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Robinson v. Sisto

August 13, 2010

KEVIN DAVID ROBINSON, PETITIONER,
v.
D.K. SISTO, ET AL., RESPONDENTS.



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

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding with appointed counsel, 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 pro se petition for a writ of habeas corpus (Doc. 1), respondents' answer (Doc. 7), petitioner's pro se reply (Doc. 8), and petitioner's supplemental brief (Doc. 20) filed by appointed counsel.*fn1 Also before the court is petitioner's motion to expand the record (Doc. 21).

I. BACKGROUND

Petitioner is serving an indeterminate life sentence following his conviction for second degree murder. Petitioner appeared before the Board of Prison Terms ("Board") in April 2006 for a parole eligibility consideration hearing. In denying parole, the Board relied primarily on the facts of the commitment offense as well as petitioner's pre-commitment history of violence and unstable social relationships. The Board also noted lack of insight into the nature and cause of the commitment offense, as well as some problems while incarcerated. Further consideration of parole eligibility was deferred for three years.

As to the facts of the commitment offense, the Board stated:

. . . This offense was aggravated by the fact that multiple victims were attacked and one was killed in the same, separate incident and the motive for the crime was extremely trivial. . . . It is often stated by inmates that the facts of the offense will never change, and that's true. The facts won't change for you but they won't change for us either. And so that circumstance in and of itself is a disquieting factor. . . .

The Board then continued by addressing petitioner's pre-commitment history as follows:

. . . It's then aggravated when you look at your prior record. First of all the fact that at the time that this offense occurred you were not a young man. I mean, you were 30 years of age, you had some life experiences. The recent life experience showed that you'd become accustomed to carrying weapons and to get in confrontational situations. To the extent that there were four prior involvements with law enforcement based upon one or more combination of those factors. The '79 incident involving carrying a weapon, the '82 incident involving confrontation with police officers, the '83 incident involving an assault on your girlfriend, and the incident just a month-and-a-half prior to this where basically you're at a gathering and you get into what starts out as a verbal argument with someone and the police end up being called for assaultive behavior. So there is a pattern of escalating conduct. . . .

The Board also noted a history of tumultuous relationships.

Regarding petitioner's history while incarcerated, the Board sated that it "is kind of a mixed bag." The Board focused on one incident in particular:

. . . We note a history that has been disciplinary-free for a period of time. What was most interesting is your last 115, there's a total of three 115s in total. The last one was a period of time ago but the nature of it was interesting. It kind of started out as a direction from a custodial correctional officer over what you were wearing. A very minor thing. It escalated into a verbal confrontation. The use of words such that it ended up a 115. This started as a real insignificant incident and then got to, you know, a confrontation. Again indicating -- I guess we could say fortunately it didn't result in violence. But what starts out as a minor incident ends up in this confrontational response, which is the same sort of behavior. . . .

The record reflects that petitioner's last disciplinary violation as of the date of the 2006 hearing occurred in 1996.

The Board also commented on petitioner's participation in self-help programming, which it characterized positively. The Board did, however, note the following concern relating to whether petitioner had truly gained insight into the circumstances of his crime:

. . .You have taken a lot of classes in self-help. You are able to recite to some extent things that you have learned there. The only difficulties that a panel has in dealing with people in your stage of maturation, if you will, is trying to ascertain the difference between your ability to demonstrate that you can memorize the material and becoming confident that what you are telling us really represents a life change. Very disturbing were your responses in a couple of areas. How could you avoid the stabbing? There was no alternative. That was your immediate response to that question. Which, you know, causes us real concern. If you are not able to articulate the options available to you at that time, well. You're in a controlled environment here. It may be a potentially violent environment, it may have its problems, ...


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