (citations and internal quotation marks omitted)). The burden of demonstrating mootness is a heavy one. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d (1979); West v. Secretary of the Dep't of Transp., 206 F.3d 920, 924-25 (9th Cir.2000).

On September 23, 2009, respondent filed a motion to dismiss the pending habeas petition, arguing this action is now moot because petitioner has been paroled. The Court disagrees. First, the Superior Court's order granting petitioner's habeas corpus petition and release on parole is on appeal and not yet final. See note 4 above. Second, on September 19, 1981, when petitioner committed second-degree murder, "the maximum period of parole for a person convicted of second degree murder was five years"-not lifetime parole, as it is now. *fn5 Thomas v. Yates, 637 F.Supp.2d 837, 841 (E.D.Cal.2009); In re Carabes, 144 Cal.App.3d 927, 930, 193 Cal.Rptr. 65 (1983). Therefore, "[t]he Court finds that the petition is not moot, as Petitioner's parole term is determinate and not subject to the lifetime parole requirement set forth in California Penal Code section 3000.1. The Court may afford Petitioner a remedy, despite his release from prison, by issuing an order directing the [California Department of Corrections and Rehabilitation] to credit time served in prison in violation of Petitioner's constitutional rights towards Petitioner's determinate period of parole supervision." *fn6 Thomas, 637 F.Supp.2d at 841 (citations omitted); McQuillion v. Duncan, 342 F.3d 1012, 1015 (9th Cir.2003) ( "McQuillion II" ); Stephenson v. Martell, 2009 WL 2824738, *2 (E.D.Cal.). Accordingly, respondent has not met his heavy burden of demonstrating the pending habeas petition is moot, and respondent's motion to dismiss is denied.


The Fourteenth Amendment's due process clause provides that a person may not be deprived of life, liberty, or property without due process of law. The Supreme Court "examine[s] procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, ...; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989) (citations omitted); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir.2006). "Under the 'clearly established' framework of Greenholtz [ *fn7 ] and Allen,[ *fn8 ] ... California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir.2002) (footnotes added); Sass, 461 F.3d at 1127-28; see also Irons v. Carey, 505 F.3d 846, 850 (9th Cir.2007) (" California Penal Code section 3041 [ *fn9 ] vests [petitioner] and all other 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." (footnote added)).

The Board's decision "with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder" shall not become final for 30 days, during which time California's Governor may review it.*fn10 Cal. Const. Art. V, § 8(b). However, California law "does not grant a Governor unfettered discretion over parole matters, but rather explicitly requires his or her parole decision to be based upon the same factors that the Board is required to consider." In re Rosenkrantz, 29 Cal.4th 616, 625-26, 128 Cal.Rptr.2d 104, 115, 59 P.3d 174 (2002), cert. denied, 538 U.S. 980, 123 S.Ct. 1808, 155 L.Ed.2d 669 (2003); In re Lawrence, 44 Cal.4th 1181, 1204, 82 Cal.Rptr.3d 169, 183, 190 P.3d 535 (2008); P.C. § 3041.2(a); see also Cal. Const. Art. V, § 8(b) ("The Governor may only affirm, modify, or reverse the [Board's] decision ... on the basis of the same factors which the [Board] is required to consider."). If, as here, the Governor decides to reverse the Board's parole decision, he must provide a written decision specifying his reasons. P.C. § 3041.2(b).

The Governor's decision to deny parole satisfies due process only if "some evidence supports the decision[,]" Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985), or the decision is not "otherwise arbitrary." Irons, 505 F.3d at 851 (citations omitted); Hill, 472 U.S. at 457, 105 S.Ct. at 2775. When this Court assesses whether a parole decision is "supported by some evidence in a habeas case, our analysis is framed by the statutes and regulations governing parole suitability determinations in [California]." Irons, 505 F.3d at 851; Biggs, 334 F.3d at 915. Thus, this Court "must 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 articulated in Hill [.]" Irons, 505 F.3d at 851.

Under California law, an inmate " 'shall be found unsuitable for parole and denied parole if, in the judgment of the [Board or Governor], the prisoner will pose an unreasonable risk of danger to society if released from prison.' " Id. (citations and footnote omitted). Factors the Board or Governor should consider include the inmate'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 [inmate] may safely be released to the community; and any other information which bears on the prisoner's suitability for release.

15 California Code of Regulations ("C.C.R.") § 2402(b-d).*fn11 However, the overarching consideration in parole suitability decisions is public safety. Irons, 505 F.3d at 851; see also Lawrence, 44 Cal.4th at 1212, 82 Cal.Rptr.3d at 190, 190 P.3d 535 ("[T]he relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely some evidence confirms the existence of certain factual findings."); *fn12 In re Shaputis, 44 Cal.4th 1241, 1254, 82 Cal.Rptr.3d 213, 222-23, 190 P.3d 573 (2008) ("[T]he proper articulation of the standard of review is whether there exists 'some evidence' that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor.").

In Grounds One and Four, petitioner claims the Governor's reversal of the Board's grant of parole is not supported by some evidence in violation of due process. As set forth above, the Los Angeles County Superior Court disagreed, finding " 'some evidence' to support the Governor's finding that petitioner is unsuitable for parole" because "[t]he Governor may rely on the commitment offense alone to deny parole if the circumstances of it are more than the minimum necessary to sustain a conviction for second-degree murder." Lodgment no. 6.

Here, as the Superior Court found, the Governor reversed the Board's decision to grant petitioner parole based solely on the facts and circumstances surrounding the commitment offense,*fn13 concluding "petitioner is unsuitable for parole because the circumstances of the commitment offense were beyond the minimum necessary to sustain a conviction for second-degree murder, the motive was 'exceedingly trivial,' and petitioner's conduct after the murders 'demonstrated an exceptional callousness and a complete lack of remorse or conscience.' " Lodgment no. 6 (quoting Lodgment no. 4); see also Lodgment no. 4 ("The magnitude alone of [petitioner's] murderous conduct is a sufficient basis for me to conclude that his release from prison at this time would pose an unreasonable public-safety risk."). Of course, that the circumstances of the commitment offense went beyond the bare minimum necessary to support a second-degree murder conviction does not, in and of itself, provide "some evidence" to support the Governor's decision since "there are few, if any, murders that could not be characterized as either particularly aggravated, or as involving some act beyond the minimum required for conviction of the offense." *fn14 Lawrence, 44 Cal.4th at 1218, 82 Cal.Rptr.3d at 196, 190 P.3d 535 (emphasis in original); In re Rozzo, 172 Cal.App.4th 40, 53, 91 Cal.Rptr.3d 85 (2009). Rather, "the circumstances of the commitment offense (or any other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public." Lawrence, 44 Cal.4th at 1212, 82 Cal.Rptr.3d at 190, 190 P.3d 535; In re Rico, 171 Cal.App.4th 659, 673, 89 Cal.Rptr.3d 866 (2009); Milot, 628 F.Supp.2d at 1167; see also Irons, 505 F.3d at 851-52 ("A prisoner's commitment offense may constitute a circumstance tending to show that a prisoner is presently too dangerous to be found suitable for parole, but the denial of parole may be predicated on a prisoner's commitment offense only where the [Governor] can 'point to factors beyond the minimum elements of the crime for which the inmate was committed' that demonstrate the inmate will, at the time of the suitability hearing, present a danger to society if released." (quoting In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005), cert. denied, 546 U.S. 844, 126 S.Ct. 92, 163 L.Ed.2d 109 (2005))). "But the statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness." Lawrence, 44 Cal.4th at 1211, 82 Cal.Rptr.3d at 190, 190 P.3d 535; In re Burdan, 169 Cal.App.4th 18, 38, 86 Cal.Rptr.3d 549 (2008). In other words,

although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.

Lawrence, 44 Cal.4th at 1214, 82 Cal.Rptr.3d at 192, 190 P.3d 535 (emphasis in original); Ledesma, 658 F.Supp.2d at ----, 2009 WL 2423968 at *24.

Here, "[t]he Governor has conceded [petitioner's] rehabilitative gains, and has not attempted to articulate a rational nexus between [petitioner's] commitment offense and his current dangerousness." In re Dannenberg, 173 Cal.App.4th 237, 255, 92 Cal.Rptr.3d 647 (2009). More specifically, the Governor recognized that in the 20 years between petitioner's conviction and his 2004 parole hearing, petitioner took significant steps to rehabilitate himself and enhance his suitability for parole, including: obtaining a GED; taking FEMA classes; receiving vocational training in upholstery, office services, and dry cleaning; holding several skilled institutional jobs, including recreation coordinator for mentally-ill inmates; participating in numerous self-help and therapy programs, such as various substance abuse programs since 1989, personal growth seminars, Criminal and Gang Members Anonymous, Process Group, Lifer Prisoner's Support Group, Alternatives to Violence, Stress Intervention Peer Program, Anger Management, Criminon, and IMPACT; involvement in the hospice-care program; volunteering as an HIV Peer Educator and a literacy tutor; maintained relationships while in prison; receiving commendations from various prison staff; receiving positive Life Prisoner and mental-health evaluations; and making realistic parole plans, including confirmed offers of housing and employment. See Lodgment no. 4. Yet, the Governor cites nothing beyond the circumstances of petitioner's commitment offense to support petitioner's dangerousness in 2004. Id.

The petitioner's commitment offense is not "some evidence" supporting the Governor's decision to deny petitioner parole. To the contrary, "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." Irons, 505 F.3d at 854. Petitioner has reached that point.*fn15 Since "the Governor has neither disputed the petitioner's rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required 'modicum of evidence' of unsuitability." Lawrence, 44 Cal.4th at 1226-27, 82 Cal.Rptr.3d at 203, 190 P.3d 535. In other words, the determination of petitioner's current dangerousness "cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude." Lawrence, 44 Cal.4th at 1221, 82 Cal.Rptr.3d at 198, 190 P.3d 535; In re Lazor, 172 Cal.App.4th 1185, 1197, 92 Cal.Rptr.3d 36 (2009); Ledesma, 658 F.Supp.2d at ----, 2009 WL 2423968 at *24. As such, "petitioner's due process ... rights were violated by the Governor's reliance upon the immutable and unchangeable circumstances of [petitioner's] commitment offense in reversing the Board's decision to grant parole" and "the Governor's decision is not supported by 'some evidence' of current dangerousness and is properly set aside by this [C]ourt." Lawrence, 44 Cal.4th at 1227, 82 Cal.Rptr.3d at 203, 190 P.3d 535; Dannenberg, 173 Cal.App.4th at 255, 92 Cal.Rptr.3d 647; see also Thomas v. Brown, 513 F.Supp.2d 1124, 1136 (N.D.Cal.2006) ("In light of the extensive evidence of [petitioner's] in-prison rehabilitation and exemplary behavior, the reliance on the unchanging factor of the murder to deny [petitioner] parole for the tenth time and 20 years into his 17-to-life sentence violated his right to due process."); McCullough v. Kane, 2007 WL 1593227, *9 (N.D.Cal.) ("In light of the extensive evidence of [petitioner's] in-prison rehabilitation and exemplary behavior, the reliance on the unchanging facts of the murder and his juvenile criminality to deny him parole 21 years into his 15-to-life sentence violated his right to due process. The some evidence standard provides more protection than against fabricated charges or bureaucratic mistakes-the some evidence standard also protects against arbitrary decisions. The Governor's decision was arbitrary and therefore did not comport with the some evidence standard." (citation omitted)). For these reasons, this Court finds the California Supreme Court's decision denying petitioner's challenge to the Governor's reversal of the 2004 grant of parole to him was an unreasonable application of clearly established federal law, and petitioner " 'is therefore entitled to the release date ordered by the Board.' " *fn16 McCarns v. Dexter, 534 F.Supp.2d 1138, 1154-55 (C.D.Cal.2008) (citations omitted).


"[H]abeas corpus is, at its core, an equitable remedy." Schlup v. Delo, 513 U.S. 298, 319, 115 S.Ct. 851, 863, 130 L.Ed.2d 808 (1995); see also Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (Federal habeas courts have "broad discretion in conditioning a judgment granting habeas relief ... [and] are authorized ... to dispose of habeas corpus matters 'as law and justice require.' " (citation omitted)); Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963) (habeas corpus "is not now and never has been a static, narrow, formalistic remedy"). Therefore, "federal courts have a fair amount of flexibility in fashioning specific habeas relief." Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir.2005); see also Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir.1994) ("A federal court is vested with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus. The court is free to fashion the remedy as law and justice require and is not required to order petitioner's immediate release from physical custody." (citations and internal punctuation omitted)).

At the time of the Board's decision in 2004, petitioner had served more than 20 years in prison, and had served well beyond his minimum sentence of 144 months. Lodgment nos. 3-4. If petitioner had been released on parole in 2004, his five year term of parole would have expired in 2009. As such, petitioner does not merely seek release on parole, but rather seeks an order requiring respondent to release him forthwith from all custody, including parole. See Memorandum in Support of Habeas Corpus Petition at 24. Petitioner is entitled to receive credit against his parole term for the time he was incarcerated beyond his 2004 release parole date. In McQuillion II, the Ninth Circuit aptly stated:

The Warden argues that, at a minimum, McQuillion should not be released immediately without an accompanying three-year period of parole. This argument overlooks the fact that if McQuillion had been released on the date to which he was entitled, he would have been released in May 1994. The three-year parole, which he would have been required to serve if he had been released on time, has long since passed.

McQuillion, 342 F.3d at 1015; see also Burnett, 432 F.3d at 1000 (noting had Ninth Circuit in McQuillion II not ordered the petitioner's immediate release, it would have been "essentially lengthening" his sentence by ordering him to serve a parole term where he already had served more time in prison than his "lawful period of imprisonment and parole combined"); Stephenson, 2009 WL 2824738, *2 ("[W]here a petitioner has subsequently been released to a determinate period of parole supervision, federal courts have concluded that the petitioner, should he prevail, may still obtain an order directing California authorities to credit him with the time served in prison in violation of his constitutional rights towards his determinate period of parole supervision."); Tripp v. Cate, 2009 WL 248368, *12 (N.D.Cal.) (ordering Department of Corrections to calculate parole term based on 2004 suitability finding notwithstanding the petitioner's release on parole in 2008); Carlin v. Wong, 2008 WL 3183163, *2 (N.D.Cal.) ("Here, petitioner is entitled to credit against his parole period for his time in confinement that was in violation of his due process rights. Had respondent not violated petitioner's due process rights by denying parole on December 15, 2003, petitioner would have been released when the parole suitability determination became final after the 150 day review period. Petitioner's parole decision would have become final on May 14, 2004. Accordingly, the Court finds that the time petitioner has been incarcerated beyond May 14, 2004 should be credited toward his post-release parole period." (citation omitted)); Mendoza v. Hernandez, 2008 WL 2018191, *1-2 (S.D.Cal.) ("Here, the Court granted Mendoza's petition fully intending to provide for his immediate release from custody and to grant him credit for time served beyond the date of the Board's decision."); cf. In re Chaudhary, 172 Cal.App.4th at 38, 90 Cal.Rptr.3d 678 (distinguishing McQuillion II and noting the petitioner, who had committed his offense after January 1, 1983, was subject to lifetime parole under P.C. § 3000.1).


IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) adopting the Report and Recommendation as the findings of fact and conclusions of law herein; (3) determining petitioner was denied due process of law when the Governor reversed the Board's 2004 grant of parole to him without "some evidence" in the record; (4) determining the California Supreme Court's decision determining the Governor's reversal of petitioner's 2004 grant of parole did not deny petitioner due process of law was an unreasonable application of clearly established federal law, and Judgment shall be entered granting the petition for writ of habeas corpus; and (5) reinstating the Board's 2004 grant of parole to petitioner on the terms and conditions set by the Board, requiring the California Department of Corrections and Rehabilitation to credit the time petitioner was incarcerated beyond his 2004 release date towards petitioner's parole period, and entering Judgment accordingly.

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