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Hyde v. Moore

October 25, 2010

PAUL E. HYDE, PETITIONER,
v.
STEVE MOORE, RESPONDENT.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Paul E. Hyde is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that habeas relief be denied.

II. PROCEDURAL HISTORY

Petitioner is currently serving a sentence of seven years to life. Pet'r's Pet. 1, ECF No. 1. "In 1973, at age 19, in the Los Angeles County Superior Court case No. A068239, [Petitioner] was convicted of first degree murder (§ 187; count 5), four counts of robbery of the first degree (§ 211; counts 1, 2, 6 & 7), assault with a deadly weapon with the intent to commit murder (former § 217; count 3), and assault by means of force likely to produce great bodily injury and with a deadly weapon (§ 245, subd. (a)(1); count 4), each with the personal use of a firearm (§ 12022.5)." In re Hyde, 154 Cal. App. 4th 1200, 1202, 65 Cal. Rptr. 3d 162 (2007). In the instant action, Petitioner challenges the decision by the California Board of Parole Hearings (the "Board") denying Petitioner parole. Petitioner appeared before the Board on November 9, 2005.

On February 3, 2006, Petitioner filed a petition for writ of habeas corpus with the Los Angeles County Superior Court challenging the Board's decision. See Resp't's Answer Ex. A, pt. 1, at 6-149, ECF No. 13.

On January 3, 2007, the Superior Court granted habeas relief. See Resp't's Answer Ex. A, pt. 2, at 139-40. The Superior Court found "that petitioner's continual parole denials have been based mainly on the gravity of the commitment offense, the circumstances of which can never change." Id. at 140. The Superior Court reasoned that "[a]fter more than three decades of incarceration, reliance upon such unchanging circumstances violates due process because these immutable circumstances become unreliable predictors of petitioner's dangerousness such that they can no longer fulfill the 'some evidence' standard." Id. at 139. Accordingly, the Superior Court determined "there is no evidence that petitioner's release on parole unreasonably endangers the public." Id.

Additionally, the Superior Court recognized that Petitioner "has been discipline free for 14 years and a 2005 psychological report indicates that petitioner's 'dangerousness . . . if released into the community is significantly below average in comparison with other inmates." Id. The Superior Court also pointed out that while the Board must consider "that the district attorney opposed parole[,] . . . that opposition is not a factor on which the Board may rely to deny parole." Id. at 140 (citation omitted). The Superior Court decided that "the Board's continued reliance on unchanging factors will essentially convert petitioner's original sentence to life with the possibility of parole into a sentence of life without the possibility of parole," and "Petitioner has no chance of obtaining parole unless the Board holds that his crime was not serious enough to warrant a denial of parole." Id.

On February 2, 2007, Respondent filed a notice of appeal in the California Court of Appeal, Second Appellate District. Id. at 141-42.

On August 7, 2007, the Court of Appeal reversed the Superior Court's decision. In re Hyde, 154 Cal. App. 4th at 1218, 65 Cal. Rptr. 3d 162. The Court of Appeal found that Petitioner's "crimes are collectively so grave that we cannot find their remoteness has resulted in a loss of reliability as predictors of future dangerousness." Id. at 1216, 65 Cal. Rptr. 3d 162. The Court of Appeal elaborated that even if the "1972 to 1973 offenses were too remote in time to be reliable, the superior court here also erred because it failed to consider [Petitioner's] 1990 conviction" for "possession of a piece of aluminum that he had fashioned into [a] 15-inch stabbing instrument . . . ." Id. The Court of Appeal thereby concluded that "[t]he 1990 offense renders the 1973 offenses considerably more probative in supporting a conclusion of an unreasonable risk of danger to society than if the 1972 to 1973 offenses are considered in isolation." Id. at 1217, 65 Cal. Rptr. 3d 162.

On October 9, 2007, Petitioner sought relief in the California Supreme Court, which denied the petition without a written opinion on December 12, 2007. See Resp't's Answer Exs. F-G.

On June 17, 2008, Petitioner filed the instant federal petition for writ of habeas corpus. Respondent filed an answer to the petition on October 10, 2008, to which Petitioner filed a traverse on October 22, 2008.*fn1

III. FACTUAL BACKGROUND

A. Commitment Offenses

In December 1972 and January 1973, at age 18, [Petitioner] had moved away from his parents' Los Angeles residence after a quarrel and rented an apartment in Santa Monica. During these months, he went on a robbery spree with a firearm. He preyed on at least four local businesses and their employees or owners in order to obtain the funds he needed to pay his living expenses. There were two victims during the robbery of Bill's Bike Shop, and during that robbery, at gunpoint, [Petitioner] threatened to kill the husband/owner if the wife/owner did not remain in the bathroom. During the robbery of the Red Ball gas station, for no apparent reason, [Petitioner] shot the unresisting female employee in the back with a through-and-through shot, causing her to fall. Then, he shot her again in the thigh while she lay on the floor. The second bullet lodged in her groin. Later, he fatally shot a 63-year-old shoe repair business owner in the chest and abdomen. [Petitioner] apparently was not charged with a robbery in connection with the murder as it was not entirely clear whether he had robbed the victim. Then, during two successive later robberies, [Petitioner] used a gun, confronting two employees in one robbery, and confronting one employee in the other. In total, [Petitioner] obtained less than $250 during the robbery spree.*fn2 In re Hyde, 154 Cal. App. 4th at 1203-04, 65 Cal. Rptr. 3d 162.

At the hearing, Petitioner's counsel stated:

[Petitioner will] be happy to discuss the post-condition factors involved and parole plans. We respectfully decline to discuss the commitment offense. We're satisfied that the record previously made on the eight previous hearings is satisfactory and an adequate record. So, he's accepted his responsibility and (indiscernible)[.]

Resp't's Answer Ex. A, pt. 1, at 53; Parole Hr'g Tr. 9.

Accordingly, the Board read from the "board report of [the] November 2003 calendar" when addressing Petitioner's remorse. Resp't's Answer Ex. A, pt. 1, at 54; Parole Hr'g Tr. 10, Nov. 9, 2005. The report stated Petitioner "accepts responsibility for the robberies at the businesses." Resp't's Answer Ex. A, pt. 1, at 59; Parole Hr'g Tr. 15. The report noted Petitioner "attributes his actions to the fact that he had recently quarreled with his family, left home, moved to the Santa Monica area, and was having difficulty finding a steady job and was too proud to return home." Resp't's Answer Ex. A, pt. 1, at 59; Parole Hr'g Tr. 15. In the report, Petitioner alleged "he attempted to solve his problems by engaging in criminal conduct," and at that time, "he was not concerned about his victims." Resp't's Answer Ex. A, pt. 1, at 59-60; Parole Hr'g Tr. 15-16. However, "[n]ow [Petitioner] can understand how they must have felt and has expressed remorse for his actions." Resp't's Answer Ex. A, pt. 1, at 60; Parole Hr'g Tr. 16.

The report also stated that Petitioner asserted both shootings were accidental. For the shoe repair victim, Petitioner "accepts total responsibility for the death of the victim, [and] regrets that the incident occurred." Resp't's Answer Ex. A, pt. 1, at 55; Parole Hr'g Tr. 11. Petitioner, however, claimed "he did not enter the store" to rob the victim. Resp't's Answer Ex. A, pt. 1, at 55; Parole Hr'g Tr. 11. Rather, according to Petitioner, "he was trying to get away from some local youths who were pursuing him." Resp't's Answer Ex. A, pt. 1, at 55; Parole Hr'g Tr. 11. "The victim startled him and he fired, . . . and never robbed him." Resp't's Answer Ex. A, pt. 1, at 55; Parole Hr'g Tr. 11. Petitioner left the premises immediately and "made no attempt to aid the victim." Resp't's Answer Ex. A, pt. 1, at 55; Parole Hr'g Tr. 11.

Likewise, in the report, Petitioner asserted that "shooting the female victim was an accident." Resp't's Answer Ex. A, pt. 1, at 60; Parole Hr'g Tr. 16. Petitioner stated "he was holding back the hammer of the gun when he was startled, the gun slipped and went off and he did not know [the female victim] had been shot." Resp't's Answer Ex. A, pt. 1, at 60; Parole Hr'g Tr. 16. Petitioner "heard her whimpering and thought she was only pregnant." Resp't's Answer Ex. A, pt. 1, at 60; Parole Hr'g Tr. 16. Petitioner "attempted to pull the hammer back again because he thought this was the way he was supposed to handle a gun." Resp't's Answer Ex. A, pt. 1, at 60; Parole Hr'g Tr. 16. Petitioner alleged "he did not [know] she was hurt, but if he had he would have helped her." Resp't's Answer Ex. A, pt. 1, at 60; Parole Hr'g Tr. 16.

When the Board asked Petitioner "what made [him] decide to slow down" so that his prison disciplinary record was "clean for 14 years," Petitioner eventually provided some insight into the commitment offenses. Resp't's Answer Ex. A, pt. 1, at 84-85; Parole Hr'g Tr. 40-41.

Petitioner first answered, "Some people in here, they're [sic] whole world is creating conflict . . . . [A]t some point you just have to grow up, if you ever want to get out of this place." Resp't's Answer Ex. A, pt. 1, at 85; Parole Hr'g Tr. 41. Petitioner elaborated:

[Y]ou see things around you and you think "that's disgusting" but when you think about it, that's you too. . . . So if you don't want to be disgusting or if you don't want to hurt people or do things, be part of the chaos, then you gotta change your activities. You can't wait for somebody else to do it, and you can't blame somebody else. One of the biggest mistakes I made when I came in here was thinking that everything that happened to me was somebody else's fault, and that I bore no responsibility for it. The gentleman I was living with, for example, Larry Moss, . . . was the one who introduced me to crime in the first place. I initially blamed him for what I did. All he did was introduce me to it. It was me who made the decision to do these things. And I had to understand that and I had to accept responsibility for that. I can show you anything, it's up to you whether or not you accept it. And that's what happened with me. I just had to stand up and be a man and accept responsibility for my actions.

Resp't's Answer Ex. A, pt. 1, at 90-91; Parole Hr'g Tr. 46-47.

B. Petitioner's Background

Petitioner's "minimum parole date was January 13, 1980." In re Hyde, 154 Cal. App. 4th at 1204, 65 Cal. Rptr. 3d 162. Prior to the November 9, 2005 hearing, Petitioner was found unsuitable for parole nineteen times. Id. "The record fails to disclose the reasons for the earlier findings of unsuitability, except that at the prior April 15, 2004, suitability hearing, the presiding commissioner had commented that apart from the gravity of the offense, [Petitioner] had 'not sufficiently participated in beneficial self-help at this time.'" Id.

1. Social History

Petitioner is the third of six children. See Resp't's Answer Ex. A, pt. 1, at 62; Parole Hr'g Tr. 18. Petitioner's father "was a veteran of World War II" and was disabled. Resp't's Answer Ex. A, pt. 1, at 62; Parole Hr'g Tr. 18. Petitioner's mother described his father "as a paranoid schizophrenic" who "received 100 percent disability compensation from the government." Resp't's Answer Ex. A, pt. 1, at 62; Parole Hr'g Tr. 18. According to Petitioner, his father died on September 2, 1979 of lung disease. Resp't's Answer Ex. A, pt. 1, at 62; Parole Hr'g Tr. 18. Petitioner's mother "worked steadily until 1969," when she left her job "at the terminal annex post office for what [Petitioner] describes as a nervous breakdown." Resp't's Answer Ex. A, pt. 1, at 62; Parole Hr'g Tr. 18. At the time of the hearing, Petitioner was "still very close to his mother and maintains contact via visits, letters and phone calls." Resp't's Answer Ex. A, pt. 1, at 62; Parole Hr'g Tr. 18.

Petitioner added "that the family remains very supportive of him." Resp't's Answer Ex. A, pt. 1, at 63; Parole Hr'g Tr. 19. According to Petitioner, he was the "only person in the family who has ever been arrested." Resp't's Answer Ex. A, pt. 1, at 63; Parole Hr'g Tr. 19. At the time of the hearing, one brother was a "computer technician;" another was a "federal marshall [sic];" and one other was a "dean of a computer college in Virginia." Resp't's Answer Ex. A, pt. 1, at 63; Parole Hr'g Tr. 19. "One sister is a bank officer and the other is a manager of a department store." Resp't's Answer Ex. A, pt. 1, at 63; Parole Hr'g Tr. 19. Petitioner's family wrote letters in support of his release, including offers of residence and jobs. Resp't's Answer Ex. A, pt. 1, at 68-74; Parole Hr'g Tr. 24-30.

Petitioner was unmarried at the time of the offense, but was married twice since his incarceration. Resp't's Answer Ex. A, pt. 1, at 65; Parole Hr'g Tr. 21. On August 10, 1977, Petitioner married Ramona McCann, who he met through another inmate. Resp't's Answer Ex. A, pt. 1, at 65; Parole Hr'g Tr. 21; see Resp't's Answer Ex. A, pt. 1, at 121. On December 28, 1982, they divorced because, according to Petitioner, "she could not handle being married to a life prisoner." Resp't's Answer Ex. A, pt. 1, at 65; Parole Hr'g Tr. 21. "No children were born to this union." Resp't's Answer Ex. A, pt. 1, at 65; Parole Hr'g Tr. 21. On January 24, 1983, Petitioner married Theresa Gossaway, another inmate's sister.*fn3 Resp't's Answer Ex. A, pt. 1, at 65; Parole Hr'g Tr. 21. They had one child, Bridget, who was approximately twenty-four years old at the time of the hearing, and two grandchildren. Resp't's Answer Ex. A, pt. 1, at 65; Parole Hr'g Tr. 21. Petitioner's current wife also had two younger children from another relationship. Resp't's Answer Ex. A, pt. 1, at 65; Parole Hr'g Tr. 21. Petitioner maintains contact with his current wife, their daughter, and their grandchildren. Resp't's Answer Ex. A, pt. 1, at 65-66; Parole Hr'g Tr. 21-22.

2. Education, Self-Help Programming, and Vocational Training

The Court of Appeal noted that Petitioner "appears to have participated in every available educational and self-improvement class or activity available to him." In re Hyde, 154 Cal. App. 4th at 1205, 65 Cal. Rptr. 3d 162. Prior to incarceration, Petitioner "completed the 12th grade, but did not receive a diploma because he was five units short of the requirement to graduate." Resp't's Answer Ex. A, pt. 1, at 63; Parole Hr'g Tr. 19. While in prison, Petitioner "received his high school diploma in 1975." Resp't's Answer Ex. A, pt. 1, at 63; Parole Hr'g Tr. 19. At the time of the hearing, Petitioner had sixty-two or sixty-three college credits. Resp't's Answer Ex. A, pt. 1, at 63; Parole Hr'g Tr. 19. To obtain his degree, Petitioner needed to complete an algebra class in which Petitioner was enrolled. Resp't's Answer Ex. A, pt. 1, at 64; Parole Hr'g Tr. 20.

The record shows that Petitioner's self-programming was extensive. The Board recounted, among others:

"March 2005, certificates of accomplishment for completing Know Thyself, March 2005 certificates re: participation in correctional network programs during the last month of March, okay. . . . .

Certificate of Completion, March 19, 2005. It's an eight week class for marriage enrichment. . . . .

March 25, 2005[,] completing a personal purity course offered by the Protestant Chapel; March 27, 2007[,] a laudatory chrono written by an officer of the staff recommending you for your job well done, your work. April 2005, participation in two additional correctional network learning programs during the month of April. Certificate of accomplishment for completing anger management in 2005. April 2nd, 2005, reflecting successful completion of ethics and values course offered by the parole facilities in connection with program management. . . . .

May 14th, 2005, reflects another ethics and values course offered by the parole . . . . May 2005, five correctional learning network programs during the month of June. Another, May 2005 certificate of accomplishment for completing the stress management. June 25, 2005, . . . a laudatory certificate of appreciation for being involved in the . . . northern African event[.] . . . .

July 1st, 2005, completed 11 correctional learning network [programs] during the month of April and June quarter. July 5 certificate reflects the participation of nine correctional learning network programs. July 2005, a 128B African-American History Committee at DVI, honoring you for utilizing educational opportunities available to you. July 2005[,] certificate of accomplishment for completing a nine hour curriculum systems course. September of ...


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