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Brian Hogue v. California Board of Parole Hearings

December 13, 2010


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



Petitioner, Brian Hogue, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of life imprisonment after pleading guilty to first degree murder with a firearm enhancement in 1977. Petitioner challenges the February 2007 decision by Governor Schwarzenegger reversing the October 2006 decision by the Board of Parole Hearings (the "Board") which had granted Petitioner parole. Petitioner presents several claims in his petition; specifically: (1) the Governor's reversal of Petitioner's parole release date was an abuse of discretion as there was no evidence to support the reversal ("Claim I"); (2) the Governor was without authority to revoke Petitioner's parole as his decision violates the Ex Post Facto Clause ("Claim II"); and (3) failure of the Board to set a parole date violates Petitioner's due process and equal protection rights. For the foregoing reasons, Petitioner is entitled to federal habeas relief on Claim I.


On the evening of May 1, 1977, Brian Hogue shot and killed 61-year-old Fred Piperio. Brian went to a bar, where he drank a few beers. Armed with a loaded handgun, Brian demanded cash from Fred while Fred was counting money from the register. Fred gave Brian cash. Brian then instructed Fred to go into the bathroom and lie down. Again, Fred complied. At that point, Brian took out his gun and shot Fred in the back of the head, killing him. Brian left the bar.

Brian told a friend that he was going to the Redding Municipal Airport. The friend informed police and Brian was arrested at the airport. He had more than $1,000 in his possession. Brian admitted to police that he robbed the victim and shot him in the back of the head.

Mr. Hogue pled guilty to first-degree murder and was sentenced to life in prison plus a consecutive five-years-to-life sentence for using a firearm.

(Resp't's Answer, Ex. A at p. 97.) In October 2006, the Board conducted a subsequent parole consideration hearing. The Board ultimately concluded that Petitioner was suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. In February 2007, the Governor reversed the Board's decision and found that Petitioner would pose an unreasonable risk of danger to society if released at that time.

Petitioner challenged the Governor's decision in the County of Shasta Superior Court. The Superior Court denied Petitioner's state habeas petition in a decision on October 20, 2007. The California Court of Appeal, Third Appellate District summarily denied Petitioner's state habeas petition on December 6, 2007. The California Supreme Court summarily denied Petitioner's state habeas petition on March 12, 2008. Petitioner filed the instant federal habeas petition in May 2008.


An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v. Andrande, 538 U.S. 63 (2003).

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned decision on the merits came from the County of Shasta Superior Court with respect to Claims I and II. With respect to Claim III, the California Supreme Court denied that Claim on the merits without discussion. Thus, with respect to Claim III the record will be independently reviewed to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See infra note 6.


A. Claim I

In Claim I, Petitioner argues that the Governor's reliance on the circumstances surrounding his commitment offense violated his due process rights. 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 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. See Ky.

Dep't of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989).

A protected liberty interest may arise either from the Due Process Clause itself or from state laws. See, e.g., Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create a protected liberty interest in the receipt of a parole date. See Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, if a state's statutory parole scheme uses mandatory language, it "'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby giving rise to a constitutional liberty interest." McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 2002) (quoting Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 12 (1979)).

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. See Greenholtz, 442 U.S. at 16.

As a matter of state law, denial of parole to California inmates must be supported by at least "some evidence" demonstrating current dangerousness. See Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (en banc) (citations omitted). "California's 'some evidence' requirement is a component of the liberty interest created by the parole system of the state." Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). Thus, a reviewing court such as this one must "decide whether the California judicial decision approving the governor's decision rejecting parole was an 'unreasonable application' of the California 'some evidence' requirement or was it 'based on an unreasonable determination of the facts in light of the evidence.'"*fn2 Hayward, 603 F.3d at 562-63.

The analysis of whether some evidence supports denial of parole to a California state inmate is framed by the state's statutes and regulations governing parole suitability determinations. See Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007), overruled in part on other grounds, Hayward, 603 F.3d 546. This court "must look to California law to determine the findings that are necessary to deem a prisoner unsuitable for parole, and then must review the record to determine whether the state court decision holding that these findings were supported by 'some evidence' . . . constituted an unreasonable application of the 'some evidence' principle." Id.

California Penal Code section 3041 sets forth the state's legislative standards for determining parole for life-sentenced prisoners. Section 3041(a) provides that, ""[o]ne year prior to the inmate's minimum eligible release date a panel . . . shall again meet with the inmate and shall normally set a parole release date." Cal. Penal Code § 3041(a). However, subsection (b) states an exception to the regular and early setting of a life-sentenced prisoner's term, if the Board determines "that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that the consideration of public safety requires a more lengthy period of incarceration for this individual." Cal. Penal Code § 3041(b).

As previously stated, Petitioner committed the murder on May 1, 1977. Thus, the relevant section of the California regulations with respect Petitioner's parole suitability on his first degree murder conviction is 15 Cal. Code Regs. § 2281.*fn3

Title 15, Section 2281 of the California Code of Regulations sets forth various factors to be considered by the Board in its parole suitability findings for life prisoners. 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. § 2281(b). The regulation also lists several specific circumstances which tend to show suitability or unsuitability for parole. Id. § 2281(c)-(d).*fn4 The overriding concern is public safety and the focus is on the inmate's current dangerousness. See In re Lawrence, 44 Cal. 4th at 1205, 82 Cal. Rptr. 3d 169, 190 P.3d 535. Thus, the proper articulation of the standard of review is not whether some evidence supports the reasons cited for denying parole, but whether some evidence indicates that the inmate's release would unreasonably endanger public safety. See In re Shaputis, 44 Cal. 4th 1241, 1254, 82 Cal. Rptr. 3d 213, 190 P.3d 573 2008). There must be a nexus between the facts relied upon and the ultimate conclusion that the prisoner continues to be a threat to public safety. In re Lawrence, 44 Cal. 4th at 1227, 82 Cal. Rptr. 3d 169, 190 P.3d 535. As to the circumstances of the commitment offense, the Lawrence court concluded that while: the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his current demeanor or mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.

i. 2006 Board decision

The panel of the Board that presided over Petitioner's 2006 parole suitability hearing considered the factors bearing on Petitioner's suitability for parole and weighed those factors in favor of releasing Petitioner on parole. The Board stated the following in deciding to grant parole: the Panel has reviewed all information received from the public and relied on the following circumstances in concluding that you are suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The prisoner has a stable social history, or did have, as exhibited by reasonably stable relationships with others, including his early life and his military service. While in prison, he has enhanced his ability to function within the law upon release through participation in educational programs, self-help and therapy, vocational programs, institutional job assignments, and others . . ..

I note that you have upgraded your skills, both educationally since you've been here. You obtained your GED in 1984 and you have also taken comp classes through your support culture at Solano Community College. You note for the record that you have 60 hours, took a 50-hour course in metal press machine . . . . It was obtained October 2002, and I do have a certificate available. This is in metal fab, and it's called the "Certificate for Completing the 60-Hour Course for Punch with a Major in [Amava Pega]. And it's [sic] talks about programming. We also note that you are skilled as Marvel, and it's Marvel ...

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