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Johnson v. Sisto

August 12, 2010


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole in 2006. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), respondent's amended answer (Doc. 10), and petitioner's reply (Doc. 15).


Petitioner, who is serving concurrent life sentences for separate murders, appeared before the Board of Prison Terms ("Board") on August 8, 2006, for a subsequent parole eligibility hearing. Petitioner was represented by counsel at the hearing. Petitioner's counsel stipulated to the facts related to the commitment offenses as outlined in prior parole hearing transcripts. In finding petitioner unsuitable for parole, the Board noted: (1) the facts of the commitment offense; (2) petitioner's pre-commitment criminal record; (3) petitioner's institutional behavior; (4) lack of current psychological evaluation; and (4) petitioner's failure to participate in self-help programming. As to the commitment offenses, the Board stated:

... Number one, your commitment offenses are horrendous. You killed two people. We believe you haven't yet come to terms with the second offense, with the doctor. You went on a crime spree. It was awful. Multiple victims were attacked. You carried out the offense in a dispassionate and calculated manner. You're traveling with your girlfriend and both of you end up pointing fingers at each other with regards to the second offense. The offense was carried out in a manner that demonstrated disregard for human suffering and it was a crime spree for drugs and money. You can't put a value on a human life, not either in drugs or money. Conclusions are drawn from the Statement of Facts that indicated from the report earlier, came from the May 2006 [parole suitability hearing] calendar. And both summaries of the offenses are included there, with which, Mr. Johnson, forced his way into an apartment of Mr. Siliphont, evidently to secure drugs and Johnson fatally shot that victim. As well, the same roughly period of a week or so, he did a car-jacking and ended up killing Dr. Olsen and then went all the way across the country to Muskegon, Michigan, where he was subsequently extradited....

Regarding petitioner's pre-conviction criminal record, the Board stated:... We discussed the prior record of Mr. Johnson. He does have a juvenile record. Most of that appears to be fighting, malicious destruction, stealing a cap pistol, starting a fire supposedly and more fighting. So there is somewhat a degree of violence of a record of violence and assaultive behavior in a -- on a juvenile. It appears he has a history of unstable relationships with others. He's obviously failed grants of probation and parole and has failed to profit from society's previous attempts with regards to juvenile probation interaction and an adult, as well as on parole and prior prison terms....

As to institutional behavior, the Board stated:

... With regards to institutional behavior, Mr. Johnson has received five 115's [disciplinary violations], the last being in July of 2002 [for falsifying documents]. 128(a)'s, he has received four, the last being in March of '98. 2002 is not long enough for us, Mr. Johnson. You need to distance yourself from the disciplinaries a little bit more. And you actually, as the Commissioner pointed out earlier, knew you were doing wrong and you still chose to do so. And one of the issues that we are often concerned about as a Parole Board Panel is, if you can't follow the rules, no matter how insignificant you may think they are in the institution, how can you follow them outside?

The Board next addressed petitioner's institutional programming:

... We are also concerned with your lack of AA and NA programming within the institution. You had a significant history of alcohol or substance abuse issues on -- prior to this. And so, one of our recommendations would be that you participate in some kind of substance abuse program of your choosing. It doesn't have to be AA or NA but something similar....

As to the psychological evaluation, the Board noted:

... In regards to the psychiatric evaluation, I think we've all indicated that it is an old evaluation and probably don't do you justice. We will be recommending a new evaluation for your, sir.

The Board deferred further consideration of parole eligibility for two years.

Petitioner filed a petition for a writ of habeas corpus challenging the Board decision in the Alameda County Superior Court. In ...

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