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Edmond Oscar Walker v. Matthew Cate

December 22, 2010


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

[Re: Motion at Docket No. 61]


Edmond Oscar Walker, at the time of filing his Petition was a state prisoner appearing pro se, filed a Petition for Habeas Corpus relief under 28 U.S.C. § 2254.*fn1 Walker is currently under the supervision of the California Department of Corrections and Rehabilitation in parole status.*fn2 Respondent ("State") has answered, and Walker has replied. In his reply, Walker requested an evidentiary hearing. At Docket No. 61 the State filed a renewed motion to dismiss the Petition as moot.*fn3 At Docket No. 62, Walker has opposed the Motion to Dismiss, and the State has replied at Docket No. 63.


In September 1982 Walker was convicted on a guilty plea of second-degree murder and sentenced to an indeterminate prison term of 15 years to life. Walker does not challenge his conviction and sentence. In his Petition, Walker challenges the Governor's reversal of the Board of Parole Hearings ("Board") grant of parole in 2005. Walker timely filed a petition for habeas relief in the Alameda County Superior Court, which denied his petition in a reasoned decision. Walker's subsequent petition for habeas relief in the California Court of Appeal, First Appellate District, was denied, on the basis that "Petitioner needs to provide a transcript of the hearing before the Board of Prison Terms. (See In re Harris (1993) 5 Cal 4th 813, 827, fn 5.) The clerk is directed to return the petition to petitioner and to retain a copy as a duplicate original."*fn4

Walker's petition for review was summarily denied without opinion or citation to authority by the California Supreme Court on September 13, 2006.*fn5 Walker then filed a second habeas petition in the California Supreme Court, which was denied on March 21, 2007, citing In re Miller (1941) 17 Cal.2d 734; In re Swain (1949) 34 Cal.2d 300, 304; People v. Duvall (1995) 9 Cal.4th 464, 474.*fn6 Walker timely filed his petition for relief in the Central District of California on March 27, 2007, which transferred the matter to this Court.

After the pleadings were complete and the issues joined, this Court stayed further proceedings in this action pending a decision by the en banc panel of the United States Court of Appeals for the Ninth Circuit in Hayward.*fn7 The Ninth Circuit has issued its en banc opinion in Hayward.*fn8 Therefore, the Court will terminate the stay and render a decision.

At Docket No. 57 this Court entered an Order directing the parties to file supplemental briefs addressing the Hayward decision, in particular that "[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."*fn9 This Court also directed the parties to consider two Ninth Circuit Decisions applying Hayward.*fn10 Both parties have submitted supplemental briefing.

The facts of the underlying offense, as summarized by the Governor:

Mr. Phillips had been dating a woman for about eight years. The week before the murder, the woman's son, Edmond Walker, learned that Mr. Phillips had slapped his mother and pushed her out of a moving car. Sometime prior to the discovery of Mr. Phillips' body, Mr. Walker, armed with a .38 caliber gun, visited Mr. Phillips at his apartment to confront him about his mistreatment of Mr. Walker's mother. As noted in the probation report, the two men talked until the conversation became heated. Mr. Phillips told Mr. Walker to stay out of his personal life and business. Following that comment, Mr. Walker went into the bathroom, took out the gun, returned to the room, and shot Mr. Phillips in the back of the head as Mr. Phillips sat in a chair.*fn11

In reversing the decision of the Board, the Governor held:

Mr. Walker has been in prison a long time now, nearly 23 years, and he has made some creditable gains during this period. But, the standard by which I am governed is whether I believe Mr. Walker would pose an unreasonable risk of danger to society if released from prison at this time. After carefully considering the very same factors as the Board is required to consider, I find that the gravity of the second-degree murder committed by Mr. Walker presently outweighs the positive factors supporting his release. Accordingly, I REVERSE the Board's 2005 decision to grant parole to Mr. Walker.*fn12


Walker raises a single ground for relief: the Governor's determination was unsupported by the evidence, failed to consider all relevant evidence, and failed to provide individualized consideration of the factors. The State does not assert any affirmative defense.*fn13


Walker challenges the reversal by the Governor of the decision of the Board to grant him parole on the basis that the reversal was based primarily, if not wholly, upon the nature of his commitment offense. Walker, expressing general disagreement with the Governor's characterization of certain factors, as opposed to those of the Board, argues that the Governor did not properly weigh all the relevant factors or give Walker individualized consideration and should, therefore, have reached the same conclusion as the Board. In the last reasoned decision by a state court, the Alameda County Superior Court rejected Walker's position that the Governor's decision was unsupported by some evidence, holding:

Petition for writ of habeas corpus is denied. Petitioner's petition fails to state a prima facie case for relief. The Governor's decision to reverse the decision by the parole board must be supported by some evidence in the record. Only a modicum of evidence is required. The weight to be given the evidence is a matter is within the authority of the Governor. As long as the Governor's decision reflects due consideration of the specified factors applied to the Petitioner in accordance to the applicable legal standards, the court's review is limited to whether there is some evidence in the record to support the Governor's decision. The nature of the Petitioner's offense alone can constitute a sufficient basis for denying parole. In Re Rosenkrantz 29 Cal 4th 616. There is nothing in the record presented by Petitioner to demonstrate that the Governor's decision was arbitrary or capricious. There is nothing in the record to demonstrate that the Governor acted in accordance with some blanket policy to deny parole without individualized considerations of factors applicable to Petitioner. The record does not support a claim that the Governor's actions in any way violated the due process rights of the Petitioner.*fn14

"When habeas courts review the 'some evidence' requirement in California parole cases, both the subsidiary findings and the ultimate finding of some evidence constitute factual findings."*fn15 In its Order requesting supplemental briefing, this Court directed the State to "specifically identify those characteristics, other than the underlying commitment offense, that support a finding that release of the Petitioner to parole status poses a current threat to public safety, and point to the specific evidence in the record that supports that determination."*fn16 In the response, the State argues that, because Hayward was wrongly decided and represents circuit law, not the law as established by the Supreme Court, this Court need not follow Hayward or the Ninth Circuit cases applying Hayward. The State, asserting that the Order requiring that the evidence supporting the finding that the release of Walker to parole status poses a current threat to public safety be identified is an improper question, declined to provide the required information.*fn17 This Court disagrees. This Court, a district court, is bound by the published decisions of a panel of the Ninth Circuit until those decisions are overruled or undermined by higher authority, e.g., an en banc decision of the Ninth Circuit, a Supreme Court decision, or subsequent legislation.*fn18 This has not occurred. This Court notes that if, as the State contends, Hayward was incorrectly decided, the appropriate remedy is to file a petition for a writ of certiorari in the Supreme Court within 90 days of the date the petition for rehearing in Hayward was denied.*fn19 The 90-day period began to run June 2, 2010, when the Ninth Circuit denied Hayward's petition for a rehearing.*fn20 As the time for filing a petition for certiorari had not yet expired, if the State contemplated seeking certiorari, the State could have requested this Court to grant additional time to comply with the Order. The Court notes that Hayward affirmed the denial of parole. Thus, the State could have argued that denial of parole was consistent with Hayward. Alternatively, the State could have preserved its arguments that Hayward was erroneously decided for further appellate review, and still complied with the express terms of the Order. What the State could not do is what it did do in this case-ignore the clearly articulated requirements of Hayward and decline to obey this Court's specific order.*fn21 In so doing, even if this Court's Order was "improper," the State did so at its own peril.*fn22

Because the State failed to identify those characteristics, other than the underlying commitment offense,*fn23 supporting a finding that Walker presents a current threat to public safety, or the evidence supporting that finding, this Court must assume that the State concedes no such ...

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