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Danny Saul Rosales v. California Board of Parole et al


March 25, 2011


The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge


I. Factual History

On January 14, 1979, Barbara Romero, Lilia Vasquez, Olivia de la Rosa and Alice de la Rosa were with five other women at Vasquez's home. Pet. Ex. 4 14:8-13. The group heard dogs barking at about 10:00 p.m., and exited the house to find Petitioner standing near Vasquez's van, with the driver's door ajar. Pet. Ex. 4 14:14-22. Vasquez looked in the vehicle to see if anything was missing and asked Petitioner what he was doing. Pet. Ex. 4 14:24-26. She then shut the vehicle's door and returned inside the house. Pet. Ex. 4 14:27-15:2.

Alice de la Rosa arrived at the home several minutes later, and saw Petitioner loitering in the area. Pet. Ex. 4 15:2-5. The four women went outside to confront Petitioner; two held his shoulders while a third checked his pockets, and found an item they believed to be from Romero's vehicle. Pet. Ex. 4 15:6-13. At this time, the women lifted Petitioner's shirt, and discovered a knife in the waistband of his pants. Pet. Ex. 4 15:14-17. One of the women yelled for someone to call the police. Pet. Ex. 4 15:20-21. Petitioner then used the knife to stab all four women, in the chest, abdomen, and arms, killing Romero and injuring the other three. Pet. Ex. 4 15:26-16:18. When police located Petitioner that evening at around 11:30, they recovered a 13-inch buck knife, as well as blood-stained clothing previously reported as being worn by Petitioner. Pet. Ex. 4 16:24-17:16.

Petitioner pled guilty on October 15, 1980 to second degree murder and three counts of assault with intent to commit murder. Pet. 1:22-23. He was sentenced to 15-years-to-life in prison for the murder count, with concurrent determinate sentences of seven years to run for each of the assault counts. Pet. 1:24-25. An additional one-year sentence was imposed but stayed, pursuant to California Penal Code Section 12022(b), because Petitioner used "a deadly or dangerous weapon in the commission of a felony." Pet. 1:25-2:1.

II. Procedural History

Petitioner was eligible for parole after serving ten years of his sentence. Pet. 2:7-8. His first parole suitability hearing took place in May 1989, and parole was denied. Pet. 2:8-10. The California Board of Prison Terms ("the Board") continued to deny Petitioner parole at every subsequent hearing, the last of which took place on February 17, 2005, and denied parole for three years. Pet. 2:10-2:11; Pet. Ex. 4 79:8-9. The Board concluded in its 2005 decision that Petitioner was unsuitable for parole because he "would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." Pet. Ex. 4 76:8-11. The Board announced its decision was based on the "especially cruel and callous manner" in which the crimes were committed, the "inexplicable" motive for the crimes and their "very trivial" relationship to the offense, the lack of any "major" criminal history for Petitioner, and his "unstable social history" of using drugs and alcohol. Pet. Ex. 4 76:11-12, 76:18-20, 77:7-8, 77:9-11.

Petitioner filed a habeas petition with the California Supreme Court on June 14, 2006, which was summarily denied on January 24, 2007. Pet. 2:12-13; Pet. 2:15-16. Both sides admit Petitioner has exhausted his available state court remedies, and that this petition was timely filed. Pet. 2:12-13; Ans. 4:20-21; Ans. 4:24. As of the filing to this court, Petitioner was in custody at California State Prison, Solano, in Vacaville, California. Pet. 1:20-21.

Petitioner claims he is being held unlawfully on the following grounds:

1. Petitioner's rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the Board determined that he was unsuitable for parole in the absence of evidentiary support in the record and a rational connection between its findings and conclusions;

2. Petitioner's rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the Board determined that he was unsuitable for parole based on his failure to meet conditions which the evidence before the Board demonstrated have already been met;

3. Petitioner's rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution were also violated when the Board, in finding petitioner unsuitable for parole, did not engage in individualized decision making, but merely implemented an unwritten policy of blanket denial of parole for virtually every prisoner who had been given an indeterminate life sentence for murder;

4. Petitioner's right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution was violated when the Board subjected him to a pro forma parole hearing in which he could not demonstrate his suitability for parole; and

5. Petitioner's right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and his rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the Board, in imposing an effective life sentence without parole upon Petitioner, took from him the benefit for which he had bargained when he entered his guilty plea, although the state maintained this benefit for which it had bargained.

Pet. 3:1-4, 9:12-15, 12:17-21, 14:16-18, 15:11-16.

III. Discussion

Petitioner's claims fall into two categories: first, that the Board violated his right to due process when it found him unsuitable for parole; and second, that his continued imprisonment as a result of the denial constituted cruel and unusual punishment. Because Petitioner was afforded "constitutionally sufficient" procedures in his parole hearing and there is no right to a premature release date for life-maximum prisoners in the State of California, it is recommended that the petition be denied.

A. Due Process

Petitioner claims his due process rights were violated when the Board denied him parole, thereby entitling him to a writ of habeas corpus. A prisoner in custody as a result of a state court judgment may apply to a district court for a writ of habeas corpus only on the grounds that his custody violates the Constitution or the laws or treaties of the United States. 28 U.S.C. § 2254(a). When a prisoner's confinement is not violative of federal law, however, a federal court is not at liberty to issue such a writ. Wilson v. Corcoran, 131 S. Ct. 13, 14 (2010). "It is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal courts are therefore unable to grant habeas relief on the basis of errors of state law. This court may only grant Petitioner's writ if the California Supreme Court erred in summarily denying the original petition because Petitioner's confinement violates federal law or the Constitution-not because his confinement violates State law.

When a prisoner such as Petitioner claims he is entitled to a writ because his due process rights have been violated, the inquiry is two-part: (1) Whether the prisoner has been "deprived of an existing liberty of property interest," and if so, (2) Whether the State's procedures were "constitutionally sufficient." Swarthout v. Cooke, --- U.S. ----, 131 S. Ct. 859, 861 (2011). As a threshold issue, in order to entertain Petitioner's application for habeas relief, there must be an established liberty interest in parole. While no "federal constitutional liberty interest in parole" exists, and States are not bound to offer parole to their respective prisoners, States may adopt statutes creating such a liberty interest that is entitled to due process protection. Id. at 861; Board of Pardons v. Allen, 482 U.S. 369, 371 (1987).

It is reasonable to interpret Supreme Court jurisprudence as finding that California law creates a liberty interest in parole when the State's parole standards have been met. Swarthout v. Cooke at 861. The interest at issue in Petitioner's case is therefore State-created and not guaranteed by the Constitution or "laws or treaties of the United States," and habeas relief may be granted only if the procedures mandated by federal due process were not present at Petitioner's parole suitability hearing. Id. at 862.

Where a State has created a liberty interest in parole, as California has done, the only constitutionally-required process is the "opportunity [for the prisoner] to be heard," and if parole is denied, for the prisoner to be informed "in what respect he falls short of qualifying for parole." Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). In Petitioner's 2005 parole hearing, he was advised of his right to appear, and elected not to do so. Pet. Ex. 4 5:5-5:7. At the conclusion of the hearing, the Board stated its reasons for denying the parole request. Pet. Ex. 4 76:5-81:5. Petitioner was thereby afforded all of the due process procedures constitutionally guaranteed to him in order to protect his liberty interest, making the State's procedures "constitutionally sufficient."

Petitioner proffers that California's requirement of "some evidence" to support a conclusion of parole unsuitability is a component of the liberty interest in parole, and an absence of "some evidence" supporting the Board's decision equates to a violation of due process. Id. at 1; Pet. 9:1-11. The bases of Petitioner's claims of infringement are evidentiary-whether the Board had adequate factual support to deny his request for parole.

Such claims are beyond the scope of this court's inquiry, because the Supreme Court has never found the California "some evidence" requirement to be a substantive federal requirement, and "[a] finding that there is no evidence in the record supporting a parole denial is irrelevant unless there is a federal right at stake, as required by § 2254(a)." Id. at 3. Federal courts must determine whether the procedures required by the Constitution are applied, while State courts must determine whether they are applied properly. Id. at 3.

Greenholtz, the controlling case law where the "federal right at stake" is due process protection of a State-created liberty interest in parole, restricted analysis to whether constitutionally-mandated procedures were present in parole proceedings-i.e., whether the defendant was given the opportunity to be heard and informed as to why parole was denied-but did not address the issue of whether the evidence used during those proceedings supported the conclusions drawn therein. Id. at 3. The "some evidence" requirement is a requirement under California State, not federal, law; regardless of whether there was "some evidence" supporting the Board's decision at Petitioner's hearing, a "mere error of state law" does not precipitate a denial of due process. Swarthout v. Cooke at 862. The procedures in Petitioner's 2005 hearing were "constitutionally sufficient;" it is irrelevant whether or not the evidence on the record supported the conclusions reached in those proceedings, because this court does not review for errors in the application of State law, including whether or not "some evidence" supported the Board's decision. Any finding to the contrary would require federal courts to review the manner in which States apply their own procedures and laws in cases concerning liberty or property interests. Id. at 863.

Although it is unnecessary to address the "some evidence" requirement, circumstances the Board may evaluate that tend to show "some evidence" include: "the aggravated nature of the commitment offense, a previous record of violence, an unstable social history, sadistic sexual offenses, a history of severe mental problems related to the offense, and serious misconduct in jail." Pirtle v. Cal. Board of Prison Terms, 611 F.3d 1015, 1021 (9th Cir. 2010) (citing Cal. Code Regs., tit. 15, § 2402(c)). Petitioner stabbed four unarmed women, killing one, and was subject to discipline in prison for manufacturing alcohol and other offenses. Pet. Ex. 4 16:2-18, 59:23-24, 3:12-16. There existed "some evidence" on which the Board could base its decision to deny Petitioner parole.

Petitioner additionally alleges that the Board did not evaluate his parole suitability on an individual basis, but instead operated under a policy that denied parole to virtually every prisoner serving an indeterminate life sentence, thereby violating his due process rights. Because Petitioner offers no evidence to support this claim, it must be denied.

It has been accepted that under Governors Wilson and Davis, the State of California "disregarded regulations ensuring fair suitability hearings and instead operated under a sub rosa policy that all murderers be found unsuitable for parole." Martin v. Marshall, 431 F. Supp. 2d 1038, 1048 (N.D. Cal. 2006) (citing Coleman, 96-0783 LKK PAN, slip op. at 3). When the petitioner in Coleman offered testimony from former Board Commissioners that the no-parole policy was enforced by "(1) appointing Board members less likely to grant parole and more willing to disregard their statutory duty; (2) removing Board members more likely to grant parole; (3) reviewing decisions finding a prisoner suitable and setting a new hearing before a different panel; (4) scheduling rescission hearings for prisoners who had been granted a parole date; (5) re-hearing favorable rescission proceedings and hand-picking panels to ensure the desired outcome; (6) panel members agreeing upon an outcome in advance of the hearing; and (7) gubernatorial reversal of favorable parole decisions," it was determined that inmates' constitutional rights were violated, because they were denied the right "to be heard by an impartial decision-maker." Id. at 1048-49 (citing Coleman, 96-0783 LKK PAN, slip op. at 3). This policy was established by Governor Wilson and continued by Governor Davis, who served from 1999 until 2003. Id. at 1048.

Petitioner's parole hearing took place in 2005, after Davis ceased to act as Governor. Pet. 2:10-11; Martin v. Marshall at 1048. Petitioner attempts to support his claim that he was denied individualized decision-making, by offering evidence representative of the Board's procedures between 1999 and 2003-not 2005. Pet. Ex. 6, 7, 8, 9. There has been no evidence proffered that during Petitioner's hearing, after Governor Davis left office, there existed a "sub rosa policy" of denying parole; as such, Petitioner's claim should be denied.

Because Petitioner's liberty interest in parole is not a federal one, he was afforded "constitutionally sufficient" procedures by having the opportunity to be heard and receiving articulated findings as to why he was denied parole, and he provided no evidence to support his claim that parole was denied as a result of a sub rosa policy by the Board to deny parole to those serving indeterminate life sentences, his right to due process under the Fifth and Fourteenth Amendments was not violated.

B. Cruel and Unusual Punishment

Petitioner claims that the Board subjected him to cruel and unusual punishment, violating his Eighth and Fourteenth Amendment rights, when it denied his application for parole. Because there is no federal right to parole, the petition does not pass section 2254(a) muster. Swarthout v. Cook at 862; see 28 U.S.C. § 2254(a). While California has created a liberty interest in receiving parole where parole standards have been met, there is no absolute right to be paroled. See Swarthout v. Cooke at 862.

As determined by the California Supreme Court, the cruel and unusual punishment clause "does not require the Board . . . to set premature release dates for current life-maximum prisoners who, it believes, present public safety risks." In re Dannenberg, 34 Cal. 4th 1061, 1098 (2005). Petitioner was sentenced to 15-years-to-life when he pled guilty to second degree murder and three counts of assault with intent to commit murder. Pet. 1:22-1:24. As a "life-maximum" prisoner, Petitioner is not entitled to a premature release date if the Board determines he poses a present risk to public safety. See Dannenberg, 34 Cal. 4th at 1098. Indeed, the Board found Petitioner was "not suitable" for parole, as his release "would pose an unreasonable risk of danger to society or a threat to public safety." Pet. Ex. 4 76:9-11. In concluding that Petitioner posed a present risk to public safety, the Board's denial of Petitioner's request for parole did not constitute cruel and unusual punishment, thereby not violating the Eighth or Fourteenth Amendments.

IV. Conclusion

Petitioner's due process right under the Fifth and Fourteenth Amendments and his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments have not been infringed, because he was given "constitutionally sufficient" procedures to protect his State-created liberty interest in parole, there is no evidence of a sub rosa policy to deny parole to prisoners serving indeterminate life sentences, and the California Board of Prison Terms is not required to release life-maximum prisoners before the expiration of their sentences. Accordingly, Petitioner's application for writ of habeas corpus should be DENIED. This court will subsequently not recommend a Certificate of Appealability, because Petitioner has not made the requisite showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

V. Recommendation

In accordance with the foregoing, IT IS RECOMMENDED that the court issue an order approving and adopting this report and recommendation.

VI. Objections

Any party may object to a magistrate judge's proposed findings, recommendations or report within fourteen (14) days following service with a copy thereof. Such party shall file written objections with the Clerk of the Court and serve objections on all parties, specifically identifying the portions to which objection is being made, and the basis therefor. Any response to the objection shall be filed within fourteen (14) days after receipt of the objection. Attention is directed to FED. R. CIV. P. 6(d), which adds additional time after certain kinds of service.

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 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 judge may, but is not required to, accept or consider additional evidence, or may recommit the matter to the magistrate judge with instructions. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000); 28 U.S.C. § 636(b)(1)(B) and (C), FED. R. CIV. P. 72; LMR 4, Local Rules for the Eastern District of Washington.

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 is directed to file this Report and Recommendation and provide copies to the parties and the referring district judge.

James P. Hutton


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