Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Schoenfeld v. Marshall

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 6, 2010

RICHARD SCHOENFELD, PETITIONER,
v.
JOHN MARSHALL, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REVISED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Revised Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner, represented by counsel, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on November 14, 2007, challenging a decision of a panel of the California Board of Parole Hearings ("BPH") on April 27, 2005, deeming Petitioner unsuitable for parole. Petitioner filed a First Amended Petition ("FAP") on February 5, 2008.

On June 10, 2008, Respondent filed a request for a stay pending the issuance of the mandate in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008). On June 23, 2008, Magistrate Judge Rayburn issued an order granting the stay.

On July 2, 2008, the case was transferred from Magistrate Judge Rayburn to the undersigned Magistrate Judge. On August 5, 2008, the District Judge issued an order vacating the June 23, 2008 stay order and denying Respondent's request for a stay.

On September 4, 2008, Respondent filed an Answer. On October 20, 2008, Petitioner filed a Traverse.

The Answer and the Traverse both referred to a June 21, 2005 en banc BPH decision. On October 22, 2008, the Magistrate Judge ordered the parties jointly to expand the record by lodging copies of all documents relating to the en banc proceedings and decision, to the extent any such documents were not already before the Court. On November 14, 2008, Respondent filed "Respondent's Request for Review by the District Court of Magistrate Judge's Order to Expand the Record." On December 11, 2008, the District Judge issued an order overruling Respondent's objections to the Magistrate Judge's October 22, 2008 Minute Order.

On March 4, 2009, Respondent filed "Respondent's Response to the Court's October 22, 2008 Order, etc." and a "Notice of Additional Lodgments." Also on March 4, 2009, Petitioner filed a "Response to Court's October 22, 2008 Order, etc." ("Petitioner's Response"), inter alia, seeking a Court order directing Respondent to prepare a transcript of the BPH's en banc proceedings and striking Respondent's Lodgment No. 9.

On March 9, 2009, the Magistrate Judge ordered Respondent to file a Reply to Petitioner's Response. On March 27, 2009, Respondent filed an "Ex Parte Application for an Order Extending the Time to Respond to the Court's March 10, 2009 [sic] Order, etc." ("Ex Parte Application"), which the Magistrate Judge granted by Minute Order issued on that date. On April 10, 2009, Respondent filed "Respondent's Reply to Petitioner's Response, etc."

The declaration of Respondent's counsel filed in support of Respondent's Ex Parte Application stated that Petitioner's "recent parole grant, in which he received a future date of release, has been finalized," and suggested that "the instant matter may be moot, which Respondent shall address in a separate pleading." On April 15, 2009, the Magistrate Judge ordered the parties to confer forthwith regarding the mootness issue and to file briefing, either jointly or separately, discussing the mootness issue.

On May 4, 2009, Respondent filed "Respondent's Notice of Motion and Motion to Dismiss the First Amended Petition, etc." ("Motion to Dismiss"), contending that the Court should dismiss the Petition as moot. On June 1, 2009, Petitioner filed an "Opposition to Respondent's Motion to Dismiss" ("Opposition").

On June 8, 2009, the Magistrate Judge recommended that the case be dismissed without prejudice as moot. The Report and Recommendation relied on an October 30, 2008 BPH panel determination that Petitioner was suitable for parole. Petitioner filed objections on August 21, 2009, pointing out the pendency of administrative proceedings through which the October 30, 2008 panel determination might be rescinded.

On October 19, 2009, the District Judge issued a minute order effectively denying Respondent's motion to dismiss. The District Judge found that this case is in fact moot, but that the BPH's April 27, 2005 denial of parole suitability is "capable of repetition yet evading review." The minute order directed the Magistrate Judge to address the merits of the case. On October 26, 2009, the Magistrate Judge recommended that the Petition be conditionally granted. See Report and Recommendation of United States Magistrate Judge, filed October 26, 2009. Respondent filed objections on December 18, 2009.

On February 25, 2010, the District Judge stayed these proceedings pending the decision of the Ninth Circuit in Hayward v. Marshall. On April 22, 2010, the Ninth Circuit decided Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) ("Hayward").

On June 1, 2010, Respondent filed a "Supplemental Brief Re: Hayward v. Marshall." On July 1, 2010, Petitioner filed a "Supplemental Brief Re Application of En Banc 9th Circuit Decision in Hayward v. Marshall."

The Magistrate Judge now withdraws the Report and Recommendation, filed October 26, 2009, and files the instant Revised Report and Recommendation in light of Hayward and its progeny.

BACKGROUND

On the afternoon of July 15, 1976, Petitioner, Petitioner's brother and a companion kidnapped a busload of school children and the bus driver at gunpoint in Chowchilla, California, drove the victims to an abandoned quarry in Livermore, and buried the victims alive in a furniture van the perpetrators previously had secreted beneath the quarry. See People v. Schoenfeld, 111 Cal. App. 3d 671, 168 Cal. Rptr. 762 (1980). The bus driver and the twenty-six children managed to escape the next evening. See id. Petitioner pled guilty to twenty-seven counts of kidnapping for ransom and received concurrent life sentences on each of the twenty-seven counts. See id.

On April 27, 2005, Petitioner appeared before a BPH panel for his nineteenth subsequent parole hearing (FAP, attached Memorandum, p. 7, & Ex. A). The BPH panel deemed Petitioner unsuitable for parole and denied parole for one year (Id., pp. 85-91). In pertinent part, the BPH stated:

[W]e have denied your parole for one year. And the basis of it is the gravity of the instant offense. This is a kidnap for ransom and it certainly rises to the top of it -- of it being egregious in the area of commitment offenses of the like. There were 27 victims in this crime, ages from 5 to 15 and then, of course, the bus driver. This crime was carried out in an exceptionally cruel and callous manner, multiple victims. The victims were abused... The emotional trauma, I'm sure, was great.

The inmate has one conviction for petty theft in 1974 and no other record... He has programmed in a satisfactory manner... He has a number of psychological evaluations, all of which are positive... He has parole plans, places to live... He also has job offers...

Id. at 86-88. Notwithstanding the fact that a denial of parole suitability necessarily entails a finding under section 3041(b) of the California Penal Code that "consideration of the public safety requires a more lengthy period of incarceration for [Petitioner]," one of the BPH panel members stated, "I don't see you as being a threat to anyone." Id. at 86. On June 21, 2005, an en banc BPH panel adopted the April 27, 2005 decision.

Petitioner then filed a habeas corpus petition in Alameda County Superior Court, which that Court denied in a reasoned opinion on March 27, 2007 (Exhibit I). In ruling that "some evidence" supported the BPH decision, the Superior Court discussed the egregiousness of the commitment offense as the only relevant factor militating against parole suitability. Id.

Petitioner then filed a habeas corpus petition in the California Court of Appeal, which that Court summarily denied on August 9, 2007 (Exhibit J). On October 24, 2007, the California Supreme Court summarily denied Petitioner's petition for review (Exhibit K).

STANDARD OF REVIEW

A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir.), cert. denied, 540 U.S. 968 (2003). In applying these standards, this Court looks to the last reasoned state court decision, here the decision of the Alameda County Superior Court. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).

DISCUSSION

For the reasons discussed below, the Court should grant a conditional writ of habeas corpus.

I. Legal Standards

"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) ("Greenholtz"). In some instances, however, state statutes may create liberty interests in parole release entitled to protection under the federal Due Process clause. See Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Greenholtz, 442 U.S. at 12. "If there is any right to release on parole, or to release in the absence of some evidence of future dangerousness, it has to arise from substantive state law creating a right to release." Hayward, 603 F.3d at 555.

Section 3041(b) of the California Penal Code provides, in pertinent part:

The panel or the board... 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 for this individual, and that a parole date, therefore, cannot be fixed at this meeting.

Under applicable state regulations, "[r]egardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [BPH] the prisoner will pose an unreasonable risk of danger to society if released from prison." Cal. Code Regs., tit. 15, § 2281(a). In determining suitability for parole, the BPH shall consider "[a]ll relevant, reliable information available." Cal. Code Regs., tit. 15, §§ 2281(b). The BPH may consider, inter alia, "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, § 2281(b). The regulations enumerate certain circumstances tending to show unsuitability or suitability for parole, described as "general guidelines," but also indicate that the importance of any circumstances or combination of circumstances in a particular case is left to the judgment of the BPH. Cal. Code Regs., tit. 15, §§ 2281(c), (d).

Circumstances tending to indicate unsuitability include:

(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered 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.

(2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.

(3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others.

(4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim.

(5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense.

(6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail.

Cal. Code Regs., tit. 15, § 2281(c).

Circumstances tending to indicate suitability include:

(1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims.

(2) Stable Social History. The prisoner has experienced reasonably stable relationships with others.

(3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or the prisoner has given indications that he understands the nature and magnitude of the offense.

(4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress had built over a long period of time.

(5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization.

(6) Lack of Criminal History. The prisoner lacks any significant history of violent crime.

(7) Age. The prisoner's present age reduces the probability of recidivism.

(8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release.

(9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.

Cal. Code Regs., tit. 15, § 2281(d).

Upon a finding of suitability, the BPH sets a "base term" established solely on the gravity of the base crime, using a matrix of base terms set forth in California Code of Regulations section 2282.

See Cal. Code Regs., tit. 15, § 2282(a).

State authorities' discretion in parole matters is "great" and "involves the deliberate assessment of a wide variety of individualized factors on a case-by-case basis, and the striking of a balance between the interests of the inmate and the public." In re Powell, 45 Cal. 3d 894, 902, 248 Cal. Rptr. 431, 755 P.2d 881 (1988) (internal quotations and citation omitted).

Prior to Hayward, the Ninth Circuit had held that federal Due Process required that a state finding of parole unsuitability be supported by "some evidence," in accordance with the standard set forth in Superintendent v. Hill, 472 U.S. 445, 455 (1985). See Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007); Sass v. Calif. Bd. of Prison Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006). The California Supreme Court, applying state law, also has required that there exist "some evidence" to support a finding of parole unsuitability. See In re Lawrence, 44 Cal. 4th 1181, 1204, 82 Cal. Rptr. 3d 169, 190 P.3d 535 (2008) ("Lawrence"); In re Shaputis, 44 Cal. 4th 1241, 1254, 82 Cal. Rptr. 3d 213, 190 P.3d 573 (2008) ("Shaputis"); In re Rosenkrantz, 29 Cal. 4th 616, 658 & n.12, 128 Cal. Rptr. 2d 104, 59 P.3d 174 (2002), cert. denied, 538 U.S. 980 (2003) ("Rosenkrantz"); In re Powell, 45 Cal. 3d at 904.

In Hayward, the Ninth Circuit held that, "in the absence of state law establishing otherwise, there is no federal constitutional requirement that parole be granted in the absence of 'some evidence' of future dangerousness...." Hayward, 603 F.3d at 561. The Hayward Court suggested that a federal Due Process liberty interest might arise when state law establishes such a requirement. Id. Ultimately, however, the Hayward Court stated that it did not need to decide whether a federal Due Process liberty interest arises because of California law's requirement that parole be granted in the absence of "some evidence" of future dangerousness. Id. at 562-63. The Hayward Court stated that it did not need to decide this issue given the fact that California's "some evidence" requirement is "exactly the same" as the requirement previously applied in pre-Hayward Ninth Circuit case law. Id. at 562-63 (citing Lawrence and Shaputis). Therefore, in a habeas case challenging a finding of parole unsuitability in California, the federal district court "need only decide whether the California judicial decision [upholding the finding] 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.'" Id. (citing 28 U.S.C. §§ 2254(d)(1), (2)); but cf. Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010) ("Cooke") (appearing to state that California's "some evidence" standard creates a "federally enforceable liberty interest"); Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010) ("Pearson") ("By holding that a federal habeas court may review the reasonableness of the state court's application of the California 'some evidence' rule, Hayward necessarily held that compliance with the state requirement is mandated by federal law, specifically the Due Process Clause").*fn1

Under the California "some evidence" requirement, the issue is not whether the evidence supported any particular factor regarding parole unsuitability, but rather whether "some evidence" indicates that the prisoner's release unreasonably would endanger public safety. Lawrence, 44 Cal. 4th at 1212 ("the relevant inquiry is whether some evidence supports the decision of the Board... that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings") (citations omitted; original emphasis). "Only a modicum of evidence is required." Rosenkrantz, 29 Cal. 4th at 677. "Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [BPH]." The BPH's decision "must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious." Id. "It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole." Id.

II. The BPH Denied Parole Suitability Based Solely on the Nature of the Commitment Offense

The California Courts' Upholding of this Denial Constituted an Unreasonable Application of the "Some Evidence" Requirement or was Based on an Unreasonable Determination of the Facts in Light of the Evidence.

The BPH denied parole suitability based solely on the egregiousness of the commitment offense. The California courts applied the "some evidence" standard, but denied relief. For the reasons discussed herein, this denial was "unreasonable," within the meaning of Hayward.

In Rosenkrantz, the California Supreme Court held that "[t]he nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole." Rosenkrantz, 29 Cal. 4th at 682 (citations omitted). However, the court added that, "[i]n some circumstances, a denial of parole based upon the nature of the commitment offense alone might rise to the level of a due process violation - for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense." Id. at 683; see also In re Dannenberg, 34 Cal. 4th 1061, 1091, 23 Cal. Rptr. 3d 417, 104 P.3d 783 (2005), cert. denied, 546 U.S. 844 (2005) ("Dannenberg") ("When the Board bases unsuitability on the circumstances of the commitment offense, it must cite 'some evidence' of aggravating facts beyond the minimum elements of that offense.") (original emphasis; citing Rosenkrantz, 29 Cal. 4th at 658, 686).

In denying habeas relief, the Alameda County Superior Court cited the "minimum elements" test articulated in Rosenkrantz and Dannenberg (Exhibit I at 153). Under the law as it existed at the time of the BPH's decision, and at the time of the Alameda County Superior Court's decision, the nature of the commitment offense could have supported the denial of parole suitability. See Schoenfeld v. Marshall, 2008 WL 4829945 (C.D. Cal. Nov. 5, 2008) (and authorities cited therein) (denying Petitioner habeas relief in connection with the BPH's 2003 parole unsuitability finding).

In Lawrence, however, the California Supreme Court rejected the "minimum elements" test as "unworkable, leading to arbitrary results." Lawrence, 44 Cal. 4th 1181, 1212-13. The Lawrence Court emphasized that the issue in a parole suitability case is not whether the evidence supported any particular factor regarding parole suitability, but rather whether "some evidence" indicates the prisoner's release unreasonably would endanger public safety. Id. at 1205 ("the relevant inquiry is whether some evidence supports the decision of the Board... that the inmate constitutes a current threat to public safety") (citations omitted; original emphasis). The Lawrence Court held "under the statute and the governing regulations [that] the circumstances of the commitment offense (or any of the 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." Id. at 1212. The Lawrence Court held that the BPH "may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate's criminal history, only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety." Id. at 1221 (citation omitted; original emphasis). Under Lawrence, "due consideration of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision - the determination of current dangerousness." Id. at 1210. "[T]he aggravated nature of a 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." Id. at 1214 (emphasis added). In Lawrence, the Court held that an egregious first degree murder (involving shooting with a gun and repeated stabbing with a potato peeler) did not provide even "some evidence" of parole unsuitability.

In Petitioner's case, as previously mentioned, the Alameda County Superior Court cited the "minimum elements" test, a test the Lawrence Court now has rejected as a matter of California law. The BPH and the Alameda County Superior Court discussed only the egregiousness of Petitioner's commitment offense as purportedly supplying "some evidence" of parole unsuitability. Neither the BPH nor the Alameda County Superior Court indicated any dissatisfaction with Petitioner's prison record, psychological evaluations or parole plans.*fn2 Neither the BPH nor the Alameda County Superior Court attempted to explain how the commitment offense assertedly showed that Petitioner would present an unreasonable risk to public safety if released.*fn3 Under the Lawrence Court's construction of California law, Petitioner's commitment offense, without more, no longer constitutes "some evidence" supporting a finding of parole unsuitability. In light of Lawrence's construction of California law, the Alameda County Superior Court's determination was an unreasonable application of the "some evidence" standard, a standard clearly established by the United States Supreme Court. See Clay v. Kane, 2010 WL 2465214, at *1-2 (9th Cir. June 18, 2010); Cooke v. Solis, 606 F.3d 1206 (9th Cir. 2010); Pearson v. Muntz, 606 F.3d 606 (9th Cir. 2010); Hayward, 603 F.3d at 562-63.*fn4

In a federal habeas action, the applicable harmless error standard is the standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993) ("Brecht"). Brecht forbids a grant of habeas relief for a non-structural error unless the error had a "substantial and injurious effect or influence" on the outcome. Brecht, 507 U.S. at 637-38. A habeas court does not apply traditional burdens of proof to the issue of harmlessness, but rather determines the "conceptually clearer" issue whether the court believes the alleged constitutional error substantially influenced the outcome. See O'Neal v. McAninch, 513 U.S. 432, 436 (1995); Mancuso v. Olivarez, 292 F.3d 939, 949-50 n.1 (9th Cir. 2002). If the Court remains in "grave doubt" concerning the harmfulness of the error, habeas relief is appropriate. Id.; see also O'Neal v. McAninch, 513 U.S. at 445. On the present record, this Court is at least in "grave doubt" concerning whether the BPH's and the Alameda County Superior Court's erroneous application of the pre-Lawrence law, and their consequent failure to cite "some evidence," had a substantial and injurious effect on the decision to find Petitioner unsuitable for parole.

III. The Court Should Issue Only a Conditional Writ of Habeas Corpus

Petitioner seeks an order releasing Petitioner from "actual and constructive custody" (FAP, p. 69; Opposition, p. 4). This Court already has determined that such an order would be an inappropriate or ultra vires remedy (October 19, 2009 Minute Order at 4-5).

The Magistrate Judge recommends that the Court grant a conditional writ providing that within ninety (90) days of the entry of Judgment herein, or such further time as reasonably allowed under state law, Respondent shall release Petitioner on parole unless, within that period of time, the BPH either: (1) sets a release date for Petitioner pursuant to California law; or (2) holds a new parole suitability hearing for Petitioner and renders a decision in conformity with the requirements of due process, consistent with the law discussed in the Report and Recommendation (to the extent the BPH has not previously done (1) or (2)).

The Court recognizes that Petitioner reportedly already has received this remedy, such that the BPH would not have to take any further action in response to this Court's Judgment. The October 19, 2009 Minute Order stated that the Court "may also order that the BPH find that the Petitioner is suitable for parole and order that the BPH calculate a prison term and release date in accordance with California law, unless there is new evidence of the Petitioner's conduct subsequent to the April 27, 2005 parole hearing that sufficiently supports a finding that the Petitioner is unsuitable for parole" (emphasis added). Barring rescission of the October 30, 2008 BPH determinations, Petitioner also reportedly has received this remedy. In any event, however, given the fact that the 2005 BPH panel did not have the benefit of Lawrence's clarification of California law, this Court's remedy should not deprive the BPH of the opportunity to determine parole suitability with the benefit of Lawrence.

IV. The Limited Role of the Federal Court

As previously discussed, under the law as it existed before the Lawrence decision, the nature of Petitioner's commitment offense could have supported the denial of parole suitability. See Irons, 505 F.3d at 852-55; Sass, 461 F.3d at 1129. Indeed, this Court previously denied Petitioner habeas relief in connection with the BPH's 2003 parole unsuitability finding. See Schoenfeld v. Marshall, 2008 WL 4829945 (C.D. Cal. Nov. 5, 2008). On a similar factual record, Petitioner then as now argued that his terrible crime no longer furnishes "some evidence" of his danger to public safety, and that any other conclusion would be "unreasonable" within the meaning of 28 U.S.C. section 2254(d). Id. In denying habeas relief in the prior case, this Court stated, inter alia:

As a matter of common sense, it is not 'unreasonable' to conclude that 'consideration of the public safety requires' an even lengthier period of incarceration for a man who, as a young adult, proved himself capable of methodically and dispassionately executing a plot to terrorize school children and bury them alive.

Id. at *5.

That which is reasonable or unreasonable as a matter of common sense generally remains constant, but the law given by the California legislature, as interpreted by the California state courts, sometimes changes materially. Judges must apply and enforce changes in the law regardless of their personal views concerning the wisdom of the changes.*fn5 The issue of whether it is wise or unwise policy to deny parole solely on the basis of the egregiousness of the commitment offense is an issue within the exclusive province of the California state authorities to determine. All this Court properly may determine is that, given Lawrence and given the present record, Petitioner is now entitled to federal habeas relief notwithstanding the extraordinary egregiousness of his crime.

RECOMMENDATION

For the foregoing reasons,*fn6 IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Revised Report and Recommendation; and (2) directing that Judgment be entered conditionally granting habeas relief.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Revised Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Revised Report and Recommendation.

IT IS ORDERED that the Petition is conditionally granted. Within ninety (90) days of the entry of Judgment herein, or such further time as reasonably allowed under state law, Respondent shall release Petitioner on parole unless, within that period of time, the California Board of Parole Hearings either: (1) sets a release date for Petitioner pursuant to California law; or (2) holds a new parole suitability hearing for Petitioner and renders a decision in conformity with the requirements of due process, consistent with the law discussed in the Revised Report and Recommendation (to the extent the California Board of Parole Hearings has not previously done (1) or (2)).

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Revised Report and Recommendation and the Judgment herein by United States mail on Petitioner, counsel for Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

VALERIE BAKER FAIRBANK UNITED STATES DISTRICT JUDGE

Pursuant to the Order Adopting Findings, Conclusions and Recommendations of United States Magistrate Judge,

IT IS ADJUDGED that the Petition is conditionally granted. Within ninety (90) days of the entry of Judgment herein, or such further time as reasonably allowed under state law, Respondent shall release Petitioner on parole unless, within that period of time, the California Board of Parole Hearings either: (1) sets a release date for Petitioner; or (2) holds a new parole suitability hearing for Petitioner and renders a decision in conformity with the requirements of due process, consistent with the law discussed in the Revised Report and Recommendation (to the extent the California Board of Parole Hearings has not previously done (1) or (2)).


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.