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Leslie Van Houten v. Dawn Davison

January 28, 2011

LESLIE VAN HOUTEN, PETITIONER,
v.
DAWN DAVISON, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Arthur Nakazato United States Magistrate Judge

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AMENDED REPORT AND

This Amended Report and Recommendation ("Amended R&R") is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California, and supersedes the initial Report and Recommendation ("R&R") issued on January 19, 2011. For the reasons reported below, the Magistrate Judge recommends that the court deny the petition for writ of habeas corpus by a person in state custody ("Petition") pursuant to 28 U.S.C. § 2254 and dismiss this action with prejudice.

I. BACKGROUND

A. State Court Proceedings

On August 17, 1978, petitioner Leslie Van Houten ("Petitioner") began serving a sentence of life in state prison after her conviction by a jury in the California Superior Court for Los Angeles County (case no. A253156) of two counts of first degree murder and one count of conspiracy to commit first degree murder, arising out of her role in the infamous "Manson Family" murders of Rosemary and Leno LaBianca. (Respondent's Lodged Document ("LD") 1 at 1); see also People v. Van Houten, 113 Cal. App. 3d 280, 284, 170 Cal. Rptr. 189 (1980); In re Van Houten, 116 Cal. App. 4th 339, 347, 10 Cal. Rptr. 3d 406 (2004).

Petitioner was originally convicted in 1971 of the same three counts in a joint trial with co-defendants Charles Manson, Patricia Krenwinkel and Susan Atkins, after which all the defendants received the death penalty. People v. Manson, 61 Cal. App. 3d 102, 123-24, 132 Cal. Rptr. 265 (1976). However, the state court of appeal reversed Petitioner's conviction on August 13, 1976, due to the disappearance of her trial attorney before the trial concluded. Id. at 217.*fn1 Petitioner was then tried again on the same charges, and her second trial resulted in a mistrial because the jury was deadlocked. People v. Van Houten, 113 Cal. App. 3d at 283. Petitioner's current life sentence is being served pursuant to her convictions in a third trial. Id. at 284; see also In re Van Houten, 116 Cal. App. 4th at 347.

On August 30, 2007, a parole consideration hearing was held for Petitioner at the California Institution for Women in Corona, California. A panel of the California Board of Parole Hearings ("Board") found Petitioner unsuitable for parole and deferred her next hearing for two years. (LD 1.) Petitioner challenged the August 30, 2007 decision by filing subsequent habeas petitions in the California Superior Court for Los Angeles County (case no. BH005534) and the California Court of Appeal (case no. B218604), and then a petition for review in the California Supreme Court (case no. S176461), all of which were denied. (LD 2-10.) The superior court denied the first petition in a reasoned decision, and the state court of appeal and California Supreme Court denied the second and third petitions without comment. (LD 6, 8, 10.)

B. Pending Proceedings

On December 22, 2009, Petitioner, through her counsel, filed the pending Petition containing three claims, two of which comprise her principal argument that the Board's August 30, 2007 decision finding her unsuitable for parole, and the state courts' approval of that decision, violated her right to federal due process because they were unreasonable applications of the California "some evidence" requirement. (Pet. at 5-6; Petitioner's Memorandum of Points and Authorities ("Mem.") (dkt. 2) at 1-32.) Respondent filed an Answer arguing that Petitioner's claims lack merit because she has not shown any violation of clearly established Supreme Court precedent. (Answer at 4-19.) The parties also filed supplemental briefs addressing the Ninth Circuit's en banc opinion in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (dkt. 22&23).

On January 19, 2011, the Magistrate Judge issued the R&R denying Petitioner's claims and recommending dismissal of the Petition (dkt. 25). On January 24, 2011, Petitioner, through her retained counsel, filed Objections (dkt. 26). However, the same day Petitioner filed her Objections, the United States Supreme Court issued Swarthout

v. Cooke, 562 U.S. ---, --- S. Ct. ----, No. 10-333, 2011 WL 197627 (U.S. Jan. 24, 2011) (per curiam), which reversed Cooke v. Solis, 606 F.3d 1206 (9th Cir. 2010), rejected the Ninth Circuit's erroneous interpretation of clearly established federal law on the standard of review applicable to California parole denials, and invalidated the legal basis of Petitioner's federal due process claims. Id. at *2-3.

In light of Cooke, the court now issues this Amended R&R in accordance with the correct clearly established Supreme Court law governing California parole hearings. This Amended R&R supersedes the R&R in all respects.

II. DISCUSSION

A. Standard of ...


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