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Noel Phillipe Scott v. John W. Haviland


March 13, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2007 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole at his initial parole consideration hearing. Petitioner, in 1990, was convicted of first degree murder with a firearm use enhancement, for which he was sentenced to a term of 25 years plus an additional two years for use of a firearm for a total of 27 years to life. Petitioner raises eight grounds to challenge the BPH decision denying parole: 1) bias of BPH "readily apparent from the record" violated petitioner's constitutional right to due process and equal protection; 2) "no adequate or even legitimate support in the record" for BPH denial in violation of petitioner's constitutional right to due process and equal protection; 3) BPH's "pretextual assertion that petitioner has not yet been adequately rehabilitated violates state law establishing the purpose of incarceration"; 4) BPH violated state law in failing "to set a primary term is - a duty mandated by state law that is entirely separate from its task of determining current parole suitability"; 5) petitioner's due process and equal protection rights were violated because BPH followed a "no parole" policy and decision must be vacated; 6) because petitioner has passed the "Minimum Expected [sic] Parole Date," "the state's present custody of petitioner is unlawful"; 7) Linda Shelton, the presiding commissioner of petitioner's BPH panel, was fired for bias; 8) state courts' decisions [habeas petition denials] were "'contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court," and "were based on an unreasonable determination of the facts." Petition, pp. 7-8.

On February 4, 2011, petitioner's motion for an extension of time to file a traverse was denied as moot and both parties were ordered to provide supplemental briefing regarding the recent United States Supreme Court decision that found that the Ninth Circuit erred in commanding a federal review of the state's application of state law in applying the "some evidence" standard in the parole eligibility habeas context. Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 861 (2011).*fn1 Petitioner's motion for an extension of time to file a supplemental brief was granted, by order filed on February 24, 2011.


The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.

The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004). Accordingly, "a habeas court must determine what arguments or theories supported or . . could have supported[] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).

The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) -- i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).

The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). Specifically, the petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, supra, 131 S.Ct. at 786-787. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S. Ct. 362, 366 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8, 123 S.Ct. at 365. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

Finally, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of federal law. James v. Ryan, __ F.3d __, 2012 WL 639292 *18-19 (9th Cir. 2012).

Argument & Analysis

Because many of the claims can be more efficiently addressed if the court begins by considering the second claim first, the undersigned will begin with claim 2, then move to claims 3, 4, and 6, after which claims 1, 5 and 7 will be addressed, finally ending with claim 8.

"Some Evidence" Claim -- Claim 2

In claim 2, petitioner argues that there was no legitimate support in the record for BPH's parole suitability denial.*fn2 Petition, pp. 7-8, 21-36.*fn3 Claim 2 includes the following subclaims: that the U.S. Constitution applies a more stringent standard of review in a parole denial than does California's "some evidence" standard; that the BPH unsuitability finding was not supported by "some evidence" in the record or by the required preponderance of the evidence standard; that the BPH assertion that the crime was "especially cruel and callous" lacks adequate support; that there is not a legitimate nexus between petitioner's prison disciplinary history and the BPH finding of parole unsuitability and that the BPH improperly relied on the unchanging circumstances of the commitment offense in denying parole. Petition, pp. 7-8, 21-36.

The parties timely filed supplemental briefing, but as was set forth in the earlier order (docket # 34), and notwithstanding petitioner's argument, there appears to be no federal due process requirement for a "some evidence" review. Quoting, inter alia, Estelle v. McGuire, 502 U.S. 62, 67 (1991), the Supreme Court recently re-affirmed that "'federal habeas corpus relief does not lie for errors of state law.'" Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. at 861. Id. While the high court found that the Ninth Circuit's holding that California law does create a liberty interest in parole was "a reasonable application of our cases" (while explicitly not reviewing that holding),*fn4 the Supreme Court stated:

When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication-and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal.

Swarthout v. Cooke, at 862.

Citing Greenholtz,*fn5 the Supreme Court noted it had found under another state's similar parole statute that a prisoner had "received adequate process" when "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout v. Cooke, at 862. Noting their holding therein that "[t]he Constitution [] does not require more," the justices in the instances before them, found the prisoners had "received at least this amount of process: They 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." Id.

The Supreme Court was emphatic in asserting "[t]hat should have been the beginning and the end of the federal habeas courts' inquiry...." Swarthout v. Cooke, at 862. "It will not do to pronounce California's 'some evidence' rule to be 'a component' of the liberty interest...." Id., at 863. "No opinion of ours supports converting California's "some evidence" rule into a substantive federal requirement." Id., at 862. Thus, federal courts are precluded from review of the state court's application of its "some evidence" standard. Claim 2 is essentially based entirely on alleged violations of California's "some evidence" requirement.

The copy of the transcript of BPH initial parole consideration hearing at issue in this action demonstrates that petitioner was amply "allowed an opportunity to be heard" at the hearing and was undisputedly "provided a statement of the reasons why parole was denied."

Swarthout, at 862; see Answer, Exhibit 3(a) (docket # 29-4), pp. 56-127*fn6 through Ex. 3(b) pp. 2-42.

According to the Supreme Court, the Constitution does not require more than his having been provided an opportunity to be heard and provided a statement of reasons for the parole denial, which the record unequivocally demonstrates that he received. Claim 2 should be denied.

State Law Claims -- Claims 3, 4, & 6

Claims 3, 4 and 6 are claims predicated on alleged violations of state law. A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the basis of some transgression of federal law binding on the state courts. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is unavailable for alleged error in the interpretation or application of state law. Middleton v. Cupp, 768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 2178 (1972).

The Supreme Court has reiterated the standards of review for a federal habeas court. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475 (1991). In Estelle v. McGuire, the Supreme Court reversed the decision of the Court of Appeals for the Ninth Circuit, which had granted federal habeas relief. The Court held that the Ninth Circuit erred in concluding that the evidence was incorrectly admitted under state law since, "it is not the province of a federal habeas court to re-examine state court determinations on state law questions." Id. at 67-68, 112 S. Ct. at 480. The Court re-emphasized that "federal habeas corpus relief does not lie for error in state law." Id. at 67, 112 S. Ct. at 480, citing Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092, 3102 (1990), and Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874-75 (1984) (federal courts may not grant habeas relief where the sole ground presented involves a perceived error of state law, unless said error is so egregious as to amount to a violation of the Due Process or Equal Protection clauses of the Fourteenth Amendment).

The Supreme Court further noted that the standard of review for a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States (citations omitted)." Id. at 68, 112 S. Ct. at 480. The Court also stated that in order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving "fundamental fairness," Id. at 73, 112 S. Ct. at 482, and that "we 'have defined the category of infractions that violate "fundamental fairness" very narrowly.'" Id. at 73, 112 S. Ct. at 482. Habeas review does not lie in a claim that the state court erroneously allowed or excluded particular evidence according to state evidentiary rules. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). As more recently re-emphasized by the Supreme Court, "'a mere error of state law ... is not a denial of due process.'" Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 1454 (2009) (quoting Engle v. Isaac, 456 107, 121, n. 21, 102 S. Ct. 1558 [] (1982)).

Claim 3

Petitioner contends that the BPH's "pretextual assertion that petitioner has not yet been adequately rehabilitated violates state law establishing the purpose of incarceration." Petition, p. 37. He argues that any "agency-created regulations, policies, or other interpretations of statutory authority" the BPH has applied to demonstrate suitability "are invalid and unenforceable because they violate the express legislative intent underlying the Determinate Sentencing Law." Id. Petitioner contends that the legislative intent underlying the codification of the DSL included a recognition that "the concept of 'rehabilitation' was invalid," and that all felony offense sentences were to "reflect culpability and to provide uniformity of punishment." Id. Petitioner states that demands that he undergo therapy and other forms of rehabilitation (which he avers are unavailable anyway) ignored the statement in Cal. Pen. Code §1170(a)(1), which sets forth "that the purpose of incarceration is punishment."*fn7 Petition, p. 37. Petitioner also claims that recent CDCR*fn8 proclamations setting rehabilitation as a priority "would violate the ex post facto doctrine of state law and the United States Constitution." Id. Petitioner alleges that the BPH violated his state and federal right to due process by continuing his custody on the basis that he was not sufficiently rehabilitated, as the legislature has found the concept of rehabilitation to be "archaic" and "disproven." Id. Petitioner does not pinpoint specific areas within the BPH transcript that he faults, asserting only that the BPH made "vague demands for additional 'rehabilitation'" and that to do so was "illicit" in light of the state legislature's intent. Id., at 37-38. Petitioner elaborates at some length on what he believes to be the legislative intent in the 1977 enactment of the DSL and maintains that the BPH has violated "the express legislative intent and authority of the DSL" to the extent that it has denied him parole on the basis of a lack of rehabilitation. Id., at 37-40.

Petitioner's claim that the BPH's alleged reliance on rehabilitation is in violation of the theory underlying California's Determinate Sentencing Law is not one that is cognizable in this federal habeas corpus action. Rivera, 556 U.S. 148, 129 S.Ct. at 1454 ("a mere error of state law ... is not a denial of due process"). In his supplemental briefing, petitioner, apparently perceiving in response to respondent apparently perceiving that claims regarding state law violations do not constitute a ground for a federal habeas petition (see Answer, p.7, and respondent's supplemental briefing (RSB), p. 2), argues that his claim is that his Fourteenth Amendment procedural due process rights were violated by the liberty interest that he contends the state laws or regulations give rise to and that the state court's failure to hold an evidentiary hearing on his claims requires this court to do so. Petitioner's Supplemental Briefing (PSB) (docket # 40), p. 3. To the extent that petitioner seeks to implicate the parole denial as a federal due process violation because the BPH panel urged petitioner to engage in prison self-help programs and to make an effort to improve his institutional behavior (noting that petitioner had received 23 115's and 33 128's),*fn9 this claim must also be rejected. As set forth above, the United States Supreme Court has recently held that under the federal due process clause petitioner is entitled only to an opportunity to be heard and a statement of the reasons for the denial of parole. Because petitioner had his opportunity to be heard and received a statement of reasons for the denial of parole, the decision did not violate his right to due process.

Petitioner's claim that the application of any post-DSL requirement that petitioner show some form of rehabilitation before being released on parole is an ex post facto violation is wholly without merit. Simply because Cal. Pen. Code § 1170(a)(1) states that the purpose of determinate sentencing is punishment does not foreclose the CDCR from requiring an inmate to show some evidence of his rehabilitation before being released on parole. The current suitability criteria for parole are set forth in CAL. CODE REGS. tit.xv, § 2402(d) for murders committed on or after November 8, 1978, and the offense, murder of his grandfather, for which petitioner was convicted in 1990, occurred on October 16, 1983. Answer, Ex. 1(b) docket # 29-2, p. 48. Among those factors indicating that a petitioner is unsuitable for parole is that he "has engaged in serious misconduct in prison or jail" and a factor showing suitability includes that his institutional behavior includes activities that "indicate an enhanced ability to function within the law upon release." § 2402(c)(6) & (d)(9). Petitioner at his hearing did not deny an extensive record of institutional misconduct (see below). To be an ex post facto violation at a minimum would require that criteria applied to him post-dated the date of his commitment offense which petitioner has not shown. "The Constitution's Ex Post Facto Clause prevents the government from retroactively altering the definition of, or increasing the punishment for, a crime. California Dept. of Corrections v. Morales, 514 U.S. 499, 504-05 (1995) (citing Collins v. Youngblood, 497 U.S. 37, 41 (1990).)" Sesma v. Hernandez, 2007 WL 3243853 * 6 (S.D. Cal. 2007). Accordingly, petitioner is not entitled to federal habeas relief on this claim.

Claim 4

In his fourth claim, petitioner contends that the BPH violated state law by failing "to set a primary term ... - a duty mandated by state law that is entirely separate from its task of determining current parole suitability" at his 2007 initial parole consideration hearing. Petition, p. 41. The gravamen of this claim is that petitioner, sentenced under the DSL, is entitled to a primary term-setting date separately from any date for parole suitability as occurred under the preceding Indeterminate Sentencing Law (ISL). Id., at 41-49. Petitioner claims that he is entitled to the setting of a primary term, because under the newer DSL, none of the due process protections provided by the ISLwere revised or repealed and it would somehow be a due process and/or ex post facto violation not to apply to petitioner, a life prisoner with possibility of parole, the ISL practice of setting a primary term commensurate with his commitment offense, separate and apart from any finding that a prisoner is suitable for parole. Id. Petitioner does not frame an ex post facto claim when he, properly sentenced under a later law, the DSL, claims to be entitled to the provisions of an earlier statute because an ex post facto claim could only arise if one could legitimately claim that a new law with more onerous provisions was being imposed upon one who had been convicted or sentenced under an older, less onerous law.

Petitioner takes issue with state court decisions that have determined that the transition from the regulations of the ISL to those of DSL did not impose more onerous suitability guidelines and therefore did not implicate ex post facto issues. Petition, referencing In re Duarte, 143 Cal. App.3d 946, 193 Cal. Rptr. 176 (1983), and In re Seabock, 140 Cal. App.3d 29, 40, 189 Cal. Rptr. 310 (1983). Petition, pp. 44-45. Petitioner relies primarily on In re Stanworth , 33 Cal. 3d 176, 187 Cal. Rptr. 783 (1982), which determined that an inmate found suitable for parole in 1979 was entitled to parole consideration under both ISL and DSLguidelines and the earlier release date of the two applications because the change from ISL to DSL did invoke ex post facto principles. However, Stanworth, unlike the issue raised by petitioner,"dealt ... with the setting of parole release dates (i.e., fixing his term of imprisonment) after the inmate had already been found suitable for parole. Sesma, 2007 WL 3243853 * 5 [emphasis in original], citing Stanworth, 33 Cal.3d at 178-179). California's parole guidelines require the setting of a "base term for each life prisoner who is found suitable for parole." CAL. CODE REGS. tit.xv, § 2403(a). The "base term" is "established by utilizing the appropriate matrix of base terms" provided in CAL. CODE REGS. tit.xv, §§ 2403, 2403(a). Petitioner, in not yet having been found suitable for release on parole, has not met the "prerequisite for the determination of a 'base term' and the calculation of a parole date." Murphy v. Espinoza, 401 F.Supp.2d 1048, 1055 (C.D. Cal. 2005); see also Irons v. Carey, 505 F.3d 846, 851 n. 3 (9th Cir. 2007) (A "'determination of an individual inmate's suitability for parole under section 3041, subdivision (b) must precede any effort to set a parole release date under the uniform-term principles of section 3041, subdivision (a)'") (quoting In re Dannenberg, 34 Cal.4th 1061, 1079-80, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005)); Cal. Pen. Code § 3041(b) (The BPH "shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting"); CAL. CODE REGS. tit.xv, § 2402(a) (The BPH "shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [BPH] the prisoner will pose an unreasonable risk of danger to society if released from prison."). "In other words, absent a determination of parole suitability by the [BPH], there is no 'base term.'" Murphy, 401 F.Supp.2d at 1055. See also Cal. Pen. Code § 3041(b); CAL. CODE REGS. tit.xv, § 2403(a). Thus, petitioner's claim that the BPH erroneously failed to set a primary or base term has no merit. Moreover, petitioner's claim regarding application of the Indeterminate Sentencing Law is foreclosed by the decision in Connor v. Estelle, 981 F.2d 1032 (9th Cir.1992), wherein the Ninth Circuit held that application of the suitability criteria of the DSL, rather than that of the ISL, does not violate due process, equal protection or the Ex Post Facto Clause, because "[t]he ISL and DSL guidelines apply identical criteria in determining parole suitability." 981 F.2d at 1034--35 (citing In re Duarte, 143 Cal.App.3d at 951, 193 Cal. Rptr. 176).

This claim should be denied.

Claim 6

Petitioner claims he is unlawfully being maintained in the state's custody because he had passed his "Minimum Expected [sic] Parole Date" as of December 15, 2007. Petition, p. 54.*fn10 However, "the possibility of parole does not mean a guarantee of parole." Cook v. Carey, 2008 WL 2523057* 9 (E.D. Cal. 2008). "Under state law, the inmate must be found suitable before his term and release date are set." Id. This claim should be denied.

Claims of Bias -- Claims 1, 5 and 7

Claims 1, 5 and 7 are essentially claims that petitioner was denied parole by a biased adjudicator. The Supreme Court has long recognized that "[a] fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623 (1955); Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456 (1975); Bracy v. Gramley, 520 U.S. 899, 904--05, 117 S.Ct. 1793 (1997); see also, Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995) "Fairness requires the absence of actual bias ... .and even the probability of unfairness." Murchison, 349 U.S. at 136. As noted by petitioner, the Supreme Court counts a 'neutral and detached' hearing body as among the "minimum due process requirements" for a parole board.

Morrissey v. Brewer, 408 U.S. at 489, 92 S. Ct. 2593. "Because parole board officials perform tasks that are functionally comparable to those performed by the judiciary, they owe the same duty: 'to render impartial decisions in cases and controversies that excite strong feelings because the litigant's liberty is at state.'" O'Bremski v. Maass, 915 F.2d 418, 422 (9th Cir. 1990).

In order to succeed on a biased parole board claim, petitioner "must overcome a presumption of honesty and integrity in those serving as adjudicators...." Withrow v. Larkin, 421 U.S. at 47, 95 S.Ct. 1456. To attempt to frame a claim of unconstitutional bias, a plaintiff*fn11 must show that the adjudicator "has prejudged, or reasonably appears to have prejudged, an issue." Stivers v. Pierce, 71 F.3d at 741, quoting Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992) (quoting Partington v. Gedan, 880 F.2d 116, 135 (9th Cir. 1989) (Reinhardt, J. concurring and dissenting)), cert. denied, 506 U.S. 1054, 113 S.Ct. 979 (1993).

Denial of the "constitutional right to a fair hearing before an impartial tribunal" may be established in two ways:

In some cases, the proceedings and surrounding circumstances may demonstrate actual bias on the part of the adjudicator. See Taylor v. Hayes, 418 U.S. 488, 501-04, 94 S.Ct. 2697, 2704-06, 41 L.Ed.2d 897 (1974); Cinderella Career and Finishing Schools, Inc. v. Federal Trade Comm'n, 425 F.2d 583, 591 (D.C.Cir.1970). In other cases, the adjudicator's pecuniary or personal interest in the outcome of the proceedings may create an appearance of partiality that violates due process, even without any showing of actual bias. Gibson, 411 U.S. at 578, 93 S.Ct. at 1697-98; see also Exxon Corp. v. Heinze, 32 F.3d 1399, 1403 (9th Cir.1994) ("the Constitution is concerned not only with actual bias but also with 'the appearance of justice.'"). Stivers v. Pierce, 71 F.3d at 741 [Emphasis in original].

Because the California Supreme Court's denial was a summary one,*fn12 the court must look through to the last reasoned decision, in this instance, the denial by the state Court of Appeal. When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000), citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S. Ct. 2590 (1991). The Second Appellate District set forth, in total, the following in denying petitioner's habeas corpus petition:

The petition for writ of habeas corpus filed on January 20, 2009, has been read and considered and is denied. The August 2007 decision of the Board of Parole Hearings is supported by some evidence under the clarified standard articulated in In re Lawrence, 44 Cal. 4th 1181 and applied in In re Shaputis (2008) 44 Ca.4th 1241, including the callous and heinous nature of the commitment offense, its trivial motive, petitioner's prior criminal history, his institutional behavior, psychological factors, and his lack of realistic parole plans. (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).)

Answer, Ex. 4 (docket # 29-6).

The state court decision does not appear to have addressed the question of bias. In this instance, therefore, the court must engage in a de novo review with regard to the bias claims. James v. Ryan, __ F.3d __, 2012 WL 639292 *18-19 (no AEDPA deference for decision of state courts where the merits of the federal issue have not been adjudicated; instead, the issue is reviewed de novo under general principles of federal law). The court must address these claims individually because an inference of bias, for example, could be drawn from evidence of multiple clear errors in a record. However, the review of the undersigned reveals that not only is there no accumulation of egregious error, there is simply no error of any significance to give rise to even a suspicion of bias.

Claim 1

Petitioner's first claim, which contains seven parts or subclaims, alleges a "partisan bias" on the part of BPH which, he asserts, is "readily apparent from the record" of the hearing and which violated petitioner's constitutional right to due process and equal protection. Petition, pp. 7, 9-20. Petitioner predicates his claim of bias or partisanship by the BPH in part on the hearing's having allegedly been held one day sooner than scheduled with no notice to petitioner or his attorney, thus improperly excluding "favorable and substantial testimony certain witnesses could and would have provided." Petition, pp. 7, 10. He also contends that the BPH claimed falsely that, as a pretext to exclude his witnesses, they could not appear unless they had been cleared through BPH headquarter's security. Id., at 11-12. The following exchange with regard to these specific claims (or subclaims) took place at the hearing:

Inmate Scott: Okay. Can I just make one comment that I expected my family, the victim's family to attend. There were some members from back east and my mother and brother, but the hearing is a day early, so they're not going to attend today.

Presiding Commissioner Shelton: Well, let me put it this way to you, we called and verified what you said, and nobody has - -Inmate Scott: Nobody knew. When I told my counselor I expected them to come, he said okay.

Presiding Commissioner Shelton: Well, they can't come without permission. Inmate Scott: Nobody told me. And I mentioned it to my attorney. Presiding Commissioner Shelton: He told us. That's how we know, so we verified. Inmate Scott: But I didn't know. I would have told them, hey, you got to go get it approved in advance.

Presiding Commissioner Shelton: That's what counselors are all about. Inmate Scott: Nobody told me, and so - -Presiding Commissioner Shelton: Well, you didn't ask, and next time you need to because you just can't invite people.

Inmate Scott: I understand that concept, but I would think that if a counselor is counseling an inmate on his first parole hearing, and he says, 'Well, I expect the victim's family to come and make statements on my behalf,' he might say, 'Well, are they approved? He might question that, and he didn't, and so, be that as it may, that's the way it sits.

Presiding Commissioner Shelton: We have something that is called notices and responses.

Inmate Scott: I didn't get any paperwork regarding what my rights were at that hearing.

Presiding Commissioner Shelton: You didn't. You know, maybe you need to not interrupt me and let me finish - -Inmate Scott: I apologize, Presiding Commissioner Shelton: - - and then you'll understand what I'm saying. And usually, notices are responses are [sic] sent out to those people. They're called 3042 notices, and they're sent out to those people that would have an interest in your case, individuals and agencies, and usually the District Attorney's offices in different agencies as well, some do, some don't, handle dealing with victims. So, just for future reference, yours is a particularly different type of case in that the victim in your case was a relative, and - -Inmate Scott: My grandfather.

Presiding Commissioner Shelton: And the people that were talking about coming to visit are also relative, so that all has to be cleared for security purposes, and I think you've probably been in custody long enough to know that anybody that comes into prison needs to be cleared.

Inmate Scott: Well, actually, most of the individuals are cleared already. They've been on my visiting, you know, approval sheet any ways.

Presiding Commissioner Shelton: Good. But that's not the same kind of approval for hearings.

Inmate Scott: Yeah, like I said, I had no idea and neither did my family.

Presiding Commissioner Shelton: Do you understand now? Inmate Scott: Now I understand, a day late and a dollar short. Presiding Commissioner Shelton: All right. They wouldn't have been allowed to come in tomorrow even if we had your hearing tomorrow.

Inmate Scott: But they would have been able to attend if they were approved?

Presiding Commissioner Shelton: Ahead of time, and then it goes through headquarters.

Inmate Scott: Okay.

Presiding Commissioner Shelton: All right. We got that cleared up in case you have an additional hearing, then you're covered. All right. Good. Now, we'll move on. . . .

Answer, Ex.3(a) (docket # 29-4), pp. 68-71.

Petitioner claims that each of his intended witnesses would have provided information that was "relevant, reliable and material" and would have described for the BPH that he did not present a current threat to public safety, how they would assist him in his parole, why he was suitable for release. Petition, p. 11. Petitioner lists some seven individuals, identified as relatives of the victim (and, therefore, obviously, petitioner's relatives as well); he includes, as well two more individuals he identifies as business acquaintances and three others he names as personal friends. Id. Although petitioner states that he has attached declarations by Esther Braverman (whose name, confusingly, is not included among plaintiff's lists of potential witnesses) and Debra Scott, listed as a relative of the victim, no such declarations are attached with his petition. Nor does petitioner contend that he has obtained supportive declarations from any of the other eleven people he has set forth as willing to provide attestations of support for his parole. However, the court's review of the hearing transcript reveals that a signed and notarized supportive letter to the parole board, dated March 31, 1997, declaring her belief in petitioner's innocence was attached from Esther Braverman (apparently petitioner's great-aunt and the victim's sister), as well as a signed letter from Debra Scott (petitioner's mother and the victim's daughter) to the BPH declaring her son's innocence of the murder and dated May 19, 2007. Answer, Ex. 3(b) (docket # 29-5), pp. 44-45, 47-48. There is also a July 12, 2007 letter from petitioner's trial counsel stating that he and petitioner declined an offer to plead to a voluntary manslaughter charge as they believed in petitioner's innocence. Id., at 50. There are also supportive letters from individuals named Kenny Ortega and Pamela Stonebrook. Id., at 54-56. At the hearing, Presiding Commissioner Shelton noted the letters of support from Ms. Braverman and petitioner's mother (and their belief in his innocence of the commitment offense), but also observed that there was no letter of support from petitioner's brother regarding employment or housing. Id., at 2-3 & Ex. 3(a) (docket # 29-4) at 127. Also acknowledged on the record were the letters of support from Pamela Stonebrook and Kenny Ortega and from petitioner's defense counsel and one from an Irving Adland and another from an Aaron Russo, as well as a declaration from a Donald Thomas. Id., at 4-6 & Ex. 3(a) (docket # 29-4) at 126-127.

Petitioner has not shown bias against him by the BPH panel with respect to not having been permitted the witnesses he sought as his claim that the security clearances referenced are not required is insubstantial. As to his claim of bias by not being allowed witnesses because the hearing took place a day early, that is similarly without basis when the record shows the one day would have made no difference to his having obtained the in-person witness testimony he sought. To the extent that he seeks to implicate due process by his having been deprived of witnesses, the Supreme Court, as noted above, has made clear in the parole context that the procedures required to satisfy federal due process "are minimal" and are met when petitioner -- as he indisputably has in this instance -- has been "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Swarthout v. Cooke, 131 S. Ct. at 862. Moreover, his witnesses were heard through the documentary support for petitioner's release.

Petitioner next claims that bias was shown when the BPH allowed the district attorney to question him directly at the hearing in violation of state law, which law he asserts, creates an enforceable federal due process liberty interest. Petition, p. 12. Petitioner refers generally to the participation of a district attorney as being governed by CAL. CODE REGS. tit.xv, § 2000 et seq., asserting that questions from a D.A. are to be directed to the BPH members who in turn will direct the inmate to respond as though to the BPH. Petition, p. 12. CAL. CODE REGS. tit.xv, § 2030 is entitled "Prosecutor Participation." Under § 2030(a)(1), a "representative of the office which prosecuted a prisoner" may "participate in any board hearing when the prisoner ... is represented by an attorney." Pursuant to § 2030(a)(3), "[a] representative of the district attorney of the county from which a life prisoner was committed may participate in any parole consideration or rescission hearing for that prisoner." Under CAL. CODE REGS. tit.xv, § 2030(d)(2), "[t]he role of the prosecutor is to comment on the facts of the case and present an opinion about the appropriate disposition. In making comments, supporting documentation in the file should be cited. The prosecutor may be permitted to ask clarifying questions of the hearing panel, but may not render legal advice."

Petitioner was represented by counsel at the hearing. Ans., Ex. 3(a) (docket # 29-4), p. 59. Petitioner maintains that the BPH abdicated its responsibility to "enforce the mandatory state protocol" by permitting the D.A.'s representative to, in essence, conduct a portion of the hearing and interrogate petitioner for a length of time covering four pages of the hearing transcript. Petition, p. 13. Petitioner asserts that this occurred after the presiding commissioner demonstrated awareness of the appropriate procedure before abandoning it. Id.

The transcript indicates that the presiding commissioner asked the deputy district attorney (Wynn) if he had questions:

Presiding Commissioner Shelton: Okay. Mr. Wynn, do you have any questions, and before you do, I need to let Mr. Scott know that this is not a courtroom setting - -Inmate Scott: Okay.

Presiding Commissioner Shelton: And it's not confrontational, so Mr. Wynn will ask - - will direction [sic] his questions to us, and you will direct your answers to us.

Inmate Scott: Okay.

Presiding Commissioner Shelton: It's just kind of like a protocol that is really awkward, but we're stuck with it. Go ahead, Mr. Wynn.

Answer, Ex. 3(b) (docket # 29-5), p. 11.

There follows, as petitioner avers, a series of questions directed to petitioner by the D.D.A., which indeed in being directed to petitioner in the second person ("you"), without any intercession by the BPH, does not appear to have been strictly in line with the protocol the presiding commissioner had herself set forth. Although the format of the questioning (or, as petitioner would have it, "interrogat[ion]"), apparently not objected to by either petitioner or his counsel at the time, does not appear to have been conducted with strict adherence to the arguably awkward procedure, petitioner nevertheless does not demonstrate how it shows the BPH's bias or how the lack of strict adherence to the protocol implicated his right to due process.

Petitioner next asserts that the BPH showed bias "in violation of federal constitutional authority and express mandatory state law" by having "improperly deemed petitioner's consistent assertion of actual innocence [to be] proof of his unsuitability for parole." Petition, p. 13. Citing In re Dannenberg, 34 Cal.4th 1061');">34 Cal. 4th 1061, 1099, 23 Cal. Rptr.3d 417 (2005), petitioner contends that the California State Supreme Court has acknowledged that Cal. Pen. Code § 5011(b)*fn13 "expressly prohibits" the BPH from "basing an inference of unsuitability for parole on an applicant's assertion of actual innocence." Id. However, that is not what the state Supreme Court therein stated. Rather, the court essentially passed on the issue:

We need not consider the technical validity of Dannenberg's argument, for we conclude that any error by the Board in this respect was harmless. It appears manifest that the Board's reference to Dannenberg's failure to take responsibility was peripheral to its decision and did not affect the outcome.

Dannenberg, 34 Cal.4th at 1099.

The record of the hearing, however, does not support petitioner's contention that the BPH panel found him unsuitable for parole based on his assertion of actual innocence. The transcript shows that at several points, the BPH panel was careful both to protect petitioner's rights when it came to discussing or not discussing the commitment offense, while also making clear that they accepted the trial court's findings.

Presiding Commissioner Shelton: ... Now, the purpose of today's hearing is to discuss your suitability for parole. We're not here to retry your case. You've been found guilty. So, we are going to concentrate on factors dealing with your issues of suitability for parole. To do that, we take a look at your commitment offense. We take a look at your prior record. We look at your social history, and Commissioner Smith will be talking with you about what you've been doing since you've been incarcerated and that includes psychiatric evaluations, et cetera.

Answer, Ex. 3(a) (docket # 29-4, pp. 62-63.

Presiding Commissioner Shelton: ...Like I said, nothing that happens today will change the findings of the court. We are not here to retry your case.

Inmate Scott: I understand.

Id., at 64.

Presiding Commissioner Shelton: ... Mr. Scott, you are not required to admit to or to discuss your offense. Do you understand that part?

Inmate Scott: Yes, I do.

Presiding Commissioner Shelton: Tell me what this means to you when I say this Panel accepts as true the findings of the court. Inmate Scott: It means what you said, that you accept the finding of guilt by a jury of my peers.

Presiding Commissioner Shelton: And we're not here to retry your case.

Inmate Scott: Not here to retry my case, and I understand that. Id., at 67-68.

Petitioner's counsel*fn14 made clear that petitioner would not be discussing the life crime but that petitioner did accept the findings and orders of the court. Id., at 72-73. When petitioner thereafter asserted that he would not mind discussing what he knew about the events at his trial, the following exchange occurred:

Presiding Commissioner Shelton: Okay. We need to make something very clear. You either will or wouldn't discuss the commitment offense, so your attorney says that you're in an appeals process with matters in court?

Inmate Scott: Yes, I am. That does not necessarily mean that I would not discuss it. I guess I'll just go with what he suggests and leave it at that.

Presiding Commissioner Shelton: That might be a good idea. That's why you have an attorney.

Id., at 73.

It is true that, in recounting reasons for the parole denial, reference was made to to petitioner's commitment offense:

Presiding Commissioner Shelton: ... and as far as I'm concerned, there's no doubt in my mind that you are guilty of this offense, and the sooner you deal with it and real life, the sooner things might go better in your direction.

Answer, Ex. 3(b) (docket # 29-5), p. 34.

Presiding Commissioner Shelton: ... In a separate decision, this hearing Panel finds that Mr. Scott has been convicted of murder, and it is not reasonable to expect that parole would be granted as a hearing during the next five years. This includes the commitment offense for [sic] which we have discussed. We understand you deny it. We don't believe you. Neither does a jury. You need to come to terms with that.

Answer, Ex. 3(b) (docket # 29-5), p. 39.

However, there is no showing that petitioner was required to admit his guilt and, even had he done so, that there would have been any change in the outcome. For example, the record shows that petitioner admitted that he had a significant record of prison disciplinary findings:

Deputy Commissioner Smith:... This is your initial hearing. You have a classification score of 45, and quite candidly, you have one of the worst disciplinary histories that I have seen in a long time. Inmate Scott: Yeah, I know.

Deputy Commissioner Smith: And I sit on a lot of hearings. Inmate Scott: Yeah, I'm aware of that. I'm not happy with it.

Answer, Ex. 3(a) (docket # 29-4), pp. 100-101.

Later, petitioner admitted:

Inmate Scott: No. I can't argue with you. I have a rotten disciplinary record. Id., at 108.

Still later, when asked by the deputy district attorney whether he had "been getting 115's on purpose," petitioner stated: "Have I? Yes and no." Answer, Ex. 3(b) (docket # 29-5), p. 15.

In any case, this claim appears to fall more within the frame of a "some evidence" claim from which review, on a substantive basis, this court is foreclosed. Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. at 861. This claim should be denied.

Claim 5

Petitioner contends that his due process and equal protection rights were violated because BPH followed a "no parole" policy, averring that the denial decision must be vacated. Petition, p. 50. In this instance, petitioner has essentially alleged a claim of systemic, rather than personal, bias on the part of the BPH commissioners based on an alleged policy or practice of nearly wholesale denial of parole at initial parole hearings, notwithstanding the requirements of a state statutory and regulatory scheme, in violation of his federal right to due process. Calling such allegations "conclusory and apparently erroneous," earlier cases have found the claim of a "no parole" policy at initial hearings does not state a claim for habeas relief. See, e.g., Ochoa v. Marshall, 2009 WL 86563 * 8 (C.D. Cal. 2009), citing Lancaster v. Bd. of Prison Terms, 234 Fed. App'x. 588, at *1 (9th Cir. June 13, 2007) ("conclusory allegations" that BPH denied parole based on an alleged "no parole" policy "cannot provide a basis for habeas relief"); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir.1995), cert. denied, 517 U.S. 1143, 116 S.Ct. 1437 (1996) ("conclusory allegations ... not supported by a statement of specific facts do not warrant habeas relief"). In Ochoa, the Central District court noted:

[D]uring the time Petitioner apparently contends that this "no parole" policy has been in force, the United States District Court for the Eastern District of California twice has observed that the Board has granted parole at several initial parole hearings. See Otte v. Mendoza-Powers, 2008 WL 351798, at *7 (E.D.Cal. Feb.6, 2008), adopted, 2008 WL 880565 (E.D.Cal. Mar.31, 2008); Morton v. Mendoza-Powers, 2007 WL 2688850, at *7 (E.D.Cal. Sept.13, 2007), adopted, 2008 WL 217498 (E.D.Cal. Jan.25, 2008).


It is true that Judge Karlton found that Governors Wilson and Davis exhibited bias with a "no parole" policy. Coleman v. BPT, 2005 WL 4629202 (E.D. Cal. 2005).

However, neither Pete Wilson nor Gray Davis was the Governor of California in 2007 when petitioner's suitability hearing took place, and petitioner has offered no evidence suggesting that the BPH was operating under a no-parole policy for life prisoners after Governor Davis left office. Rather, petitioner's hearing took place under the gubernatorial tenure of Arnold Schwarzenegger, and, as the Ninth Circuit stated, in the appeal of Coleman v. BPT, in an unpublished opinion, "the record is bereft of any evidence that the Schwarzenegger administration instituted a 'no parole for murderers' policy." Coleman, 228 Fed. Appx. 673, 675, 2007 WL 1073774 * 2 (9th Cir. 2007)(unpublished).*fn15 Therefore, petitioner is not entitled to relief on this claim.

Claim 7

In this claim, petitioner simply states that Linda Shelton, who was the presiding commissioner on his BPH hearing panel was fired for bias. Petition, p. 55. Petitioner provides nothing beyond this abrupt statement and respondent does not specifically address it. The undersigned can locate no confirmation of this assertion, nor is it evident in the record, and, as it is petitioner's burden to produce any supporting evidence, the relevance of this claim, if true, cannot be evaluated. This insufficiently supported claim should be denied.

Claim 8 -- Challenge to State Court Decisions

Finally, petitioner makes a generic claim argues that the state courts' decisions, i.e., the denials of his state court habeas petitions challenging the denial of parole at his 2007 initial parole consideration hearing, as "'contrary to, or [having] involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court," and "[having been] based on an unreasonable determination of the facts." However, this court has found that petitioner has raised no grounds that show the state courts' determination affirming the denial of parole to be an unreasonable application of clearly established federal law as determined by the Supreme Court. This claim should be denied.

Accordingly, IT IS HEREBY RECOMMENDED that the petition be denied.

If petitioner files objections, he shall also address if a certificate of appealability should issue and, if so, as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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