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Jonathan Burrell v. D.K. Sisto

March 8, 2011

JONATHAN BURRELL, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Jonathan Burrell, 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 an indeterminate sentence of life plus six years following his 1988 guilty plea in San Mateo County Superior Court to charges of kidnaping to commit robbery and first degree burglary. Here, Petitioner does not challenge the constitutionality of that conviction, but rather, the execution of his sentence, and specifically, the December 18, 2007 decision by the Board of Parole Hearings finding him unsuitable for parole.

II. ISSUES PRESENTED

Petitioner sets forth several grounds for relief in his pending petition. The claims are as follow:

(1) The legislative intent of Penal Code § 3041 is not being properly administered by the Board of Parole Hearings.

(2) The Board's continued denial of parole based on the circumstances of the crime and other immutable factors violated his rights to due process and equal protection.

(3) The "some evidence" standard applied by the Board is limited to factors tending to show current dangerousness as set forth by controlling statute, regulation, and case law.

Since the allegations in all three of Petitioner's claims assert due process violations in relation to the sufficiency of the evidence supporting the Board's decision, they will be addressed together herein as a single issue in section (V)(A), below. To the extent Petitioner also claims that his right to equal protection of the law has been violated, that will be discussed as a separate issue in section (V)(B). After careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpusrelief be denied.

III. FACTUAL BACKGROUND

The basic facts of the life crime were summarized by the Presiding Commissioner at Petitioner's parole hearing as follows:

. . . First I am going to give a summary of the commitment offense indicated - - that was gleaned from the POR, and this is in the Cumulative Case Summary Section of our Board Packets. The probation officer's report indicates that:

The subject committed a series of robberies and burglaries within a two week period after he was released on parole. The first incident involved subject robbing a gas station of $140 and hitting the attendant several times in the face using his fist. In the second incident, subject robbed a gas station of $233 after striking the attendant several times in the head with a pipe. Third incident was a residential burglary during which subject assaulted a 64-year-old female victim with a tire iron. The fourth incident involved a residential burglary and robbery of two victims, during which subject detained the victims and threatened to kill them with a knife. An estimated $3000 worth of property was taken. Subject admits guilt in the instant offense, stating he was under the influence of cocaine at the time and needed money for more cocaine." Now referring to the October 10th Board Report, which was authored by R. Blackwell, Correctional Counselor I, on page one as to the prisoner's version:

Inmate Burrell states that at the time of the instant offense he was heavily addicted to cocaine, using approximately one ounce per day, and the offense should not have happened. He expressed remorse for the victims, and stated that he wouldn't want an offense like this to happen to his family members. Burrell states he's not a violent person by nature and says his crime sprees occurred to support his addition to cocaine. (Parole Hr'g Tr. 15:11-16:22, Dec. 18, 2007, Pet. Ex. A.)

On August 4, 1988, Petitioner entered a guilty to plea to charges for kidnaping to commit robbery, CAL. PENAL § 209(b), and first degree burglary, CAL. PENAL § 459. He was sentenced to life in prison plus six years with the possibility of parole. Petitioner's minimum eligible parole date passed on February 11, 1998. On December 18, 2007, Petitioner appeared before the Board of Parole Hearings (the "Board") for his sixth subsequent parole hearing. After considering various positive and negative suitability factors, the panel determined that Petitioner would pose an unreasonable risk of danger to society if released, and concluded that he was not suitable for parole. Petitioner sought habeas corpus relief in the San Mateo County Superior Court. On July 7, 2008, the court denied his petition, finding the Board's unsuitability determination to be supported by some evidence in the record. The California ...


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