FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at a parole consideration hearing held on July 7, 2009. The matter has been fully briefed by the parties and is submitted for decision.
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. ___ , ___, 131 S. Ct. 859, 861-62 (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 862 (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 1991 judgment of conviction entered against him in the San Bernardino County Superior Court following his conviction for first degree murder with use of a firearm. Dckt. 1 at 2. Pursuant to that conviction, petitioner was sentenced to twenty-five years to life plus four years in state prison. Id.
The parole consideration that is placed at issue by the instant federal habeas petition was held on July 7, 2009. Dckt. 14-1 at 25. Petitioner appeared at and participated in the hearing. Id. at 28, et seq. Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for seven years as well as the reasons for that decision. Dckt. No. 14-2 at 36-44.
Petitioner first challenged the Board's 2009 decision denying him parole in a petition for writ of habeas corpus filed in the Monterey County Superior Court. Dckt. No. 14-1 at 2. Therein, petitioner claimed that the Board's 2009 denial of parole was arbitrary and capricious, and that it violated his right to due process because the decision was not support by "some evidence" that petitioner posed a current danger to society. Id. at 3-22. Petitioner also challenged the Board's reliance on his crime of conviction to find him unsuitable for parole. Id.
The Superior Court denied that petition in a reasoned decision on the merits of petitioner's claims. Dckt. No. 14-4 at 2-7. The court reasoned, in part, as follows:
Petitioner contends that the Board of Parole Hearings determination of July 7, 2009, which became final on November 4, 2009, was improper because of the Board's use of the facts of the life offense to deny parole. Petitioner was received at the institution on November 21, 1991, after having been convicted of Murder as fixed in the 1st degree together with a true finding of personal use of a firearm within the meaning of Penal Code § 12022.5. Petitioner was sentenced to a term of 4 years in Prison plus 25 years to life consecutive. Petitioner's minimum eligible parole date was fixed as May 20, 2010. At the conclusion of the hearing, the Board members denied Petitioner's application for a period of 7 years. Petitioner's counsel at the hearing noted an objection on page 6, lines 24 through 25, continuing over on to page 7, lines 1 through 3, with respect to the Board's use of the standards set forth in Proposition 9, claiming they were ex post facto as applied to Petitioner. The Board members overruled Petitioner's objection.
On page 9, commencing at line 22, continuing to page 20, line 14, Commissioner Arbaugh reviews the facts of the life crime as taken from the probation report, the appellate court decision affirming Petitioner's conviction and Petitioner's most recent statement regarding the facts of the crime. A summary of the incident reflects that Petitioner and the victim were married in 1985. Subsequently, Petitioner determined that the victim was engaging in an affair with his nephew and filed for divorce. Apparently, Petitioner believed that his home had been burglarized by the victim and that she was in violation of her restraining order. Petitioner called the police out and after being told that law enforcement would not be pursuing the burglary charge he informed the officer's [sic] he would take care of the problem himself. Witnesses testified at the trial that Petitioner had threatened to kill both his wife and his nephew. Petitioner said he never made those statements. Other witnesses testified that Petitioner made statements to the effect that if he saw his wife and nephew together he would kill them. When that statement was made the Petitioner appeared calm but intoxicated. Subsequently, Petitioner saw his wife sitting in a parked car. He ran over and kicked out the driver's window, pulled the victim's head out of the car by her hair and started to beat her. Thereafter, Petitioner shot the victim and threatened another victim by firing a round in his direction. Petitioner was subsequently taken into custody at his girlfriend's residence.
In a statement to police Petitioner indicated he was hurt and full of anger. He indicated that the victim pulled a gun, they struggled and he took the gun and shot her.
Among his claims, the Petitioner contends he was denied due process by the Board of parole hearings denying his right to his liberty interest on parole. He claims this right was violated because of the Board's failure to show evidence that he proves to be an unreasonable risk to society. The California Supreme Court in the cases of In re Lawrence (2008) 44 Cal.4th, 1181 and In re Shaputis (2008) 44 Cal.4th, 1241 have provided the Board of Parole Hearings and Trial Courts determining habeas corpus matters with guidance. "The focus is not on whether some evidence supports the Board's characterization of the facts on the record but rather on whether there is 'some evidence' at the core statutory determination that Petitioner remains a current threat to public safety." In re Shaputis, supra at 1254.
Prior to these most recent decisions the last and most definitive word on the area of law controlling judicial review of Board of Parole Hearings decisions denying a finding of suitability for parole had been set forth in the cases of In re Rosenkrantz (2009) 29 Cal.4th 616, and In re John E. Dannenberg (2005) 34 Cal.4th 1061. Both of our most recent Supreme Court decisions cite the aforementioned cases with approval.
Penal Code § 3041(b) provides for parole review of inmates such as Petitioner and further provides that such inmates shall be given a release date unless the Board determines that the gravity of the current convicted offense is such that consideration of the public safety requires a more lengthy period of incarceration. California Code of Regulations, Title 15, Section 2402(a)(b)(c)(d) sets forth the rules by which the Board is to make its determination. As our high court has stated, parole applicants have an expectation of being granted parole unless the Board finds in the exercise of its discretion that the applicant is unsuitable. The operative words are "in the exercise of its discretion." Judicial review of this discretion is limited only to a determination as to whether there is "some evidence" in the record to support the decision. As stated earlier, that "some evidence" must go to the core statutory determination that Petitioner remains a current threat to public safety. As the Supreme Court has stated, this standard of "some evidence" is extremely deferential with respect to the findings of the Board members. The court in Lawrence directed the Board to look at the commitment offense within the context of the prisoner's pre and/or post incarceration history as well as his current demeanor and mental state. The commitment offense continues to have strong probative value. In the recent case of In re Smith (2009) 171 Cal.App.4th, 1631 at 1639 that court held as follows:
"The gravity of respondent's commitment offense has continuing predicted value as to current dangerousness in light of her lack of insight into her behavior and refusal to accept responsibility for her personal participation."
The record of the parole consideration proceedings reflect the Board's members concern that Petitioner has not seriously engaged in AA since 1995. The facts of the life crime disclose that Petitioner was under the influence at the time of the commission of the offense and had been engaged in drinking for a significant period of time. The Board members also commented on the lack of Petitioner's relapse prevention plan which was noted on page 47 by Commissioner Wolk. In addition, Petitioner has no realistic post parole support plans with respect to employment or outside support. In response to a comment by Commissioner Arbaugh on page 49, the Petitioner indicated as follows: "Yeah, that's what I've been doing. I've contacted a couple of churches and I was hoping they would get back to me before, you know, I went to the Board so I would something to show but I haven't received anything yet." Parole Proceeding Transcript, page 49, lines 19 through 23.
In his reply to the government's response the Petitioner attaches some documents he has received but the court will not consider those in that those items were not presented to the Board members. It is the members of the Board that must evaluate Petitioner's post parole plans and consider those in determining the viability of Petitioner's request.
The Board members noted that Petitioner had only received 2 CDC 128's and has been regularly working as a clerk, porter, vocational upholstery and carpenter. In addition, the Board members were extremely pleased that Petitioner had no criminal record except two previous traffic infractions.
Doctor Thacker who penned the psychological evaluation was also concerned that Petitioner had not been involved in NA or AA and had no viable post release relapse prevention program in place. As the government noted in their reply: "The evaluator is not convinced that Mr. Neasman understands the importance of remaining abstinent and the grave results which could occur if he returned to drinking."
All told, the Board members found that Petitioner lacks sufficient insight and expression with respect to the magnitude and horrific nature of the life crime. In essence, Petitioner continues to blame his wife for the murder he committed.
The Board did consider the positive factors which favored parole and made its findings that these did not outweigh the factors surrounding the circumstances of the life crime taking into account the prisoner's pre and post incarceration history. While the decision did not reflect the weighing process of the Board, the Supreme Court in the case of In re Rosenkrantz, supra, at 677 clearly states that the Board need not explain its decision or the precise manner in which the specific facts were relevant to parole suitability. This consideration and balancing lay within the discretion of the Board. Here, the ...