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Burnight v. Sisto

November 15, 2010




Petitioner Burnight is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a January 23, 2007 decision of the state parole authority that he was not suitable for parole.


In the early morning hours of June 30, 1989, petitioner armed himself with a double-barreled, sawed off shotgun and walked to the home of his friend, the victim, Steve Zeehandelaar, to confront him regarding information the victim had relayed to petitioner's girlfriend about petitioner's infidelities. Petitioner stashed the shotgun in some bushes near the victim's home and proceeded to the front door. An argument ensued, at which time petitioner retrieved the shotgun and fired one round into the victim's throat at point blank range. Petitioner tossed the weapon into the bushes and ran to his girlfriend's house. From there he drove to the Santa Rita County Jail and turned himself in to police.

Petitioner declined to discuss the details of his offense at the 2007 parole suitability hearing. In previous versions given, petitioner has stated that he took the shotgun to the victim's home with the intent to scare the victim. After he retrieved the shotgun from the bushes, the victim came forward to grab the gun, and, in surprise, petitioner fired a round into the victim's neck.*fn1

Petitioner pleaded guilty to second degree murder and was sentenced to a term of 15 years to life in state prison. His minimum eligible parole date passed on April 23, 1999.

On January 23, 2007, a panel of the Board of Parole Hearings ("Board") conducted a fourth subsequent (fifth overall) parole suitability hearing to determine whether petitioner was suitable to be released on parole. It was determined that petitioner still posed an unreasonable risk of danger to the public, and thus that he was not suitable for parole.

Petitioner challenged the Board's denial of parole in a petition for writ of habeas corpus to the Alameda County Superior Court; his claims were denied in a written decision filed on August 13, 2007. The California Court of Appeal and the California Supreme Court likewise denied petitioner's requested relief, but without written opinions.


The pending federal petition presents the following grounds for relief, verbatim:

GROUND ONE- The BPH's decision to deny petitioner parole violated petitioner's right to due process of law under the California and United States Constitutions. The Board failed to afford petitioner an individualized consideration of all the factors relev[a]nt to parole decisions.

GROUND TWO- The BPH violated petitioner's due process of law under California and United States Constitutions by using language that gave extra weight to the gravity of petitioner's commitment offense. Petitioner was not afforded individualized consideration of all relevant factors to parole decisions.

GROUND THREE- The BPH using a religious based program to in part deny petitioner suitability violates the 1st Amendment of the United States Constitution's Establishment Clause and the 14th Amendment civil liberties.

Petitioner's first and second grounds for relief both challenge the Board's denial of parole as a violation of due process, and accordingly, will be addressed together herein as a single claim. For purposes of this opinion, however, ground three will be addressed first.


An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Additionally, this petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) 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

(2) 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).


A. First Amendment (Ground Three)

Petitioner claims that the Board's denial of parole violated his rights under the Establishment Clause of the First Amendment because it was based, in part, on his failure to attend Alcoholics Anonymous, a faith-based program.

"It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion, or its exercise..." Lee v. Weisman, 505 U.S. 577, 587 (1992). The United States Supreme Court has articulated three basic tests for identifying Establishment Clause violations. Lemon v. Kurtzman, the 403 U.S. 602, 613 (1971). Under these tests, government acts must (1) have a "secular legislative purpose"; (2) not have a "principal or primary effect" which either "advances [or] inhibits religion"; (3) and not foster "an excessive government entanglement" with religion. Id. A government mandate to attend religious or religion-based events, for example, is clearly barred. Inouye v. Kemna, 504 F.3d 705, 713 n.7 (9th Cir. 2007).

In Inouye v. Kemna, the Ninth Circuit adopted a three part mode of inquiry for determining whether there has been governmental coercion of religious activity. 504 F.3d at 713. The Inouye "coercion test" asks, sequentially: (1) has the state acted; (2) does the state action amount to coercion; and (3) is the object of the coercion religious rather than secular? Id. (applying "coercion test" to parolee's §1983 action challenging a requirement that he attend a faith-based treatment program as a condition for remaining on parole); see also Turner v. Hickman, 342 F.Supp.2d 887, 894-95 (E.D. Cal. 2004) (applying "coercion test" to §1983 action alleging inmates were required to participate in a faith-based treatment program as a condition for release on parole).

In the parole suitability context, the first element of the Inouye coercion test is satisfied if the parole board expressly states that the prisoner must participate in the faith-based program. Turner, 342 F.Supp.2d at 895-96. The second element is met if the Board advises the prisoner he will not be eligible for parole unless he participates in the faith-based program. Id. at 896. Programs such as AA and NA are "fundamentally religious" within the meaning of the third element of the coercion test. Id. at 896-97.

On state habeas corpus review of petitioner's First Amendment claim, the Alameda County Superior Court held:

As to Petitioner's claim that the Board used his lack of participation in religious based program to deny parole in violation of his 1st and 14th Amendments, that contention is without merit. Because of Petitioner's alcohol and drug addiction, the Board was concerned with Petitioner's lack of participation in substance abuse programs and there is no indication in the record that the Board required the programs be religious. (In re Burnight, No. H12927, Order Denying Petition, August 13, 2007, at 2-6.)

Petitioner contends that AA, NA, and other faith based programs are the only self-help substance abuse programs available to him. Even assuming the truth of this allegation, it remains that nothing in the Board's decision required his participation. Although the panel of the Board presiding over petitioner's 2007 suitability hearing discussed the sufficiency of his participation in substance abuse programming, the panel did not indicate that petitioner was required to participate in AA, NA, or any faith based substance abuse program in order to be found suitable. Moreover, although petitioner's practice of the Wicca religion was briefly discussed at the 2007 parole suitability hearing, it is noted that petitioner never expressed to the Board, nor did the record indicate, that his religious beliefs conflicted with participation in the substance abuse programs offered at his institution. In fact, as will be discussed in connection with the due process claim, petitioner participated in many such programs during his incarceration without any indication of such a conflict. At the time the 2007 parole suitability hearing, for example, it was noted that he was attending AA. Nothing in the record suggests that his attendance was coerced. Cf. Turner, 342 F.Supp.2d at 891-92 (Inouye "coercion test" for proving a First Amendment violation satisfied where panel member advised prisoner that his participation in NA was a "mandatory" prerequisite to the Board's parole suitability determination).

In sum, the state court's rejection of petitioner's First Amendment claim is not an unreasonable application of clearly established Supreme Court precedent, nor based on an unreasonable determination of the facts in light of the evidence.

B. Due Process (Grounds One and Two)

As an initial matter, to the extent petitioner's first and second grounds for relief are based on alleged violations of state law, including the due process clause of the California Constitution, federal habeas corpus relief is unavailable. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984) ("[a] federal court may not issue the writ on the basis fo a perceived error of state law").

The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't. of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).

A protected liberty interest may arise from either the Due Process Clause itself or from state laws. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create for prisoners a protected liberty interest in receipt of a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). If a state's statutory parole scheme uses mandatory language, however, it creates a presumption that parole will be granted, thereby giving rise to a constitutional liberty interest. McQuillion, 306 F.3d at 901 (citing Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 12 (1979)). California's statutory scheme for determining parole for life-sentenced prisoners provides, generally, that parole shall be granted "unless consideration of the public safety requires a more lengthy period of incarceration." Cal. Penal Code §3041 (emphasis added). This statute gives California state prisoners whose sentences carry the possibility of parole a clearly established, constitutionally protected liberty interest in receipt of a parole release date. Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007) (citing Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006)); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); McQuillion, 306 F.3d at 903; Allen, 482 U.S. at 377-78 (quoting Greenholtz, 442 U.S. at 12)).

The full panoply of rights afforded a defendant in a criminal proceeding is not constitutionally mandated in the context of a parole proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The Supreme Court has held that a parole board's procedures are constitutionally adequate if the inmate is given an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. Greenholtz, 442 U.S. at 16.

Additionally, as a matter of California statelaw, denial of parole to state inmates must be supported by at least "some evidence" demonstrating future dangerousness. Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (en banc) (citing In re Rosenkrantz, 29 Cal.4th 616 (2002), In re Lawrence, 44 Cal.4th 1181 (2008), and In re Shaputis, 44 Cal.4th 1241 (2008)). California's "some evidence" requirement is a component of the liberty interest created by the state's parole system." Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). The federal Due Process Clause requires that California comply with its own "some evidence" requirement. Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010) (per curiam). Accordingly, the United States Court of Appeals for the Ninth Circuit has held that a reviewing court such as this one must "decide whether the California judicial decision approving the... 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.'" Hayward, 603 F.3d at 562-63 9 (citing 28 U.S.C. §2254(d)). This analysis is framed by the state's own statutes and regulations governing parole suitability determinations for its prisoners. See Irons, 505 F.3d at 851.

Title 15, Section 2402 of the California Code of Regulations sets forth various factors to be considered by the Board in its parole suitability findings for murderers. The Board is directed to consider all relevant, reliable information available regarding the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. 15 Cal. Code Regs. §2402(b). The regulation also sets forth specific circumstances which tend to show unsuitability or suitability for parole:

(c) Circumstances Tending to Show Unsuitability. The following circumstances each tend to indicate unsuitability for release. These circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate unsuitability include:

(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner....

(2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.

(3) Unstable social history. The prisoner has a history of unstable or tumultuous relationships with others.

(4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim.

(5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense.

(6) Institutional Behavior. The prisoner has engaged in 8 serious misconduct in prison or jail.

(d) Circumstances Tending to Show Suitability. The following circumstances each tend to show that the prisoner is suitable for release. The circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate suitability include:

(1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a ...

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