FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for three years at his fourth subsequent parole consideration hearing held on July 20, 2006. He raises the following claims: (1) the Board's decision finding him unsuitable for parole violated his right to due process; (2) the parole consideration hearing and the Board's decision to deny him a parole date violated his plea agreement; (2) the Board improperly considered a false counseling chrono to find him unsuitable for parole; (3) the Board failed to provide him with a timely transcript of the July 20, 2006 hearing; (4) the Board's multi-year denial of parole violated his right to due process; and (5) his guilty plea was not knowing and voluntary.
As discussed below, the United States Supreme Court has held that the only inquiry on federal habeas review of a denial of parole is whether the petitioner has received "fair procedures" for vindication of the liberty interest in parole given by the state. Swarthout v. Cooke, 562 U.S. ___, No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam). In the context of a California parole suitability hearing, a petitioner receives adequate process when he/she is allowed an opportunity to be heard and a statement of the reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners were "allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied"); see also Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 16 (1979). For the reasons that follow, applying this standard here requires that the petition for writ of habeas corpus be denied on petitioner's due process claim.
Petitioner is confined pursuant to a judgment of conviction entered in
the Los Angeles County Superior Court on January 6, 1982, on a charge
of first degree murder. Pet. at 1. Pursuant to that conviction,
petitioner was sentenced to 25 years-to-life in state prison. Id.
Petitioner's fourth subsequent parole consideration hearing was held
on July 20, 2006. Answer, Ex. 1(a) (Dckt. No. 15-1), at 20.*fn1
On that date, a Board panel found petitioner not suitable for
parole and denied parole for three years. Id. at 27.
Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court, in which he raised the same claims that are contained in the instant petition. Answer, Ex. 1(a) (Dckt. No. 15-1). The Superior Court rejected petitioner's claims for the following reasons:
The Court has read and considered the Petition for Writ of habeas Corpus filed on March 9, 2007 by the Petitioner. Having independently reviewed the record, giving deference to the broad discretion of the Board of Parole Hearings ("Board") in parole matters, the Court concludes that the record contains "some evidence" to support the determination that the Petitioner presents an unreasonable risk of danger to society and is, therefore, not suitable for release on parole. See Cal. Code Reg. Tit. 15, 2042; In re Rosenkrantz (2002) 29 Cal.4th 616, 667.
The Petitioner was received in the Department of Corrections on January 15, 1982 after a conviction for murder in the first degree. He was sentenced to 25 years to life. His minimum parole eligibility date was July 7, 1998.
The record reflects that on February 24, 1981, the Petitioner and his accomplice approached the victims, Porfino and German Perez, who were working as parking lot attendants. The Petitioner pointed a gun at Porfino and demanded money or keys. Porfino tried to grab the gun and began to struggle with the Petitioner. The Petitioner's accomplice also struggled with German and demanded money or keys. The Petitioner broke free from Porfino and began to run away. As he fled, the Petitioner turned and shot Porfino twice in the chest, killing him.
The Board found the Petitioner unsuitable for parole after a parole consideration hearing held on July 20, 2006. The Petitioner was denied parole for three years. The Board concluded that the Petitioner was unsuitable for parole and would pose an unreasonable risk of danger to society and a threat to public safety. The Board based its decision on several factors, including his commitment offense, his unstable social history, and his institutional behavior.
The Court finds that there is some evidence to support the Board's findings that there were multiple victims and that the offense was carried out in a calculated and dispassionate manner. Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(A) and (c)(1)(B). The Petitioner and his accomplice armed themselves with a gun and approached the two victims in order to either steal money or a vehicle from them. These actions were planned, deliberate, calculated and dispassionate.
The Court also finds that there is some evidence that the motive was very trivial in relation to the offense. Cal. Code Regs., tit. 15 § 2402, subd. (c)(1)(E). The Petitioner did not know either victim and neither victim had harmed or threatened him in any way prior to the attempted robbery. Although Porfino did struggle with the Petitioner to get the gun, the Petitioner had extricated himself and was running away when he decided to turn and shoot Porfino. The robbery was a very trivial motive for shooting Porfino to death. Additionally, the Court finds that there is some evidence to support the Board's finding that the Petitioner has an unstable social history. Cal. Code Regs., tit. 15, § 2402, subd. (c)(3). The Petitioner was involved in gangs from a young age and had several juvenile arrests and convictions prior to the commitment offense, including an attempted robbery. This demonstrates that the Petitioner had tumultuous relationships with others.
The Court also finds that there is some evidence to support the Board's finding that the Petitioner's institutional behavior supports a finding of unsuitability. Cal. Code Regs., tit. 15, § 2402, subd. (c)(6). The Petitioner has received 13 serious 115 disciplines during his incarceration, two of which were received after his previous Board hearing in 2005. His continued inability to conform to the rules in prison is some evidence that he continues to pose an unreasonable risk of danger to society.
The Board also considered the Petitioner's post-conviction gains, however they still concluded that the Petitioner would pose an unreasonable threat to public safety. Penal Code § 3041(b). The Court finds that there is some evidence to support this determination because of the grave nature of the Petitioner's commitment offense, as well as his continued inability to follow rules in prison, as demonstrated by his recent 115s.
The Court finds that the Board did not err in denying the Petitioner parole for a period of three years. The Board must articulate reasons that justify a postponement, but those reasons need not be completely different from those justifying the denial of parole. See In re Jackson (1985) 39 Cal.3d 464, 479. The Board indicated that the Petitioner was denied parole for three years because of the nature of his commitment offense; his unstable social history; his recent disciplinary problems in prison; as well as his psychological report's assessment that additional observation and evaluation are necessary. These reasons were sufficient to justify a three-year denial.
Finally, the court rejects the Petitioner's contention that the denial of parole following a finding of unsuitability by the Board violates the terms of his plea agreement. The Petitioner agreed to a bargain that subjected him to a life sentence. An indeterminate sentence is, in legal effect, a sentence for the maximum term unless the parole authority acts to fix a shorter term. See In re Dannenberg (2005) 34 Cal.4th 1061, 1097-1098; In re Honesto (2005) 130 Cal.App.4th 81, 92-93. The relevant statutes and regulations that govern parole clearly do not entitled a prisoner to release on parole, regardless of the amount of time served, unless the Petitioner is found suitable for parole. See Honesto, supra, 130 Cal.App.4th at 92-93.
Accordingly, the petition is denied.
Answer, Ex. 2 (Dckt. No. 15-5), at 2-4.
On February 28, 2008, petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the California Court of Appeal for the Second Appellate District. Answer, Ex. 3 (Dckt. No. 15-5), at 6. That petition was summarily denied by order dated March 12, 2008. Answer, Ex. 4 (Dckt. No. 15-5), at 31. Petitioner next filed a petition for writ of habeas corpus in the California Supreme Court, which was summarily denied by order dated September 10, 2008. Answer, Exs. 5, 6 (Dckt. No. 15-5), at 33-59.
On September 17, 2008, petitioner commenced this action by filing a federal petition for writ of habeas corpus.
II. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. ...