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Heller v. Powers-Mendoza

September 30, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Petitioner is a state prisoner through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2005 decision of California Governor Arnold Schwarzenegger reversing a decision by the California Board of Parole Hearings ("Board") to grant petitioner a parole date. Petitioner claims that the procedures used to find him unsuitable for parole violated due process, and that the reversal was based on both an erroneous understanding of petitioner's conviction and on political considerations. Petitioner also claims that the governor's decision to reverse the Board's decision violates the Ex Post Facto Clause, alleging that the law authorizing the governor's review was passed after petitioner committed his crime and operates to lengthen his sentence. After carefully considering the record, the undersigned recommends that the petition be granted as to the due process claim.

II. Factual and Procedural Background.

On June 3, 1983, petitioner was sentenced to nineteen years to life in state prison following his conviction on charges of second degree murder with use of a firearm and possession of cocaine and marijuana. (Pet. at 1.) Petitioner, intoxicated by alcohol and drugs, shot the victim with a.25 pistol in anger because he believed the victim had sold him diluted cocaine. (Traverse at 2.) Petitioner was twenty-six years old at the time of his commitment offense. (Id., Ex. A at 2.)

This action is proceeding on the instant petition filed on December 12, 2005. (Dkt. No. 1.) On May 24, 2007, respondent filed an answer. (Dkt. No. 33.) On August 6, 2007, petitioner filed a traverse. (Dkt. No. 36.) Petitioner's minimum eligible parole date on his life term occurred on May 23, 1994. (Pet., Ex. F at 1.)

On January 31, 2005, petitioner appeared before the Board for his ninth subsequent parole consideration hearing.*fn1 (Pet., Ex. A.) At the conclusion of the hearing, the Board found petitioner suitable for parole. The Board's determination that petitioner "is not a danger to society or a threat to public safety" (id. at 55), was based on several findings:

1. Petitioner "has no juvenile record of assaulting others."

2. In prison, petitioner "has enhanced his ability to function within the law upon release through participation in education programs, self-help, therapy, vocational programs and institutional job assignments, including, but in no way limited to, Alternatives to Violence; Life Skills Group; one-on-one therapy; alcohol and drug treatment, Pathfinders self-help class; alcohol and drug treatment, Cognitive Skills; Anger Management; Breaking Barriers; Cage Your Rage; CALM." (Id.) Petitioner "has been involved in AA and NA 12-Step programs"; and "received an A.A. and a Bachelor's degree while in custody." (Id.)

3. In prison, petitioner "worked for the PIA furniture factory and PIA bakery." (Id. at 56.) He was "an AIDS and HIV instructor through the Red Cross." (Id.) "Job assignments include administrative clerk, program porter, hobby shop, recreation yard and culinary." (Id.) He's completed vocational landscaping,... accounting and [a] business law course." (Id.) Petitioner has "marketable skills." (Id.)

4. Petitioner has no pre- or post-commitment history of violent crime.*fn2

5. Petitioner's "maturation, growth and greater understand[ing] and advanced age... has reduced the probability of recidivism." (Id.)

6. Petitioner "has realistic parole plans which include two job offers, family support and at least three places to reside." (Id.) Petitioner has "maintained family ties while in prison by letters, visits and phone calls." (Id.)

7. Petitioner made "significant improvement in self-control." During his incarceration, petitioner received only two 115's; one on May 1, 1985, for using a blanket as a rug or carpet, and another on April 4, 1984, for disobeying orders. (Id. at 57.) In addition, the Board found that petitioner "show[s] signs of remorse, indicates he understands the nature and magnitude of the offense and accepts responsibility for [inaudible] behavior, [and] has a desire to change towards good citizenship." (Id.)

8. Finally, the Board found that the psychological evaluations support petitioner's release on parole. (Id. at 57-59.)

On June 22, 2005, Governor Schwarzenegger issued the decision challenged in the instant action, reversing the Board's grant of parole. The Governor's decision was as follows:

[Petitioner] went to the apartment of a drug dealer, Frank Cologgi, three times on November 16, 1981. On the third visit, [petitioner] shot Mr. Cologgi to death. Mr. Cologgi's body was discovered later that evening by his roommate.

When officers arrived at the scene, they concluded that Mr. Cologgi had died from two gunshot wounds to the head. They found a pillow bearing two holes, surrounded by burn marks in the living room near the body.

When [petitioner] was arrested, police found 240 grams of marijuana and 1.6 grams of cocaine in his apartment. He denied killing Mr. Cologgi but admitted to going to Mr. Cologgi's apartment to buy cocaine and to pick up marijuana that was being "fronted" to him for sales.

Although [petitioner] pled not guilty, a jury found him guilty of second-degree murder with the use of a deadly weapon, possession of marijuana for sale, and possession of narcotics. He was sentenced to a total of 19 years to life in prison, which included 15-to-life for the murder plus two consecutive two-year terms, one for the weapon enhancement and the other for possession of marijuana for sale. The judgment was affirmed on appeal. [Petitioner's] only documented trouble with the law at the time of the murder was a conviction at age 20 for grand theft, which resulted in his undesirable discharge from the Army. Since entering state prison more than 21 years ago for Mr. Cologgi's murder, he has been disciplined twice for prison-rules violations and counseled nine times for misconduct. He has, however, remained discipline-free for the last 10-plus years and has made creditable efforts during his incarceration to enhance his ability to function within the law upon release. He has earned an Associate of Arts degree and also a Bachelor of Arts degree in Social Science, and he has taken classes in marketing and business. He has upgraded vocationally by taking a class in landscaping and gardening and by working in a wide array of skilled institutional jobs. He has availed himself of self-help and therapy, including Breaking Barriers, Alternatives to Violence, and Anger Management. He also has volunteered as a Red Cross AIDS/HIV instructor and in CAL/OSHA Hazardous Communication training. Likewise, he has maintained close family ties and has realistic, confirmed plans for housing and employment upon parole. All these factors are supportive of [petitioner's] release from prison to parole. [Petitioner] says that he was addicted to alcohol and drugs when he committed the murder and told the 2005 Board that he also was dealing drugs at the time. He has participated in Narcotics Anonymous, albeit intermittently, during 1992 and 1993, in Alcoholics Anonymous consistently from 1992 through 1995, and other substance-abuse-prevention programming since 2004. I note that, via an interstate transfer, [petitioner] spent more than five years in the Oregon State Prison, and while there he was unable to participate in any like substance-abuse treatment. Although he, to his credit, resumed such programming after his return in 2002 to California, recent mental-health evaluators agree that alcohol and drugs remain risk factors for him. And his 2004 evaluator concluded that mandatory substance-abuse treatment would be a critical feature of any release program. Given his alcohol and drug history -- and the nexus between drugs and the murder [petitioner] committed -- it is critical that [petitioner] participate regularly in Narcotics Anonymous, Alcoholics Anonymous, and any other substance-abuse-prevention programming while in prison, to the extent such is available to him, and that he make and follow through with plans to do so upon parole.

Despite initially denying that he shot Mr. Cologgi and maintaining his innocence throughout his trial and appeal and for years thereafter, [petitioner] now admits that he murdered Mr. Cologgi because he thought the cocaine he bought from him was of poor quality. He told the 2004 mental-health evaluator that he thought Mr. Cologgi had "altered" $25 worth of the cocaine. He also told the 2005 Board, "There's no way I can justify what I did... [F]or all I know he might have given me exactly what [cocaine] he got... I don't know if I can ever atone for what I've done." Notwithstanding the expression of remorse, [petitioner] committed an especially vicious second-degree murder and did so for an exceedingly trivial reason. According to the appellate record, the prosecution's theory of the case was that the "murder was more akin to a robbery gone bad", but "the violent aspect of this offense was the major focus of the case." Regardless of the version of events that one accepts, the bottom line is that [petitioner] shot the victim twice in the head, killing him, because he was mad about buying some bad drugs. Being angry at someone for selling $25 worth of lower-quality or less-pure cocaine is, needless to say, materially less significant than that which conventionally drives one to commit such an act of violence, let alone to commit murder. It is also noted that at the time of the probation report, while still denying the crime, he himself said that whoever committed the murder used a pillow to muffle the sounds of the shots and that obviously indicates premeditation. The circumstances of the murder -- inclusive of [petitioner] returning to Mr. Cologgi's apartment, armed with a gun, to confront him and then shooting him twice in the head while attempting to muffle the sound with a pillow -- make the second-degree murder of which [petitioner] was convicted especially grave. And this factor alone is enough for me to conclude that his release from prison would pose an unreasonable public-safety risk. [Petitioner] has been in prison a long time now and has made ...

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