Killingsworth v. Board of Parole Hearings et al

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John L. Weinberg on 8/25/09 Recommending that Petition for writ of habeas corpus 1 be denied. Within twenty days after being served with this Findings and Recommendations, any party may file written objections with this Court and serve a copy on all parties. These Findings and Recommendations are submitted to U.S. District Judge Robert S. Lasnik. (Mena-Sanchez, L)

01 02 03 04 05 06 07 MARTIN A. KILLINGSWORTH, 08 09 10 11 12 13 14 I. SUMMARY ) ) Petitioner, ) ) v. ) ) BOARD OF PAROLE HEARINGS, ) ) Respondent. ) ____________________________________ ) UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

CASE NO. 2:07-cv-01333-RSL-JLW

REPORT AND RECOMMENDATION

Petitioner Martin Killingsworth is currently incarcerated at the California State Prison,

15 Solano in Vacaville, California. He was convicted by a jury of attempted murder in the first 16 degree and assault with a firearm in Sacramento County Superior Court on June 15, 1994, and 17 sentenced to an indeterminate term of life with the possibility of parole. (See Docket 9, 18 Exhibit 1 at 1-2.) Petitioner was also subsequently convicted of possession of a controlled 19 substance for sale with a weapons enhancement on July 21, 1994. (See id. at 2.) Petitioner 20 has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging the 2006 21 denial of parole by the Board of Parole Hearings of the State of California (the "Board").1 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

REPORT AND RECOMMENDATION -1

01 Respondent has filed an answer to the petition together with relevant portions of the state 02 court record, and petitioner has filed a traverse in response to the answer. The briefing is now 03 complete and this matter is ripe for review. The Court, having thoroughly reviewed the 04 record and briefing of the parties, recommends the petition be denied and this action be 05 dismissed with prejudice. 06 07 II. BACKGROUND

During the hearing, the Board relied upon the description of the offense set forth by

08 the California Court of Appeal. (See Dkt. 1, Ex. A at 7.) The victim in this case, David 09 Jones, was at the Sutter Memorial Hospital in Sacramento to receive treatment for his hand, 10 which had been injured in a fight at his house the day of the shooting. (See id. at 8.) The 11 victim's girlfriend, Diane Matteson, and the estranged girlfriend of the defendant, Marie Bell, 12 accompanied the victim to the hospital. (See id.) Matteson and Jones were also acquainted 13 with petitioner. (See id.) Petitioner arrived at the hospital and began arguing with Bell, at 14 which time the victim told petitioner to leave because he was troubling Matteson. (See id.) 15 Outside the emergency room, Bell hid from petitioner in some bushes while the victim and 16 Matteson called security for help. (See id.) The hospital security guard responded, and as he 17 drove to the emergency room he saw a man in the hospital parking lot pushing a white Toyota 18 Celica through the lot. (See id.) The security guard got a good look at the man from 19 approximately five to eight feet away, and he identified him at trial as petitioner. (See id.) 20 When the guard found Bell hiding in the bushes, she asked him, in a panic, whether he had 21 seen a man pushing a car. (See id.) The guard then drove Bell to Matteson's car. (See id.) 22

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01

As the victim, Matteson, and Bell drove away from the hospital together, Bell hid

02 from petitioner by lying down in the backseat. (See id. at 8-9.) Petitioner was sitting in his 03 car at the end of the street, waiting for Matteson's car to exit the hospital parking lot. (See id. 04 at 9.) A chase ensued, and then ended when petitioner blocked Matteson's car from entering 05 an intersection. (See id.) The victim got out of Matteson's car and approached petitioner's 06 vehicle. (See id.) According to Matteson's testimony at trial, she saw petitioner point a 07 handgun at the victim and fire. (See id.) After the victim fell to the ground, and started to 08 crawl away, while holding his chest, petitioner fired two or three more shots at the victim. 09 (See id.) The victim's testimony confirmed Matteson's account of the crime. (See id.) On 10 the night of the shooting, Bell also told a Sacramento Police Officer that petitioner had shot 11 the victim. (See id.) At trial, however, after Bell had reconciled with petitioner and started 12 living with him, she denied having lifted her head up from the backseat. (See id. at 9-10.) 13 Petitioner denied having shot the victim, and testified that he was out of town on the night of 14 the shooting. (See id. at 10.) 15 Petitioner, through counsel, declined to discuss the details of the offense with the

16 panel during the hearing. (See id. at 4-5.) The Board, however, read into the record an 17 account of the crime given by petitioner during an interview on April 13th, 2004. (See id. at 18 10-13.) Petitioner stated that he was trying to locate Bell on the day of the shooting, and was 19 told that Bell had driven the victim to the hospital. (See id. at 11.) Earlier that day, the victim 20 had come to petitioner's home and accused him of pouring acid on Bell. (See id.) After 21 petitioner "[s]hined them on," the victim allegedly threatened to "take out" petitioner in the 22 future. (See id.) At the hospital that evening, after petitioner searched and waited for Bell, Matteson and the victim cut off petitioner's vehicle as he attempted to exit the hospital REPORT AND RECOMMENDATION -3

01 parking lot. (See id. at 12.) Matteson and the victim exited their car, and the victim began 02 hitting petitioner in his car with a metal rod. (See id.) After the two alleged assailants got 03 back in their vehicle and drove towards the hospital, petitioner started towards his home. (See 04 id.) While stopped at an intersection in his vehicle, Matteson's car pulled up behind his and 05 the rear window of his vehicle shattered. (See id.) Thinking that the victim had fired a gun at 06 him, he fired three rounds through the window at Matteson's vehicle and drove home. (See 07 id.) He later discovered that the window had been shattered by a baseball bat, and turned 08 himself in to police with an attorney. (See id.) Petitioner also claimed he would have turned 09 himself in to police earlier, but at the time of the offense he was in possession and under the 10 influence of marijuana. (See id. at 13.) 11 Petitioner was convicted by a jury of attempted murder in the first degree and assault

12 with a firearm with two weapons enhancements on June 15, 1994, in the Sacramento County 13 Superior Court. (See Dkt. 9, Ex. 1 at 1.) He was sentenced to an indeterminate term of life 14 with the possibility of parole. (See id.) Petitioner was also subsequently convicted of 15 possession of a controlled substance for sale with a weapons enhancement on July 21, 1994, 16 and given a two-year sentence that runs concurrently with his life sentence. (See id. at 2.) 17 Petitioner's minimum eligible parole date was set for January 28, 2001. (See Dkt. 1, Ex. A at 18 1.) The parole denial which is the subject of this petition took place after a parole hearing 19 held on May 31, 2006. (See id.) This was petitioner's fourth parole consideration hearing. 20 (See id. at 3.) As of the date of the 2006 parole hearing, petitioner was forty-six-years-old, 21 and had been in custody approximately eleven years. (See id., Ex. E at 1.) 22 After denial of his 2006 application, petitioner filed habeas corpus petitions in the Sacramento County Superior Court, California Court of Appeal, and California Supreme REPORT AND RECOMMENDATION -4

01 Court. (See Dkt. 9, Exs. 6-8.) Those petitions were unsuccessful. (See id.) This federal 02 habeas petition followed. Petitioner contends the 2006 denial by the Board violated his Fifth 03 and Fourteenth Amendment Due Process rights. Thus, petitioner does not challenge the 04 validity of his conviction, but instead challenges the Board's 2006 decision finding him 05 unsuitable for parole. 06 07 III. STANDARD OF REVIEW

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

08 petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 09 320, 326-27 (1997). Because petitioner is in custody of the California Department of 10 Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive 11 vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. 12 denied, 543 U.S. 991 (2004) (providing that § 2254 is "the exclusive vehicle for a habeas 13 petition by a state prisoner in custody pursuant to a state court judgment, even when the 14 petitioner is not challenging his underlying state court conviction."). Under AEDPA, a habeas 15 petition may not be granted with respect to any claim adjudicated on the merits in state court 16 unless petitioner demonstrates that the highest state court decision rejecting his petition was 17 either "contrary to, or involved an unreasonable application of, clearly established Federal 18 law, as determined by the Supreme Court of the United States," or "was based on an 19 unreasonable determination of the facts in light of the evidence presented in the State court 20 proceeding." 28 U.S.C. § 2254(d)(1) and (2). 21 As a threshold matter, this Court must ascertain whether relevant federal law was

22 "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the United States Supreme REPORT AND RECOMMENDATION -5

01 Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit 02 precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 03 04 331 F.3d 1062, 1069 (9th Cir. 2003). The Court must then determine whether the state court's decision was "contrary to, or

05 involved an unreasonable application of, clearly established Federal law." See Lockyer v. 06 Andrade, 538 U.S. 63, 71 (2003). "Under the `contrary to' clause, a federal habeas court may 07 grant the writ if the state court arrives at a conclusion opposite to that reached by [the 08 Supreme] Court on a question of law or if the state court decides a case differently than [the] 09 Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. 10 "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the 11 state court identifies the correct governing legal principle from [the] Court's decisions but 12 unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all 13 times, a federal habeas court must keep in mind that it "may not issue the writ simply because 14 [it] concludes in its independent judgment that the relevant state-court decision applied clearly 15 established federal law erroneously or incorrectly. Rather that application must also be 16 [objectively] unreasonable." Id. at 411. 17 In each case, the petitioner has the burden of establishing that the state court decision

18 was contrary to, or involved an unreasonable application of, clearly established federal law. 19 See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine 20 whether the petitioner has met this burden, a federal habeas court looks to the last reasoned 21 state court decision because subsequent unexplained orders upholding that judgment are 22 presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). REPORT AND RECOMMENDATION -6

01

Finally, AEDPA requires federal courts to give considerable deference to state court

02 decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). 03 Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. 04 Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 05 (9th Cir. 1993)). 06 07 08 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

09 government is prohibited from depriving an inmate of life, liberty or property without the due 10 process of law. U.S. Const. amends. V, XIV. A prisoner's due process claim must be 11 analyzed in two steps: the first asks whether the state has interfered with a constitutionally 12 protected liberty or property interest of the prisoner, and the second asks whether the 13 procedures accompanying that interference were constitutionally sufficient. Ky. Dep't of 14 Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 15 1123, 1127 (9th Cir. 2006). 16 Accordingly, our first inquiry is whether petitioner has a constitutionally protected

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

01 made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 02 12; Allen, 482 U.S. at 377-78. 03 As discussed infra, California statutes and regulations afford a prisoner serving an

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

16 protected liberty interest, this Court must proceed to the second step in the procedural due 17 process analysis and determine whether the procedures accompanying that interference were 18 constitutionally sufficient. "[T]he Supreme Court [has] clearly established that a parole 19 board's decision deprives a prisoner of due process with respect to this interest if the board's 20 decision is not supported by `some evidence in the record.'" Irons, 505 F.3d at 851 (citing 21 Superintendent v. Hill, 472 U.S. 445, 457 (1985) (holding the "some evidence" standard 22 applies in prison disciplinary proceedings)). The "some evidence" standard requires this 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 normally set a release date in a manner that will provide uniform terms for offenses of similar REPORT AND RECOMMENDATION -9

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

12 determination whether a prisoner is suitable for parole: 13 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 (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.

REPORT AND RECOMMENDATION -10

01 02

parole may contribute to a pattern which results in a finding of unsuitability.

03 15 CCR § 2402(a) and (b). Subsections (c) and (d) also set forth suitability and unsuitability 04 factors to further assist the Board in analyzing whether an inmate should be granted parole, 05 although "the importance attached to any circumstance or combination of circumstances in a 06 particular case is left to the judgment of the panel." 15 CCR § 2402(c). 07 In examining its own statutory and regulatory framework, the California Supreme

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

REPORT AND RECOMMENDATION -11

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 federal due process rights by finding

12 him unsuitable for parole without some evidence that he poses an unreasonable risk of danger 13 to society if released from prison. (See Dkt. 1 at10-27.) Specifically, petitioner claims there 14 was no evidence to support the Board's finding that he lacked insight or remorse for the 15 offense. (See id. at 15-17.) Petitioner also argues that the Board has systematically released 16 prisoners who committed attempted murders similar to petitioner's offense, which amounts to 17 inconsistent application of the parole guidelines in violation of the Equal Protection Clause. 18 (See id. at 13-15.) Finally, petitioner asserts that the Board violated "the Rutherford decision 19 [which] held that the BPH may not deny further parole consideration for more than one year 20 in the case of prisoners who have formerly been denied for one year, absent a significant 21 change in circumstances which must be clearly stated on the record." (See id. at 21-22.) 22 Respondent claims that petitioner does not have a constitutionally protected liberty interest in being released on parole, that the "some evidence" standard is inapplicable in this REPORT AND RECOMMENDATION -12

01 context, and that even if he does have a protected liberty interest, the Board adequately 02 predicated its denial of parole on "some evidence." (See Dkt. 9 at 6-11.) Accordingly, 03 respondent argues that petitioner's constitutional rights were not violated by the Board's 2006 04 decision, and the Sacramento County Superior Court's Order upholding the Board's 2006 05 parole denial was not an unreasonable application of clearly established federal law. (See id. 06 at 10-11.) 07 08 09 VI. A. ANALYSIS OF RECORD IN THIS CASE State Court Proceedings

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

10 Supreme Court contained the same claims as his Sacramento County Superior Court petition, 11 and both petitions were summarily denied. (See id., Exs. 6-8.) The parties agree that 12 petitioner has properly exhausted his state court remedies, and timely filed the instant petition. 13 (See Dkt. 1 at 6; Dkt. 9 at 4.) This Court reviews the Sacramento County Superior Court's 14 Order upholding the Board's decision to determine whether it meets the deferential AEDPA 15 standards, as it is the last reasoned state court decision. See Ylst, 501 U.S. at 803-04. 16 17 B. Petitioner's Due Process Claim

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

18 his commitment offense, but also cited his criminal history, unstable social history, and failure 19 to demonstrate insight and remorse. (See Dkt. 1, Ex. A at 57-65.) The Board's findings 20 tracked the applicable unsuitability and suitability factors listed in § 2402(b), (c) and (d) of 21 title 15 of the California Code of Regulations. After considering all reliable evidence in the 22 record, the Board concluded that evidence of petitioner's positive behavior in prison did not outweigh evidence of his unsuitability for parole. (See id. at 57.) REPORT AND RECOMMENDATION -13

01

The Board primarily relied upon the circumstances of petitioner's commitment offense

02 to find petitioner unsuitable for parole. (See id. at 57-58.) The Board found that "[m]ultiple 03 victims were attacked; one was injured during the incident. It was carried out with a callous 04 disregard for human suffering and the motive for the crime is ­ is inexplicable from our 05 standpoint." (Id. at 57-58.) See 15 CCR § 2402(c)(1)(A), (D) and (E). Based upon the 06 statement of facts provided by the Court of Appeal, it appeared petitioner was stalking his 07 girlfriend when he sought to confront her at the hospital, and his actions caused her great 08 apprehension. (See Dkt. 1, Ex. A at 58.) After she got in a car to try to escape, "[petitioner] 09 then followed that car, cut them off and then the circumstances which ultimately resulted in 10 the shooting occurred." (Id.) The Board noted that although some details of the offense may 11 not be clear, the Court of Appeal clearly found that petitioner was "the initiator in this action," 12 and the confrontation was "the result of [petitioner's] continuing to either get at [his] 13 girlfriend because she was breaking up with him or because [petitioner] thought something 14 was going on with her and her friends." (Id.) The circumstances surrounding petitioner's 15 commitment offense provides "some evidence" to support the Board's conclusion that 16 petitioner would present an unreasonable risk of danger to society if released from prison. 17 The second unsuitability factor relied upon by the Board was petitioner's criminal

18 history. The Board is required to consider prisoners' "past criminal history, including 19 involvement in other criminal misconduct which is reliably documented...." 15 CCR § 20 2402(b). The Board asserted that although petitioner had a "minimal if any criminal history" 21 documented by law enforcement, his "drug offense, weapons offense and the description of 22 the circumstances surrounding that offense, indicated [that petitioner] was in possession of significant quantities of controlled substances," and was therefore substantially involved in REPORT AND RECOMMENDATION -14

01 other criminal activity prior to the commitment offense. (See id. at 58-59.) The Board noted 02 petitioner had "[p]araphernalia which indicated [he] had those controlled substances for sale, 03 the amount of cash [he] had at the time certainly reasonably leads to the supposition that [he 04 was] in the drug distribution business at that point." (Id. at 59.) Thus, there was "some 05 evidence" in the record to support the Board's conclusion that due to petitioner's criminal 06 history, he was unsuitable for parole. 07 The third factor relied upon by the Board was petitioner's unstable social history. The

08 Board based its finding entirely upon petitioner's abuse of illegal drugs, such as petitioner's 09 use of controlled substances at the time of the offense. (See id. at 59.) An "unstable social 10 history," however, is defined as a "history of unstable or tumultuous relationships with 11 others." See 15 CCR § 2402(c)(3). By contrast, a "stable social history" is defined as 12 "reasonably stable relationships with others" and is a factor tending to show parole suitability. 13 See id., § 2402(d)(2). Petitioner's history of drug abuse, without more, does not appear to 14 satisfy the definition of an "unstable social history." See id., § 2402(c)(3). There is other 15 evidence in the record, however, which does indicate that petitioner has a history of "unstable 16 or tumultuous relationships with others," such as his relationship with his estranged girlfriend, 17 Bell. The Court of Appeal found that petitioner was stalking Bell at the time of the 18 commitment offense, and the Board's decision noted that "this crime smacks of domestic ­ 19 potential domestic violence...." (See Dkt. 1, Ex. A at 58 and 62.) Thus, there was "some 20 evidence" in the record to support the Board's finding that petitioner has an unstable social 21 history, albeit on a different basis. 22 The fourth and fifth factors relied upon by the Board to deny parole were petitioner's failure to demonstrate insight and remorse regarding the commitment offense. (See id. at 60REPORT AND RECOMMENDATION -15

01 62.) The Board explained the basis for its findings at length during the hearing. 02 03 04 05 06 07 08 09 10 11 (See id. at 60-61.) 12 The Board acknowledged that petitioner's psychological evaluations have all 13 been favorable, including the most recent report, which was completed on August 9, 14 2005. (See id. at 61.) Because all the evaluations "accept without question 15 [petitioner's] version of what occurred," however, the Board found them unreliable. 16 (Id. at 61.) "[I]t is the Panel's belief that those opinions are not supported by an in17 depth evaluation of the facts and circumstances of the offense so to the extent that 18 we're supposed to affirmatively consider remorse or understanding ­ those factors are 19 absent." (Id.) Finally, the Board commented that "this crime smacks of domestic ­ 20 potential domestic violence ... [it] has those markings, stalking, drug induced paranoia 21 ... but those [possibilities] haven't been addressed there either by any of the 22 psychologists or most importantly by [petitioner] and that's our concern." (Id. at 62.) You've taken numerous self-help classes and when we seek to determine the effect ­ the beneficial effect of those self-help classes ... [we reach] a stopping point because it is clear to the Panel that despite your utilization of the words, "I have remorse; I accept responsibility for what happened," that when we look at the varying versions of [the offense] you've told, that your credibility in this regard is significantly lacking and you start out by denying your crime and by giving various versions at various times during the course of your incarceration. We're not talking about different nuances of explaining this because one consistency that runs through all of these descriptions is not your acceptance of responsibility but your evasion of responsibility. First clearly by your denial and then at each subsequent telling by insisting that your actions were in response to the actions of others ... so to the extent that we're called upon to consider ... [whether] remorse is reflected by understanding of the circumstances that involved you in this crime ... [t]he evidence there is completely lacking.

REPORT AND RECOMMENDATION -16

01 Based upon the drastic discrepancies between petitioner's version of the events 02 leading up to and culminating in the attempted murder, and the facts set forth by the 03 Court of Appeal, the Board could reasonably conclude that petitioner has failed to 04 demonstrate insight and remorse in a credible manner. 05 Petitioner's argument that the Board's findings were improper because his

06 credibility is irrelevant to the Board's suitability determination is incorrect. (See Dkt. 07 1 at 17.) A prisoner's credibility is a key aspect of the Board's consideration of "all 08 relevant, reliable information ... [including a prisoner's] past and present attitude 09 toward the crime," in order to make a judgment about whether that prisoner would 10 pose an unreasonable risk of danger to society if released. See 15 CCR § 2402(a) and 11 (b). As the superior court asserted, "the BPH acted well within their authority when 12 they evaluated the credibility of [petitioner's statements] and concluded that, based on 13 his various versions of the offense and failure to accept full responsibility, petitioner 14 actually lacked remorse and insight. Contrary to petitioner's belief, credibility is 15 always an issue that must be considered by a decision-maker in weighing the facts 16 before him/her." (See Dkt. 1, Ex. O at 3.) During the hearing, the Board provided 17 petitioner with ample opportunity to clarify the discrepancies between his prior 18 versions of the commitment offense, as well as respond to the Board's concern that 19 these discrepancies call petitioner's credibility into question. (See id., Ex. A at 27-36.) 20 The Board's finding that petitioner failed to demonstrate insight and remorse in a 21 credible manner was therefore supported by "some evidence" in the record. 22 Contrary to petitioner's argument that the Board failed to consider or give appropriate weight to the parole suitability rules which favored petitioner, the Board REPORT AND RECOMMENDATION -17

01 acknowledged that petitioner has performed "admirably" as an inmate. (See Dkt. 1 at 02 20-21; id.; Ex. A at 59.) The Board commended petitioner for being discipline-free 03 during the entire period of his incarceration, and for his development of marketable 04 skills and a commendable work record. (See id., Ex. A at 59.) The Board also noted 05 that petitioner has stable parole plans, and good family connections and support. (See 06 id. at 62.) It is therefore an inaccurate characterization of the record to say that the 07 Board failed to provide petitioner with an individualized consideration of all relevant 08 parole suitability factors. (See Dkt. 1 at 15-21.) As mentioned above, the Board has 09 broad discretion to determine how suitability and unsuitability factors interrelate to 10 support its conclusion of current dangerousness to the public. See Lawrence, 44 11 Cal.4th at 1212. It ultimately concluded, however, that petitioner remains an 12 unreasonable risk of danger to society, and these findings were supported by "some 13 evidence" in the record. (See Dkt. 1, Ex. A at 57.) 14 15 C. Petitioner's Equal Protection Claim

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

16 Amendment was violated when the Board found him unsuitable for parole. (See Dkt. 1 at 1317 14.) Specifically, he asserts that the parole consideration guidelines have been applied in an 18 inconsistent manner, as demonstrated by the fact that "numerous prisoners committed similar 19 attempted murders, yet have systematically been released [after] serving less time [than 20 petitioner]." (Id.) The petition offers little analysis in support of his claim, and respondent 21 fails to address this issue on the merits. (See id. and Dkt. 9). California law does not require 22 the Board to conduct a comparative analysis of the period of confinement served by other prisoners with similar crimes, nor does it require it to refer to the sentencing matrices. See In REPORT AND RECOMMENDATION -18

01 re Dannenberg, 34 Cal.4th 1061, 1083-84 (2005) (holding whether an inmate poses a current 02 danger is not dependent upon whether his commitment offense was more or less egregious 03 than other, similar crimes). Instead, the Board is required to review the specific facts of each 04 case and to make an individualized determination of whether that prisoner is suitable for 05 parole. See Lawrence, 44 Cal.4th at 1221. Petitioner's allegations, without more, fail to 06 establish an equal protection violation. The Court therefore finds "some evidence" in the 07 record to support the Board's decision and finds no constitutional violation occurred. 08 09 D. Petitioner's Rutherford Claim

Petitioner claims that the Board violated his due process rights by denying him another

10 parole consideration hearing for two years without describing a "significant change in 11 circumstances" on the record during his 2006 hearing. (See Dkt. 1 at 21; id., Ex. A at 63-65.) 12 Specifically, he asserts that "[t]he Rutherford decision held that the BPH may not deny further 13 parole consideration for more than one year in the case of prisoners who have formerly been 14 denied for one year, absent a significant change in circumstances which must be clearly stated 15 on the record." (See Dkt. 1 at 21.) As explained below, petitioner's arguments are 16 unavailing, and the California Court of Appeal has reversed the decision upon which 17 petitioner relies. 18 This court is aware of no decision of the U.S. Supreme Court holding that a decision

19 by a parole board to defer further parole consideration for two years, instead of one, is a 20 violation of federal due process rights. Petitioner cites no such decision. "The Rutherford 21 decision" to which petitioner refers was a decision of the Marin County Superior Court in a 22 case involving a life-term inmate at the San Quentin State Prison. He filed a habeas corpus petition contending that the Board failed to conduct his subsequent parole consideration REPORT AND RECOMMENDATION -19

01 hearing in a timely manner in violation of his due process rights and the requirements of 02 California Penal Code § 3041.5(b)(2). See In re Inez Tito Lugo, 164 Cal.App.4th 1522, 1529 03 (2008).2 The trial court sustained an argument that the Board should not issue multi-year 04 denials in cases in which inmates had previously received a one-year parole denial absent a 05 statement of a "significant change in circumstances" on the record. See id. at 1532. 06 The Court of Appeal reversed, however, finding that the trial court's order "violated

07 the separation of powers and intrudes upon the inherent discretion afforded to the Board to 08 decide parole matters." Id. at 1540. After summarizing the requirements set forth by 09 § 3041.5, the Court of Appeal observed that "[t]he statute contains no requirement that the 10 Board must find a significant change in circumstances justifying a multi-year denial following 11 a one-year denial." 3 Id. at 1537. "The Board's decision to defer annual parole consideration 12 hearings is guided by the same criteria used to determine parole suitability ... [and the] 13 reasons for postponing the next scheduled parole hearing need not be completely different 14 from the reasons for denying parole suitability." Id. Furthermore, "the Board need not point 15 to additional evidence supporting its departure from the discretionary decisions of earlier 16 panels." Id. at 1539, fn.9. 17 Because the requirements of procedural due process impose some limitations upon the

18 executive branch's broad discretionary powers in parole matters, the Court of Appeal held 19 that "[t]he `some evidence' standard of review governs consideration of a Board decision to 20 21
An order entered by the Marin County Superior Court on May 5, 2006, appointed Inez Tito Lugo as the class representative in place of the original petitioner, Jerry Rutherford, who died after this lawsuit 22 commenced. See id. at 1532. 3 Text amendments to § 3041.5(b)(2) became effective on November 5, 2008, approximately four months after the Court of Appeal's July 21, 2008, decision in Lugo. The amended version of § 3041.5 also omits such a requirement. See Cal. Penal Code § 3041.5(b)(2).
2

REPORT AND RECOMMENDATION -20

01 postpone the next scheduled parole hearing by issuing a multi-year denial." Id. at 1537. 02 Therefore, a reviewing court might be justified in closely scrutinizing a decision issuing a 03 multi-year denial in the case of an inmate who has "consistently received one-year denials of 04 parole and then received a multi-year denial" to ensure that the Board's decision was 05 supported by "some evidence" in the record, but that reviewing court must remain mindful 06 that "some evidence is all that is required." Id. at 1539, fn.9. 07 Assuming arguendo the length of time between parole hearings implicates federal due

08 process rights, this Court must determine whether there was "some evidence" in the record to 09 support the Board's decision to postpone petitioner's next parole hearing for two years, even 10 though he received one-year denials at prior hearings. During petitioner's 2006 hearing, the 11 Board explained that a multi-year denial was appropriate "[b]ased upon the enormity of the 12 offense and the length of time that [the Board's concerns] have been discussed with 13 [petitioner] in one form or another" by previous panels, but not addressed appropriately by 14 petitioner before the next hearing. (See Dkt. 1, Ex. A at 63.) The Board therefore issued a 15 separate decision finding it "not reasonable to expect that parole would be granted at a hearing 16 during the following two years...." (Id. at 63-64.) During this portion of the panel's decision, 17 petitioner got up and walked out of the hearing, which the Board interpreted as a signal that 18 petitioner was unwilling to listen to the Board's recommendations. (See id. at 64-65.) Based 19 upon the Board's reasoning as described in its decision, there was "some evidence" in the 20 record to support the Board's finding that a multi-year denial of parole was appropriate in 21 petitioner's case. 22

REPORT AND RECOMMENDATION -21

01 02

E.

Sacramento County Superior Court's Decision

In a reasoned decision denying petitioner's request for habeas relief, the Sacramento

03 County Superior Court carefully summarized and addressed each of petitioner's claims. (See 04 id., Ex. O at 1-2.) With respect to petitioner's federal due process claim, the superior court 05 found that there was "some evidence" in the record to support the Board's finding that 06 petitioner was unsuitable for parole. (See id. at 2-3.) The fact that petitioner happens to 07 disagree with "the Appellate Court's description of the circumstances surrounding the 08 offense, the statement of facts relied on by the BPH in denying parole, is irrelevant." (Id. at 09 3.) In addition, the superior court upheld the Board's finding that petitioner lacked remorse or 10 insight into the crime because the panel members "acted well within their authority when they 11 evaluated the credibility of [petitioner's statements] and concluded that, based on his various 12 versions of the offense and failure to accept full responsibility, petitioner actually lacked 13 remorse and insight [because] credibility is always an issue that must be considered by a 14 decision-maker in weighing the facts before him/her." (Id.) Specifically, "[i]n contradiction 15 to the evidence presented at trial, petitioner tried to paint himself as more of a reactive 16 participant who merely fired at the victim in self-defense, rather than the aggressive stalker 17 who initiated the final confrontation and shooting." (Id. at 4.) The superior court further held 18 that petitioner's Equal Protection Claim is unavailing, because "Dannenberg rejected 19 petitioner's argument that comparative proportionality analysis should have been conducted at 20 his parole hearing...." (Id. at 2.) Finally, the court asserted that petitioner's Rutherford claim 21 lacks merit under the express requirements of California Penal Code § 3041.5(b)(2). (See id. 22 at 4.)

REPORT AND RECOMMENDATION -22

01 02

VII.

CONCLUSION

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

03 whether evidence of suitability outweighs the circumstances of the commitment offense, 04 together with any other reliable evidence of unsuitability for parole. The Board has broad 05 discretion to determine how suitability and unsuitability factors interrelate to support its 06 conclusion of current dangerousness to the public. See Lawrence, 44 Cal.4th at 1212. 07 Although the Board praised petitioner's good behavior and progress in prison, it determined 08 that petitioner remains an unreasonable risk of danger to society if released on parole. 09 Because the state court decision upholding the Board's findings satisfies the "some evidence" 10 standard, there is no need to reach respondent's argument that another standard applies. 11 Given the totality of the Board's findings, there is "some evidence" that petitioner

12 currently poses a threat to public safety, and the Sacramento County Superior Court's Order 13 upholding the Board's decision was not contrary to, or an unreasonable application of, clearly 14 established federal law, or based on an unreasonable determination of facts. I therefore 15 recommend that the Court find that petitioner's due process rights were not violated, and that 16 it deny his petition and dismiss this action with prejudice. 17 This Report and Recommendation is submitted to the United States District Judge

18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days 19 after being served with this Report and Recommendation, any party may file written 20 objections with this Court and serve a copy on all parties. Such a document should be 21 captioned "Objections to Magistrate Judge's Report and Recommendation." Failure to file 22 objections within the specified time may waive the right to appeal the District Court's Order.

REPORT AND RECOMMENDATION -23

01 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). A proposed order accompanies this 02 Report and Recommendation. 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 DATED this 25th day of August, 2009.

JOHN L. WEINBERG United States Magistrate Judge

A

REPORT AND RECOMMENDATION -24