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Bowie v. Carey

November 5, 2010

WARREN LEE BOWIE, PETITIONER,
v.
TOM L. CAREY, WARDEN, CALIFORNIA STATE PRISON, SOLANO, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Petitioner Warren Lee Bowie, a state prisoner appearing pro se, has filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254 challenging the denial of parole by the California Board of Prison Terms. Bowie is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent ("State") has answered, and Bowie has replied. In his Reply, Bowie requested appointment of counsel and an evidentiary hearing.*fn1 At Docket No. 26 Bowie has moved for an order terminating the stay in this case.

I. PENDING MOTIONS

A. Evidentiary Hearing.

Ordinarily, a federal habeas proceeding is decided on the complete state-court record and a federal evidentiary hearing is required only if the trier of fact in the state proceeding has not developed the relevant facts after a full hearing.*fn2 It does not appear from the record that the California courts made any independent evidentiary findings, and review in this case is based upon the findings of the Board, which did hold a full hearing developing the facts. Bowie has not identified any factual conflict that would require this Court to hold an evidentiary hearing to resolve. The request for an evidentiary hearing is, therefore, DENIED.

B. Termination of Stay

The Stay Order entered by this Court stayed further proceedings in this case until such time as the United States Court of Appeals for the Ninth Circuit issued its mandate in Hayward v. Marshall. The Ninth has rendered its en banc decision in Hayward*fn3 and issued the mandate. Consequently, the Stay Order entered by this Court expired by its very terms. Thus, the motion is moot.

II. BACKGROUND/PRIOR PROCEEDINGS

Following a trial by jury in April 1985, Bowie was convicted in the Alameda County Superior Court of one count of Murder in the Second Degree (Cal. Penal Code, § 187). The trial court sentenced Bowie to an indeterminate prison term of 15 years to life. Bowie does not challenge his conviction or sentence in this proceeding.

In November 2004 the Board of Prison Terms ("Board") found Bowie unsuitable for parole and declined to set a parole date.*fn4 Bowie timely filed a petition for habeas corpus relief in the California Supreme Court, which denied his petition on January 25, 2006, citing In re Dannenberg (2005) 34 Cal. 4th 1061; and In re Rosenkrantz (2002) 29 Cal. 4th 616.*fn5 Bowie timely filed his petition for relief in this Court on April 11, 2006.

After briefing was completed, the United States Court of Appeals for the Ninth Circuit, sitting en banc, decided Hayward. At Docket No. 27 this Court entered an Order directing the parties to file supplemental briefs addressing the Hayward decision, which understood that California law created a liberty interest in each prisoner that he or she would be paroled unless the parole authority found that the prisoner presents a current danger to the community. In particular, this Court directed that the State address the Hayward holding that under California law "[t]he prisoner's aggravated offense does not establish current dangerousness 'unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state' supports the inference of dangerousness."*fn6 The Court also directed the parties to consider two Ninth Circuit Decisions applying Hayward.*fn7 Both parties have submitted supplemental briefing.

The statement of facts, as spelled out in the Board report and read into the record by the Presiding Commissioner are:

"On October 26th, 1983, at approximately 6:30 p.m., Ronald Edward Clark contacted Phyllis Cooper. Apparently Ms. Cooper was working as a prostitute. The victim and Ms. Cooper came into contact and a disagreement developed. According to all witnesses, no weapons were involved in the series of events up to this point. The prisoner, who was associated with Ms. Cooper, involved himself in the dispute by attacking Clark with what is believed to be a knife. Bowie chased the victim for some distance and stabbed the victim a total of three times. The victim was unarmed. After the victim was struck he fell to the pavement. Bowie fled the area. Bowie met with Cooper, who had just gone into the victim's car and stole the radio. Bowie fled to the drive-in hotel where he was discovered leaving a public restroom in only his shorts and socks. The clothing which was subject of the police description were found in the restroom between the wall and the commode after Bowie had left the restroom. A chase ensued and Bowie was apprehended. Cooper was located at the Wagner Hotel, which is near the scene of the incident. When located in her room at the hotel, it was discovered Cooper had changed her clothes also. A radio was taken out of Clark's car. The radio that was taken out of Clark's car was recovered."

And the prisoner's version as it is spelled out in the current Board Report,

"While serving a prison term in Texas, Bowie states he corresponded with Phyllis Cooper. After paroling to Louisiana, he and Ms. Cooper developed a close relationship and they had a daughter. They moved to the Bay Area in California where Ms. Cooper started residing with a relative. Bowie and Ms. Cooper resided together off and on. On the evening of October 26th , 1983, Ms. Cooper came to his hotel, along with her daughter. Ms. Cooper left the hotel in order to call somebody about money. Soon thereafter Bowie left the hotel to make a phone call regarding a job. He passed Ms. Cooper who was talking with a man parked in his car along the street. As Bowie was crossing the street, he heard Ms. Cooper scream and saw the man physically assaulting her. At that point Bowie started running to her aid. He and the man started fighting in the street. At some point Bowie pulled out a knife which he occasionally carried on his person for protection. During the fight he held the knife in one of his hands. While striking the man with both hands, Bowie stated he was not aware he was actually stabbing the man. After the man fell down, Bowie ran away from the area without realizing the man was critically wounded. Bowie states that he was only trying to protect Ms. Cooper and did not intend to kill the victim. Bowie claimed that alcohol and drugs were not a factor in the offense."*fn8

III. GROUNDS RAISED/DEFENSES

Bowie raises a single ground for relief: that the evidence does not support the Board's finding that he was unsuitable for parole. The ...


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