Morales v. California Board of Parole Hearings et al

Filing 19

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John L. Weinberg on 8/10/09 RECOMMENDING that the Court find that ptnr's constitutional rights were not violated, that the 6 amended petition be denied and that this action be dismissed with prejudice. Objections to F&R due within 20 days. (Engbretson, K.)

01 02 03 04 05 06 07 08 09 10 11 12 13 14 ) ) Petitioner, ) ) v. ) ) R. J. RUBIA, WARDEN, ) ) Respondent. ) ____________________________________ ) I. SUMMARY PABLO JOSE MORALES, CASE NO. 2:07-cv-00826-RSL-JLW UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

REPORT AND RECOMMENDATION

Petitioner is currently incarcerated at Mule Creek State Prison, in Ione, California. He

15 pleaded nolo contendere to one count of second degree murder in Los Angeles County 16 Superior Court on April 13, 1982. He is currently serving a sentence of fifteen-years-to-life 17 with the possibility of parole and has filed an amended petition for writ of habeas corpus 18 under 28 U.S.C. § 2254 challenging his 2006 denial of parole by the Board of Parole Hearings 19 of the State of California (the "Board").1 (See Dockets 6 & 10.) Petitioner contends his due 20 process rights were violated when the Board denied parole based upon false information 21 contained in an unsigned Probation Officer's Report; that the Board's failure to honor his plea 22 The Board of Parole Hearings replaced the Board of Prison Terms, which was abolished on July 1, 2005. See California Penal Code § 5075(a). REPORT AND RECOMMENDATION - 1
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agreement violated his due process rights; that his equal protection rights under the

02 Fourteenth Amendment were violated when the Board refused to release him pursuant to the 03 GPS tracking system used for sexually violent offenders; and that his sentence is "grossly 04 disproportionate" to his offense in violation of his Eighth Amendment right to be free from 05 cruel and unusual punishment. The Court, having thoroughly reviewed the record and the 06 briefing of both parties, recommends the Court deny the amended petition and dismiss this 07 action with prejudice. 08 09 II. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this

10 amended petition as it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 11 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California Department of 12 Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive 13 vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. 14 denied, 543 U.S. 991 (2004) (providing that § 2254 is "the exclusive vehicle for a habeas 15 petition by a state prisoner in custody pursuant to a state court judgment, even when the 16 petitioner is not challenging his underlying state court conviction."). Under AEDPA, a 17 habeas petition may not be granted with respect to any claim adjudicated on the merits in state 18 court unless petitioner demonstrates that the highest state court decision rejecting his petition 19 was either "contrary to, or involved an unreasonable application of, clearly established 20 Federal law, as determined by the Supreme Court of the United States," or "was based on an 21 unreasonable determination of the facts in light of the evidence presented in the State court 22 proceeding." 28 U.S.C. § 2254(d)(1) and (2).

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As a threshold matter, this Court must ascertain whether relevant federal law was

02 "clearly established" at the time of the state court's decision. To make this determination, the 03 Court may only consider the holdings, as opposed to dicta, of the United States Supreme 04 Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). It is also appropriate to look to 05 lower federal court decisions to determine what law has been "clearly established" by the 06 Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. 07 Ducharme, 200 F.3d 597, 598 (9th Cir. 1999). In this context, Ninth Circuit precedent 08 remains persuasive but not binding authority. See Williams, 529 U.S. at 412-13; Clark v. 09 Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 10 The Court must then determine whether the state court's decision was "contrary to, or

11 involved an unreasonable application of, clearly established Federal law." See Lockyer v. 12 Andrade, 538 U.S. 63, 71 (2003). "Under the `contrary to' clause, a federal habeas court may 13 grant the writ if the state court arrives at a conclusion opposite to that reached by [the 14 Supreme] Court on a question of law or if the state court decides a case differently than [the] 15 Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. 16 "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the 17 state court identifies the correct governing legal principle from [the] Court's decisions but 18 unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all 19 times, a federal habeas court must keep in mind that it "may not issue the writ simply because 20 [it] concludes in its independent judgment that the relevant state-court decision applied clearly 21 established federal law erroneously or incorrectly. Rather that application must also be 22 [objectively] unreasonable." Id. at 411.

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In each case, the petitioner has the burden of establishing that the state court decision

02 was contrary to, or involved an unreasonable application of, clearly established federal law. 03 See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine 04 whether the petitioner has met this burden, a federal habeas court normally looks to the last 05 reasoned state court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley 06 v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). Where, as in this case, the state courts issue 07 summary denials without explaining their reasons, see infra, this Court must conduct an 08 independent review of the record to determine whether the state courts' decisions were 09 contrary or involved an unreasonable application of Supreme Court holdings. See Delgado v. 10 Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). Although our review of the record is conducted 11 independently, we continue to show deference to the state court's ultimate decision. See 12 Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 13 14 III. PRIOR STATE COURT PROCEEDINGS

In his amended federal habeas corpus petition, petitioner presents the same four

15 grounds for relief that he presented to the California Supreme Court. (See Dkt. 6 & Dkt. 10, 16 Exh. E.) Respondent concedes that petitioner's plea agreement claim has been properly 17 exhausted and timely filed, but fails to address in any way the remaining three grounds for 18 relief. (See Dkt. 10 at 2.) Respondent's failure to address all of the allegations in the 19 amended petition appears to be an oversight and is in violation of Rule 5(b) of the Rules 20 Governing Section 2254 Cases in the United States District Courts, which requires respondent 21 to address all allegations presented in a habeas corpus petition. In light of the already lengthy 22 delay in this case, however, the Court has independently reviewed the record and determined

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that petitioner properly presented all four claims to the state's highest court. (See id., Exh. E.)

02 See 28 U.S.C. § 2254(b)(3); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[s]tate 03 prisoners must give the state courts one full opportunity to resolve any constitutional issues by 04 invoking one complete round of the State's established appellate review process"); Gatlin v. 05 Madding, 189 F.3d 882, 888 (9th Cir. 1999) (holding that California law requires presentation 06 of claims to the California Supreme Court through petition for discretionary review in order to 07 exhaust state court remedies). Accordingly, I recommend the Court find that petitioner has 08 properly exhausted all four grounds for relief. 09 Once it has been determined that a petitioner's claims have been exhausted, this Court

10 typically looks to the state court's orders upholding the Board's decision to determine whether 11 they meet the deferential AEDPA standard. See Ylst, 501 U.S. at 803-04. In denying the 12 petition, the Los Angeles County Superior Court issued a one-paragraph decision addressing 13 petitioner's plea agreement claim. (See Dkt. 10, Exh. D.) Like respondent, it failed to 14 address petitioner's three remaining claims. (See id.) As discussed supra, when a state court 15 issues a decision on the merits but does not provide a reasoned decision, we review the record 16 independently to determine whether that decision was objectively reasonable. See Delgado, 17 223 F.3d at 982. Accordingly, this Court must conduct an independent review of three of 18 petitioner's four grounds for relief. 19 20 21 22 IV. BACKGROUND

The Board's 2006 report summarized the facts of the crime as follows: ....the deceased['s] son, Dwight Washabaugh, resident of Colorado testified he last spoke with his mother by phone on June 27, 1980, at which time she was in her home in Soquel. A

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missing [person] report had been filed on the deceased on or about the end of July 1980. An investigation was initiated by detectives from the Los Angeles Police Department, Robbery Homicide Division and the Santa Cruz County Sheriff's Department. On July 7, 1980 a human hand was found by officers of the Los Angeles Police Department in the traffic lane on the northbound Hollywood freeway at Vermont. On August 7, 1980 fingerprint identification disclosed that the human hand was that of Mrs. Washabaugh. It was then learned that defendant Morales had obtained possession of the deceased's vehicle and used her credit card forging her name. At the time of the arrest, the defendant was in possession of the deceased's car, purse, credit cards and her diamond rings, which lead [sic] to the conviction of Morales. The victim had become interested in prison reform and started visiting prison inmates, including Morales,...whom she saw frequently while he was incarcerated at Soledad. Then he was transferred to [a] Los Angeles area half way house on April 14, 1980 in anticipation of an upcoming parole, the deceased visited Los Angeles for one day on April 30, 1980 and was secretly married [to petitioner].

12 (Dkt. 10, Exh. C at 25-26.) 13 Petitioner pled nolo contendere to second degree murder on April 13, 1982, in Los

14 Angeles County Superior Court. (See Dkt. 17, Exh. F.) He began serving his sentence of 15 fifteen-years-to-life with the possibility of parole on July 13, 1982. (See Dkt. 10, Exh. C at 1.) 16 His minimum eligible parole date was set for August 2, 1990. (See id.) Petitioner has been 17 incarcerated for approximately twenty-seven years for this offense. 18 The parole denial, which is the subject of the amended petition, followed a parole

19 hearing held on January 20, 2006. During the hearing, counsel for petitioner notified the 20 Board that petitioner wished to make "two objections, a motion and offer evidence i[n] 21 mitigation." (See id. at 2.) The issues raised at the Board hearing are the same issues 22 presented in this petition. (See id. at 2-11.) The Board overruled petitioner's objections and

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denied his motion and offer of evidence in mitigation. (See id. at 11-12.) After the Board's

02 ruling, petitioner excused himself from the hearing, as planned. (See id. at 11.) His counsel 03 was present for the remainder of the hearing. (See id.) While this was not petitioner's first 04 "subsequent parole consideration hearing," it is unclear from the record how many such 05 hearings have been held. Regardless, it is safe to assume that this was not his first hearing 06 and that all prior applications have been denied. Petitioner's next parole consideration 07 hearing is scheduled for 2010. (See Dkt. 6, Memorandum in Support at 3.) 08 09 10 V. A. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS Due Process Right to be Released on Parole

Before we consider petitioner's claims, we must first determine whether petitioner has

11 a constitutionally protected liberty interest in parole. Under the Fifth and Fourteenth 12 Amendments to the United States Constitution, the government is prohibited from depriving 13 an inmate of life, liberty or property without the due process of law. U.S. Const. amends. V, 14 XIV. A prisoner's due process claim must be analyzed in two steps: the first asks whether the 15 state has interfered with a constitutionally protected liberty or property interest of the 16 prisoner, and the second asks whether the procedures accompanying that interference were 17 constitutionally sufficient. Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Sass 18 v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006). 19 The Supreme Court articulated the governing rule in the parole arena in Greenholtz v.

20 Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 482 U.S. 369 21 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying "the `clearly 22 established' framework of Greenholtz and Allen" to California's parole scheme). The Court

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in Greenholtz determined that although there is no constitutional right to be conditionally

02 released on parole, if a state's statutory scheme employs mandatory language that creates a 03 presumption that parole release will be granted if certain designated findings are made, the 04 statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 12; Allen, 05 482 U.S. at 377-78. 06 As discussed infra, California statutes and regulations afford a prisoner serving an

07 indeterminate life sentence an expectation of parole unless, in the judgment of the parole 08 authority, he "will pose an unreasonable risk of danger to society if released from prison." 09 Title 15 Cal. Code Regs., § 2402(a). The Ninth Circuit has therefore held that "California's 10 parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion, 11 306 F.3d at 902. To similar effect, Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) held 12 that California Penal Code § 3041 vests all "prisoners whose sentences provide for the 13 possibility of parole with a constitutionally protected liberty interest in the receipt of a parole 14 release date, a liberty interest that is protected by the procedural safeguards of the Due 15 Process Clause." This "liberty interest is created, not upon the grant of a parole date, but 16 upon the incarceration of the inmate." Biggs v. Terhune, 334 F.3d 910, 915 (2003). See also 17 Sass, 461 F.3d at 1127. 18 Because the Board's denial of parole interfered with petitioner's constitutionally-

19 protected liberty interest, this Court must proceed to the second step in the procedural due 20 process analysis and determine whether the procedures accompanying that interference were 21 constitutionally sufficient. "[T]he Supreme Court [has] clearly established that a parole 22 board's decision deprives a prisoner of due process with respect to this interest if the board's

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decision is not supported by `some evidence in the record.'" Irons, 505 F.3d at 851 (citing

02 Superintendent v. Hill, 472 U.S. 445, 457 (1985) (holding the "some evidence" standard 03 applies in prison disciplinary proceedings)). The "some evidence" standard requires this 04 Court to determine "whether there is any evidence in the record that could support the 05 conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56. Although Hill 06 involved the accumulation of good time credits rather than release on parole, later cases have 07 held that the same constitutional principles apply in the parole context because both situations 08 directly affect the duration of the prison term. See e.g., Jancsek v. Or. Bd. of Parole, 833 F.2d 09 1389, 1390 (9th Cir. 1987) (adopting the "some evidence" standard set forth by the Supreme 10 Court in Hill in the parole context); accord, Sass, 461 F.3d at 1128-29); Biggs, 334 F.3d at 11 915; McQuillion, 306 F.3d at 904. 12 "The fundamental fairness guaranteed by the Due Process Clause does not require

13 courts to set aside decisions of prison administrators that have some basis in fact," however. 14 Hill, 472 U.S. at 456. Similarly, the "some evidence" standard is not an invitation to examine 15 the entire record, independently assess witnesses' credibility, or re-weigh the evidence. Id. at 16 455. Instead, it is there to ensure that an inmate's loss of parole was not arbitrarily imposed. 17 See id. at 454. The Court in Hill added an exclamation point to the limited scope of federal 18 habeas review when it upheld the finding of the prison administrators despite the Court's 19 characterization of the supporting evidence as "meager." See id. at 457. 20 21 B. California's Statutory and Regulatory Scheme

In order to determine whether "some evidence" supported the Board's decision with

22 respect to petitioner, this Court must consider the California statutes and regulations that

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govern the Board's decision-making. See Biggs, 334 F.3d at 915. Under California law, the

02 Board is authorized to set release dates and grant parole for inmates with indeterminate 03 sentences. See Cal. Penal Code § 3040 and 5075, et seq. Section 3041(a) requires the Board 04 to meet with each inmate one year before the expiration of his minimum sentence and 05 normally set a release date in a manner that will provide uniform terms for offenses of similar 06 gravity and magnitude with respect to their threat to the public, as well as comply with 07 applicable sentencing rules. Subsection (b) of this section requires that the Board set a release 08 date "unless it determines that the gravity of current convicted offense or offenses, or the 09 timing and gravity of current or past convicted offense or offenses, is such that consideration 10 of the public safety requires a more lengthy period of incarceration." Id., § 3041(b). Pursuant 11 to the mandate of § 3041(a), the Board must "establish criteria for the setting of parole release 12 dates" which take into account the number of victims of the offense as well as other factors in 13 mitigation or aggravation of the crime. The Board has therefore promulgated regulations 14 § 2402, et seq. 15 Accordingly, the Board is guided by the following regulations in making a

16 determination whether a prisoner is suitable for parole: 17 18 19 20 21 22 (b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present (a) General. The panel 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 panel the prisoner will pose an unreasonable risk of danger to society if released from prison.

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mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.

08 15 CCR § 2402(a) and (b). Subsections (c) and (d) also set forth suitability and unsuitability 09 factors to further assist the Board in analyzing whether an inmate should be granted parole, 10 although "the importance attached to any circumstance or combination of circumstances in a 11 particular case is left to the judgment of the panel." 15 CCR § 2402(c). 12 In examining its own statutory and regulatory framework, the California Supreme

13 Court in In re Lawrence recently held that the proper inquiry for a reviewing court is 14 "whether some evidence supports the decision of the Board ... that the inmate constitutes a 15 current threat to public safety, and not merely whether some evidence confirms the existence 16 of certain factual findings." In re Lawrence, 44 Cal.4th 1181, 1212 (2008). The court also 17 asserted that the Board's decision must demonstrate "an individualized consideration of the 18 specified criteria, but "[i]t is not the existence or nonexistence of suitability or unsuitability 19 factors that forms the crux of the parole decision; the significant circumstance is how those 20 factors interrelate to support a conclusion of current dangerousness to the public." Id. at 21 1204-05, 1212. As long as the evidence underlying the Board's decision has "some indicia of 22 reliability," parole has not been arbitrarily denied. See Jancsek, 833 F.2d at 1390. As the

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California courts have continually noted, the Board's discretion in parole release matters is

02 very broad. See Lawrence, 44 Cal.4th at 1204. Thus, the penal code, corresponding 03 regulations, and California law clearly establish that the fundamental consideration in parole 04 decisions is public safety and an assessment of a prisoner's current dangerousness. See id., at 05 1205-06. 06 07 C. Summary of Governing Principles

By virtue of California law, petitioner has a constitutional liberty interest in release on

08 parole. The parole authorities may decline to set a parole date only upon a finding that 09 petitioner's release would present an unreasonable present risk of danger to society if he is 10 released from prison. Where the parole authorities deny release, based upon an adverse 11 finding on that issue, the role of a federal habeas court is narrowly limited. It must deny relief 12 if there is "some evidence" in the record to support the parole authority's finding of present 13 dangerousness. The penal code, corresponding regulations, and California law clearly support 14 the foregoing interpretation. 15 16 VI. PARTIES' CONTENTIONS

Petitioner's first argument is that his due process rights were violated when the Board

17 relied upon false information contained in the unsigned Probation Officer's Report and 18 fingerprint card. (See Dkt. 6, Memorandum in Support at 2-4.) He requests that such 19 information be expunged from his prison file and that he be granted a new parole hearing 20 absent such false information. (See id. at 3-4.) Petitioner also contends that his due process 21 rights were violated when the Board rendered its decision contrary to the terms of his plea 22 agreement, which he claims promised him a determinate ten-year sentence. (See id. at 4-7.)

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In addition, he claims that his Fourteenth Amendment right to equal protection was violated

02 when the Board refused to release him pursuant to the GPS tracking system used for sexually 03 violent offenders. (See id. at 7-8.) Finally, he contends that the Board's finding violated his 04 Eighth Amendment right to be free from cruel and unusual punishment by imposing a 05 "sentence" that is "grossly disproportionate" to his crime. (See id. at 10.) 06 As discussed, supra, respondent only addresses petitioner's plea agreement claim,

07 stating that petitioner's rights were not violated by the Board's 2006 decision, and that the 08 Los Angeles County Superior Court's Order upholding the Board's parole denial was not an 09 unreasonable application of clearly established federal law. (See Dkt. 10 at 4-5 & Dkt. 17.) 10 11 12 VII. A. ANALYSIS OF RECORD IN THIS CASE Due Process Right to Expunge False Information from Prison File

Petitioner claims that his due process rights were violated when the Board denied him

13 parole based upon an unsigned 1982 Probation Officer's Report allegedly containing false 14 information and an unsigned fingerprint card. He requests that all erroneous information be 15 expunged from his central prison file and that he be granted a new parole hearing. Because 16 the relief petitioner seeks ­ a new parole hearing absent consideration of allegedly false 17 information ­ does not directly challenge the fact or duration of his confinement, the Court's 18 next step is typically to determine whether habeas corpus jurisdiction is lacking. See Docken 19 v. Chase, 393 F.3d 1024, 1028 (9th Cir. 2004) (discussing how U.S. Supreme Court and Ninth 20 Circuit precedent have handled the "interplay between § 1983 and habeas in the parole 21 // 22

//

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context... [specifically] with regard to the reach of habeas jurisdiction over parole-related

02 prisoner suits").2 03 In cases in which a due process right to an accurate prison record is alleged, however,

04 it is advisable to restrain from delving into the distinction between habeas corpus and civil 05 rights jurisdiction and to, instead, focus first upon whether there is in fact a constitutional due 06 process right at stake. See Bennett v. Curry, 2008 WL 2563223, *3-4 (E.D. Cal. 2008) 07 (unpublished) (discussing the interaction between habeas and civil rights actions and 08 concluding that whether there is an actual constitutional violation takes precedent). 09 Prior to 1995, it was fairly well-established that a prisoner had a limited due process

10 right to have false information expunged from a prison file, (1) if he could show that the 11 erroneous information was in his file, (2) that such information was actually false, and (3) that 12 // 13 14 15 16 17 18 19 20 21 22
The appellate and district courts in this Circuit continue to grapple with the jurisdictional distinction. Compare Lettier v. Ayers, 299 Fed. Appx. 717, 718 (9th Cir. 2008) (unpublished) (affirming dismissal of petition because prison officials' retention of a report allegedly containing false information was "too speculative to establish habeas corpus jurisdiction"), and Santibanez v. Marshall, 2009 WL 1873044 (C.D. Cal. June 30, 2009) (unpublished) (holding prisoner's speculation that negative information regarding administrative discipline contained in his prison file would affect his parole hearing and therefore the length of his confinement was too speculative to confer habeas jurisdiction), with Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (holding "[h]abeas corpus jurisdiction exists when a petitioner seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole"); Woods v. Palmer, 2009 WL 1684502 (E.D. Cal. June 9, 2009) (finding action to expunge prison file containing a false psychiatric report and to have a new parole hearing was not cognizable under §1983 and must be brought under § 2254), and Noor v. Martell, 2009 WL 1942895, *4 (E.D. Cal. July 2, 2009) (holding "because petitioner has submitted sufficient evidence to show that he is likely to suffer collateral consequences from the challenged disciplinary action, habeas jurisdiction exists").
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the decision maker was likely to rely upon it "to a constitutionally significant degree." Paine

02 v. Baker, 595 F.2d 197, 201 (4th Cir.), cert. denied, 444 U.S. 925 (1979).3 03 In 1995, the United States Supreme Court decided Sandin v. Conner, based upon on a

04 somewhat similar set of facts ­ a prisoner serving a indeterminate sentence sought removal of 05 a misconduct charge in his disciplinary record on the grounds that his due process rights were 06 violated in the disciplinary hearing. 515 U.S. 472, 474-77 (1995). The Court in Sandin held 07 that a liberty interest implicating the Due Process Clause only exists where the prisoner can 08 demonstrate that the State action at issue would "inevitably affect the duration of his 09 sentence." Id. at 487. Because "[t]he chance that a finding of misconduct will alter the 10 balance [at his parole hearing] is simply too attenuated to invoke the procedural guarantees of 11 the Due Process Clause," the Court found that the prisoner did not have a protected liberty 12 interest. Id. Accordingly, the Court in Sandin heightened the requirement of proof articulated 13 in Paine (i.e., that the decision maker was likely to rely upon it "to a constitutionally 14 significant degree"). The applicable standard in this case is therefore whether "the false 15 information will inevitably lengthen the duration of the inmate's incarceration." Rio v. 16 Schwarzenegger, 2009 WL 1657438 (C.D. Cal. June 10, 2009) (discussing the existence of a 17 liberty interest implicating the Due Process Clause pre- and post-Sandin). 18 Petitioner in this case cannot make the requisite showing under Sandin, as he is unable

19 to demonstrate that the false information would "inevitably lengthen" the duration of his 20
3

21 Unfortunately, the Ninth Circuit Court of Appeals does not appear to have published an opinion

There is a long line of unpublished circuit and district court authority relying on Paine.

22 prisoner's file, pre- or post-Sandin. See Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987)

directly addressing whether there is an independent due process right to have accurate information in a (holding that because the State of Washington had a state-created right to an accurate prison record, it need not reach whether an independent due process right existed).

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confinement. The Board was apprised of petitioner's concerns and determined that in light of

02 petitioner's lack of cooperation with the probation officer's interview process the officer did 03 the best she could do by relying upon other investigative resources. (See Dkt. 10, Exh. C at 04 12.) In fact, the probation officer's report is transparent in this regard ­ it makes clear that 05 petitioner refused to discuss his case or to provide a written statement, and specifically 06 identifies the alternative resources upon which she relied.4 (See id., Exh. B at 12.) This 07 approach was in compliance with Probation Department policy. (See Dkt. 6, Exh. B.) 08 Accordingly, the Board read the report with petitioner's concerns in mind and considered all 09 reliably documented information, as permitted by 15 CCR § 2402(b). 10 In addition, and possibly because of this, the Board did not rely solely upon either of

11 petitioner's murder convictions in rendering its decision. Instead, it focused upon other 12 unsuitability factors, such as petitioner's lack of adequate parole plans, failure to participate in 13 education or vocational training, and psychological report indicating "an extreme antisocial 14 and dysfunctional orientation ... to life." (See Dkt. 10, Exh. C at 23-24.) These factors were 15 independent of the information contained in the Probation Officer's Report or the fingerprint 16 card. 17 Because the Board was aware of petitioner's allegations, was able to evaluate the

18 credibility of the information before it, and relied upon multiple other factors in rendering its 19
4

20 correct the record, both during the Probation Officer's interview process and during his subsequent
have the entire report removed from his file.

This Court also recognizes that petitioner has consistently been afforded an opportunity to

21 He alleges that portions of the report are incorrect, he will not correct the inaccuracies, and he seeks to 22

parole suitability hearings. While it is his right not to discuss his case, he has chosen a difficult path.

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decision, the likelihood that petitioner would have been found suitable for parole if the

02 allegedly false information was removed from his file is "simply too attenuated to invoke the 03 procedural guarantees of the Due Process Clause." Sandin, 515 U.S. at 487. Without a due 04 process right, petitioner cannot state a cognizable due process claim, regardless of whether the 05 claim was presented in a habeas corpus petition or civil rights complaint. See Bennett, 2008 06 WL 2563223 at *5-6. I therefore recommend that this claim be denied. 07 08 B. Violation of the Plea Agreement

Petitioner's second ground for relief alleges that the Board's denial of parole failed to

09 comply with the negotiated terms of his plea agreement, thereby violating his federal 10 constitutional due process rights. (See Dkt. 6, Memorandum in Support at 4 -7.) Petitioner 11 maintains that under the plea agreement, he would be paroled after serving "about ten-years" 12 as long as he remained discipline-free during that time. (See id. at 4-5.) Petitioner has now 13 served more than twenty-seven years in prison and has remained discipline-free throughout 14 his incarceration. (See id. at 5.) He claims that his attorney, the prosecutor, and the court 15 agreed to the above terms and that this Court should direct the Board to grant him parole in 16 compliance with this agreement. In support of his contention, petitioner points the Court to 17 the transcript of the plea colloquy. Petitioner provided the Court with a portion of the plea 18 colloquy, apparently typed by petitioner, or by someone assisting him with his petition. (Id. at 19 6.) He argues that the transcript together with the holding in Brown v. Poole, warrant his 20 release on parole. 337 F.3d 1155 (9th Cir. 2003) (holding that a prosecutor's oral promise 21 during the plea colloquy is part of the contract between the defendant and the State and 22 entitles a defendant to specific performance of the promise).

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In the answer, respondent summarily dismissed petitioner's claim, citing Buckley v.

02 Terhune, a case that was overruled by an en banc panel of the Ninth Circuit Court of Appeals 03 more than a year before the answer was filed. See Buckley v. Terhune, 397 F.3d 1149 (9th 04 Cir. 2005), rev'd by, 441 F.3d 688 (9th Cir. 2006) (en banc). Respondent failed to address 05 petitioner's argument under Brown, and did not provide the Court with any transcript or 06 written documentation of the plea agreement or plea colloquy, or indicate what portions of 07 such transcript(s) were available, as required by Rule 5(c) of the Rules Governing Section 08 2254 Cases in the United States District Courts. Accordingly, supplemental briefing was 09 ordered. (See Dkt 16.) Both parties have now filed supplemental briefs, and respondent has 10 provided the Court with a copy of plea colloquy transcript. (See Dkt. 17, Exh. F & Dkt. 18.) 11 "Plea agreements are contractual in nature and are measured by contract law

12 standards." Brown, 337 F.3d at 1159 (quoting United States v. De la Fuente, 8 F.3d 1333, 13 1337 (9th Cir.1993)). Although a criminal defendant has a due process right to enforce the 14 terms of a plea agreement, see Santobello v. New York, 404 U.S. 257, 261-62 (1971), there is 15 no evidence that petitioner's subjective expectations about how parole would be decided were 16 part of the plea agreement. Petitioner has not pointed to any language in any plea agreement 17 that shows that any particular term in his plea agreement has been breached. As stated above, 18 petitioner claims that his attorney, the prosecutor, and the court agreed that he would be 19 paroled after "about ten years" if he did not receive any disciplinary violations. Petitioner has 20 presented no document or record citation to support that statement, however. 21 There is no language in the transcript of the plea colloquy that states petitioner would

22 be paroled so long as he was discipline-free and there is no basis in the record to support a

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reasonable inference that his plea agreement carried a guarantee of release. Although there is

02 a discussion on the record regarding the minimum amount of time he "could" serve, this does 03 not rise to the level of guarantee. In Brown, the prosecutor stated: 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 [n]ow, if you behave yourself at the state prison, as most people do, and I am inclined to believe that you will, you are going to get out in half the time. You get half of that 15 years off, or half of that 17 years off with the imposition of the extra two years, for good time/work-time credits. That's up to you. 337 F.3d at 1157-58 (emphasis added). Thus, the prosecutor in Brown promised the defendant that he would "get out in half the time" if he behaved himself in prison. Id. at 1158. Unlike Brown, the prosecutor in this case merely stated that petitioner "could be released quite a bit earlier than 15-years," and that "the minimum could be as little as ten years," but that "the maximum that [he] could serve would be the rest of your life in state prison." (Dkt. 17, Exh. F at 37, emphasis added.) He went on to say that "[t]his would be a decision reached by the authorities at the state prison. Do you understand that?" (Id.) To which petitioner responded, "I understand." (Id.) It is clear that the prosecutor's statements were simply meant to inform petitioner of the possibility of parole, but were not meant to guarantee it. Petitioner's traverse appears to admit as much. (See Dkt. 18 at 3, stating "[petitioner] believed that the District Attorney's words encouraged possible early parole.") His citation in his traverse to INS v. St. Cyr does not resurrect this claim. See INS v. St. Cyr, 533 U.S. 289 (2001) (holding impermissible the retroactive application of AEDPA and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 100 Stat. 3009, to aliens who pled guilty before the effective dates of the Acts and would have been eligible for § 212(c) relief on the date of their plea).

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To the extent petitioner believed this language guaranteed him actual release on

02 parole, however, he has failed to demonstrate that such a term existed in his plea agreement. 03 The possibility of parole is not equivalent to a finding of suitability, and under state law (as it 04 existed when he was sentenced and as it exists now) an inmate must be found suitable before 05 his release date is set. Petitioner's sentence was based on a plea agreement of fifteen-years06 to-life. Petitioner has received the parole considerations to which he was entitled under that 07 agreement and sentence. 08 Because the language in the transcript does not reflect a promise that petitioner would

09 be paroled at any time short of the maximum term of life, petitioner has failed to satisfy his 10 burden of showing he is entitled to the issuance of the writ. See Silva v. Woodford, 279 F.3d 11 825, 835 (9th Cir. 2002) (petitioner's burden to show he is in custody in violation of the 12 constitution). The fact that the portion of the sentencing transcript petitioner transcribes 13 includes a passage indicating that the sentencing judge sentenced him "for 15 - -" and does 14 not state "to life", does not alter this conclusion. The plea colloquy was clear. Accordingly, 15 the Court finds "some evidence" in the record to support the state court's decision and finds 16 no constitutional violation occurred. 17 18 C. Violation of the Equal Protection Clause

Petitioner also contends that his right to equal protection under the Fourteenth

19 Amendment was violated when the Board found him unsuitable for parole. (See Dkt. 6, 20 Memorandum in Support at 7-8.) Petitioner contends that a new California Penal Code 21 section authorizing the Board to condition parole upon an inmate's agreement to be monitored 22 electronically should have been considered by the Board in his case. More specifically,

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petitioner contends that because violent sex offenders are offered this as a condition of parole,

02 the same condition should be available to him. The amended petition offers little analysis in 03 support of his claim, and respondent fails to address this issue on the merits. (See id. & 04 Dkt. 10.) The Board is required to review the specific facts of each case and to make an 05 individualized determination as to whether that prisoner is suitable for parole. See In re 06 Lawrence, 44 Cal.4th at 1221. Even if this Court were to assume that all sexually violent 07 offenders were similarly situated to all violent offenders and to petitioner, the Board made the 08 requisite individualized determination and found petitioner unsuitable for parole based upon 09 all available conditions of release. The Court therefore finds "some evidence" in the record to 10 support the Board's decision not to parole petitioner subject to electronic monitoring and finds 11 no constitutional violation occurred. 12 13 D. Violation of the Eighth Amendment

Petitioner argues that the Board's decision to deny him a parole release date

14 constitutes cruel and unusual punishment in violation of the Eighth Amendment. (See Dkt. 6, 15 Memorandum in Support at 8.) The United States Supreme Court has held that a life sentence 16 is constitutional, even for a non-violent property crime. See Rummel v. Estelle, 445 U.S. 263, 17 274 (1980) (holding that "the length of the sentence actually imposed is purely a matter of 18 legislative prerogative"); Harmelin v. Michigan, 501 U.S. 957, 962-64 (1990). Accordingly, a 19 life sentence for a murder such as that committed by petitioner does not constitute cruel and 20 unusual punishment. See Banks v. Kramer, 2009 WL 256449 (E.D. Cal. 2009) (unpublished) 21 (holding that a Board's refusal to release a prisoner who was sentenced to sixteen years-to-life 22

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for murder does not constitute cruel and unusual punishment). Thus, the Board's decision did

02 not violate petitioner's Eighth Amendment right. 03 04 VIII. CONCLUSION

Given the totality of the Board's findings, there is "some evidence" in the record that

05 petitioner's release date as of the Board's 2006 decision would have posed an unreasonable 06 risk to public safety. The Los Angeles County Superior Court's order upholding the Board's 07 decision was therefore not contrary to, or an unreasonable application of, clearly established 08 federal law, or based on an unreasonable determination of facts. Because the Board and the 09 state courts' ultimate decisions were supported by "some evidence," there is no need to reach 10 respondent's argument that another standard applies. Accordingly, I recommend the Court 11 find that petitioner's constitutional rights were not violated, that the amended petition be 12 denied and that this action be dismissed with prejudice. 13 This Report and Recommendation is submitted to the United States District Judge

14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days 15 after being served with this Report and Recommendation, any party may file written 16 objections with this Court and serve a copy on all parties. Such a document should be 17 captioned "Objections to Magistrate Judge's Report and Recommendation." Failure to file 18 objections within the specified time may waive the right to appeal the District Court's Order. 19 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). A proposed order accompanies this 20 Report and Recommendation. 21 22 DATED this 10th day of August, 2009.

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JOHN L. WEINBERG United States Magistrate Judge

A