Searching over 5,500,000 cases.

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.

Wickliffe v. Sisto


August 30, 2010


The opinion of the court was delivered by: Barbara Jacobs Rothstein U.S. District Court Judge



Petitioner is a California state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is serving a sentence of fifteen-years-to-life imprisonment in the California Department of Corrections imposed following his 1990 conviction for second-degree murder. Petitioner challenges the Board of Parole Hearing's (the "Board") February 1, 2008 decision finding him unsuitable for parole.


On October 22, 1990, Petitioner pled guilty to murdering Karen Marie Harnage. At the time of the murder, Ms. Harnage was Petitioner's estranged girlfriend and the mother of his son. Petitioner and Ms. Harnage had recently separated and Ms. Harnage had a restraining order against Petitioner. Despite the restraining order, on the day of the murder, Ms. Harnage drove to Petitioner's parent's home in order to discuss the status of her relationship with him. An argument ensued and Ms. Harnage left the house and got into her car. Petitioner followed her to her vehicle, and the argument continued in the driveway until Petitioner shot her with his 38-caliber handgun, killing her. Petitioner's version of the shooting has varied significantly throughout this case, but the autopsy report shows that Ms. Harnage was shot three times. One shot was in the palm of her hand, the second shot was in her leg at an angle that indicates that she was sitting when the bullet entered her leg, and the final and fatal shot was in her back.*fn1 (Dkt. No. 1, Ex. A at 59.) Petitioner fled the scene of the shooting and drove to his uncle's house. His uncle transported him back to the crime scene and Petitioner surrendered to the local authorities.

After being sentenced, it was determined that Petitioner's Minimum Eligible Release Date was February 17, 2000. He was denied parole for the first time in 2004. On February 1, 2008, Petitioner appeared before the Board for his second suitability hearing and was denied parole for one year. Petitioner filed a habeas petition in Los Angeles Superior Court, which was denied on February 4, 2009. The California Court of Appeal, Second District, denied the petition on March 26, 2009 and, thereafter, the California Supreme Court denied the petition. Petitioner filed the present habeas petition in the Eastern District of California on June 16, 2009. The matter was transferred to this court on March 2, 2010. The matter is now ripe for review.


A. Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because Petitioner is in custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented. . . ." 28 U.S.C. § 2254(d)(1) and (2).

As a threshold matter, this court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the court may only consider the holdings, as opposed to dicta, of the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

The court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "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] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "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] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be [objectively] unreasonable." Id. at 411. It is the petitioner's burden to establish that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).

AEDPA also requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Federal courts are bound by a state's interpretation of its own laws. See Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir. 1993)). This deference, however, is accorded only to "reasoned decisions" by the state courts. To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).

B. Due Process Right under California's Parole Scheme

Under the Fifth and Fourteenth Amendments to the U.S. Constitution, the federal and state governments are prohibited from depriving an inmate of life, liberty or property without the due process of law. U.S. Const. amends. V, XIV. A prisoner's due process claim must be analyzed in two steps: the first asks whether the state has interfered with a constitutionally protected liberty or property interest of the prisoner, and the second asks whether the procedures accompanying that interference were constitutionally sufficient. Ky. Dep't of Corrections. v. Thompson, 490 U.S. 454, 460 (1989).

Accordingly, our first inquiry is whether Petitioner has a constitutionally protected liberty interest in parole. The U.S. Supreme Court articulated the governing rule in this area in Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 482 U.S. 369 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying "the 'clearly established' framework of Greenholtz and Allen" to California's parole scheme). The Court in Greenholtz determined that although there is no constitutional right to be conditionally released on parole, if a state's statutory scheme employs mandatory language that creates a presumption that parole release will be granted if certain designated findings are made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 12; Allen, 482 U.S. at 377-78.

The California statutes and regulations at issue in this case contain mandatory language providing that a prisoner serving an indeterminate life sentence has an expectation of parole unless, in the judgment of the parole authority, he "will pose an unreasonable risk of danger to society if released from prison." 15 CCR § 2402(a). Specifically, California Penal Code § 3041(b) provides that the Board "shall set a release date unless it determines . . . that consideration of the public safety requires a more lengthy period of incarceration for this individual. . . ." Cal. Penal Code § 3041(b) (emphasis added). The California Supreme Court has interpreted this language to provide that an adverse parole decision must be supported by "some evidence" demonstrating current dangerousness. See In re Lawrence, 44 Cal.4th 1181, 1204 (2008); In re Shaputis, 44 Cal.4th 1241, 1254 (2008). Thus, the California Supreme Court has held that as a matter of state constitutional law, this mandatory language in California's parole scheme creates a liberty interest in parole. See Lawrence, 44 Cal.4th at 1204; Shaputis, 44 Cal.4th at 1254, 1258.

Next, this court must determine whether the procedures accompanying the state's interference with Petitioner's liberty interest in parole were constitutionally sufficient. Thompson, 490 460. The Ninth Circuit recently considered this question in Hayward v. Marshall, and concluded that the appropriate inquiry for a federal habeas court is whether "some evidence" of current dangerousness supported the Board or Governor's denial of parole. Hayward, 603 F.3d at 563. In other words, the Board may decline to set a parole date only upon a finding that Petitioner's release would present an unreasonable current risk of danger to society if he is released from prison. Therefore, this court must deny relief if there is "some evidence" in the record to support the parole authority's finding of current dangerousness. Id. That is the determinative issue in this case.

C. The Board's 2008 Decision

On February 1, 2008, the Board rendered the following decision in denying Petitioner parole, in relevant part:

This was a senseless, horrible crime that stemmed from a tumultuous relationship between [Petitioner] and the victim. The relationship was tainted with domestic violence, and in review of the record, [Petitioner] has told many different stories about how this crime occurred. He does admit that he shot the victim, but seemingly continues to minimize his responsibility, telling a multitude of different versions of this crime. I do believe that, at today's hearing, that you're moving forward from there in the discussion that we have had with you. Those other stories did, to some extent, put the blame on the victim to some degree. .In reviewing the totality of the record, it is the Panel's opinion that [Petitioner] needs to continue to explore some insight into his behaviour that caused him to let anger, frustration and jealousy cause him to, in the past, hit, shoot, and eventually shoot and kill a woman that he professed to love..[Petitioner] needs to.make a decision not to minimize this crime as it relates to how it happened, why it happened, and tell exactly the way it happened. This Panel is not convinced that he has yet to understand all the triggers that led him to escalate this to a level, viciously shooting this woman. And we're not convinced that it couldn't happen again. Therefore, .he is viewed as a continued threat to public safety in the free community, and some incarceration time is still needed. (Dkt. No. 1, Exhibit A at 79-80.)

The "paramount consideration for...the Board...under the governing statutes is whether the inmate currently poses a threat to public safety." In re Lawrence, 44 Cal. 4th at 1210. In this case, the Board believes that Petitioner still poses a threat to society because he continues to minimize his role in Ms. Harnage's murder. Petitioner has given many versions of the events leading up to her murder, frequently placing the blame on her. For example, Petitioner stated in his most recent psychological evaluation that she pushed him, causing the gun to go off accidently. (Dkt. No. 1, Ex. A at 43.) However, at the parole hearing, Petitioner claimed that Ms. Harnage jumped on his back, causing the gun to fall to the ground, and he picked it up and shot her three times. Id. at 45. Where guilt is uncontested, an inmate's version of the events may be some evidence that he has not gained sufficient insight into the nature and magnitude of the commitment offense. See In re McClendon, 113 Cal. App. 4th 315, 323 (2004); In re Shaputis, 44 Cal.4th 1241');">44 Cal. 4th 1241, 1255 (2008) (stating that an inmate's lack of remorse or insight into the nature and magnitude of the offense may be some evidence of current dangerousness). In this case, there is some evidence to support the Board's conclusion that Petitioner must demonstrate that he has accepted responsibility for his actions and gain greater insight into his behaviour, before he will be suitable for parole. As such, this court finds that the California judicial decisions approving the Board's 2008 determination were not an "unreasonable application" of the California "some evidence" requirement, nor based on an "unreasonable determination of the facts in light of the evidence." U.S.C. § 2254(d)(1) and (2). Accordingly, there is no basis for federal habeas relief.


Based on the foregoing, the Writ for Petition of Federal Habeas Corpus is DENIED.

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.