The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Petitioner was convicted of attempted voluntary manslaughter, assault with force likely to produce great bodily injury, and torture. Petitioner was also convicted of personally inflicting great bodily injury in committing each offense. Petitioner received a life sentence based on the torture conviction.
In the instant action, petitioner challenges the 2010 decision by the California Board of Parole Hearings ("BPH") finding him unsuitable for parole. This was petitioner's third suitability hearing. A copy of the transcript from this hearing is attached as an exhibit to the petition.
Petitioner raises the following claims. First, petitioner alleges that he was denied his right to a neutral and detached decision maker. (Dkt. No. 1 at 45 of 180.) Second, petitioner alleges that he was denied his right to a full and fair hearing because the standards used by the BPH to find him unsuitable were not specified by statute or regulation. (Id. at 52.) Third, petitioner alleges that the BPH violated his First Amendment rights by refusing to accept his views regarding the religious steps of Alcoholics Anonymous ("AA") and Narcotics Anonymous ("NA"). (Id. at 59.) Fourth, petitioner alleges that BPH's application of California Penal Code section 3041(b)(3) to set his next suitability hearing in three years violated his right to due process because no such section exists in the California Penal Code. (Id. at 61.)
After reviewing the petition and attached exhibits, the undersigned finds that petitioner's claims are without merit. For the reasons set forth below, this action should be dismissed. See Rule 4 of Rules Governing Section 2254 Cases (court may dismiss petition if it plainly appears that the petitioner is not entitled to relief).
Petitioner alleges that he was deprived of his right to a neutral and detached decision maker.
California inmates have a due process right to parole consideration by neutral, unbiased, disinterested decision makers. O'Bremski v. Maass, 915 F.2d 418, 422 (9th Cir. 1990). Because parole board officials perform tasks that are functionally comparable to those performed by the judiciary, they owe the same duty owed by the judiciary to render impartial decisions in cases and controversies that excite strong feeling because the litigant's liberty is at stake. Id.
Fairness requires an absence of actual bias and of the probability of unfairness. Id. at 136. Bias may be actual, or it may consist of the appearance of partiality in the absence of actual bias. Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995). A showing that the adjudicator has prejudged, or reasonably appears to have prejudged, an issue is sufficient. Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992).
However, there is a presumption of honesty and integrity on the part of decision makers which may be overcome by evidence of a risk of actual bias or prejudgment based on special facts and circumstances. Withrow v. Larkin, 421 U.S. 35, 46--47, 58 (1975).
The mere fact that a board denies relief in a given case or has denied relief in the vast majority of cases does not demonstrate bias. Stivers v. Pierce, 71 F.3d at 742. This result is because unfavorable judicial rulings alone are generally insufficient to demonstrate bias unless they reflect such extreme favoritism or antagonism that the exercise of fair judgment is precluded. Liteky v. United States, 510 U.S. 540, 555 (1994).
Petitioner alleges that comments made by the BPH during the 2010 suitability hearing demonstrate that they were not neutral. In order to put these comments in context, the undersigned first sets forth the circumstances of petitioner's offense, as summarized at the beginning of the 2010 suitability hearing:
December 15th, 1998 -- and I believe this is pronounced Jaime, H, or J-A-I-M-E, Chavez, C-H-A-V-E-Z, was driving his van on the 91 Freeway with two passengers, Marco Martinez, M-A-R-T-I-NE-Z, and Macario Toscano, T-O-S-C-A-N-O. A white utility truck with three occupants, later identified as defendants, tried to enter the freeway by going in front of the van. The driver of the utility truck, later identified as -- and I'll spell the name -- B-A-T-I-A-AN-S, became angry with Chavez as he tried to merge. Profanities were exchanged. Bastiaans, then threw coffee into the van. Chavez followed the truck as he left the freeway and stopped for a red light at the intersection. As Chavez gets out of the van, approached the truck, Bastiaans got out of the truck and the two started fighting. M-A-R-R-E and Snyder -- I'm not sure where MA-R-R-E came from -- I think that's -- and Snyder, S-N-Y-D-E-R, joined the fight. And Chavez fell to the ground from blows from the three defendants. Chavez appeared to be unconscious while two other motorists, Justin Bohanan, B-O-H-A-N-A-N, and Robert Garcia, G-A-R-C-I-A, tried to break up the fight. But Marre, -AR-R-E, confronted them and kept them from intervening. The two other defendants or all three of them kicked Chavez while he was on the ground. Due to blows of the three defendants -- due to the blows of the three defendants, Chavez ended up under a semi-tractor trailer truck that was also waiting at the intersection. The light changed. And the semi-tractor began moving forward, running over Chavez' midsection and proceeding a foot or 1 1/2 feet before someone told the driver to stop. The defendant got back into the utility truck and sped away, the driver driving over the sidewalk to avoid the car that tried to block their escape, later going through a red light. They were apprehended while driving on the freeway. Chavez sustained fractured ribs, collapse lung, lacerated liver, bruises about the head and face. He was hospitalized for more than two weeks and was off work for a month. (Dkt. No. 1 at 105-07.)
Petitioner claims that the following comments, made by BPH Commissioner Prizmich when discussing the reasons the BPH found him unsuitable, demonstrate bias. The undersigned has underlined those comments underlined by petitioner in the petition which he finds objectionable:
And what leaves me troubled is what we spoke of towards the end of the hearing. When given an opportunity to either avoid a hazardous situation for another person or try to rescue that person, it never even crossed your mind to go in and try to stop the fight. We talked about that today. So, that's a very -- that may not have been the choice that you should nor would make but it should have been a choice that crossed your mind just out of humanity sake. That should have been, I mean, it is. Not that I'm a shining example, if I saw someone in dire straits, my first reaction is to try and go assist them in some way. Now, I may choose, because of circumstances, not to follow through in that. I may choose to do exactly what you say you would do, and that is to leave the area, you know. But it would have been, in terms of that kind of question, the kind of response I would have made. I would have hoped that you would have made the same or similar kind of response. We didn't hear that...
Petitioner argues that these comments demonstrate that Commissioner Prizmich improperly told petitioner that he would have to live up to Commissioner Prizmich's personal standards in order to be found suitable for parole. (Dkt. 1 at 48.) Petitioner also argues that these comments demonstrate that petitioner will not be found suitable because he did not make the choices Commissioner Prizmich would have made. (Id.) Petitioner argues that these comments demonstrate that he was denied parole based on "whim" and "personal caprice." (Id.)
The comments set forth above were made by Commissioner Prizmich in response to petitioner's view that he would run away rather than help the victim if faced again with a similar situation. This view was reflected in comments by petitioner at the hearing.*fn1
The following exchange took place between petitioner and the BPH: Commissioner Iniguez: Just the one question, not necessarily about the crime, but I'm just trying to think about your mindset because you indicated that when you got out and you discharged from your last number, you got a job. You were paying your bills. You were doing everything to try and stay out of trouble. And then all of a sudden you're driving in this car and then something happens. What was your mindset then to make you want to get involved in that after you were working so hard to stay out of trouble? And how do you think that you're different now compared to that? Petitioner: Well, that morning, everything happened so fast. And both the drivers, I wasn't driving. I was riding in back. Commissioner Prizmich: Well, we don't want to talk about the Petitioner: Right. So, I mean, my mindset then was, I think that I was just so loyal to the people that I was surrounded with, my boss and the other, that I didn't really take time out to analyze the bigger picture of the things that could happen. So, and now, I'm to the point where I'm a more humble person in the fact that I would not allow myself to get caught up in that. I would ask them to pull over and let me out. My loyalty would have to just take a step backwards and just get out of the vehicle if they were to start, if somebody was to start having that issue, because it was 6:30 in the morning. So, I mean, it wasn't like I really had a lot of time to really think about the -- And not to minimize the scenario. Petitioner's Attorney: Don't open up the can here.
Commissioner Iniguez: Again, you realize that a lot of things --
There are going to be those instances where you're going to have to make that, a split second decision one way or the other, you know. And do you feel that you're capable of making that --
Commissioner Iniguez -- correct decision in that --
Petitioner: Hopefully there's a phone or something where I could dial 911 or something to that effect. And like I said, if I even thought it was getting to that point, if they were starting, I would ask the person I'm with, hey, please pull over, I need to get out. You do what you're going to do, but I'm getting out. Need the phone, call 911, but I'm not going to the -- There's no way. Commissioner Iniguez: All right. Thank you. I have no other questions.
Commissioner Prizmich: Well, why wouldn't, as this thing unfolds, why wouldn't you jump in and try to assist the victim in this case? I mean, they say, up yours, we ain't letting you out. We're taking care of ...