FINDINGS & RECOMMENDATIONS
Petitioner 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 the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for two years at his parole consideration hearing held on December 4, 2007. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
On March 21, 1990, in the Los Angeles County Superior Court, petitioner entered a plea of guilty to kidnapping for ransom, false imprisonment by violence, assault with a firearm, and second degree robbery. (Pet. (Doc. No. 1) at 44-45.)*fn1 Petitioner also admitted to sentencing enhancement allegations that he used a firearm in the commission of the kidnapping, false imprisonment, assault and robbery. (Id.) On that same date petitioner was sentenced to life in prison with the possibility of parole, plus a two-year term, the execution of which was stayed, and five-year and two-year terms of imprisonment to be served concurrently. (Id. at 46.)
On December 4, 2007, following a hearing, the Board found that petitioner was unsuitable for release on parole, and denied parole for two years. (Pet., Part 1 (Doc. No. 1-1) at 69-78.) Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court. (Answer, Ex. 1, Part 1, at 2.) That petition was denied in a reasoned opinion on July 22, 2008. (Answer, Ex. 2.) Petitioner subsequently filed habeas petitions in the California Court of Appeal for the Second Appellate District and the California Supreme Court, both of which were summarily denied on October 23, 2008 and December 23, 2008, respectively. (Answer, Ex. 4, Ex. 6.)
At petitioner's December 4, 2007 parole suitability hearing the Board described the facts of his commitment offense follows: The offense summary states that on November 19th of 1989, Laponte kidnapped Zoraida, Z-O-R-A-I-D-A, Noriega, N-O-R-I-EG-A, at gunpoint in La Puente, California. Laponte took Noreiga to the Valley Inn Motel located at 13010 Valley Boulevard, La Puente, California.
Laponte's crime partners, Raul Serrano, S-E-R-R-A-N-O, and Gabriel Ayala, A-Y-A-L-A, arrived at the motel room later. Laponte, Serrano, and Ayala were in possession of a firearm, at one point or another, in the room according to the victim.
Serrano made a call to the victim's family demanding a $15,000 ransom payment. The victim's family informed the Industry Sheriff's Station. Deputies had the phone tapped for incoming calls. Another phone call was received from the defendants and the call was traced to the Valley Inn Motel.
The deputies arrived at the location, observed Laponte leave the motel room, driving off. Laponte was later arrested and detained by deputies.
Serrano and Ayala later left the motel room, using the victim as a hostage for their escape. Deputies pursued the vehicle, eventually stopping the vehicle and arresting Serrano and Ayala, and the victim was rescued. (Pet., Part 1 (Doc. No. 1-1) at 58-59.)
I. Standards of Review Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See 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)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc).
Petitioner asserts that the Board violated his right to due process by finding in 2007 that he was unsuitable for release on parole. (Pet. (Doc. No. 1) at 5.)
The Los Angeles County Superior Court specifically rejected petitioner's due process claim, reasoning as follows: The Court finds that there is some evidence to support the Board's findings that the offense was carried out in a dispassionate and calculated manner and that the motive was very trivial in relation to the offense. Cal. Code Regs., tit. 15, § 2402, subs. (c)(1)(B) and (c)(1)(E). The Petitioner and his accomplices planned to kidnapp Ms. Noriega in order to extort a ransom from her family. This was dispassionate and calculated. Further, as the Petitioner did not speak at the hearing, the only apparent motive was to steal money from Ms. Noriega's family. There is no evidence in the record that suggests that the Petitioner or his accomplices knew Ms. Noriega or her family nor that any of them had harmed the Petitioner in any way. Thus, the apparent motive was very trivial in relation to the offense.
The Court also finds that there is some evidence to support the Board's finding that the Petitioner's institutional behavior weighs heavily against his suitability. Cal. Code Regs., tit. 15, § 2402, subd. (c)(6). The petitioner has received 22 serious 115 disciplines in prison, including five since his last hearing in 2005. His continued inability to conform to the rules and his recent problems with authority constitute some evidence that he continues to pose an unreasonable risk of danger to society if released.
The Board also considered the Petitioner's limited programming and lack of self-help participation in prison, his failure to provide any parole plans, as well as his obstinate and hostile behavior at the hearing. The Board also considered the Petitioner's psychological report, which indicated that his risk of future violence was low, but that he had problems with authority and a Global Assessment of Functioning Score of 60 out of 100 and that further observation and evaluation would be necessary. While these factors, alone, may not justify a finding of unsuitability, the Board may properly consider them as relevant to a determination of whether the Petitioner is suitable for parole. Cal. Code Regs., tit. 15, § 2402(b).
The Board also considered the Petitioner's post-conviction gains, however, they still concluded that the Petitioner would pose an unreasonable threat to public safety. Penal Code § 3041(b). The Court finds that there is some evidence to support this determination because of the dispassionate and calculated nature of the Petitioner's commitment offense, as well as his poor recent behavior in prison. The petitioner's continued refusal to follow rules and problems with authority figures are some evidence that he continues to be a risk of danger to society if released. (Answer, Ex. 2 at 2-3.)
2. Applicable Legal Standards
a. Due Process in the California Parole Context The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky ...