Rollo v. Subia et al

Filing 17

ORDER signed by Senior Judge Terry J. Hatter, Jr on 6/22/10 ORDERING that the Petition 1 is DENIED. CASE CLOSED. (Mena-Sanchez, L)

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United States District Court Central District of California
GARY ROLLO, Petitioner, v. R. SUBIA, et al., Defendants. CV 07-02421 TJH

Order

The Court has considered Petitioner's petition for habeas corpus together with the moving and opposing papers. After the California Board of Prison Terms ("Board") found Petitioner unsuitable for parole in 2006, Petitioner filed a habeas petition claiming insufficient evidence for the decision. A state prisoner's right to release on parole or to release in the absence of some evidence of future dangerousness arises from substantive state law creating a

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right to release not from any federal constitutional right. Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010). The California Supreme Court has established that "some evidence" of future dangerousness is an essential condition for parole denial. In re Lawrence, 44 Cal. 4th 1181, 1205, 82 Cal. Rptr. 169, 185 (2008). Federal courts reviewing a due process challenge to the denial of parole in California decide whether parole rejection was an unreasonable application of California's "some evidence" of dangerous requirement or based on an unreasonable determination of the facts in light of the evidence. Hayward, 603 F.3d at 563. There must be some evidence that the inmate currently poses a threat to public safety. Hayward, 603 F.3d at 562. A prisoner's aggravated offense does not establish current dangerousness unless the record, also, establishes that something in the prisoner's pre- or post-incarceration history or his current demeanor and mental state infers dangerousness. Hayward, 603 F.3d at 562. The Board may consider the conviction offense if it addresses the determining factor, a current threat to public safety. Hayward, 603 F.3d at 562. The Board's decision listed some evidence for finding Rollo to pose an unreasonable danger to public safety. First, the commitment offense demonstrated a disregard for human life, and Rollo carried it out in a cruel and callous manner. After entering a home to obtain cash, Rollo beat the victim, broke many of his bones, and severely lacerated the victim's liver. Following the attack, Rollo stole guns, money, and jewelry from the house and sold the items. The nature of Petitioner's commitment offense constitutes some evidence of future dangerousness, as the murder petitioner committed was dispassionate and calculated. Hayward, 603 F.3d at 563. Second, Rollo has a prior criminal record demonstrating an escalating

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pattern of criminal conduct.

Third, the Board listed the serious disciplinary

infractions Rollo committed while in prison. Rollo received thirteen infractions while in prison, the last one on November 26, 2001. Since the Board had some evidence that Rollo posed a danger to the public based on several factors, It is Ordered that the petition be, and hereby is, Denied. Date: June 22, 2010 _____________________________ Terry J. Hatter, Jr. United States District Judge

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