Schlappi v. Moore

Filing 15

REPORT and RECOMMENDATION signed by Magistrate Judge John L. Weinberg on 7/12/10, RECOMMENDING that the petition be denied, this action be dismissed with prejudice and a COA be denied. Case is referred to District Judge Lasnik. Within 14 days after being served with this Report and Recommendation, any party may file written obejctions with this Court. (Kastilahn, A)

01 02 03 04 05 06 07 08 DARRYL A. SCHLAPPI, 09 10 11 12 13 14 15 I. INTRODUCTION ) ) Petitioner, ) ) v. ) ) STEVEN MOORE, Warden, ) ) Respondent. ) ____________________________________ ) UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

CASE NO. 2:10-cv-00113-RSL-JLW

REPORT AND RECOMMENDATION

Petitioner Darryl Schlappi is currently incarcerated at the Deuel Vocational Institution

16 in Tracy, California. In 1990, he was convicted by a jury in the San Diego County Superior 17 Court of one count of attempted first degree murder with a firearm enhancement, and 18 sentenced to a term of life with the possibility of parole, plus two years. (See Docket 1 at 1.) 19 Having exhausted his remedies in the courts of California, petitioner seeks federal habeas 20 corpus relief under 28 U.S.C. § 2254. Specifically, he challenges his 2007 denial of parole by 21 the Board of Parole Hearings of the State of California (the "Board").1 (See id., Ex. A at 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

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01

Respondent has filed an answer to the petition in which he admits petitioner has

02 exhausted the claims set forth in his federal habeas petition, but contends petitioner's claims 03 are without merit. (See Dkt. 12 at 4-12.) Petitioner has filed a traverse in response to 04 respondent's answer. (See Dkt. 13.) The briefing is now complete, and this matter is ripe for 05 review. 06 Having thoroughly reviewed the record and briefing of the parties, I recommend that

07 the Court find as follows: 08 09 10 (2) 11 (3) 12 13 (4) 14 15 (5) 16 17 18 (7) 19 20 (8) 21 22 Petitioner's claim that his due process rights were violated because he did not receive a "fair and impartial" parole hearing should be denied; and The denial of parole therefore did not violate petitioner's federal due process rights, and the decision of the California Court of Appeal upholding the denial was a reasonable application of clearly established federal law; (6) Whether "some evidence" of current dangerousness exists is determined in accordance with California law; Applying these standards, the record before the Board in 2007 contained "some evidence" of petitioner's dangerousness; The California Supreme Court has interpreted this statutory language to provide that an adverse parole decision must be supported by "some evidence" of current dangerousness; That language provides that a prisoner serving an indeterminate life sentence has an expectation of parole release unless the Board or the Governor finds that he will pose an unreasonable risk of danger to society if released on parole; California statutes and regulations contain such mandatory language; (1) The U.S. Supreme Court has clearly held that where a state statutory scheme includes mandatory language that creates a presumption of parole release based on certain designated findings, that statute gives rise to a federal constitutional liberty interest in parole;

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01 02

(9) II.

The Court should deny the petition for a writ of habeas corpus and dismiss this action with prejudice. FACTUAL BACKGROUND

03 During the 2007 parole hearing, the Board referred to the following summary of the 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22
2

commitment offense, as set forth by petitioner's life prisoner evaluation reports:2 On September 8, 1988, Police were called in to investigate a possible gunshot victim in a remote area adjacent to the San Luis Rey River. Upon Police arrival, the victim was still alive. Life Flight transported him to the hospital where the victim (William Odom, Jr.) expired due to multiple gunshot wounds. Because of the severity of his wounds, he was unable to tell police anything about his assailants. During the Police investigation, information was received implicating three men in the killing. The three men were known on the streets as "German, Psycho, and Cowboy." The investigation continued without any concrete evidence or arrests. On January 6, 1990, Glen Sinaiko, a.k.a. "Psycho," voluntarily came to Oceanside Police Department and confessed to having been involved in the shooting. He told the police that defendant, Darryl Schlappi, a.k.a. "German," shot the victim in the head. Sinaiko stated the motive for the murder was a $60 drug debt. Sinaiko testified that he, Schlappi, and Randy Gray, a.k.a. "Cowboy," met the victim in a restaurant in Oceanside. They were able to lure him into the vehicle and drive him to the riverbed, where the victim and Sinaiko got out of the car and walked into an adjacent bush area. Sinaiko gave the victim a line of cocaine to waste time, while he waited for Schlappi to show up with the shotgun. Sinaiko took the weapon and shot the victim in the lower abdomen, handed the shotgun to Schlappi and ran toward the car. He returned to the location and witnessed Schlappi shoot the victim in the region of the head. After this event, both men returned to the car and Gray drove them back to Oceanside. On February 2, 1990, Schlappi was arrested in Utah by the Oceanside Police Department. During Police interviews,
Although the Board asserted that it was utilizing petitioner's November 2006 evaluation as the relevant "Statement of Facts," the summary the Board actually read into the record appears to come from petitioner's July 2005 evaluation. (See Dkt. 1, Ex. A at 8-9; id., Exs. C and I.)

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01 02

Schlappi denied any involvement. He later recanted and admitted that he was there, but denied shooting the victim. (Dkt. 1, Ex. I at 1.)

03 The Board also read petitioner's version of the crime into the record: 04 05 06 07 08 09 10 11 12 13 (Id. at 1-2; id., Ex. A at 23-24.) 14 In addition, during petitioner's 2007 parole hearing, petitioner told the Board that the 15 victim was lying in a curled up fetal position on the ground when petitioner shot him. (See 16 id., Ex. A at 23 and 28.) Specifically, petitioner asserted that "[t]he shot that I had fired was 17 from behind, which grazed his neck and hit his legs, my one shot. That's how you get the two 18 wounds . . . but it seems like there's been some confusion on that." (Id. at 24.) 19 Petitioner was convicted by a jury of one count of attempted first degree murder with 20 use of a firearm in 1990, and sentenced in the San Diego County Superior Court to a term of 21 life with the possibility of parole, plus two years. (See id. at 1.) Petitioner was received into 22 the California Department of Corrections on February 26, 1991, and his minimum eligible In the past Schlappi had denied shooting the victim. However, at the time of his Initial Parole Consideration Hearing in April of 1997, he stated that he was at the scene, and that he did in fact shoot the victim in the leg, but not the neck. Schlappi stated that Sinaiko shot the victim in his neck and stomach, and that the victim died as a result of the stomach wound. Schlappi further stated that he knew what he did was wrong, that he takes full responsibility for his part in the crime, and that he would have to live with that guilt for the rest of his life. Schlappi stated that he has admitted at his last two BPT hearings that he took the victim's wallet, wiped the shotgun clean, and agrees with the police report that the shotgun was returned to the owner. Schlappi stated there was a dispute between Sinaiko and the victim over a $60.00 drug debt and that they were only going to scare and intimidate him in order to make him pay Sinaiko. Schlappi stated he had no idea Sinaiko intended on killing the victim.

REPORT AND RECOMMENDATION - 4

01 parole date was set for June 21, 1998. (See id.) Thus, petitioner had been in custody for 02 approximately sixteen years at the time of his 2007 parole hearing, and approximately 03 nineteen years as of this writing. He has been incarcerated for more than twelve years past his 04 minimum eligible parole date. 05 The parole denial, which is the subject of this petition, followed a parole hearing held

06 on November 8, 2007. (See id.) This was petitioner's eighth parole application, including his 07 initial parole consideration hearing. His previous applications were also denied.3 After his 08 2007 denial, petitioner filed habeas corpus petitions in the San Diego County Superior Court, 09 California Court of Appeal, and California Supreme Court. (See Dkt. 12, Exs. 2, 5, and 7.) 10 Those petitions were unsuccessful. This federal habeas petition followed. Petitioner contends 11 his 2007 parole denial violated his federal rights under the Due Process Clause of the U.S. 12 Constitution. (See Dkt. 1 at 6.) Thus, the habeas petition before this Court does not attack the 13 propriety of his conviction or sentence, but solely challenges the Board's 2007 decision 14 finding him unsuitable for parole. 15 16 III. PARTIES' CONTENTIONS

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

17 finding him unsuitable for parole based primarily upon the immutable facts of the 18 commitment offense and his prior criminal history.4 (See Dkt. 1 at 4.) He also argues that the 19
Since his 2007 parole denial by the Board, petitioner has had one subsequent parole hearing in 2008. His federal habeas petition challenging that decision is currently pending before the Honorable Kimberly J. Mueller. (See Case No. 2:10-cv-000486-GEB-KJM.) A prior habeas petition, challenging the Board's 2006 21 denial, is also currently pending before the Honorable Craig M. Kellison. (See Case No. 2:08-cv-01707-MCECMK.) 4 Petitioner's state law claims are not cognizable in a federal habeas petition. See Estelle v. McGuire, 22 502 U.S. 62, 67-68 (asserting that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").

20

3

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01 panel's criticism of his parole plans was "unreasonable" because petitioner "has no family in 02 California," and therefore "[i]t is unreasonable to expect [petitioner] to know all of these 03 people or organizations personally." (Id. at 5.) As a result, he asserts that there is no evidence 04 to support the Board's conclusion that petitioner currently poses an unreasonable risk of 05 danger to society. (See id.) Finally, petitioner argues that the Board denied him a fair and 06 impartial hearing under the Due Process Clause by asking him during his hearing about a 07 witness' statement to police regarding petitioner's role in the commitment offense. (See id. at 08 6-8.) 09 Respondent contends that petitioner does not have a constitutionally protected liberty

10 interest in being released on parole, that the "some evidence" standard is inapplicable in this 11 context, and that even if he does have a protected liberty interest, the Board adequately 12 predicated its denial of parole on "some evidence." (See Dkt. 12 at 8-11.) Respondent also 13 contends that petitioner's claim regarding the witness' statement introduced during his parole 14 hearing is based upon state rather than federal law, and is therefore not cognizable on federal 15 habeas review. (See id. at 5.) In sum, respondent argues that petitioner's federal 16 constitutional rights were not violated by the Board's 2007 decision, and that the California 17 Court of Appeal's decision upholding the Board's 2007 parole denial was not an unreasonable 18 application of clearly established federal law. (See id. at 11-12.) 19 20 IV. STANDARD OF REVIEW AND REQUIRED SHOWINGS

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

21 petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 22 320, 326-27 (1997). Because petitioner is in custody of the California Department of

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01 Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive 02 vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) 03 (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in 04 custody pursuant to a state court judgment, even when the petitioner is not challenging his 05 underlying state court conviction."). Under AEDPA, a habeas petition may not be granted 06 with respect to any claim adjudicated on the merits in state court unless petitioner 07 demonstrates that the highest state court decision rejecting his petition was either "contrary to, 08 or involved an unreasonable application of, clearly established Federal law, as determined by 09 the Supreme Court of the United States," or "was based on an unreasonable determination of 10 the facts in light of the evidence presented. . . ." 28 U.S.C. § 2254(d)(1) and (2). 11 As a threshold matter, this Court must ascertain whether relevant federal law was

12 "clearly established" at the time of the state court's decision. To make this determination, the 13 Court may only consider the holdings, as opposed to dicta, of the U.S. Supreme Court. See 14 Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent 15 remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 16 1062, 1069 (9th Cir. 2003). 17 The Court must then determine whether the state court's decision was "contrary to, or

18 involved an unreasonable application of, clearly established Federal law." Lockyer v. 19 Andrade, 538 U.S. 63, 71 (2003). "Under the `contrary to' clause, a federal habeas court may 20 grant the writ if the state court arrives at a conclusion opposite to that reached by [the 21 Supreme] Court on a question of law or if the state court decides a case differently than [the] 22 Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13.

REPORT AND RECOMMENDATION - 7

01 "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the 02 state court identifies the correct governing legal principle from [the] Court's decisions but 03 unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all 04 times, a federal habeas court must keep in mind that it "may not issue the writ simply because 05 [it] concludes in its independent judgment that the relevant state-court decision applied clearly 06 established federal law erroneously or incorrectly. Rather that application must also be 07 [objectively] unreasonable." Id. at 411. It is the petitioner's burden to establish that the state 08 court decision was contrary to, or involved an unreasonable application of, clearly established 09 federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 10 AEDPA also requires federal courts to give considerable deference to state court

11 decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). 12 Federal courts are bound by a state's interpretation of its own laws. See Murtishaw v. 13 Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 14 (9th Cir. 1993)). This deference, however, is accorded only to "reasoned decisions" by the 15 state courts. To determine whether the petitioner has met this burden, a federal habeas court 16 looks to the last reasoned state court decision because subsequent unexplained orders 17 upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 18 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). 19 In this case, after the San Diego County Superior Court denied petitioner's habeas

20 petition on the merits, petitioner filed petitions in the California Court of Appeal and Supreme 21 Court. (See Dkt. 12, Exs. 2, 5, and 7.) The California Court of Appeal denied the habeas 22 petition in an unpublished opinion filed on July 20, 2009. (See id., Ex. 5.) Petitioner's habeas

REPORT AND RECOMMENDATION - 8

01 petition in the California Supreme Court was summarily denied. (See id., Ex. 7.) This Court 02 should therefore regard the California Court of Appeal's opinion as the last reasoned decision 03 of the state courts and should accord that decision the deference required by AEDPA. 04 05 06 V. A. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS Due Process Right Under California's Parole Scheme

Under the Fifth and Fourteenth Amendments to the U.S. Constitution, the federal and

07 state governments are prohibited from depriving an inmate of life, liberty or property without 08 the due process of law. U.S. Const. amends. V and XIV. A prisoner's due process claim 09 must be analyzed in two steps: the first asks whether the state has interfered with a 10 constitutionally protected liberty or property interest of the prisoner, and the second asks 11 whether the procedures accompanying that interference were constitutionally sufficient. Ky. 12 Dep't of Corrections. v. Thompson, 490 U.S. 454, 460 (1989). 13 Accordingly, our first inquiry is whether petitioner has a constitutionally protected

14 liberty interest in parole. The U.S. Supreme Court articulated the governing rule in this area 15 in Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 16 482 U.S. 369 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying 17 "the `clearly established' framework of Greenholtz and Allen" to California's parole scheme). 18 The Court in Greenholtz determined that although there is no constitutional right to be 19 conditionally released on parole, if a state's statutory scheme employs mandatory language 20 that creates a presumption that parole release will be granted if certain designated findings are 21 made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 22 12; Allen, 482 U.S. at 377-78. See also Vitek v. Jones, 445 U.S. 480, 488 (1980) ("We have

REPORT AND RECOMMENDATION - 9

01 repeatedly held that state statutes may create liberty interests that are entitled to the procedural 02 protections of the Due Process Clause of the Fourteenth Amendment."). 03 As discussed infra, the California statutes and regulations at issue in this case contain

04 mandatory language providing that a prisoner serving an indeterminate life sentence has an 05 expectation of parole unless, in the judgment of the parole authority, he "will pose an 06 unreasonable risk of danger to society if released from prison." 15 CCR § 2402(a). 07 Specifically, California Penal Code § 3041(b) provides that the Board "shall set a release date 08 unless it determines . . . that consideration of the public safety requires a more lengthy period 09 of incarceration for this individual. . . ." Cal. Penal Code § 3041(b) (emphasis added). The 10 California Supreme Court has interpreted this language to provide that an adverse parole 11 decision must be supported by "some evidence" demonstrating current dangerousness. See In 12 re Lawrence, 44 Cal.4th 1181, 1204 (2008); In re Shaputis, 44 Cal.4th 1241, 1254 (2008). 13 Thus, the California Supreme Court has held that as a matter of state constitutional law, this 14 mandatory language in California's parole scheme creates a liberty interest in parole. See 15 Lawrence, 44 Cal.4th at 1204; Shaputis, 44 Cal.4th at 1254, 1258; In re Rozenkrantz, 29 16 Cal.4th 616, 654 (2002). 17 In addition, the Ninth Circuit recently considered this statutory language in Hayward

18 v. Marshall, and concluded that the appropriate inquiry for a federal habeas court is whether 19 "some evidence" of current dangerousness supported the Board or Governor's denial of 20 parole. 603 F.3d 546, 562 (9th Cir. 2010). In other words, the federal Due Process Clause 21 requires that California comply with its own quantum of evidence requirement. See id. at 569 22 (Berzon, J., concurring in part and dissenting in part) (asserting that "the majority is correct to

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01 review the state court decision here for compliance with the California Constitution's 02 requirement of `some evidence' of future dangerousness. The federal Due Process Clause 03 requires at least that much."). Accordingly, the majority in Hayward observed that it did not 04 need to decide "whether a right arises in California under the United States Constitution to 05 parole in the absence of some evidence of future dangerousness." Id. The Hayward court 06 could finesse this ultimate legal issue because it found, as I recommend this Court find in this 07 case, as a matter of fact, that the record contained "some evidence" of petitioner's 08 dangerousness. 09 Critical to our analysis and what the majority failed to articulate, however, is the fact

10 that a state prisoner's right to federal habeas review of an adverse parole decision emanates 11 from clearly established U.S. Supreme Court precedent. See id. at 561. See also Estelle, 502 12 U.S. at 68 ("In conducting habeas review, a federal court is limited to deciding whether a 13 conviction violated the Constitution, laws, or treaties of the United States."); 28 U.S.C. 14 § 2241(c) ("The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in 15 custody in violation of the [United States] Constitution or laws. . . ."). The governing law in 16 this context remains Greenholtz and Allen. This Court assumes that the Ninth Circuit in 17 Hayward did not intend to overrule decades of U.S. Supreme Court precedent holding that a 18 federal liberty interest arises from a state statute that employs mandatory language creating a 19 presumption that parole release will be granted if certain designated findings are made. As a 20 result, the undersigned follows the same reasoning as the concurrence, and finds that while 21 petitioner's liberty interest in parole originates from California law, its ultimate protection on 22

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01 federal habeas review arises from the federal due process clause. See Hayward, 603 F.3d at 02 569. 03 To provide a framework for analyzing whether "some evidence" supported the

04 Board's decision with respect to petitioner, this Court must consider the California statutes, 05 regulations and case law which govern decision-making by the Board. See Biggs v. Terhune, 06 334 F.3d 910, 915 (9th Cir. 2003). Under California law, the Board is authorized to set 07 release dates and grant parole for inmates with indeterminate sentences. See Cal. Penal Code 08 § 3040 and 5075, et seq. At the time of the 2007 hearing, § 3041(a) required the Board to 09 meet with each inmate one year before the expiration of his minimum sentence and normally 10 set a release date in a manner that will provide uniform terms for offenses of similar gravity 11 and magnitude with respect to their threat to the public, as well as comply with applicable 12 sentencing rules. Subsection (b) of this section also requires that the Board set a release date 13 "unless it determines that the gravity of the current convicted offense or offenses, or the 14 timing and gravity of current or past convicted offense or offenses, is such that consideration 15 of the public safety requires a more lengthy period of incarceration for this individual, and 16 that a parole date, therefore, cannot be fixed at this meeting." Id., § 3041(b). Pursuant to the 17 mandate of § 3041(a), the Board must "establish criteria for the setting of parole release 18 dates" which take into account the number of victims of the offense as well as other factors in 19 mitigation or aggravation of the crime. The Board has therefore promulgated regulations 20 setting forth the guidelines it must follow when determining parole suitability. See 15 CCR 21 § 2402, et seq. 22

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01

Accordingly, the Board is guided by the following regulations in making a

02 determination whether a prisoner is suitable for parole: 03 04 05 06 07 08 09 10 11 12 13 14 15 CCR § 2402(a) and (b). Subsections (c) and (d) also set forth suitability and unsuitability 15 factors to further assist the Board in analyzing whether an inmate should be granted parole, 16 although "the importance attached to any circumstance or combination of circumstances in a 17 particular case is left to the judgment of the panel." 15 CCR § 2402(c). 18 In examining its own statutory and regulatory framework, the California Supreme 19 Court in Lawrence held that the proper inquiry for a court reviewing a parole decision by the 20 Board is "whether some evidence supports the decision of the Board or the Governor that the 21 inmate constitutes a current threat to public safety, and not merely whether some evidence 22 confirms the existence of certain factual findings." Lawrence, 44 Cal.4th at 1212. The court (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 also asserted that a parole decision must demonstrate "an individualized consideration" of the 02 specified criteria, but "[i]t is not the existence or nonexistence of suitability or unsuitability 03 factors that forms the crux of the parole decision; the significant circumstance is how those 04 factors interrelate to support a conclusion of current dangerousness to the public." Id. at 05 1204-05, 1212 (emphasis added). Although the discretion of the Board in parole matters is 06 very broad, it must offer "more than rote recitation of the relevant factors with no reasoning 07 establishing a rational nexus between those factors and the necessary basis for the ultimate 08 decision ­ the determination of current dangerousness." Id. Thus, the California penal code, 09 corresponding regulations, and decisional law clearly establish that the fundamental 10 consideration in parole decisions is public safety and an assessment of a prisoner's current 11 dangerousness. See id. at 1205-06. 12 13 B. Summary of Governing Principles

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

14 parole. The Board may decline to set a parole date only upon a finding that petitioner's 15 release would present an unreasonable current risk of danger to society if he is released from 16 prison. Where the parole authorities deny release, based upon an adverse finding on that 17 issue, the role of a federal habeas court is narrowly limited. See Hayward, 603 F.3d at 56218 63. It must deny relief if there is "some evidence" in the record to support the parole 19 authority's finding of current dangerousness. See id. That is the determinative issue in this 20 case. 21 22

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01 02 03

VI. A.

ANALYSIS OF THE RECORD IN THIS CASE Due Process Clause Claim

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

04 his commitment offense, as well as petitioner's previous record of violence, unstable social 05 history, and inadequate parole plans. (See Dkt. 1, Ex. A at 83-86.) The Board's findings 06 track the applicable unsuitability and suitability factors listed in § 2402(b), (c) and (d) of title 07 15 of the California Code of Regulations. After considering all relevant and reliable evidence 08 in the record, the Board concluded that evidence of petitioner's positive behavior in prison did 09 not outweigh evidence of his unsuitability for parole. (See id. at 83.) 10 With regard to the circumstances of the commitment offense, the Board concluded that

11 the offense was carried out in "an especially cruel and callous manner," "a dispassionate 12 and/or calculated manner," and "in a manner which demonstrates an exceptionally callous 13 disregard for human suffering." (Id. at 83-84.) See 15 CCR § 2402(c)(1)(B) and (C). The 14 Board found that "[t]he prisoner helped plan . . . an execution." (Dkt. 1, Ex. A at 83.) The 15 victim's bowels and guts were hanging out and [petitioner] aimed at the head but missed and 16 shot the victim [in the leg]." (Id.) See 15 CCR § 2402(c)(1)(B). The Board observed that 17 "[t]his demonstrates a mindset that has no regard for human life at all." (Dkt. 1, Ex. A at 84.) 18 The Board also concluded that "the motive for the crime was inexplicable or very

19 trivial. It was for a debt of sixty dollars . . . There was some inkling that maybe it had more to 20 do with dope. . . ." (Id.) See 15 CCR § 2402(c)(1)(E). In addition, during the hearing 21 petitioner admitted to the Board that he shot the victim because "I didn't want him to identify 22 us. That was part of the reason." (Dkt. 1, Ex. A at 30.) When the panel asked petitioner, who

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01 has a background in the Marine Corps, if he meant to kill the victim when he shot him, 02 petitioner responded, "Yes. You know, to finish the job." (Id.) Based upon the record before 03 this Court, the circumstances surrounding the commitment offense and the trivial motive for 04 the crime provide "some evidence" to support the Board's finding that petitioner carried out 05 his offense in an especially heinous, atrocious or cruel manner. See 15 CCR § 2402(c)(1). 06 The second factor relied upon by the Board was petitioner's previous record of

07 violence. See 15 CCR § 2402(c)(2) (providing that if a "prisoner on previous occasions 08 inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner 09 demonstrated serious assaultive behavior at an early age," this circumstance tends to indicate 10 unsuitability for parole). Specifically, the Board found that "[petitioner] has a record of 11 assaultive behavior starting with his juvenile history at age seventeen. [He] had sold the car 12 to an individual . . . and the person that allegedly was going to buy the car had someone else 13 in the room and a violent fight occurred." (Dkt. 1, Ex. A at 85.) During the hearing, 14 petitioner explained that "this incident happened right after my family had abandoned me . . . 15 And rather than leave and get people involved and handle it maturely, you know, and 16 responsibly, I let the situation escalate into a fight." (Id. at 35.) As a result of this incident, 17 petitioner served six months at a juvenile ranch facility in Utah. (See id. at 84; see id. at 37.) 18 The Board observed that "[t]his type of behavior at age seventeen escalated, as you can see, 19 which is related to the prisoner's crime and his record . . . the violence escalated to a murder." 20 (Id.) The Board's finding regarding petitioner's history of violence was supported by "some 21 evidence" in the record. 22

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01

In addition, the Board found that "[t]he prisoner has an unstable social history" which

02 began at a very young age and contributed to his commission of the commitment offense. 03 (Id. at 85.) See 15 CCR § 2402(c)(3) (providing that if a "prisoner has a history of unstable or 04 tumultuous relationships with others," this circumstance tends to indicate unsuitability for 05 release on parole). Specifically, when the Board asked petitioner during the hearing "what 06 was going through [his] mind at the time" of the offense, petitioner responded that he had 07 agreed to help his co-defendant Sinaiko collect the $60 debt from the victim "in order to be 08 accepted and to be approved of" by Sinaiko. (Dkt. 1, Ex. A at 20.) By way of explanation, he 09 went on to describe his social history, which he claims "destroyed me emotionally." (Id. at 10 18.) Petitioner said, "there was (sic) several events in my life that led up to this crime . . . I 11 grew up in a family with a very abusive father, for one." (Id. at 16-17.) "When I was 12 seventeen my family abandoned me on the street." (Id. at 17.) When the Board asked 13 petitioner why he didn't turn himself in during the approximately five months between the 14 commitment offense and his arrest, petitioner responded, "Well, like, let me finish. I was 15 leading up to the crime here . . . A year before the crime I had a divorce from my wife. She 16 had left me for someone else, and that's when the [methamphetamine] use started, was about 17 a year before." (Id. at 18.) At the time of the murder, "I hadn't dealt with any of this, you 18 know, pain from my past . . . I was engaging in all these defense mechanisms and all the 19 repression. . . ." (Id. at 19-20.) 20 Thus, petitioner asserted that he committed this offense in part to obtain social

21 acceptance from his co-defendants, which he desperately wanted as a result of his difficult 22 childhood, two failed marriages as an adult, and methamphetamine use. (Id. at 20; see id. at

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01 39.) As a result of this discussion, the Board decided that petitioner's unstable social history 02 constituted a factor tending to indicate that he was unsuitable for parole. (See id. at 85.) This 03 Court finds that the Board's conclusion as to this factor was clearly supported by "some 04 evidence" in the record, such as petitioner's testimony regarding his "emotionally destructive" 05 social history at the hearing. 06 Finally, the Board considered petitioner's parole plans, and concluded that it "would

07 like to see [petitioner] perhaps get some more areas that you can live in as far as your living 08 situation. . . ." (Id. at 86.) Petitioner told the Board that if he was released on parole, his 09 "primary choice" was to live in a residence facility set up by the Calvary Chapel in Monterey, 10 California. (Id. at 51.) During the hearing, however, the Board elicited the fact that petitioner 11 had not actually been in direct contact with the pastor or any other person at the Calvary 12 Chapel. (Id. at 53.) Although petitioner asserted that he has "a job offer there in Monterey 13 through the pastor there . . . [at] a maintenance business," when the Board asked what 14 petitioner would be doing, he responded, "I think it's a ­ I think it's ­ I think he ­ I think it's a 15 tile-laying business." (Id. at 54.) Petitioner also admitted that he did not have any tile-laying 16 experience, "didn't know all of the details of the job," or possess much information about the 17 residence facility where he would be living. (Id. at 53-54.) For example, petitioner did not 18 know how much he would be paid for his work, or how long he could live at the residence 19 facility. (Id. at 57.) The Board observed that "it doesn't seem like there's a lot of information 20 that [petitioner has] explored with that."5 (Id. at 58.) 21 22
Although petitioner also briefly mentioned a Veterans Affairs facility in Menlo Park or a ministry in San Diego as possible residences, the discussion during the hearing focused on petitioner's "primary" parole plans in Monterey. (Id. at 52-53.)
5

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01

As discussed above, the viability of a prisoner's parole plans is a statutory factor that

02 is relevant to a Board's suitability determination. See 15 CCR § 2402(d)(8) (providing that if 03 a prisoner has an "understanding and plans for the future," including "realistic plans for 04 release or . . . marketable skills that can be put to use upon release," this circumstance tends to 05 indicate suitability for release on parole). In addition, California courts have held that 06 inadequate parole plans may, in certain situations, provide "some evidence" that a prisoner 07 remains currently dangerous. See Lawrence, 44 Cal.4th at 1228-29 (citing approvingly In re 08 Honesto, 130 Cal.App.4th 81, 97 (2005) (finding "some evidence" to support denial of parole 09 based upon prisoner's inadequate parole plans, unstable social history, and inadequate 10 participation in prison programs)). In this case, it was unclear to the Board whether petitioner 11 would have the necessary skills for employment as a tile-layer, given his lack of experience in 12 this field. Moreover, it was unclear whether petitioner's residential and employment plans at 13 the Calvary Chapel were indeed viable and realistic, in light of the fact that petitioner had 14 never made direct contact with anyone associated with the facility. Based upon the record 15 before this Court, petitioner's parole plans appear uncertain, and therefore "some evidence" 16 supports the Board's finding regarding this factor. 17 During the hearing, the Board also considered and weighed the statutory factors which

18 favored petitioner. For example, the panel acknowledged petitioner's positive psychological 19 reports, completion of welding and plumbing vocations, and noted that petitioner "stayed 20 busy during this last period with self-help [programming]." (Dkt. 1, Ex. A at 42-50.) See 21 also 15 CCR § 2402(d)(9) (providing that a prisoner's "institutional behavior indicat[ing] an 22 enhanced ability to function within the law upon release" constitutes a factor tending to

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01 indicate suitability for parole). The Board commended petitioner for never receiving a CDC 02 115 rules violation report, which documents a prisoner's misconduct "believed to be a 03 violation of law or . . . [otherwise] not minor in nature. 15 CCR § 3312(a)(3). It also 04 commended petitioner for not receiving any CDC Form 128-A custodial counseling chronos 05 for over a decade. (See Dkt. 1, Ex. A at 47.) CDC 128-As are issued "[w]hen . . . minor 06 misconduct recurs after verbal counseling or if documentation of minor misconduct is 07 needed. . . ." 15 CCR § 3312(a)(2). The Board advised petitioner to continue with his anger 08 management and education, because based upon his progress and good behavior in prison to 09 date, "the Panel feels that you certainly have a lot of potential." (Dkt. 1, Ex. A at 86.) 10 Despite petitioner's positive gains, however, the Board found that petitioner would

11 present an unreasonable risk of danger to society if released on parole. (See Dkt. 1, Ex. A at 12 83.) The Board has broad discretion to determine how suitability and unsuitability factors 13 interrelate to support its conclusion of current dangerousness to the public. See also 14 Lawrence, 44 Cal.4th at 1232. The Board's findings with respect to petitioner's commitment 15 offense, previous record of violence, unstable social history, and inadequate parole plans were 16 amply supported by the record before this Court. (See Dkt. 1, Ex. A at 83-86.) As a result, 17 this Court agrees with the California state courts' finding, discussed below, that "some 18 evidence" supports the Board's conclusion that petitioner remains a current danger to public 19 safety. 20 21 B. California Court of Appeal's Decision Upholding the Board's Parole Denial

The California Court of Appeal considered all of the above factors and evidence in the

22 record and "conclude[d] that `some evidence' supports the board's decision to deny Schlappi

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01 release on parole." (Dkt. 12, Ex. 5 at 5.) Specifically, the California Court of Appeal asserted 02 that "the Board's ruling highlighted three general areas of concern . . . (i) the nature of 03 Schlappi's commitment offense; (ii) Schlappi's pre-incarceration criminal history; and (iii) 04 Schlappi's post-release plans."6 (Id. at 6.) The state court also found no merit in petitioner's 05 contention that the Board failed to allege any nexus between his offense and current 06 dangerousness. The state court found, "it is clear from the record that the Board did not act in 07 the manner forbidden by Lawrence ­ relying reflexively on the aggravated nature of 08 Schlappi's commitment offense to deny parole. Rather, the Board concluded that the nature 09 of Schlappi's commitment offense, along with other factors, indicated an unacceptable risk of 10 current dangerousness." (Id. at 6.) For example, the court asserted that petitioner's juvenile 11 offense, "like the commitment offense, indicated that Schlappi reacted to trivial, commonly 12 occurring events (this time a dispute over money owed for a used car) with unlawful 13 violence." (Id. at 8.) Similarly, the court noted that "the uncertainty of Schlappi's post14 release plans further supported a conclusion that Schlappi could easily fall into old patterns of 15 criminality and violence," because "there is a high likelihood that Schlappi, upon release, will 16 encounter circumstances analogous to those that led up to the commitment offense and thus, 17 that he could reoffend in a similar manner." (Id. at 7-8.) 18 Finally, the California Court of Appeal observed that the Board's decision relied, at

19 least in part, upon immutable factors such as petitioner's commitment offense and pre20 incarceration history of violence. The state court acknowledged that the Board cannot rely 21 upon immutable factors to deny petitioner a parole date in perpetuity, as over time "the 22
As discussed supra, this Court finds that the Board's decision actually highlighted four general areas of concern: the three factors identified by the California Court of Appeal, as well as petitioner's unstable social history. (See Dkt. 1, Ex. A at 85.) See also 15 CCR § 2402(c)(1)-(3); id. § 2402(d)(8).
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01 suitability factors undoubtedly will eclipse the immutable characteristics that formed the 02 primary (although not exclusive) basis for the Board's decision." (Id. at 10.) When the 03 unsuitability factors identified by the Board in this case are "[t]aken together," however, the 04 state court nevertheless concluded that the "low threshold" of "some evidence" to support the 05 Board's decision was satisfied because the evidence of petitioner's suitability is not yet "so 06 `overwhelming' that we must reverse the Board's consideration as a violation of due process." 07 (Id. at 11.) 08 The record before this Court amply supports the California Court of Appeal's finding

09 that the "some evidence" standard was satisfied in this case. For example, the Board accorded 10 petitioner individualized consideration with regard to all relevant statutory factors, including 11 petitioner's most current parole plans, and concluded that he remained a current danger to the 12 public. Even though the Board found that petitioner's positive behavior in prison was 13 ultimately outweighed by other unsuitability factors, it duly considered his good behavior. 14 See Shaputis, 44 Cal.4th 1241, 1260 (holding that the Governor does not act arbitrarily or 15 capriciously in reversing a grant of parole when evidence in the record supports the 16 conclusion that the circumstances of the crime continue to be predictive of current 17 dangerousness despite a prisoner's discipline-free record during incarceration); Lawrence, 44 18 Cal.4th at 1228 (asserting that despite a prisoner's discipline-free record during incarceration, 19 where the record contains other evidence of unsuitability for parole, "the aggravated 20 circumstances of the crime reliably may continue to predict current dangerousness even after 21 many years of incarceration."). Accordingly, I recommend the Court find that the California 22 Court of Appeal's decision upholding the Board's parole denial was a reasonable application

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01 of clearly established federal law. 02 03 C. Petitioner's Claim That He Was Denied A "Fair and Impartial" Hearing

During the 2007 parole hearing, the Board asked petitioner about a witness statement

04 from an Oceanside Police Report which the Board asserted was part of the non-confidential 05 section of petitioner's central file at the prison. (See Dkt. 1, Ex. A at 68-75.) Specifically, the 06 witness' statement suggested that petitioner had more of a leadership role in planning and 07 carrying out the commitment offense than petitioner had admitted to the panel during the 08 hearing. (See id. at 70.) When the panel asked petitioner whether he was acquainted with the 09 witness, who "seems to know a lot about [petitioner]," petitioner told the panel he had "never 10 heard of her." (Id. at 73.) Petitioner contends that the witness' statement regarding his role in 11 the offense should not have been considered at his hearing because it was unreliable, and "[i]t 12 is clear from the conduct of the hearing panel that their decision was predetermined . . . a clear 13 and deliberate violation of his Due Process rights guaranteed under the state and federal 14 Constitutions."7 (Dkt. 1 at 6-8.) 15 In a footnote on the last page of its reasoned decision, the California Court of Appeal

16 rejected petitioner's argument that the Board erred by introducing this witness' statement 17 during the 2007 hearing. Specifically, the California Court of Appeal observed that "[t]he 18 hearing transcript reflects that the commissioners asked Schlappi about this statement, but 19 there is no suggestion in the Board's ruling that it relied on it in denying him release." (Dkt. 20 12, Ex. 5 at 11 n.8.) Furthermore, the state court concluded that "[w]e can see nothing 21 improper in asking Schlappi about the statement," because the regulations provide that the 22
As discussed supra, petitioner's state law claims are not cognizable in a federal habeas petition. See Estelle, 502 U.S. at 67-68.
7

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01 panel shall consider all relevant, reliable information in determining suitability for parole. 02 (Id.) 03 It is undisputed that under the Due Process Clause, prisoners are entitled to neutral

04 decision-makers in parole suitability hearings that are free from bias or prejudice. See 05 O'Bremski v. Maas, 915 F.2d 418, 422 (9th Cir. 1990). Specifically, parole board officials 06 must "render impartial decisions in cases and controversies . . . because the litigant's liberty is 07 at stake." Id. (citing Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981). Furthermore, 08 the U.S. Supreme Court has stated that "[t]he parole determination . . . must include 09 consideration of what the entire record shows up to the time of the sentence, including the 10 gravity of the offense in the particular case." Greenholtz, 442 U.S. at 15. 11 Based upon the record before this Court, there is no evidence to suggest, let alone

12 support a finding, that the panel during petitioner's 2007 parole hearing was biased, or the 13 outcome of the hearing was predetermined. Given the fact that this inculpatory statement was 14 in the record, the Board acted fairly to petitioner by bringing it to his attention and offering 15 him a chance to comment upon it. As noted, there is nothing in the decision to indicate that 16 the Board relied upon the witness' statement in any way. In addition, petitioner has failed to 17 cite any authority to support his contention that by asking petitioner a question regarding a 18 witness' statement contained in his central file, the panel committed an error of state law that 19 violated petitioner's federal due process rights. On the contrary, the record reveals that 20 petitioner received an individualized assessment of his suitability for parole during his 2007 21 parole hearing. 22

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01

Without more, petitioner has failed to show that the Board's introduction of the

02 witness' statement regarding petitioner's role in the commitment offense resulted in a federal 03 constitutional violation. Accordingly, I recommend the Court find that the California Court of 04 Appeal's decision denying petitioner's contention was a reasonable application of clearly 05 established federal law. 06 07 VII. CERTIFICATE OF APPEALABILITY

The federal rules governing habeas cases brought by state prisoners were recently

08 amended to require a district court that denies a habeas petition to grant or deny a certificate 09 of appealability in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. 10 § 2254 (effective December 1, 2009). Previously, the Ninth Circuit held that a prisoner was 11 not required to obtain a certificate of appealability from administrative decisions, such as a 12 denial of parole. See White v. Lambert, 370 F.3d 1002, 1010 (9th Cir. 2004); Rosas v. 13 Nielsen, 428 F.3d 1229, 1231-32 (9th Cir. 2005). 14 In Hayward the Ninth Circuit overruled "those portions of White and Rosas which

15 relieve a prisoner from obtaining a certificate of appealability." Hayward, 603 F.3d at 554. A 16 certificate of appealability is now required to "confer jurisdiction on [the Ninth Circuit] in an 17 appeal from a district court's denial of habeas relief in a § 2254 case, regardless of whether 18 the state decision to deny release from confinement is administrative or judicial." Id. 19 In order to obtain a certificate of appealability, a petitioner must make "a substantial

20 showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2). Specifically, if a 21 court denies a petition, a certificate of appealability may only be issued "if jurists of reason 22 could disagree with the district court's resolution of his constitutional claims or that jurists

REPORT AND RECOMMENDATION - 25

01 could conclude the issues presented are adequate to deserve encouragement to proceed 02 further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). See also Slack v. McDaniel, 529 03 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he 04 must demonstrate "something more than the absence of frivolity or the existence of mere 05 good faith on his . . . part." Miller-El, 537 U.S. at 338. 06 For the reasons set forth in the discussion of the merits in my Report and

07 Recommendation, jurists of reason could not find the result recommended in this case 08 debatable. Accordingly, I recommend that the Court deny petitioner a certificate of 09 appealability on the issue of whether the state courts' rejection of petitioner's claims was 10 contrary to, or involved an unreasonable application of, clearly established Federal law as 11 determined by the Supreme Court of the United States, or resulted in a decision that was 12 based on an unreasonable determination of the facts in light of the evidence presented. 13 14 VIII. CONCLUSION

For the reasons stated above, this Court finds that as of the 2007 Board hearing there

15 was "some evidence" that petitioner would have posed an unreasonable risk of danger to 16 society or threat to public safety if released from prison. In addition, petitioner has failed to 17 demonstrate that the Board denied petitioner a fair and impartial hearing under the Due 18 Process Clause by asking petitioner about a witness' statement to police regarding petitioner's 19 role in the commitment offense. Accordingly, the California Court of Appeal's opinion 20 upholding the Board's decision was a reasonable application of clearly established federal 21 law. I therefore recommend the Court: 1) find that petitioner's federal constitutional rights 22 were not violated; 2) deny the petition; 3) dismiss this action with prejudice; and 4) deny a

REPORT AND RECOMMENDATION - 26

01 certificate of appealability. 02 This Report and Recommendation is submitted to the United States District Judge

03 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 04 days after being served with this Report and Recommendation, any party may file written 05 objections with this Court and serve a copy on all parties. Such a document should be 06 captioned "Objections to Magistrate Judge's Report and Recommendation." Any response to 07 the objections shall be filed and served within fourteen (14) days after service of the 08 objections. The parties are advised that failure to file objections within the specified time 09 might waive the right to appeal this Court's Order. See Martinez v. Ylst, 951 F.2d 1153 (9th 10 Cir. 1991). A proposed order accompanies this Report and Recommendation. 11 12 13 14 15 16 17 18 19 20 21 22 DATED this 12th day of July, 2010.

JOHN L. WEINBERG United States Magistrate Judge

A

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