UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 13, 2011
ROBERT A. HOREL, RESPONDENT.
The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge
REPORT AND RECOMMENDATION TO TERMINATE STAY AND TO DENY HABEAS CORPUS PETITION
THIS MATTER comes before the Court on Petition For Writ of Habeas Corpus pursuant to 28 U.S.C. -§ 2254 (Ct. Rec. 1, 7). Petitioner Leonard Halfin is proceeding pro se. Respondent is represented by Robert C. Cross, a Deputy Attorney General for the State of California.
Halfin is a state prisoner currently in the California Department of Corrections and Rehabilitation, incarcerated in Vacaville, CA.
After entering a negotiated guilty plea *fn1
Halfin was found guilty of second degree murder and
sentenced on December 10, 1990, in Alameda County Superior Court to
fifteen years to life (Ex. A). Halfin does not challenge his
conviction and sentence in these proceedings.
On October 28, 2004, Halfin attended a parole consideration hearing. The Board of Prison Terms (BPT) denied him parole (Ex. B at 57).
Halfin timely filed a petition for habeas corpus relief in the Alameda County Superior Court. The Superior Court denied Halfin's petition, finding that the record before the Board fully supported their findings and conclusions. The court cited In re Rosenkrantz, 29 Cal. 4 th 616, 652, 658, 682 (2002) in support of its decision. (Ex. D, Alameda Superior Ct. Order dated March 8, 2005).
After receiving the Superior Court's denial, Halfin filed a petition in the California Supreme Court. Citing In re Rosenkrantz , 29 Cal. 4 th 616 (2002), and In re Dannenberg , 34 Cal. 4th 1061 (2005), the petition was summarily denied. (Ex. E, Supreme Ct. Den. of Habeas Corpus Pet. dated February 8, 2006.)
Halfin timely filed this petition on May 18, 2006 (Ct. Rec. 10, amended on January 31, 2007 (Ct. Rec. 7). This matter was stayed by the Court pending the issuance of the mandate by the en banc panel of U.S. Court of Appeals for the Ninth Circuit in Hayward v. Marshall , 603 F.3d. 546 (9 th Cir. 2010)(Ct. Rec. 21). The Court of Appeals has rendered its decision in Hayward . The Court now recommends terminates the stay and deciding the case.
The transcript of the record made before the Board reflects that the facts underlying the commitment offense and admitted by Petitioner are: On August 10, 1990, Halfin and two other men went to a home to kill a witness, a fifteen year old girl. "Clinton Thomas wanted to rob a rival drug dealer who lived in the Brookfield Village area of Oakland, California. He wanted to take his money and drugs. Thomas persuaded [petitioner] Leonard Halfin and Derrick Williams to help him. Thomas told Derrick Williams that Natasha Delone would be at the residence and that she was a snitch. . . Natasha Delone had told the Oakland Police about a murder Derrick Williams had committed on March 31, 1988, in which he shot Bruce Barton to death. Derrick Williams wanted to kill her so she could not testify against him in court.
The three of them planned the crime as follows. Thomas was to break in through the front door and secure the [front] part of the residence with his weapon, a nine-millimeter automatic pistol. Halfin and Williams were to enter the residence to do a room to room search for Natasha Delone. If and when she was found, Halfin was to say, okay, J-Dove, handle your business. This was the signal for Derrick Williams to shoot Natasha Delone. The three disguised themselves by dressing in old clothing and masks and carried out their plan. Halfin was armed with an Uzi submachine gun and Williams with a .38 revolver. After . . . carefully and methodically executing their plan, shooting and killing Natasha Delone, the three of them left the residence. Derrick Williams later admitted that when he and Halfin found Natasha, she raised her hand in surrender and stated -- and started shaking. He then shot her once in the chest. At the time of the murder, Natasha Delone was 15 years old. Leonard Halfin was 18 years old. Clinton Thomas was 16 years old. Derrick Williams was 16 years old."
Presiding Commissioner Welch: "... Were you involved in this murder?"
Inmate Halfin: "Yes, Sir." "I was 17." (Ex. B, Hearing Transcript at 12-14). Halfin admitted at the time of the killing, he was a gang member who had been selling cocaine for two years (Ex. B, Hearing Transcript at 17-18)
ISSUES RAISED/ DEFENSES
Halfin challenges the Board's determination that he was unsuitable for parole. Halfin alleges three grounds in support of the Petition:
1. The Board lacked "some evidence" and utilized erroneous procedures when it failed to set a parole release date in violation of his rights as protected by due process under the state constitution and the 14 th Amendment (Ct. Rec. 7 at 4-5). Petitioner argues the Board utilized erroneous procedures but does not specify any. His argument therefore is limited to the way the Board weighed the evidence:
(a) Halfin was prejudiced at the 2004 Board hearing when he met 99% of the Board's recommendations but parole was denied based on the nature of the crime, his threat to public safety, and his failure to sufficiently participate in "beneficial self-help and programming." Petitioner argues the evidence relied on is insufficient to substantiate denial of parole. (Ct. Rec. 7 at 4-7; Ct. Rec. 12 at 1-5).
(b) Similarly, Halfin's positive reports while incarcerated outweigh all negative factors used to deny parole (Ct. Rec. 7 at 10-15), and there is no evidence in the record supporting a determination that release would currently unreasonably endanger public safety (Ct. Rec. 12 at 12).
2. California should adopt the preponderance of the evidence, rather than the some evidence standard, for reviewing parole decisions (Ct. Rec. 7 at 8-10; Ct. Rec. 12 at 5-7).
3. The Board's actions deprive Petitioner of his constitutionally protected rights by creating a sentence resembling life without the possibility of parole, "an ex-post facto application of the law" (Ct. Rec. 7 at 16-20).
Respondent admits Halfin's petition is timely and that he has exhausted his state judicial remedies as to the Board's 2004 denial of parole (Ct. Rec. 11 at -¶ 6). Respondent denies Halfin is entitled to federal habeas relief under 28 U.S.C. -§ 2254 because the state court decision is neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court, and, even if Halfin has a federal liberty interest in parole release, he received all the due process to which he is entitled and the state court properly found the Board's decision was supported by some evidence (Ct. Rec. 11 at -¶ 7-8).
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C.-§ 2254(d), this court cannot grant relief unless the
decision of the state court was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States" at the time the
state court renders its decision or "was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding." *fn2 The Supreme
Court has explained that "clearly established Federal law" in -§
2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the
Supreme Court] as of the time of the relevant state-court
decision." *fn3 The holding must also be
intended to be binding upon the states; that is, the decision must be
based upon constitutional grounds, not on the supervisory power of the
Supreme Court over federal courts. *fn4 Thus,
where holdings of the Supreme Court regarding the issue presented on
habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y]
appli[ed] clearly established Federal law.'" *fn5
When a claim falls under the "unreasonable application"
prong, a state court's application of Supreme Court precedent must be
objectively unreasonable, not just incorrect or erroneous.
*fn6 The Supreme Court has made clear that the
objectively unreasonable standard is a substantially higher threshold
than simply believing that the state court determination was
incorrect. *fn7 "[A]bsent a specific
constitutional violation, federal habeas corpus review of trial error
is limited to whether the error 'so infected the trial with unfairness
as to make the resulting conviction a denial of due process.'"
*fn8 In a federal habeas proceeding, the standard
under which this court must assess the prejudicial impact of
constitutional error in a state court criminal proceeding is whether
the error had a substantial and injurious effect or influence in
determining the outcome. *fn9 Because state
court judgments of conviction and sentence carry a presumption of
finality and legality, Halfin has the burden of showing by a
preponderance of the evidence that he merits habeas relief.
*fn10 In applying this standard, this court reviews the last reasoned
decision by the state court. *fn11 Under
AEDPA, the state court's findings of fact are presumed to be correct
unless the petitioner rebuts this presumption by clear and convincing
evidence. *fn12 This presumption applies to
state trial courts and appellate courts alike. *fn13
Halfin's argument centers around his contention that the BPT relied on the commitment offense and ignored other factors that would auger in favor of setting a parole date.
1. Commitment Offense and Other Factors
The Board found Halfin's actions with regard to the offense were carried out in an especially callous manner, in an execution-style killing, and showed no regard for the life of a particularly vulnerable (15 year old) victim. It also noted the motive for the crime was inexplicable or very trivial in relationship to the crime (Ex. B at 53). The prisoner had a minimal criminal history, but somewhat of an escalating pattern of criminal conduct. *fn14 He had failed prior grants of probation. Selling drugs (earning $1000 a week selling rock cocaine on the street *fn15 ) was an unstable social factor (Ex. B at 53-54). The Board noted Halfin has "programmed in a somewhat limited manner," in that he failed to upgrade vocationally or educationally and has "not fully participated in self-help programs" (Ex. B at 54). The Board also considered Halfin's parole plan to live with his wife *fn16 in Oakland, his mother in Gault, or in a halfway house (Ex. B at 33-34, 36-37). The Board reviewed a four year old (2000) psychological evaluation and requested an updated evaluation. They noted Halfin had no disciplinary actions in his file. Two letters recommended against, and two in favor of, parole. Based on these facts, the Board indicated that it was concerned that Halfin was unpredictable and thereby a threat to others (Ex. B at 55-56).
The Board noted Halfin was making progress but needed to obtain his GED and work on vocational plans, particularly in light of his past job as a drug dealer, and continue in appropriate self-help or therapy programs. The Board found Halfin's somewhat positive incarceration behavior did not outweigh the unsuitability factors for parole (Ex. B at 55-57).
Halfin argues the BPT ignored the positive changes he had made, but the Board's discussion of his record belies that. The BPT acknowledged Halfin appeared to have family support and places to stay if released. The Board noted opposition to release by the Deputy District Attorney from Alameda County, based primarily on the circumstances of the crime. The Board relied heavily on Halfin's lack of educational and vocational improvement during the fourteen years since he was sentenced for the commitment offense. The record is clear that the BPT considered more than the commitment offense and any prior behavior in determining not to set a parole date.
The factors that the BPT may consider are set forth in Title 15, section 2402 of the California Code of Regulations. Among the factors which may demonstrate unsuitability for release are " ...(1) (A) [t]he [commitment ] offense was carried out in a dispassionate and calculated manner, such as an execution-style murder ... and (E) [t]he motive for the crime is inexplicable or very trivial in relation to the offense ... and (3)[t]he prisoner has a history of unstable or tumultuous relationships with others." The Board noted Halfin's gang ties and drug dealing (Ex. B at 43-45, 54-55).
A state prisoner's right to release on parole or to release in the absence of some evidence of future dangerousness arises from substantive state law creating a right to release and not from any federal constitutional right. Hayward v. Marshall , 603 F.3d 546, 555 (9 th Cir. 2010). The California Supreme Court has established that "some evidence" of future dangerousness is an essential condition for parole denial. In re Lawrence , 44 Cal. 4th 1181, 1205, 82 Cal. Rptr. 169, 185 (2008). Federal courts reviewing a due process challenge to the denial of parole in California decide whether parole rejection was an unreasonable application of California's "some evidence" of dangerousness requirement or based on an unreasonable determination of the facts in light of the evidence. Hayward at 563.
In In re Shaputis , 44 Cal.4th 1241 (2008), the California Supreme Court held:
"[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board]......It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Board's] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the [Board's] decision.
This court does not re-weigh the evidence or substitute its discretion for that of the Board. Under California law, judicial review of a decision denying parole is "extremely deferential." In re Rosenkrantz , 29 Cal.4th 616, 658 (2002). It is through this doubly deferential lens that this court reviews the decision of the Alameda County Superior Court.
Halfin's unstable social history prior to the offense included
dropping out of high school to work selling cocaine as well as gang
membership. In the nearly 14 years of incarceration from sentencing to
the 2004 parole hearing, Petitioner's limited "programming" included
failing to obtain a GED and failing to upgrade vocationally. His
social history after incarceration
appears to include gang involvement. *fn17
Halfin's parole plans did not include a job offer or
plan, and even his release residence was unclear (Ex. B at 26).
Interestingly, a psychological report in 2005, after the Board's
decision, opined if Halfin's living situation and job prospects are
intact, he would present a low risk of dangerousness upon release (Ct.
Rec. 7, attached Ex. A 2005 psychological report at 5). Unsuitability
for parole may be based on unstable social history, inadequate
participation in prison programs, and inadequate parole plans. See
In re Hosto , 130 Cal.App.4th 81, 97 (2005)(these
factors constituted "some evidence" in addition to the circumstances
of the offense supporting denial of parole).
In the court's view some evidence (in addition to the aggravated nature of the commitment offense committed with a fellow gang member) supports the Board's assessment of Halfin's current threat to public to safety. Based upon the record before it, applying Rosenkrantz, Dannenberg, Lawrence, and Shaputis , this court cannot say that the decision of the Alameda County Superior Court affirming denial of parole, finding unsuitability factors in addition to the underlying commitment offense, was contrary to, or involved an unreasonable application of, California law or was based on an unreasonable determination of the facts in light of the evidence.
2. Standard of review
Halfin argues the Board's decision should have been supported by a preponderance of the evidence, rather than "some" evidence (Ct. Rec. 7 at 9-10). He is incorrect.
The Hayward decision holds that this Court need only decide whether the California judicial decision approving [a] decision rejecting parole was an unreasonable application of the California "some evidence" requirement..." Hayward , at 562-63; 28 U.S.C. -§ 2254(d)(2)).
Respondent also disagrees that this is the standard, and argues
this Court's inquiry is controlled by Greenholtz
v. Inmates of Neb . Penal & Correctional
Complex , 442 U.S. 1 (1979)-the only Supreme Court
jurisprudence directly addressing the process due in the parole
context. The district court is bound by Ninth Circuit precedent. After
reviewing the reasonableness of the state court decision under
Hayward's some evidence standard, as noted, Halfin is
not entitled to relief. Halfin presented all of his claims to the
state courts. The Alameda Superior Court found "some evidence" in
support of the BPT's decision, a decision with which this Court
3. Ex post facto sentence
Petitioner argues the Board's actions create a sentence resembling life without the possibility of parole, "an ex-post facto application of the law" (Ct. Rec. 7 at 17-20). He asserts neither a jury nor the sentencing court found he committed his crime in an especially cruel and callous manner (Ct. Rec. 7 at 17). Halfin entered a negotiated plea.
Under California law, the Board "may credit evidence suggesting the inmate committed a greater degree of the offense than his or her conviction evidences." *fn18 To the extent Halfin may be relying on Apprendi and its progeny, *fn19 the Supreme Court has never held that the principle in Apprendi applies in the parole context. "[A]bsent a specific constitutional violation, federal habeas corpus review of [state proceedings] is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" *fn20 "'Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.'" *fn21
Having failed to raise an issue of constitutional dimension, Halfin is not entitled to relief on this ground.
IT IS RECOMMENDED , for the reasons stated, the Stay be
LIFTED and the Petition DENIED .
IT IS FURTHER RECOMMENDED the District Court decline to issue a Certificate of Appealability. *fn22 Any further request for a COA must be addressed to the Court of Appeals. *fn23
Any party may object to the magistrate judge's proposed findings, recommendations or report within fourteen (14) days following service with a copy thereof. Such party shall file with the Clerk of the Court all written objections, specifically identifying the portions to which objection is being made, and the basis therefore. Attention is directed to Fed. R. Civ. P. 6(e), which adds another three (3) days from the date of mailing if service is by mail. A district judge will make a de novo determination of those portions to which objection is made and may accept, reject, or modify the magistrate judge's determination. The district judge need not conduct a new hearing or hear arguments and may consider the magistrate judge's record and make an independent determination thereon. The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
See 28 U.S.C. -§ 636 (b) (1) - , Fed. R. Civ. P. 73, and LMR 4, Local Rules for the Eastern District of California.
A magistrate judge's recommendation cannot be appealed to a court of appeals; only the district judge's order or judgment can be appealed.
The District Court Executive SHALL FILE this report and recommendation and serve copies of it on the referring judge and the parties.
James P. Hutton