Protopappas v. Kramer

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John L. Weinberg on 7/30/2009 recommending that 1 Petition for Writ of Habeas Corpus filed by Tony Protopappas be denied and dismissed with prejudice. Objections to F&R due w/in 20 days. (Matson, R)

01 02 03 04 05 06 07 08 09 10 11 12 13 14 ) ) Petitioner, ) ) v. ) ) M. KRAMER, Warden, ) ) Respondent. ) ____________________________________ ) I. SUMMARY TONY PROTOPAPPAS, CASE NO. 2:07-cv-00901-RSL-JLW UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

REPORT AND RECOMMENDATION

Petitioner Tony Protopappas is currently incarcerated at the Folsom State Prison in

15 Folsom, California. He was convicted by a jury of three counts of second degree murder in 16 Orange County Superior Court on July 31, 1984, and sentenced to three terms of 15-years-to17 life with the possibility of parole, which he is serving concurrently. He has filed a petition for 18 writ of habeas corpus under 28 U.S.C. § 2254 challenging the 2006 denial of parole by the 19 Board of Parole Hearings of the State of California (the "Board").1 Respondent has filed an 20 answer to the petition together with relevant portions of the state court record, and petitioner 21 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).
1

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01 has filed a traverse in response to the answer. The briefing is now complete and this matter is 02 ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, 03 recommends the petition be denied and this action be dismissed with prejudice. 04 05 II. BACKGROUND

Prior to the commission of the instant offenses, petitioner was licensed to practice as a

06 dentist and oral surgeon, which included the administration of general anesthesia. (See 07 Docket 1 at 2, fn.1; id., Exhibit F at 3.) Petitioner was operating his own dental practice in 08 Costa Mesa, California, when he killed three of his patients by administering lethal overdoses 09 of local and general anesthesia during various dental procedures. (See id., Ex. F at 1-3.) The 10 evidence at trial showed that petitioner knew his conduct endangered the life of each victim, 11 but he nevertheless acted with deliberate and conscious disregard for their safety. (See Dkt. 12 10, Ex. 5 at 1.) At the time of the murders, petitioner was also abusing alcohol, cocaine, and 13 opiates on a daily basis. (See Dkt. 1, Ex. F at 3.) 14 Petitioner's Life Prisoner Evaluation report, which was prepared in September 2005,

15 set forth the following relevant facts: 16 17 18 19 20 21 22 "On September 30, 1982, Kim M. Andreassen went to the defendant's dental office for dental work and was placed under general anesthetic with a combination of drugs. Several times during the dental procedures, Ms. Andreassen's breathing was noted to be shallow, resulting in oxygen being administered to her by the defendant. Upon completion of the dental work, Ms. Andreassen began gasping for air. Oxygen was administered; paramedics arrived and found her in cardiac arrest. She was transported to Hoag Hospital where she was pronounced dead on arrival. During the investigation it was revealed Ms. Andreassen was under doctor's care and her personal physician had been contacted several days before her scheduled appointment and he advised that only a local anesthetic be administered to her. Reportedly, she insisted on a general anesthetic. An

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01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19

employee at the dental office told a police investigator when the defendant was told of [the] patient's insistence, he replied, "If I put her to sleep, that will be her death for sure." On February 8, 1983, Patricia M. Craven went to the defendant's office for dental work. She was placed under general anesthetic through intravenous administration of a combination of drugs. Ms. Craven stopped breathing, but began breathing again after the defendant administered oxygen. Dr. Badea, an employee of the defendant[,] performed some dental work on Ms. Craven over the next several hours, during this time additional anesthetics were administered to the patient several times. When Dr. Badea finished her dental work with Ms. Craven, she advised the defendant and he indicated that he would extract Ms. Craven's wisdom teeth. Additional drugs were administered to keep her unconscious. Upon completion of the dental work, staff members were unable to awaken her. The defendant administered Narcan to her to counteract the anesthetics. One of the defendant's employees wheeled Ms. Craven to her mother's car. She was placed on the front seat of the vehicle. Her mother, Mrs. Russ, drove Ms. Craven to [their] residence. A short time later Mrs. Russ observed her daughter's breathing became shallow and heard a gurgling noise in her throat. Paramedics were summoned: they determined she was in cardiac arrest and transported her to Mission Community Hospital, where she died on February 19, 1983. On February 11, 1983, Mrs. Cathryn Jones went to the defendant's office to have all her teeth removed. She was placed under general anesthetic through the use of intravenous injections of drugs. A short time later, Mrs. Jones' fingernails were turning blue. An assistant noticed the patient's condition, at which time Protopappas became upset and said "this is what happens in this office all the time. You don't know what is blue." The defendant administered oxygen and injected Narcan into Mrs. Jones in an attempt to counteract the effects of the anesthetic. When it was determined that Mrs. Jones had no detectable pulse, paramedics were summoned and found her to be in cardiac arrest. She was transported to Hoag Hospital, where she died on February 13, 1983."

20 (See Dkt. 1, Ex. F at 1-2.) 21 In an opinion published in part, the California Court of Appeal also set forth a

22 detailed description of petitioner's offenses, which petitioner asserts he "accepts" as

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01 an accurate depiction of the facts. (See Dkt. 1, Ex. A at 1-6; id., Ex. B at 60.) The 02 California Court of Appeal summarized its factual findings as follows: 03 04 05 06 07 People v. Protopappas, 201 Cal.App.3d 152, 171-72 (1988). 08 Petitioner was convicted by a jury of three counts of second degree murder based upon 09 a theory of "implied malice" in Orange County Superior Court on July 25, 1984. (See Dkt. 1, 10 Ex. A; Dkt. 10, Ex. 1.) Petitioner's minimum eligible parole date was set for October 22, 11 1993. (See Dkt. 1, Ex. B at 1.) The parole denial which is the subject of this petition took 12 place after a parole hearing held on January 19, 2006. (See id.) This was petitioner's fourth 13 parole consideration hearing. (See id., Ex. G.) As of the date of the 2006 parole hearing, 14 petitioner was sixty-years-old, and had been in custody for approximately twenty-one years. 15 (See id., Ex. G at 5.) 16 After denial of his 2006 application, petitioner filed habeas corpus petitions in the 17 Orange County Superior Court, California Court of Appeal, and California Supreme Court. 18 (See Dkt. 10, Exs. 5, 6 and 7.) Those petitions were unsuccessful. (See id., Exs. 5, 6 and 7.) 19 This federal habeas petition followed. Petitioner contends the 2006 denial by the Board 20 violated his Fifth and Fourteenth Amendment Due Process rights. Thus, petitioner does not 21 challenge the validity of his conviction, but instead challenges the Board's 2006 decision 22 "Petitioner did not supply proper general anesthesia or tailor the dosage to the patient. Without the patient's authorization he substituted surrogate dentists who were neither licensed nor qualified to administer general anesthesia. He instructed them to give improperly preset dosages for extended periods with little or no personal supervision and caused multiple patients to receive ever increasing amounts of general anesthesia at the same time, none of them enjoying his undivided attention. He was also habitually slow in reacting to the resulting overdoses; and in the case of Craven, simply abandoned her."

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01 finding him unsuitable for parole. 02 03 III. STANDARD OF REVIEW

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

04 petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 05 320, 326-27 (1997). Because petitioner is in custody of the California Department of 06 Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive 07 vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. 08 denied, 543 U.S. 991 (2004) (providing that § 2254 is "the exclusive vehicle for a habeas 09 petition by a state prisoner in custody pursuant to a state court judgment, even when the 10 petitioner is not challenging his underlying state court conviction."). Under AEDPA, a habeas 11 petition may not be granted with respect to any claim adjudicated on the merits in state court 12 unless petitioner demonstrates that the highest state court decision rejecting his petition was 13 either "contrary to, or involved an unreasonable application of, clearly established Federal 14 law, as determined by the Supreme Court of the United States," or "was based on an 15 unreasonable determination of the facts in light of the evidence presented in the State court 16 proceeding." 28 U.S.C. § 2254(d)(1) and (2). 17 As a threshold matter, this Court must ascertain whether relevant federal law was

18 "clearly established" at the time of the state court's decision. To make this determination, the 19 Court may only consider the holdings, as opposed to dicta, of the United States Supreme 20 Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit 21 precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 22 331 F.3d 1062, 1069 (9th Cir. 2003).

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01

The Court must then determine whether the state court's decision was "contrary to, or

02 involved an unreasonable application of, clearly established Federal law." See Lockyer v. 03 Andrade, 538 U.S. 63, 71 (2003). "Under the `contrary to' clause, a federal habeas court may 04 grant the writ if the state court arrives at a conclusion opposite to that reached by [the 05 Supreme] Court on a question of law or if the state court decides a case differently than [the] 06 Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. 07 "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the 08 state court identifies the correct governing legal principle from [the] Court's decisions but 09 unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all 10 times, a federal habeas court must keep in mind that it "may not issue the writ simply because 11 [it] concludes in its independent judgment that the relevant state-court decision applied clearly 12 established federal law erroneously or incorrectly. Rather that application must also be 13 [objectively] unreasonable." Id. at 411. 14 In each case, the petitioner has the burden of establishing that the state court decision

15 was contrary to, or involved an unreasonable application of, clearly established federal law. 16 See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine 17 whether the petitioner has met this burden, a federal habeas court looks to the last reasoned 18 state court decision because subsequent unexplained orders upholding that judgment are 19 presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 20 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). 21 Finally, AEDPA requires federal courts to give considerable deference to state court

22 decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1).

REPORT AND RECOMMENDATION -6

01 Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. 02 Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 03 (9th Cir. 1993)). 04 05 06 IV. A. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS Due Process Right to be Released on Parole

Under the Fifth and Fourteenth Amendments to the United States Constitution, the

07 government is prohibited from depriving an inmate of life, liberty or property without the due 08 process of law. U.S. Const. amends. V, XIV. A prisoner's due process claim must be 09 analyzed in two steps: the first asks whether the state has interfered with a constitutionally 10 protected liberty or property interest of the prisoner, and the second asks whether the 11 procedures accompanying that interference were constitutionally sufficient. Ky. Dep't of 12 Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 13 1123, 1127 (9th Cir. 2006). 14 Accordingly, our first inquiry is whether petitioner has a constitutionally protected

15 liberty interest in parole. The Supreme Court articulated the governing rule in this area in 16 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 482 17 U.S. 369 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying 18 "the `clearly established' framework of Greenholtz and Allen" to California's parole scheme). 19 The Court in Greenholtz determined that although there is no constitutional right to be 20 conditionally released on parole, if a state's statutory scheme employs mandatory language 21 that creates a presumption that parole release will be granted if certain designated findings are 22 made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7,

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01 12; Allen, 482 U.S. at 377-78. 02 As discussed infra, California statutes and regulations afford a prisoner serving an

03 indeterminate life sentence an expectation of parole unless, in the judgment of the parole 04 authority, he "will pose an unreasonable risk of danger to society if released from prison." 05 Title 15 Cal. Code Regs., § 2402(a). The Ninth Circuit has therefore held that "California's 06 parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion, 07 306 F.3d at 902. To similar effect, Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) held 08 that California Penal Code § 3041 vests all "prisoners whose sentences provide for the 09 possibility of parole with a constitutionally protected liberty interest in the receipt of a parole 10 release date, a liberty interest that is protected by the procedural safeguards of the Due 11 Process Clause." This "liberty interest is created, not upon the grant of a parole date, but 12 upon the incarceration of the inmate." Biggs v. Terhune, 334 F.3d 910, 915 (2003). See also 13 Sass, 461 F.3d at 1127. 14 Because the Board's denial of parole interfered with petitioner's constitutionally-

15 protected liberty interest, this Court must proceed to the second step in the procedural due 16 process analysis and determine whether the procedures accompanying that interference were 17 constitutionally sufficient. "[T]he Supreme Court [has] clearly established that a parole 18 board's decision deprives a prisoner of due process with respect to this interest if the board's 19 decision is not supported by `some evidence in the record.'" Irons, 505 F.3d at 851 (citing 20 Superintendent v. Hill, 472 U.S. 445, 457 (1985) (holding the "some evidence" standard 21 applies in prison disciplinary proceedings)). The "some evidence" standard requires this 22 Court to determine "whether there is any evidence in the record that could support the

REPORT AND RECOMMENDATION -8

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

09 courts to set aside decisions of prison administrators that have some basis in fact," however. 10 Hill, 472 U.S. at 456. Similarly, the "some evidence" standard is not an invitation to examine 11 the entire record, independently assess witnesses' credibility, or re-weigh the evidence. Id. at 12 455. Instead, it is there to ensure that an inmate's loss of parole was not arbitrarily imposed. 13 See id. at 454. The Court in Hill added an exclamation point to the limited scope of federal 14 habeas review when it upheld the finding of the prison administrators despite the Court's 15 characterization of the supporting evidence as "meager." See id. at 457. 16 17 B. California's Statutory and Regulatory Scheme

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

18 respect to petitioner, this Court must consider the California statutes and regulations that 19 govern the Board's decision-making. See Biggs, 334 F.3d at 915. Under California law, the 20 Board is authorized to set release dates and grant parole for inmates with indeterminate 21 sentences. See Cal. Penal Code § 3040 and 5075, et seq. Section 3041(a) requires the Board 22 to meet with each inmate one year before the expiration of his minimum sentence and

REPORT AND RECOMMENDATION -9

01 normally set a release date in a manner that will provide uniform terms for offenses of similar 02 gravity and magnitude with respect to their threat to the public, as well as comply with 03 applicable sentencing rules. Subsection (b) of this section requires that the Board set a release 04 date "unless it determines that the gravity of current convicted offense or offenses, or the 05 timing and gravity of current or past convicted offense or offenses, is such that consideration 06 of the public safety requires a more lengthy period of incarceration." Id., § 3041(b). Pursuant 07 to the mandate of § 3041(a), the Board must "establish criteria for the setting of parole release 08 dates" which take into account the number of victims of the offense as well as other factors in 09 mitigation or aggravation of the crime. The Board has therefore promulgated regulations 10 setting forth the guidelines it must follow when determining parole suitability. See 15 CCR 11 § 2402, et seq. 12 Accordingly, the Board is guided by the following regulations in making a

13 determination whether a prisoner is suitable for parole: 14 15 16 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 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. (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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01 15 CCR § 2402(a) and (b). Subsections (c) and (d) also set forth suitability and unsuitability 02 factors to further assist the Board in analyzing whether an inmate should be granted parole, 03 although "the importance attached to any circumstance or combination of circumstances in a 04 particular case is left to the judgment of the panel." 15 CCR § 2402(c). 05 In examining its own statutory and regulatory framework, the California Supreme

06 Court in In re Lawrence recently held that the proper inquiry for a reviewing court is 07 "whether some evidence supports the decision of the Board ... that the inmate constitutes a 08 current threat to public safety, and not merely whether some evidence confirms the existence 09 of certain factual findings." Id., 44 Cal.4th 1181, 1212 (2008). The court also asserted that 10 the Board's decision must demonstrate "an individualized consideration of the specified 11 criteria, but "[i]t is not the existence or nonexistence of suitability or unsuitability factors that 12 forms the crux of the parole decision; the significant circumstance is how those factors 13 interrelate to support a conclusion of current dangerousness to the public." Id. at 1204-05, 14 1212. As long as the evidence underlying the Board's decision has "some indicia of 15 reliability," parole has not been arbitrarily denied. See Jancsek, 833 F.2d at 1390. As the 16 California courts have continually noted, the Board's discretion in parole release matters is 17 very broad. See Lawrence, 44 Cal.4th at 1204. Thus, the penal code, corresponding 18 regulations, and California law clearly establish that the fundamental consideration in parole 19 decisions is public safety and an assessment of a prisoner's current dangerousness. See id., at 20 1205-06. 21 22

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01 02

C.

Summary of Governing Principles

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

03 parole. The parole authorities may decline to set a parole date only upon a finding that 04 petitioner's release would present an unreasonable present risk of danger to society if he is 05 released from prison. Where the parole authorities deny release, based upon an adverse 06 finding on that issue, the role of a federal habeas court is narrowly limited. It must deny relief 07 if there is "some evidence" in the record to support the parole authority's finding of present 08 dangerousness. The penal code, corresponding regulations, and California law clearly support 09 this definition of the issues. 10 11 V. PARTIES' CONTENTIONS

Petitioner contends that the Board violated his state and federal due process rights by

12 finding him unsuitable for parole without some evidence that he poses an unreasonable risk of 13 danger to society if released from prison.2 (See Dkt. 1 at 2 and 14-45.) Petitioner also argues 14 that what he calls "the Dannenberg standard," as well as the "heinous, atrocious, and cruel" 15 standard set forth by the regulations in section 2402(c)(1), are unconstitutionally vague on 16 their face and as applied to him. (See id. at 46-55.) Finally, petitioner asserts that his First 17 and Fourteenth Amendment rights were violated when the Board denied him a parole date 18 because he refused to participate in state-sponsored religious self-help programs, such as 19 Alcoholics Anonymous ("AA") or Narcotics Anonymous ("NA"). (See id. at 55-60.) 20 21
We do not reach petitioner's claim that his state due process rights were violated, as state claims are not cognizable in a federal habeas petition. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (asserting that "it 22 is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").
2

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01

Respondent claims that petitioner does not have a constitutionally protected liberty

02 interest in being released on parole, that the "some evidence" standard is inapplicable in this 03 context, and that even if he does have a protected liberty interest, the Board adequately 04 predicated its denial of parole on "some evidence." (See Dkt. 10 at 4-9.) Accordingly, 05 respondent argues that petitioner's due process rights were not violated by the Board's 2006 06 decision, and the Orange County Superior Court's Order upholding the Board's 2006 parole 07 denial was not an unreasonable application of clearly established federal law. (See id. at 9.) 08 Finally, respondent asserts that the Board did not mandate petitioner's participation in AA or 09 NA, and therefore petitioner's First and Fourteenth Amendments rights were not violated by 10 the Board's denial of a parole date. (See id.) 11 12 13 VI. A. ANALYSIS OF RECORD IN THIS CASE State Court Proceedings

Petitioner's habeas petitions filed in the California Court of Appeal and California

14 Supreme Court contained the same claims as his Orange County Superior Court petition, and 15 both petitions were summarily denied. (See Dkt. 10, Exs. 5-7.) The parties agree that 16 petitioner has properly exhausted his state court remedies, and timely filed the instant petition. 17 (See Dkt. 1 at 3; Dkt. 10 at 3.) This Court reviews the Orange County Superior Court's Order 18 upholding the Board's decision to determine whether it meets the deferential AEDPA 19 standards, as it is the last reasoned state court decision. See Ylst, 501 U.S. at 803-04. 20 In a reasoned decision denying petitioner's request for habeas relief, the Orange

21 County Superior Court asserted that based upon its review of the record, the Board adequately 22 considered all of the suitability and unsuitability factors required by law. (See Dkt. 10, Ex. 5

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01 at 3.) The superior court noted, however, that the Board "found that the positive factors did 02 not outweigh the factors of unsuitability." (See id.) After summarizing the Board's findings, 03 the superior court concluded that "[t]he Board's determination of unsuitability was supported 04 by `some evidence', and constitutes neither an abuse of discretion nor a denial of due 05 process." (See id.) In addition, the superior court found that "[p]etitioner's claim that the 06 Board may not continue to rely on the commitment offense is ... without merit," because the 07 Board's findings "conform[ed] to the present state of the law." (See id. at 4.) 08 Regarding petitioner's claim that the Board's self-help recommendation effectively

09 mandated his participation in a religiously-based program in violation of the First 10 Amendment, the superior court concluded that petitioner's contention was unsupported by the 11 record. (See id.) The superior court asserted, "First, the Board made clear that it did not 12 mandate NA or AA attendance. Second, the record reflects that other types of programs are 13 available in prison. While the Board noted that NA and AA are the most readily available 14 programs of this type, it stated that other programs are periodically made available to 15 inmates." (See id.) Finally, the superior court stated that petitioner's "failure to attend self16 help programs was only one of several reasons which the Board gave for its two-year denial. 17 Because the other reasons independently support the two-year denial, his First Amendment 18 claim, even if meritorious, would not change the result." (See id.) 19 20 B. Petitioner's Due Process Claim

The Board based its decision that petitioner was unsuitable for parole primarily upon

21 his three commitment offenses, but also cited his unstable social history, insufficient 22 participation in self-help programming, unfavorable psychological evaluation, and law

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01 enforcement's continued opposition to petitioner's release on parole. (See Dkt. 1, Ex. B at 6902 71.) The Board's findings tracked the applicable unsuitability and suitability factors listed in 03 § 2402(b), (c) and (d) of title 15 of the California Code of Regulations. After considering all 04 reliable evidence in the record, the Board concluded that evidence of petitioner's positive 05 behavior in prison did not outweigh evidence of his unsuitability for parole. (See id. at 72.) 06 The Board primarily relied upon the circumstances of petitioner's three commitment

07 offenses to find petitioner unsuitable for parole. (See id., at 69.) The Board found that 08 "multiple victims were killed in separate incidents," because petitioner killed three of his 09 female patients on different dates. (See id.) Specifically, he killed a twenty-three-year-old 10 woman, a thirty-one-year-old woman, and a thirteen-year-old girl. (See id.) In addition, 11 petitioner's "offenses were carried out in a manner which demonstrates an exceptionally 12 callous disregard for human suffering in that these victims were extremely vulnerable and 13 unsuspecting. They had gone in for dental work and trusting themselves and their well being 14 to the inmate as a professional dentist and subsequently lost their lives when administered 15 faulty doses [of] anesthesia...." (See id. at 69-70.) See also 15 CCR § 2402(c)(1)(A) and (D). 16 The circumstances surrounding petitioner's three commitment offenses provides "some 17 evidence" to support the Board's conclusion that petitioner would present a danger to society 18 if released from prison. 19 The second unsuitability factor relied upon by the Board was petitioner's unstable

20 social history, including his long term abuse of narcotics and alcohol. (See Dkt. 1, Ex. B at 21 23-24 and 70.) The Board based its finding upon evidence in the record regarding petitioner's 22 abuse of alcohol, cocaine, and opiates, as well as his statements during the hearing. (See id. at

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01 23-24 and 70.) Petitioner also admitted to the panel that he was abusing alcohol and narcotics 02 at the time of the commitment offense, which "contributed to [his] bad judgment...." (See id. 03 at 23-24.) Because the Board could reasonably conclude that petitioner's long history of drug 04 and alcohol abuse could make him unpredictable and a threat to others, especially in light of 05 his failure to complete any kind of alcohol or drug treatment program in prison, the Board's 06 finding was supported by "some evidence" in the record. (See id., at 84.) 07 The third factor relied upon by the Board to deny parole was petitioner's insufficient

08 participation in "beneficial self-help programs" in prison, including any kind of substance 09 abuse programming. (See id. at 55 and 70.) Although petitioner has been incarcerated for 10 over two decades, he has only participated in two self-help programs, and he completed both 11 programs in 2003. (See id. at 54-55.) Specifically, petitioner completed a personal growth 12 seminar and a seven-part video lecture series on dealing with conflict and confrontation. (See 13 id.) The Board noted that although several panels in the past have asked petitioner to 14 participate in additional self-help programs and substance abuse programs because of his long 15 history of "self-professed substance abuse," petitioner has declined to participate because 16 programs like AA or NA involve "substantial religious content" and "for some reason I can't 17 participate in something that has a ­ I don't like to be told how to practice my faith." (See id. 18 at 49.) Petitioner claims that he has "tried to do [his] own self realization type of program." 19 (See id.) He asserts, "I'm trying to be honest with myself [regarding] what the causes were 20 [of the crimes] so I've engaged in my own self-realization program and I think that I've been 21 pretty good about it." (See id. at 50.) 22

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01

In its decision, the Board recommended that "if available, [petitioner] participate in

02 self-help programming ... [although] this is in no way a mandate for AA or NA." (Id. at 73.) 03 The Board explained that it recommended those two substance abuse programs because at any 04 point in time "NA and AA are readily available in the institution as well as on the outside." 05 (Id. at 73-74.) The Board also reminded petitioner, however, that "[t]here are other self06 programs that come and go, depending on budget issues and things like that," and petitioner 07 should take advantage of those programs when they are available. (See id. at 73.) The Board 08 concluded that "we need to be as sure as humanly possible that [your drug and alcohol abuse] 09 is not going to come up again ... you have to be able to assure the board that your plan is in 10 place and that you have a fall back system." (See id. at 74.) Because the Board could 11 reasonably conclude that petitioner's own assessment that he has engaged in sufficient self12 reflection to prevent himself from relapsing into drug and alcohol abuse or other criminal 13 behavior is insufficient evidence that he would not pose a present danger to society if released 14 on parole, the Board's finding was supported by "some evidence." 15 The fourth factor relied upon by the Board was petitioner's most recent psychological

16 evaluation, which was prepared by a senior psychologist in December 2005. (See id. at 52 17 and 71.) The Board noted that following three negative psychological evaluations in 1987, 18 1990, and 1992, petitioner declined to participate in future evaluations until December 2005. 19 (See id. at 53-54.) The 2005 psychological evaluation also recommended against petitioner's 20 release on parole. (See id. at 71.) Specifically, the 2005 report described petitioner's daily 21 habit of abusing alcohol, cocaine, and opiates prior to his incarceration, and asserted that 22 petitioner's "significant risk factors or precursors to violence ... include history of substance

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01 abuse, lack of insight into factors leading to the life crime and lack of genuine remorse for the 02 victims." (Id. at 54.) As a result, the psychologist concluded that petitioner "needs to pursue 03 the additional self-help programming which is essential to his adjustment and needs additional 04 time to gain such programming." (Id. at 73.) 05 During the hearing, the panel acknowledged petitioner's argument that his December

06 2005 interview lasted only 45 minutes, which petitioner felt was an insufficient period of 07 time. (See id. at 52-53.) Although the Board asserted that it developed a greater 08 "understanding of the inmate's level of remorse and insight [through] our conversation" 09 during the hearing, it concluded that the 2005 psychological evaluation was still a factor 10 weighing against a finding of suitability. (See id. at 71.) Especially in light of the fact that all 11 of petitioner's psychological evaluations during his two decades of incarceration have 12 recommended against a finding of suitability for parole, petitioner's 2005 psychological 13 evaluation provided "some evidence" to support the Board's conclusion. 14 Finally, the Board considered the Orange County District Attorney's statement of

15 opposition to petitioner's parole. (See id. at 72.) Pursuant to California Penal Code 16 Regulation § 3041.7, a prosecutor may attend a parole hearing to represent "the interests of 17 the people." In the absence of other reliable evidence of unsuitability in the record, 18 opposition by law enforcement based upon the nature of the commitment offense does not 19 constitute "some evidence" to support parole denial. See Rosenkrantz v. Marshall, 444 F. 20 Supp. 2d 1063, 1080 n.14 (C.D. Cal. 2006) (providing that where a district attorney and 21 sheriff's department opposed parole based solely upon the gravity of the commitment offense, 22 their opposition did not constitute "some evidence" because it was "merely cumulative" of the

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01 Board's findings regarding the offense). Because the Board relied upon other reliable 02 evidence of petitioner's unsuitability for parole, however, its additional consideration of law 03 enforcement's opposition was not arbitrary and capricious. See id. 04 Contrary to petitioner's argument that the Board failed to consider or give appropriate

05 weight to the parole suitability rules which favored petitioner, the Board acknowledged that 06 petitioner "does not have a juvenile record, does not have an adult record [or] a record of 07 violence or any arrests or convictions." (See Dkt. 1, Ex. B at 23, 25 and 70.) The Board 08 noted that petitioner has "numerous offers of residential plans [as well as] acceptable 09 employment plans either as a dental technician in the dental field, not as a dentist, and also in 10 the legal field as evidenced by numerous letters of offers of employment as well as 11 residence...." (See id. at 71.) The Board also commended petitioner for being discipline free 12 for 19 years, and for his "work in the dental lab as well as other numerous laudatory 13 chromos." (See id. at 72.) 14 It is therefore an inaccurate characterization of the record to say that the Board failed

15 to provide petitioner with an "individualized consideration of all relevant factors." (See Dkt. 16 1 at 25.) As mentioned above, the Board has broad discretion to determine how suitability 17 and unsuitability factors interrelate to support its conclusion of current dangerousness to the 18 public. See Lawrence, 44 Cal.4th at 1212. Despite petitioner's recent gains, the Board 19 determined that he remains an unreasonable risk of danger to society if released on parole, 20 and these findings were supported by "some evidence" in the record. (See id., Ex. B at 69 and 21 72.) 22

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01 02

C.

Petitioner's "Vagueness" Claim Regarding "the Dannenberg Standard"

Petitioner contends that "the Dannenberg standard, `that the violence or viciousness of

03 the inmate's crime must be more than minimally necessary to convict him of the offense for 04 which he is confined,' is unconstitutionally vague because there is no set of `minimally 05 necessary circumstances' set forth in the law, [the standard] is unreviewable, and can be 06 arbitrarily and capriciously applied to every murder." (See Dkt. 1 at 46-50.) See also In re 07 Dannenberg, 34 Cal.4th 1061, 1071 (2005) (providing that "the Board must point to factors 08 beyond the minimum elements of the crime for which the inmate was committed" to deny a 09 parole date). Petitioner asserts that his Fourteenth Amendment due process rights were 10 violated when "the Dannenberg standard" was applied to his case, because it "allowed the 11 Board to arbitrarily and capriciously apply § 2402(c)(1)(A) [multiple victims] and 12 § 2402(c)(1)(D) [exceptionally callous disregard for human suffering] to petitioner's case 13 based entirely on their subjective personal opinions to deny parole." (See id. at 50.) Thus, 14 petitioner argues "the Dannenberg standard" is unconstitutionally vague on its face, and as 15 applied to him. (See id. at 46.) 16 Since the Orange County Superior Court issued its decision denying petitioner's

17 request for habeas relief, the California Supreme Court clarified its holding in Dannenberg. 18 Specifically, the California Supreme Court explained in Lawrence that the relevant inquiry is 19 no longer whether "the circumstances of the offense exhibit viciousness above the minimum 20 elements required for conviction of that offense ... [but] whether the circumstances of the 21 commitment offense, when considered in light of the other facts in the record, are such that 22 they continue to be predictive of current dangerousness many years after commission of the

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01 offense." See Lawrence, 44 Cal.4th at 1221. During petitioner's 2006 hearing, the Board 02 clearly found that petitioner's commitment offenses continued to be predictive of his current 03 dangerousness based on the suitability and unsuitability factors as discussed supra in section 04 VI, subsection B. (See Dkt. 1, Ex. B at 69.) Even though the Orange County Superior Court 05 applied "the Dannenberg standard" and held that petitioner's level of disregard for human 06 suffering exceeded the minimum elements of a second degree murder offense, its conclusion 07 was correct. (See Dkt. 10, Ex. 5 at 4.) The circumstances surrounding the commitment 08 offense, together with the facts in the record, support a finding of current dangerousness. The 09 United States Supreme Court has long held that where a trial court's decision is correct, it 10 must be upheld upon review, even though the court relied upon the wrong ground. See Brown 11 v. Allen, 344 U.S. 443, 458-59 (1953). Accordingly, petitioner's contentions are unavailing. 12 13 D. Petitioner's "Vagueness" Claim Regarding Section 2402(c)(1)

Petitioner contends that section 2402(c)(1), which contains the "especially heinous,

14 atrocious, or cruel" standard, is unconstitutionally vague on its face and as applied to his case. 15 (See Dkt. 1 at 50-55.) He also claims that subdivisions (A) and (D), which the Board found 16 applied to petitioner's offenses, are unconstitutionally vague. (See id. at 50-51 and 54-55.) 17 Petitioner primarily relies upon the United States Supreme Court decision Maynard v.

18 Cartwright, 486 U.S. 356 (1988), as support for his assertions. (See id.) The Maynard court 19 asserted that "[v]agueness challenges to statutes not threatening First Amendment interests are 20 examined in light of the facts of the case at hand ... [and] judged on an as-applied basis." 21 Maynard, 486 U.S. at 361. The Supreme Court then held that Oklahoma's "aggravating 22 circumstance" statute, which included the language "especially heinous, atrocious, or cruel"

REPORT AND RECOMMENDATION -21

01 and set forth factors rendering a defendant convicted of first degree murder eligible for the 02 death penalty, was unconstitutionally vague. See id. at 363-64. Specifically, the Supreme 03 Court asserted that the Oklahoma statute failed to guide and channel jury discretion, as an 04 ordinary person could believe every unjustified and intentional taking of life was "especially 05 heinous," and the appellate court had failed to apply a limiting construction that would have 06 eliminated the constitutional problem. See id. at 363-65. 07 The Oklahoma "aggravating circumstances" statute at issue in Maynard resembled

08 California's "aggravating" or "special circumstance" statute in certain respects. See People v. 09 Lewis, 43 Cal.4th 415, 516 fn.27 (2008) (noting that "aggravating circumstances" under 10 Oklahoma's capital scheme are analogous to California's "special circumstances," but holding 11 that California's "lying-in-wait" special circumstance was not unconstitutionally vague); 12 People v. Superior Court (Engert), 31 Cal.3d 797, 801-03 (1982) (holding that section 13 190.2(a)(14) of the California Penal Code, which listed "especially heinous, atrocious or 14 cruel" murders as a "special circumstance," was unconstitutionally vague). Section 15 2402(c)(1) of title 15 of the California Code of Regulations, however, governs parole 16 suitability determinations, and is part of an entirely distinct regulatory framework than capital 17 punishment schemes like the one at issue in Maynard. Petitioner's attempt at drawing 18 comparisons between these very different laws, simply because both contain the words 19 "especially heinous, atrocious or cruel," is unconvincing. (See Dkt. 1 at 51-53.) 20 21 22 Furthermore, California courts recently considered whether section 2402(c)(1) is

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01 unconstitutionally vague in In re Lewis, 172 Cal.App.4th 13 (2009).3 In Lewis, the Santa 02 Clara County Superior Court held evidentiary hearings for three days, and considered expert 03 analysis of 2,690 parole suitability hearing transcripts conducted by the Board during thirteen 04 randomly-selected months between July 31, 2002, and June 30, 2006. See Lewis, 172 05 Cal.App.4th at 17. At the conclusion of the hearings, the superior court concluded that 06 section 2402(c)(1) was not unconstitutionally vague on its face, because the "factors in 07 subdivisions (A)-(E) provide ... clear limiting construction to the term `especially heinous, 08 atrocious, or cruel'...." Id. at 24. The superior court found the regulations unconstitutionally 09 vague "as applied," however, because "[i]n every case, the Board had determined at some 10 point in time that every inmates' crime was `especially heinous, atrocious or cruel' [under 11 section 2402(c)]." Id. at 24. "[A]n as applied challenge assumes that the statute or ordinance 12 violated is valid and asserts that the manner of enforcement against a particular individual or 13 individuals or the circumstances in which the statute or ordinance is applied is 14 unconstitutional." Id. at 27-28 (quoting Tobe v. City of Santa Ana, 9 Cal.4th 1069, 1089 15 (1995)). The superior court reasoned that because the Board could not have found that 100% 16 of cases involved "especially heinous, atrocious and cruel" offenses, the Board's decision in 17 every hearing which resulted in the denial of parole must not have been based upon the 18 requisite individualized consideration. See id. at 24-25. As a result, the superior court 19 concluded the Board was applying the regulations arbitrarily, and the regulations were void 20
3

21 [And four other cases.]" The four other case names, which are included in a footnote, are In re Morris Leon
Super.Ct. No. 71614).

The California Court of Appeal's caption for this case is "In re Donald Ray Lewis, on Habeas Corpus.

Bragg (No. H032045, Super.Ct. No. 108543), In re Viet Mike Ngo (No. H032046, Super.Ct. No. 127611), In re

22 Donnell Eugene Jameison (No. H032047, Super.Ct. No. 71194), and In re Arthur S. Criscione (No. H032048,

REPORT AND RECOMMENDATION -23

01 for vagueness. Id. at 25. 02 On appeal, the California Court of Appeal reversed, citing the lower court's failure to

03 construe the applicable regulations as a whole. See id. at 27-28. Specifically, the Court of 04 Appeal asserted that "[i]f the Board's analysis of an inmate's parole suitability depended 05 solely upon a finding that the inmate's commitment offense was `especially heinous, atrocious 06 or cruel' and the Board routinely made such a finding, this would present compelling 07 evidence that the Board was undertaking a formulaic application of the parole suitability 08 regulations in violation of inmates' due process rights." Id. at 29. The applicable regulations, 09 however, "direct the Board to consider many factors before determining whether or not a 10 particular inmate is suitable for parole ­ whether or not the commitment offense was or was 11 not `especially heinous, atrocious or cruel' is but one of those factors." Id. Because the 12 relevant determination for the Board is whether, based upon an evaluation of each of the 13 statutory factors, an inmate remains a danger to public safety, "the Board's findings that 14 certain suitability or unsuitability factors, e.g., whether or not the commitment offense was 15 `exceptionally heinous, atrocious, or cruel,' exist in a particular case are secondary to the 16 Board's analysis and explanation of how those factors combine to support its ultimate 17 decision to either grant or deny parole to a particular inmate." Id. at 28. See also Lawrence, 18 44 Cal.4th at 1227. Thus, the California Court of Appeal concluded that in order to review an 19 "as applied" challenge, a court must "[review] the Board's decision ... [to determine] whether 20 or not the Board's conclusion that a particular inmate poses a current danger to society is 21 supported by the Board's analysis of the various unsuitability and suitability factors...." 22 Lewis, 172 Cal.App.4th at 29. The "salient question" is whether the Board "fail[ed] to

REPORT AND RECOMMENDATION -24

01 demonstrate how all the applicable regulatory factors interrelate to supports its conclusion that 02 the inmate is currently dangerous to society?" Id. at 29. 03 Application of the California Court of Appeal's decision in Lewis to petitioner's case

04 reveals that his vagueness challenges are unavailing. California courts have found that 05 section 2402(c)(1) survives a facial challenge for unconstitutional vagueness because the 06 "factors in subdivisions (A)-(E) provide ... clear limiting construction to the term `especially 07 heinous, atrocious, or cruel'...." Id. at 24. Petitioner also fails to cite any authority that 08 supports his claim that subdivisions (A) and (D), which reference the existence of multiple 09 victims and an offense "carried out in a manner which demonstrates an exceptionally callous 10 disregard for human suffering," are unconstitutionally vague. (See Dkt. 1 at 54-55.) In 11 addition, petitioner's claim that section 2402(c)(1) is unconstitutionally vague "as applied" to 12 his case lacks merit, because the Board did not "fail to demonstrate how all the applicable 13 regulatory factors interrelate to supports its conclusion that the inmate is currently dangerous 14 to society" during his 2006 hearing. Lewis, 172 Cal.App.4th at 29. The Board analyzed 15 multiple suitability and unsuitability factors on the record, and relied upon petitioner's three 16 commitment offenses, unstable social history, insufficient participation in self-help 17 programming, unfavorable psychological evaluation, and opposition by law enforcement to 18 find petitioner unsuitable for parole because the "positive aspects of [petitioner's] behavior do 19 not outweigh the factors [of] unsuitability...." (See Dkt. 1, Ex. B at 69-72.) Accordingly, 20 petitioner failed to meet his burden of demonstrating that section 2402(c)(1) was 21 unconstitutionally vague, either on its face or as applied. 22

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01 02

E.

Petitioner's First and Fourteenth Amendment Claim

With respect to petitioner's First and Fourteenth Amendment claim, this Court agrees

03 with the reasoning set forth by the Orange County Superior Court in its Order. (See Dkt. 10, 04 Ex. 5 at 4.) The Board did not mandate petitioner's participation in AA or NA. (See Dkt. , 05 Ex. B at 73.) Rather, the Board indicated that petitioner should take advantage of the other 06 types of self-help or substance abuse programs which become available in Folsom State 07 Prison, and put some kind of drug relapse prevention plan in place because of his long history 08 of drug abuse. (See id. at 73-75.) Finally, petitioner's First Amendment claim, even if 09 meritorious, would not affect this Court's consideration of his habeas petition because 10 petitioner's insufficient self-help programming was only one of several sufficient reasons 11 given by the Board to support its unsuitability finding. (See id. at 69-75; Dkt. 10, Ex. 5 at 4.) 12 13 VII. CONCLUSION

As stated above, it is beyond the authority of a federal habeas court to determine

14 whether evidence of suitability outweighs the circumstances of the commitment offense, 15 together with any other reliable evidence of unsuitability for parole. The Board has broad 16 discretion to determine how suitability and unsuitability factors interrelate to support its 17 conclusion of current dangerousness to the public. See Lawrence, 44 Cal.4th at 1212. 18 Although the Board praised petitioner's good behavior and progress in prison, it determined 19 that petitioner remains an unreasonable risk of danger to society if released on parole. 20 Because the state court decision upholding the Board's findings satisfies the "some evidence" 21 standard, there is no need to reach respondent's argument that another standard applies. 22

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01

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

02 currently poses a threat to public safety, and the Orange County Superior Court's Order 03 upholding the Board's decision was not contrary to, or an unreasonable application of, clearly 04 established federal law, or based on an unreasonable determination of facts. I therefore 05 recommend that the Court find that petitioner's due process rights were not violated, and that 06 it deny his petition and dismiss this action with prejudice. 07 This Report and Recommendation is submitted to the United States District Judge

08 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days 09 after being served with this Report and Recommendation, any party may file written 10 objections with this Court and serve a copy on all parties. Such a document should be 11 captioned "Objections to Magistrate Judge's Report and Recommendation." Failure to file 12 objections within the specified time may waive the right to appeal the District Court's Order. 13 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). A proposed order accompanies this 14 Report and Recommendation. 15 16 17 18 19 20 21 22 DATED this 30th day of July, 2009.

JOHN L. WEINBERG United States Magistrate Judge

A

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