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Shelmire v. Sisto

September 14, 2010

TERRY SHELMIRE, 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 pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2006 denial of parole decision. Pending before the court are: Petitioner's petition for writ of habeas corpus (Doc. 1), Respondent's response to the petition (Doc. 7), Petitioner's traverse (Doc. 8), Petitioner's supplemental brief (Doc. 10), and Respondent's supplemental brief (Doc. 11).*fn1

I. BACKGROUND

Petitioner is serving an indeterminate life sentence for a conviction of first-degree murder. Petitioner appeared at a parole suitability hearing in June 2006, at which time he was represented by counsel. In denying parole, the Board of Prison Terms ("Board") noted the following: (1) the facts of the commitment offense; (2) inadequate self-help programming; and (3) a less than supportive psychological evaluation.

As to the commitment offense, the Board stated: The offense was carried out in an especially cruel and callous manner. The offense was carried out in a dispassionate and calculated manner. The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. The motive for the crime was inexplicable and incredibly trivial in relation to the offense. These conclusions are drawn from the statement of facts which were read into the record from the probation officer's report at Pages 2 and 3, and I will note that the inmate, after fighting with his wife and being told to leave, followed her three blocks from the apartment, leaving his child, a toddler, at home alone while he followed his wife and shot her in the middle of the street six times.

The Board next noted Petitioner's institutional programing, stating:

The prisoner has, although you have programmed remarkably since the last Board hearing, this Panel does not believe that you have participated sufficiently in beneficial self-help at this time.

The Board then discussed Petitioner's psychological report as follows:

Additionally, the psychological report, which is dated March 21st, 2006, authored by John T. Rouse - - Dr. John T. Rouse is not totally supportive of release in that at Page 4, Dr. Rouse states that "indeed he is much more introspective than he appears to have been some five years ago." This shows the Panel that there is still room for growth. Dr. Rouse continues that in his opinion the inmate's risk of dangerousness in the wider community is much less than it was at the time of his life crime and is likely to be average for those inmates who have committed similar offenses and have been successfully paroled. It needs to be lower.

Finally, the Board further addressed Petitioner's self-help programing, stating:

Mr. Shelmire, the Panel believes that you have started along the path of rehabilitation and have made a very significant start, particularly in [the] last four years between the last Board of Parole hearing and now. You have shown us that you are on the right path with the self-help you have completed. Your work with the Tawheed project in particular is clearly helping you work on achieving an understanding of what you've done and what kind of person you want to become. You appear to be grasping empathy and compassion in a step toward insight and remorse. We don't think you're there yet, however. The Panel makes the following findings.

The prisoner needs further therapy in order to face, discuss, understand and cope with stress in a non-destructive manner. Until additional progress is made, the prisoner continues to be unpredictable and a threat to others. The prisoner's gains are recent, and he must demonstrate an ability to maintain gains over an extended period of time. Nevertheless, the prisoner should be commended for having absolutely no discipline at all while he has been in prison, completing an abundance of positive programming and showing initiative in development of a relationship workshop for inmates and exceptional work evaluations in PIA optical law. However, these positive aspects of his behavior do not outweigh the factors of unsuitability at this time.

Petitioner challenged the decision with a petition for writ of habeas corpus filed in the Merced County Superior Court. In denying relief, the court stated:

[T]he Board, in reaching it's decision, specifically found the parolee (petitioner) would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Board also found that the offense was carried out in an especially cruel and callous manner and in a calculated ...


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