Benson v. Krammer et al

Filing 29

ORDER signed by Circuit Judge Mary M. Schroeder on 09/082010 ORDERING that the petition for a writ of habeas corpus is DENIED. A certificate of appealability is GRANTED as to the issue of whether BPH's denial of parole violated Benson's Fourteenth Amendment right to due process because Petitioner has shown his claim is "debatable among reasonable jurists." CASE CLOSED. (Duong, D)

( H C ) Benson v. Krammer, et al

D o c . 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P etitio n er Frank Benson, an inmate at California State Prison, Solano, seek s a writ of habeas corpus under 28 U.S.C. § 2254 disputing the California state co u rt's denial of habeas relief in his challenge to the April 14, 2005 decision of the C a lif o r n ia Board of Parole Hearings ("BPH") denying him parole. Petitioner alleg es the denial of parole violated his rights under the Fourteenth Amendment of th e Constitution. Having considered the arguments of the parties, the Court D E N IE S the petition for the reasons stated below. BA CK GR OU ND B e n s o n is serving a sentence of fifteen years to life for second degree m u rd er. In 1981, Benson killed his wife after an argument about their son. Benson s tr an g le d his wife and then, believing her to be dead, weighted her body and threw
FRANK KENNETH BENSON, ) ) Petitioner, ) v. ) ) MATT KRAMMER, Warden, et al., ) ) Respondents. ) _____________________________________ ) Case No. 2:06-CV-01584-MMS (HC) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

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it off the San Mateo Bridge into the San Francisco Bay. Benson ultimately co n fessed to the crime. The BPH denied parole in April 2005, in Benson's ninth parole hearing. The BPH decision recited the facts of the murder and found that these facts in d ic ate d that Benson acted with a callous disregard for human life, and that B en so n had a trivial motive for the murder. The BPH also stated that Benson had a p r io r conviction for petty theft, a history of substance abuse that indicated an u n s ta b le social history, and that the Alameda County District Attorney opposed p aro le. The Board recognized a number of positive aspects in Benson's record, in clu d in g the fact that he has been disciplinary free for a long time, had received a p o sitiv e psychological evaluation, and had been involved in substance abuse p r o g r am m in g . The BPH found, however, that the negative aspects in the record o u tw eig h ed the positive, and thus denied parole. The BPH also provided two reco m m en d atio n s to Benson. First, the Board recommended that he again p a r tic ip a te in the Breaking Barriers Program. Second, the Board stated that B en so n 's record would benefit from further documentation of his study of B u d d h ism because Benson stated at several points in his hearing that his religious stu d ies would provide him the proper direction to avoid trouble in the outside w o r ld . B e n s o n filed a habeas petition in California Superior Court, and the court d en ied the petition finding that "there was certainly some evidence, including, but n o t limited to the committing offense," to justify Benson's continued incarceration. Benson sought review in the California Court of Appeal which affirmed without d iscu ssio n . Justice Parrilli, however, indicated that she would have dissented but fo r the Supreme Court's decision in In re Danneberg, 104 P.3d 783 (Cal. 2005). Justice Pollak dissented. He determined that the BPH erred in focusing on

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u n ch an g in g factors such as the commitment offense and Benson's history of s u b s ta n c e abuse, while ignoring the wealth of information that indicated that B en so n no longer posed a threat to society. Benson sought relief in the California Supreme Court. The Supreme Court a ls o denied the petition in a summary disposition. The disposition indicated that J u s tic es Kennard, Werdegar, and Moreno would have granted Benson's habeas p etitio n . Benson filed a timely federal habeas petition. DISCUSSION U n d er California law, prisoners serving indeterminate life sentences become elig ib le for parole after serving a minimum term of confinement. Dannenberg, 104 P .3 d at 785-86. California regulations state that "a life prisoner shall be found u n su itab le for and denied parole if in the judgment of the panel the prisoner will p o se an unreasonable risk of danger to society if released from prison." Cal. Code R eg s. tit. 15, § 2402(a). In making this suitability determination, the BPH looks to facto rs such as the nature of the commitment offense, the prisoner's record of v io len ce, social history, behavior in prison, and any other information relevant to w h eth er the prisoner poses an unreasonable risk to society. See Cal. Code Regs. tit. 15 § 2402(b)-(d). If the prisoner files a state habeas petition, the state court reviews the d ecisio n of the BPH to determine whether "some evidence" supports the u n su itab ility determination. See In re Shaputis, 190 P.3d 573, 580-81 (Cal. 2008). California has defined "some evidence" to mean that the BPH's determination "m u s t have some indicia of reliability." In re Scott, 15 Cal. Rptr. 3d 32, 52 (2004) (in tern al quotation marks omitted). A decision is not supported by "some ev id en ce" if the BPH denies parole solely on the basis of facts of the commitment o ffen se. See In re Lawrence, 190 P.3d 535, 549 (Cal. 2008).

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In Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), the Ninth C ircu it explained the standard federal courts are to apply in reviewing the C a lif o r n ia court's denial of habeas relief to a prisoner challenging the BPH's denial o f parole. The court held that a federal court may grant a writ of habeas corpus o n ly if the "decision rejecting parole was an `unreasonable application' of the C alifo rn ia `some evidence' requirement, or was `based on an unreasonable d e te rm in a tio n of the facts in light of the evidence.'" Id. at 562-63. The Court here m u st therefore decide whether the California Superior Court's decision upholding th e BPH's denial of parole unreasonably applied California's "some evidence" stan d ard . Id. The Superior Court correctly observed that the BPH did not rely exclusively o n the nature of the commitment offense, although it was considered relevant. The d e te rm in a tio n that the murder was conducted in a cruel and dispassionate manner w ith no significant motive was a reasonable one. Benson strangled his victim for f iv e minutes and threw her body off a bridge believing her to be dead. He killed h er after becoming angry in an argument over his son. Additionally, Benson had a h isto ry of unstable relationships and substance abuse. These facts provide ev id en ce that Benson still poses a danger to society. The BPH did not foreclose fu tu re parole, indicating it would need more information about Benson's religious s tu d y . Because the BPH reasonably expected to see convincing evidence that B en so n had rid himself of his drug habit and that he would not relapse if released, b u t Benson failed to do this. Benson testified at his hearing that he did not plan to co n tin u e substance abuse programming after release because he believed that he h ad cured his problem. At his hearing, Benson told the Board that his Buddhist relig io u s studies would enable him to avoid substance abuse problems upon

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release, but there is little in the record about this training. In light of this testim o n y, it was reasonable for the BPH to be concerned that Benson lacked a realistic plan for avoiding drugs if released. Benson failed to carry his burden of showing that he no longer posed a d a n g e r to society because of his history of substance abuse. The history, combined w ith the savage nature of the murder, demonstrate that the California courts did not u n r ea so n a b ly apply the "some evidence" standard. While several appellate judges w o u ld have reached a different result, the application of the standard was not u n reaso n ab le. Benson's claim thus fails. C O N C L U S IO N F o r the above reasons, the petition for a writ of habeas corpus is DENIED. A certificate of appealability is GRANTED as to the issue of whether BPH's denial o f parole violated Benson's Fourteenth Amendment right to due process because P e titio n e r has shown his claim is "debatable among reasonable jurists." See H a yw a rd , 603 F.3d at 555.
DATED: September 8, 2010

/s/ Mary M. Schroeder MARY M. SCHROEDER, United States Circuit Judge Sitting by designation

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