FINDINGS AND RECOMMENDATIONS
Petitioner Richard Erwin Walker 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 a sentence of 18 years to life following his conviction in Riverside County for second degree murder with use of a firearm. Here, petitioner challenges the execution of his sentence, and specifically, the September 20, 2007 decision of the Board of Parole Hearings that he was not suitable for parole. The petition presents various grounds for relief, each contesting the Board's denial of parole as a violation of due process. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied. The Board's 2007 decision to deny parole was supported by some evidence in the record and accordingly did not violate petitioner's right to due process of law.
Although petitioner declined to discuss the circumstances of his commitment offense at his 2007 parole suitability hearing, the following facts were set forth by the presiding commissioner and considered by the panel:
On November 20, 1988, the inmate [petitioner], along with another unknown male, contacted the victim, David Ringo, to arrange a meeting. Inmate suspected the victim of stealing his radio and wanted to confront the victim about it. When they arrived at the meeting location, the inmate confronted Ringo about his radio. The victim told Walker he did not steal the radio and that he would not do something like that to him. The inmate then pointed a gun at the victim [and] told him to get down on his knees. The victim pled for the inmate not to shoot him. The inmate told the other male who was there to kick him. The victim then stood up and began running. Inmate fired one shot from the gun, and the victim fell to his knees -- collapsed and [fell] face first on the ground. It appear[ed] that the victim was not breathing, and... the inmate then told the other male to get his pickup truck. They loaded the body into the truck, and subsequently dumped the body in some orange groves. The workers of the ranch found the body the following day. (Pet. Ex. A at 15-16.)
Petitioner pleaded guilty to second degree murder with use of a firearm and was sentenced to a term of 18 years to life in state prison. His minimum eligible parole date passed on October 12, 2000. On September 20, 2007, a panel of the Board of Prison Terms ("Board") conducted a hearing to determine petitioner's suitability for parole and concluded that he would pose an unreasonable risk of danger to society or a threat to public safety if released and thus that he was not suitable for parole.
Petitioner challenged the Board's decision in a petition for writ of habeas corpus to the Riverside County Superior Court. The petition was denied without a written opinion on June 20, 2008. Subsequent petitions filed to the California Court of Appeal, Fourth District, and the California Supreme Court were likewise denied.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
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).
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 receipt of a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). If a state's statutory parole scheme uses mandatory language, however, 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)).
In 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). Due to the mandatory language in the statute, 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 for parole suitability determinations. See Pearson v. Muntz, No. 08-55728, slip op. at 5 (9th Cir. May 24, 2010) (per curiam). A court reviewing a California inmate's due process claim in the parole context must "decide whether the California judicial decision approving the... 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 v. Marshall, slip op. at 37. This analysis is framed by the state's statutes and regulations governing parole suitability determinations. See Irons, 505 F.3d at 851.
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. The relevant question is not whether some evidence supports the reasons cited for denying parole, but whether some evidence indicates that the inmate's release would unreasonably endanger public safety. In re Shaputis, 44 Cal.4th 1241, 1254 (2008). In other words, there must be a 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.
Here, the panel of the Board presiding over petitioner's 2007 hearing articulated both positive and negative factors bearing on his suitability for parole. The Board commended petitioner for his institutional activities and conduct. Petitioner had consistently received above average work reports for his job assignments. He completed two or three vocational certifications. He had recently begun community college course work and had completed a psychology class. His record was free of serious discipline since 1998. He participated regularly in NA and AA and completed other self-help programs such as anger management, Breaking Barriers, Pride Project and stress management. The most recent psychological evaluation available to the Board was supportive of release in that the evaluator indicated petitioner's "ability to perform in the free society" was good and his "risk of recidivism" was low.
Ultimately, however, the Board decided against releasing petitioner. The Board appeared to rely on the following factors in concluding that petitioner was not suitable to be released on parole: (1) the circumstances of his commitment offense; (2) his criminal history; (3) his lack of realistic parole plans; and (4) his past and present attitude toward the crime and lack of insight into previous criminality.
Under the applicable state regulations, the circumstances of a prisoner's commitment offense tend to show unsuitability for parole for where the offense was committed "in an especially heinous, atrocious or cruel manner." 15 Cal. Code Regs. §2402(c)(1). Here, the Board appeared to find that petitioner's offense qualified as especially heinous, atrocious, or cruel because it was carried out in a dispassionate and calculated manner (§2402(c)(1)(B)), and because it demonstrated an exceptionally callous disregard for human suffering (§2402(c)(1)(D)).
In order for the facts of petitioner's commitment offense to constitute a valid reason to deny parole, there must be some rational nexus between those facts and the ultimate conclusion that he continues to be a threat to public safety. In re Lawrence, 44 Cal.4th at 1214, 1227 ("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 [ ] 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") (emphasis in original). The relevant inquiry is an individualized one: "whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense." In re Lawrence, 44 Cal.4th at 1221. The passage of time and attendant changes in the inmate's psychological or mental attitude are relevant considerations. Id.
In this case, the Board articulated other negative factors bearing on petitioner's suitability for parole. These other factors demonstrate a sufficient nexus between petitioner's 1988 offense and the Board's ultimate conclusion that he still posed a risk of danger or threat to the public at the time of his hearing in 2007. These other factors also independently demonstrate some evidence in the record supporting a conclusion that petitioner was not suitable for parole.
The Board considered petitioner's criminal history and found that his offense was part of an escalating pattern of criminal conduct. A prisoner's previous record of violence tends to show unsuitability for parole where "on previous occasions [the prisoner] inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age." 15 Cal. Code Regs. §2402(c)(2). A prisoner's entire criminal history, including involvement in any reliably documented criminal misconduct, is additionally relevant under section 2402(b). Here, the Board noted that petitioner had served a prior prison term and that he was on parole at the time of his offense. The Board found that petitioner had "numerous previous grants of probation and parole" and thus that he had "failed to profit from society's previous attempts to correct his criminality."
The Board also considered pursuant to 15 Cal. Code Regs. §2402(b) petitioner's past and present attitude toward his commitment offense. Based on the some of petitioner's comments at the hearing, the Board questioned whether he had gained sufficient insight into his commitment offense, previous criminality, and misconduct in prison. Petitioner was questioned as follows:
PRESIDING COMMISSIONER BIGGERS: All right, thank you.
Just a couple of follow-up questions. This ride that took place back when you had that 115, you want to tell me about that? INMATE WALKER: What had happened was I came out of work change, and I seen about 100 inmates -- black inmates coming into the white area, and there was about 100 white inmates, and they were coming, and I just ran up and ran by the whites and right into it, and didn't even know what it was about or anything, and the yard went down. Nothing actually happened.
PRESIDING COMMISSIONER BIGGERS: Uh-huh.
INMATE WALKER: And because I ran out there like that, I got it for leading a racial riot.
PRESIDING COMMISSIONER BIGGERS: Okay, and you were not involved.
INMATE WALKER: Well, I ran out there.
PRESIDING COMMISSIONER BIGGERS: Okay, to ...