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Michael Thompson v. Michael Mcdonald

June 20, 2012

MICHAEL THOMPSON, PETITIONER,
v.
MICHAEL MCDONALD, WARDEN,
RESPONDENT.



ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner raises a due process challenge to the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his parole consideration hearing held on September 2, 2008. The matter has been fully briefed by the parties and is submitted for decision. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.*fn1

I. Procedural Background

Petitioner is confined pursuant to a 1975 judgment of conviction entered against him in the Orange County Superior Court following his conviction on charges of first degree murder, conspiracy to commit first degree murder, kidnapping, and assault with great bodily injury. (Pet. (Doc. No. 1) at 2.) Pursuant to that conviction, petitioner was sentenced to seven years to life in state prison. (Id.)

The parole consideration hearing that is placed at issue by the instant federal habeas petition was held on September 2, 2008. (Doc. No. 1-1 at 7-110.) Petitioner appeared at and participated in that hearing. (Id. at 9-110.) Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for one year, as well as the reasons for that decision. (Id. at 102-110.)

Petitioner first challenged the Board's 2008 decision denying him parole in a petition for writ of habeas corpus filed in the Orange County Superior Court. (Answer, Ex. 1.) Therein, petitioner alleged that the Board's 2008 decision violated his right to due process because it was not based on evidence that he posed a current danger to society if released from prison. (Id.) The Orange County Superior Court denied that petition, reasoning that sufficient evidence supported the Board's decision to deny petitioner parole. (Answer, Ex. 4.)

Petitioner subsequently challenged the Board's 2008 decision in a petition for writ of habeas corpus filed in the California Court of Appeal for the Fourth Appellate District. (Answer, Ex. 6.) That petition was summarily denied. (Answer, Ex. 7.) Petitioner then filed a petition for review in the California Supreme Court. (Answer, Ex. 9.) Therein, he claimed that the Board's 2008 decision violated his right to due process under state law and that application of California Penal Code § 2041.5, which increased the minimum parole denial interval from one year to three years, constituted an Ex Post Facto violation. (Id.) That petition was also summarily denied. (Answer, Ex. 8.)

On September 30, 2010, petitioner filed his federal application for habeas relief in this court.

II. Scope of Review Applicable to Due Process Challenges to the Denial of Parole The Due Process Clause of the Fourteenth Amendment prohibits state action that

deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989).

A protected liberty interest may arise from either the Due Process Clause of the United States Constitution "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."). However, a state's statutory scheme, if it uses mandatory language, "creates a presumption that parole release will be granted" when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest. Greenholtz, 442 U.S. at 12. See also Allen, 482 U.S. at 376-78.

California's parole scheme gives rise to a liberty interest in parole protected by the federal Due Process Clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002); see also Swarthout v. Cooke, 562 U.S. ___ , ___, 131 S. Ct. 859, 861-62 (2011) (finding the Ninth Circuit's holding in this regard to be a reasonable application of Supreme Court authority); Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) ("[Swarthout v.] Cooke did not disturb our precedent that California law creates a liberty interest in parole.") In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002).

In Cooke, the Supreme Court reviewed two cases in which California prisoners were denied parole - in one case by the Board, and in the other by the Governor after the Board had granted parole. Cooke, 131 S. Ct. at 860-61. The Supreme Court noted that when state law creates a liberty interest, the Due Process Clause of the Fourteenth Amendment requires fair procedures, "and federal courts will review the application of those constitutionally required procedures." Id. at 862. The Court concluded that in the parole context, however, "the procedures required are minimal" and that the "Constitution does not require more" than "an opportunity to be heard" and being "provided a statement of the reasons why parole was denied." Id. (citing Greenholtz, 442 U.S. at 16). The Supreme Court therefore rejected Ninth Circuit decisions that went beyond these minimal procedural requirements and "reviewed the state courts' decisions on the merits and concluded that they had unreasonably determined the facts in light of the evidence." Cooke, 131 S. Ct. at 862. In particular, the Supreme Court rejected the application of the "some evidence" standard to parole decisions by the California courts as a component of the federal due process standard. Id. at 862-63. See also Pearson, 639 F.3d at 1191.*fn2

III. Petitioner's Due Process Claim

In petitioner's first ground for relief, he claims that the "Judicial Decision approving the Board of Parole Hearings decision" violated his right to due process because there was insufficient evidence before the Board that he posed a current danger to society if released from prison. (Doc. No. 1 at 6.) In his second ground for relief, petitioner claims that the state court decisions upholding the Board's 2008 decision were based on "an unreasonable application of the California some evidence requirement." (Id. at 8, 17.) Petitioner argues that the state courts "failed to determine whether the panel articulated any nexus between its findings and a possible risk to public safety currently posed by petitioner's parole." (Id. at 8.) He also contends that the state courts failed to address some of the claims he raised in his state habeas petitions. (Id.) Both of petitioner's claims set forth in the instant federal petition attack the sufficiency of the evidence relied upon by ...


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