Anchor v. Campbell

Filing 18

ORDER signed by Circuit Judge Mary M. Schroeder on 9/8/2010 ORDERING that the petition for a writ of habeas corpus is DENIED. A certificate of appealability is also DENIED because Petitioner has failed to show his claims are "debatable among reasonable jurists." CASE CLOSED. (Duong, D)

(HC) Anchor v. Campbell

Doc. 18

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 Dean Anchor, a California state prisoner, seeks a writ of h a b e a s corpus under 28 U.S.C. § 2254 disputing the state court's denial of habeas relief on his challenge to the May 6, 2005 decision of the California Board of P aro le Hearings ("BPH") denying him parole. Petitioner alleges the denial of p aro le violated his rights under the Fourteenth Amendment of the Constitution. This court stayed proceedings pending the Ninth Circuit's decision in Hayward v. M a rsh a ll, 603 F.3d 546 (9th Cir. 2010) (en banc) and has received supplemental m em o ran d a on its impact on this case. Having considered the arguments of the p arties, the Court DENIES the petition for the reasons stated below. BA CK GR OU ND A n ch o r is serving a sentence of 15 years to life for second degree murder.
DEAN ANCHOR, ) ) Petitioner, ) v. ) ) ROSANNE CAMPBELL, Warden, ) ) Respondent. ) _____________________________________ ) Case No. 2:06-CV-01909-MMS ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

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I n 1985, Anchor murdered a 30-year-old "outcall masseuse" in his house. Anchor, w h o still claims that he has no memory of the murder, struck the woman 23 times w ith a blunt object. The woman was found unclothed from the waist up and w earin g only underwear. The BPH denied parole at Anchor's May 2005 hearing. The Board focused o n the brutal nature of the crime, noting that Anchor had hit his victim numerous tim es with no apparent motive. The BPH also stated that Anchor's past history of v io le n c e and substance abuse, along with his unstable social history, further su g g ested he was not suitable for parole. Anchor filed a petition for a writ of habeas corpus in California Superior C o u rt. The court denied the petition, stating that Anchor had failed to "establish a p r im a facie case." The state court of appeal and California Supreme Court denied r e v ie w . Anchor filed a timely federal habeas petition. D IS C U S S IO N U n d er California law, prisoners serving indeterminate life sentences become elig ib le for parole after serving a minimum term of confinement. In re D a n n en b erg , 104 P.3d 783, 785-86 (Cal. 2005). California regulations state that "a life prisoner shall be found unsuitable for and denied parole if in the judgment of th e panel the prisoner will pose an unreasonable risk of danger to society if released from prison." Cal. Code Regs. tit. 15, § 2402(a). In making this su itab ility determination, the BPH looks to factors such as the nature of the co m m itm en t offense, the prisoner's record of violence, social history, behavior in p r is o n , and any other information relevant to whether the prisoner poses an u n reaso n ab le 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

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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). 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 BHP'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 record in this case supports the BPH determination that Anchor was not s u ita b le for parole. As was found by the BPH and state court, the murder was co n d u cted in a cruel and callous manner, and the Board properly relied on this fin d in g in denying parole. See Cal. Code Regs. tit. 15, § 2042(c)(1). Petitioner stru ck his victim over 23 times with a blunt object, and had no apparent motive for d o in g so. See Cal. Code Regs. tit. 15, § 2402(c)(1)(E). The violent nature of the m u rd er thus supports the BPH determination. The Ninth Circuit has also said that a state cannot rely solely on the facts of th e crime of conviction in denying a petitioner parole. See Cooke v. Solis, 606

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F .3 d 1206, 1214 (9th Cir. 2010). The BPH also pointed to the Anchor's escalating p attern of violence prior to the murder and history of substance abuse. These facto rs also provided "some evidence" of Anchor's unsuitability. A n c h o r 's criminal history shows that he was becoming progressively more v io le n t prior to the murder. In 1976, Petitioner got into a fight at a party and then later destroyed the car of his combatant. In 1979, Petitioner beat up his girlfriend's six year old daughter, giving her a black eye and a bloody nose. As the Superior C o u rt also found, this was a particularly senseless murder with no apparent motive. Anchor cannot even recall why he did it because he was on drugs at the time. He ad m its to abusing drugs, including alcohol, cocaine, and heroin, at various points in his life. The BPH was therefore entitled to rely on Anchor's prior violent h is to r y , drug use, and lack of motive in denying him parole because all are su p p o rted by the record. Cal. Code Regs. tit. 15, § 2402(c)(1)(E), (2). The record also provides support for the determination that Anchor has not s u f fic ie n tly participated in prison self-help programs on substance abuse and anger m an ag em en t. While he has maintained a relationship with his mother who he said p ro v id ed a stable upbringing, and Anchor's ex-wife wrote a letter to the BPH s u p p o r tin g his parole, his social history, coupled with the circumstances s u r ro u n d in g the crime and Anchor's history of drug use and violence provides m o re than ample support for the denial of parole on the basis of Anchor's unstable an d violent history. Petitioner also raises a claim challenging California's parole procedures, fo cu sin g on the Governor's supposed policy of denying parole to all murderers. Petitioner, however, failed to raise that claim before the California courts and it is th erefo re unexhausted. See Peterson v. Lampert, 319 F.3d 1153, 1155-57 (9th Cir. 2 0 0 3 ) (en banc) (finding that a claim is unexhausted if it has not been "fairly

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p resen ted " to the state court). It would moreover be pointless to permit Anchor to retu rn to state court because this claim is procedurally barred. See Johnson v. L ew is, 929 F.2d 460, 464 (9th Cir. 1991). Under California law, "a defendant is n o t permitted to try out his contentions piecemeal by successive proceedings a tta ck in g the validity of the judgment against him." In re Clark, 855 P.2d 729, 740 (C al. 1993). Anchor has provided no justification for his failure to raise this claim in his state habeas petition so a California court would reject this claim if Anchor retu rn ed to state court. In any event, this claim is without merit. States have "flex ib ility in deciding what procedures are needed in the context of postconviction r elie f," and California's procedures are consistent with the requirements of federal law . See Hayward, 603 F.3d at 563 (citation omitted). 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 also DENIED because Petitioner has failed to show h is claims are "debatable among reasonable jurists." See Hayward, 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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