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Rasmussen v. Sisto

September 27, 2010

DONALD L. RASMUSSEN,
v.
D.K. SISTO, WARDEN



The opinion of the court was delivered by: Honorable N. Randy Smith Ninth Circuit Court of Appeals Judge

ORDER

The Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (habeas petition) now comes before the court for decision. The court dismisses Petitioner's habeas petition.

BACKGROUND

Because the parties are familiar with the factual background of this case, the court highlights here only the events giving rise to the current federal action. Petitioner was convicted of first degree murder and sentenced to a term of life in prison in 1972. His guilt in the matter is not in dispute. On January 19, 2006, the California Board of Parole Hearings ("BPH") found Petitioner unsuitable for parole. Subsequently, Petitioner sought habeas relief in Santa Clara County Superior Court, arguing that the BPH's denial of his parole violated his federal Due Process rights. The court denied his petition as well as his subsequent motion for reconsideration. Petitioner then sought review in the California Court of Appeal and the California Supreme Court. Both denied relief. He then filed his current federal action. On January 26, 2010, the court issued an administrative stay on this case pending the Ninth Circuit's decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). This court now lifts that stay and decides this matter.

HABEAS PETITION

In his habeas petition, Petitioner alleged four grounds for habeas relief, which really collapse into two: (1) his Due Process rights were violated when the BPH found him unsuitable for parole in the absence of "some evidence" of future dangerousness; and (2) the BPH's use of a parole law enacted subsequent to his conviction violated the Ex Post Facto clause. Both arguments fail, and the court dismisses Petitioner's habeas petition without prejudice.

This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer v. Andrade, 538 U.S. 63, 75--76 (2003) (quotingWilliams v. Taylor, 529 U.S. 362, 411 (2000)). "Rather, that application must be objectively unreasonable." Id. at 76.

For purposes of AEDPA review, this court looks to the last reasoned state court decision as the basis for the state court judgment. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). The Santa Clara Superior Court's decision constitutes the last reasoned state court decision in this case, as both the Court of Appeal and the California Supreme Court summarily dismissed Petitioner's habeas petition. Thus, the Court must determine whether the Superior Court's denial of Petitioner's habeas petition "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 "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).

A. Whether the BPH's Parole Suitability Finding Warrants Habeas Relief

Petitioner argues that the BPH erroneously found him unsuitable for parole, because it based its decision entirely on the commitment offense and not on whether Petitioner poses a current threat to public safety. The court disagrees.

The Ninth Circuit recently held that "[i]t is . . . our obligation . . . to review the merits of a federal habeas petition brought by a California prisoner who asserts that the decision to deny him parole was not supported by 'some evidence' of his current dangerousness. Under AEDPA, this means that we review 'whether the California judicial decision approving the governor's [or parole board's] 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." Pearson v. Muntz, 606 F.3d 606, 611 (9th Cir. 2010) (citing Hayward v. Marshall, 603 F.3d 546, 563 (9th Cir. 2010) (en banc) (internal quotation marks omitted)).

In Hayward, the Ninth Circuit clarified California's "some evidence" standard. "Under California law, denial of parole must be supported by 'some evidence,' but review of the [BPH's] decision is 'extremely deferential." Hayward, 603 F.3d at 562 (footnote omitted). "The crucial determinant of whether the prisoner gets parole in California is 'consideration of the public safety." Id. at 561 (footnote omitted). "Thus, in California, the offense of conviction may be considered, but the consideration must address the determining factor, 'a current threat to public safety.'" Id. at 562 (quoting In re Lawrence, 190 P.3d 535, 539 (Cal. 2008)).

The Superior Court's decision was not an unreasonable application of the California "some evidence" standard. The BPH found Petitioner unsuitable for parole based on: (1) the heinous nature of the crime; (2) Petitioner's history of drug abuse and his current failure to attend drug abuse programs; (3) his lack of insight into the crime; and (4) a 2001 disciplinary report (for not showing up to work). Pet. Exh. B. pgs. 75--82. This was not an unreasonable conclusion. The BPH focused on these elements to find that, though Petitioner's behavior had significantly improved over his time in prison, these elements still evidenced that Petitioner posed too much of a threat to public safety. Pet. Exh. B. pgs. 82. Petitioner was involved in drugs at the time of his commitment offense, and thus the BPH was concerned that anything less than near perfect attendance in a drug rehabilitation program could lead to further incidents of violence. Pet. Exh. B. p. 71, ...


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