Anchor v. Subia et al

Filing 21

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

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( H C ) Anchor v. Subia et al D o c . 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P ro se Petitioner Dean Anchor, an inmate at Mule Creek State Prison seeks a w rit of habeas corpus under 28 U.S.C. 2254 disputing California Superior C o u rt's denial of habeas relief in his challenge to the October 18, 2006 decision of th e California Board of Parole Hearings ("BPH") denial of parole. Petitioner alleg es the denial of parole violated his rights under the Fourteenth Amendment of th e Constitution. Having considered the arguments of the parties, the Court D E N IE S the petition for the reasons stated below. BA CK GR OU ND A n ch o r is serving a sentence of 15 years to life for second degree murder. In 1985, Anchor murdered a 30-year-old "outcall masseuse" in his house. Anchor, w h o still claims that he has no memory of the murder, struck the woman 23 times DEAN ROBERT ANCHOR, ) ) Petitioner, ) v. ) ) R. J. SUBIA, Warden, et al., ) ) Respondents. ) _____________________________________ ) Case No. 2:07-CV-01543-MMS ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 w ith a blunt object. The woman was found unclothed from the waist up and w earin g only underwear. The BPH denied parole at Anchor's October 2006 hearing. The Board fo cu sed on the brutal nature of the crime, noting that Anchor had hit his victim n u m ero u s times with no apparent motive. The BPH also stated that Anchor's past h isto ry of violence and substance abuse further suggested he was not suitable for p aro le. The BPH relied on Anchor's prison disciplinary record and failure to take ad v an tag e of self help programs and expressed concerns that Anchor was planning to depend on his continued participation in a particular rehabilitation to prevent r ela p s e into substance abuse. A n ch o r filed a petition for a writ of habeas corpus in California Superior C o u r t. The court denied the petition agreeing with the Board that Anchor had s h o w n an escalating pattern of violence prior to the murder, and that the murder h ad no motive. The court thus determined that the BPH decision was supported by "s o m e evidence." The state court of appeal affirmed and the Supreme Court d en ied review without discussion. C o n n ally filed a timely federal habeas petition. D IS C U S S IO N U n d er California law, prisoners serving indeterminate life sentences become elig ib le for parole after serving a minimum term of confinement. In re D a n n en b erg , 104 P.3d 783, 785-86 (Cal. 2005). California regulations state that "a life prisoner shall be found unsuitable for and denied parole if in the judgment of th e panel the prisoner will pose an unreasonable risk of danger to society if released from prison." Cal. Code Regs. tit. 15, 2402(a). In making this su itab ility determination, the BPH looks to factors such as the nature of the co m m itm en t offense, the prisoner's record of violence, social history, behavior in 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 p r is o n , and any other information relevant to whether the prisoner poses an u n reaso n ab le risk to society. See Cal. Code Regs. tit. 15, 2402(b)-(d). If the prisoner files a state habeas petition, the state court reviews the d ecisio n of the BPH to determine whether "some evidence" supports the u n su itab ility determination. See In re Shaputis, 190 P.3d 573, 580-81 (Cal. 2008). California has defined "some evidence" to mean that the BPH's determination "m u s t have some indicia of reliability." In re Scott, 15 Cal. Rptr. 3d 32, 52 (2004) (in tern al quotation marks omitted). A decision is not supported by "some ev id en ce" where the BPH denies parole solely on the basis of facts of the co m m itm en t offense. See In re Lawrence, 190 P.3d 535, 549 (Cal. 2008). In Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), the Ninth C ircu it explained the standard federal courts are to apply in reviewing the C a lif o r n ia court's denial of habeas relief to a prisoner challenging the BHP's denial o f parole. The court held that a federal court may grant a writ of habeas corpus o n ly if the "decision rejecting parole was an `unreasonable application' of the C alifo rn ia `some evidence' requirement, or was `based on an unreasonable d e te rm in a tio n of the facts in light of the evidence.'" Id. at 562-63. The Court here m u st therefore decide whether the California Superior Court's decision upholding th e BPH's denial of parole unreasonably applied California's "some evidence" stan d ard . Id. Petitioner argues that it does not, contending the BPH impermissibly relied on unchanging factors such as the violent nature of the crime of c o m m itm e n t. Petitioner is correct that the state cannot rely solely on the facts of the m u rd er in denying him parole. See Cooke v. Solis, 606 F.3d 1206, 1214 (9th Cir. 2 0 1 0 ). The Superior Court pointed to the escalating pattern of violent behavior th at preceded the crime as well as the lack of any explicable motive. The Board's 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d ecisio n was further grounded upon the lack of any demonstrative capacity to o v erco m e prior substance addictions. Clearly, "some evidence" beyond the facts o f the murder supported the BPH determination that Anchor was unsuitable for p aro le. Anchor could not even recall why he did it because he was on drugs at the tim e. The BPH was entitled to rely on Anchor's prior violent history and lack of m o tiv e in denying him parole because both are supported by the record. Cal. Code R eg s. tit. 15, 2402(c)(1)(E), (2). There was no unreasonable application of the "so m e evidence" standard. CONCLUSION F o r the above reasons, the petition for a writ of habeas corpus is DENIED. A certificate of appealability is also DENIED because Petitioner has failed to show h is claims are "debatable among reasonable jurists." See Hayward, 603 F.3d at 555. DATED: September 8, 2010 /s/ Mary M. Schroeder MARY M. SCHROEDER, United States Circuit Judge Sitting by designation 4

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