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London v. Subia

October 29, 2010

RICHARD LONDON, PETITIONER,
v.
R.J. SUBIA, ET AL., RESPONDENTS.



ORDER

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his June 22, 2006 parole consideration hearing. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On August 13, 2010, the Magistrate Judge filed Findings and Recommendations ("F&Rs") herein, which were served on all parties and which contained notice to all parties that any objections to the F&Rs were to be filed within twenty days. Petitioner has filed objections to the F&Rs.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, this court declines to adopt the F&Rs.

I. BACKGROUND

A. Procedural Background

In 1978, petitioner Richard London was convicted in California state court of two counts of first degree murder. He received a sentence of seven years to life in state prison. In June 2006, petitioner appeared at his eleventh parole suitability hearing. In denying parole for one year, the Board determined that petitioner was "not yet suitable for parole, and would pose an unreasonable risk of danger to society or a threat to public safety if [] released from prison."

Petitioner subsequently sought habeas corpus relief in the San Francisco County Superior Court. In denying relief, the court stated that "because the Board had found 'some evidence' for its decision, the petitioner is not entitled to relief." The California Court of Appeals and California Supreme Court also denied relief.

B. Parole Board Findings

The Board based its conclusion that petitioner was "not yet suitable for parole" on a number of factors, including the nature of the commitment offense, petitioner's pre-offense criminal and unstable social history, and petitioner's conduct while incarcerated. See Parole Hearing Transcript, Doc. No. 7, Exhibit 2 at 84-90 ("Transcript").

As to the commitment offense, the Board noted that the crime was carried out in a callous and cruel manner which demonstrated disregard for the lives and suffering of others. Transcript at 85. The Board also discussed petitioner's pre-offense criminal and social history. It described petitioner's history as "unstable" and found that petitioner had a history of "tumultuous relationships with others" and had engaged in an "escalating pattern of criminal conduct," including drug and gang involvement. Transcript at 87-88. The Board did note, however, that the petitioner had been a gang dropout since 1989 and had been drug-free since 1996. Transcript at 55-56; Exhibit 7 at 3. Additionally, petitioner had actively participated in Narcotics Anonymous ("N.A.") since 1991, see Exhibit 7 at 3, had served as a Vice-Chairman of N.A. and as a mentor to other inmates participating in the N.A. program. See Transcript at 63-64.

The Board then evaluated petitioner's institutional behavior. Petitioner had received a total of twelve 115 disciplinary reports, ten of which took place between 1980 and 1989.*fn1 Exhibit 6; Transcript at 70. Petitioner's last disciplinary report for engaging in violent behavior occurred in 1989 - over seventeen years before the 2006 hearing. Exhibit 6. Petitioner's most recent disciplinary report was written in July 2000. Exhibit 6; Transcript at 70. It charged petitioner with delaying a peace officer, a violation of 15 Cal. Code. Regs. § 3005(b).*fn2 However, the charged offense was classified as administrative rather than serious. Exhibit 6; see Transcript at 70. Petitioner also had six 128 counseling chronos.*fn3 Transcript at 70. The last one occurred in 2000 for "the improper hanging of items in petitioner's cell." Id. The Board commended petitioner for remaining discipline free since 2000, but noted that petitioner had not participated in an anger management program. See Transcript at 70, 90. Nonetheless, the Board instructed petitioner to participate in programming that would help him develop skills to deal with stress and anger in a healthy manner in order to become a "more viable candidate." Transcript at 90.

The Board also discussed petitioner's most recent psychiatric report, concluding that it was "very favorable." Transcript at 90-91. It indicated that petitioner had no disciplinary infractions involving violence since 1989; that he had maintained strong family bonds throughout his incarceration; and that he had successfully participated in work, education, vocations, and self-help programs while incarcerated. Exhibit 7 at 4. The report also noted that petitioner accepted responsibility for his crime. It stated that petitioner seemed to have resolved the underlying issues for his crime -- substance abuse and gang affiliation -- and had changed significantly. Exhibit 7 at 5. Given those factors and the petitioner's age and length of incarceration, the report concluded that petitioner was at low-risk for violence and would be able to re-integrate fairly easily. Exhibit 7 at 4.

Finally, the Board examined petitioner's parole plans. The Board found the plans were "very good," noting that petitioner had support from friends and family, including two sisters and a friend that were willing to take him in. See Transcript at 44, 90. His job prospects included working at a rehabilitation facility or at an uncle's furniture store. Transcript at 44. After examining all the evidence, however, the Board ...


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