Culler v. Haviland
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 4/16/12 RECOMMENDING that the 1 petition be denied. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 14 days.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JERRYAL J. CULLER, SR.,
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Petitioner,
No. CIV S-10-0912 LKK GGH P
vs.
JOHN HAVILAND, Warden,
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Respondent.
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FINDINGS AND RECOMMENDATIONS
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Introduction
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Petitioner, who was sentenced in 1992 in Contra Costa
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County Superior Court to a term of life with the possibility of parole for aggravated mayhem
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with use of a deadly weapon (flammable liquid), intentionally causing great bodily injury,
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challenges the 2009 decision by the California Board of Parole Hearings (BPH) finding him
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unsuitable for parole. Petition (docket # 1), p. 2 & Exhibit D to Memorandum of Points and
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Authorities (docket # 2-1), 2009 Parole Hearing Transcript (hereafter, PHT), p. 41 ; Answer,
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2009 Parole Hearing Transcript (hereafter, PHT) (docket # 16-2), p. 8, (docket # 16-3), p. 2.
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The court’s electronic system’s pagination is referenced for all documents cited.
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Petitioner challenges, as arbitrary and capricious, the denial of parole on five grounds: 1) BPH
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has denied petitioner due process and equal protection for the sixth time for failing to establish
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the criteria for aggravated mayhem, Cal. Pen. Code § 1168/203, pursuant to their duty under Cal.
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Penal Code §§ 3041(A), 3041.5 [6]; 2) “BPH Commissioners Anderson and Goughnour
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knowingly, willfully, and maliciously relied on” information that was biased, including racially
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biased, from a BPH “hired gun” psychiatric evaluator unsupported by any prior psychiatric
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report; 3) BPH commissioners continued “to violate ADA Northern District Court Ordered
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Stipulation, Due Process, and Equal Protection by using petitioner’s medical condition as an
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element to deny parole plans”; 4) in 1998, 2001, 2002, 2005, 2007 and 2009, BPH
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commissioners repeatedly used petitioner’s commitment offense as a basis for parole denial and
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now, without supporting judicial authority, have reclassified non-murder petitioner’s offense as a
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murder in violation of his due process and equal protection rights; 5) “BPH has violated the Ex
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Post Facto.” Petition, pp. 6-10.
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By order, filed on February 2, 2011, the parties were directed to provide
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simultaneous supplemental briefing, why the instant petition should not be dismissed in light of
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the recent United States Supreme Court decision that found that the Ninth Circuit erred in
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commanding a federal review of the state’s application of state law in applying the “some
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evidence” standard in the parole eligibility habeas context. Swarthout v. Cooke, ___ U.S. ___,
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131 S. Ct. 859, 861 (2011).2 The parties submitted the additional briefing timely.
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AEDPA
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The statutory limitations of federal courts’ power to issue habeas corpus relief for
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persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and
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Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
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An application for a writ of habeas corpus on behalf of a person in
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The earlier citation in the prior order was to Swarthout v. Cooke, [___] U.S. ___, ___ S.
Ct. ___, 2011 WL 197627 *2 (Jan. 24, 2011)
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custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
As a preliminary matter, the Supreme Court has recently held and reconfirmed
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“that § 2254(d) does not require a state court to give reasons before its decision can be deemed to
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have been ‘adjudicated on the merits.’” Harrington v. Richter, 131 S.Ct. 770, 785 (2011).
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Rather, “when a federal claim has been presented to a state court and the state court has denied
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relief, it may be presumed that the state court adjudicated the claim on the merits in the absence
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of any indication or state-law procedural principles to the contrary.” Id. at 784-785, citing Harris
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v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when
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it is unclear whether a decision appearing to rest on federal grounds was decided on another
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basis). “The presumption may be overcome when there is reason to think some other explanation
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for the state court’s decision is more likely.” Id. at 785.
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The Supreme Court has set forth the operative standard for federal habeas review
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of state court decisions under AEDPA as follows: “For purposes of § 2254(d)(1), ‘an
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unreasonable application of federal law is different from an incorrect application of federal
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law.’” Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120
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S.Ct. 1495 (2000). “A state court’s determination that a claim lacks merit precludes federal
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habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
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decision.” Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004).
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Accordingly, “a habeas court must determine what arguments or theories supported or . . could
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have supported[] the state court’s decision; and then it must ask whether it is possible fairminded
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jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
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decision of this Court.” Id. “Evaluating whether a rule application was unreasonable requires
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considering the rule’s specificity. The more general the rule, the more leeway courts have in
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reaching outcomes in case-by-case determinations.’” Id. Emphasizing the stringency of this
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standard, which “stops short of imposing a complete bar of federal court relitigation of claims
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already rejected in state court proceedings[,]” the Supreme Court has cautioned that “even a
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strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id.,
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citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).
The undersigned also finds that the same deference is paid to the factual
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determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are
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presumed to be correct subject only to a review of the record which demonstrates that the factual
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finding(s) “resulted in a decision that was based on an unreasonable determination of the facts in
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light of the evidence presented in the state court proceeding.” It makes no sense to interpret
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“unreasonable” in § 2254(d)(2) in a manner different from that same word as it appears in
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§ 2254(d)(1) – i.e., the factual error must be so apparent that “fairminded jurists” examining the
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same record could not abide by the state court factual determination. A petitioner must show
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clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546
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U.S. 333, 338, 126 S.Ct. 969, 974 (2006).
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The habeas corpus petitioner bears the burden of demonstrating the objectively
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unreasonable nature of the state court decision in light of controlling Supreme Court authority.
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Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). Specifically, the petitioner “must
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show that the state court’s ruling on the claim being presented in federal court was so lacking in
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justification that there was an error well understood and comprehended in existing law beyond
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any possibility for fairminded disagreement.” Harrington, supra, 131 S.Ct. at 786-787. “Clearly
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established” law is law that has been “squarely addressed” by the United States Supreme Court.
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Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of
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settled law to unique situations will not qualify as clearly established. See e.g., Carey v.
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Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state
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sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear
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prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly
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established law when spectators’ conduct is the alleged cause of bias injection). The established
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Supreme Court authority reviewed must be a pronouncement on constitutional principles, or
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other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on
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federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S. Ct. 362, 366 (2002).
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The state courts need not have cited to federal authority, or even have indicated
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awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8, 123 S.Ct.
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at 365. Where the state courts have not addressed the constitutional issue in dispute in any
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reasoned opinion, the federal court will independently review the record in adjudication of that
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issue. “Independent review of the record is not de novo review of the constitutional issue, but
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rather, the only method by which we can determine whether a silent state court decision is
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objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
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Finally, if the state courts have not adjudicated the merits of the federal issue, no
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AEDPA deference is given; the issue is reviewed de novo under general principles of federal law.
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James v. Ryan, __ F.3d __, 2012 WL 639292 *18-19 (9th Cir. 2012).
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Argument & Analysis
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Because petitioner himself, in his supplemental briefing (pp. 5-6) , has conceded
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that Swarthout v. Cooke, 131 S. Ct. 859, forecloses his claims 2, 3 and 4 (with a caveat as to
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claim 3, addressed below),3 the court will address those claims first and then proceed to
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Petitioner frames the concession a little oddly: “Petitioner’s second, third and fourth
claims are all procedural issues that are covered under Swarthout v. Cooke, [] _ U.S. __, __ S.
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consideration of claims 1 and 5.
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“Some Evidence” Claims-Claims 2, 3, and 4
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Claim 2
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As support for petitioner’s claim that the BPH panel relied on “bias and racially
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bias[ed] information from a BPH []‘hired gun’ evaluator ... not supported by any previous
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psychiatric report” to deny him parole, petitioner contends that in “[t]he two major categories,
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Risk for Violence and Overall Risk assessed by Forensic Evaluator Michael L. Venard, Ph.D.,”
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the assessment was contradicted by all prior psychologists and his conclusions included
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misinformation and inaccurate conjecture as to his juvenile history made up to increase the risk
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of violence petitioner posed. Petition, p. 7. Petitioner also faults Dr. Venard’s conclusion re:
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“Antisocial / Psychotic” as unsupported by any of the prior psychologists, specifically Drs. Les
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Carr, H. Ishida, and Tone F. Blanchard, all Ph.D.’s. Id. In his supporting memorandum,
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petitioner groups the above into a group of “three major categories”: “risk for violence, overall
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risk assessment, and antisocial/psychotic.” Memorandum of Points and Authorities [in Support
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of Petition], hereafter, identified as docket # 2, for ease of reference, p. 6. Petitioner asserts that
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Dr. Venard was incorrect in stating that petitioner had problems in high school, but petitioner
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avers he was never suspended for fighting in junior high and never told Dr. Venard that he had
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been. Docket # 2, pp. 8-9. Petitioner also contends that his efforts to “reconstruct the
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ambiguousness of the crime” are genuine and do not show a lack of insight. Id., at 9.
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In the BPH transcript, Dr. Venard’s assessment included discussion of petitioner’s
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negative disciplinary history, his lack of recent participation in AA or NA, the results of a battery
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of tests which included a score that placed petitioner “in the high range of clinical construct of
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psychopathy” and a finding that petitioner was “in the moderate risk category for violent
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Ct. 2010 decision.” Petitioner’s Supplemental Briefing (PSB) (docket # 21), p. 5.
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recidivism.” Docket # 2-1, pp. 60- 61; Answer, 2009 BPH transcript (docket # 16-2), pp. 64-65.4
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Petitioner points for comparison to a psychological evaluation by a clinical psychologist named
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Dr. Carr for a 1998 BPH hearing, which noted his extensive arrest history and long-term drug
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and alcohol dependence but noted “no evidence of a psychotic or organic impairment,” nor
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evidence of “an antisocial personality structure of a criminal type,” his “Christian commitment ...
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as a therapeutic support system for him,” and his “functioning on a high average level of
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intelligence” and his “industrious” work orientation. Docket # 2-2, pp. 29-30. An excerpt of a
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clinical assessment of a Dr. Isheda, finds petitioner to be at a “below average risk for violence
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when compared to the general inmate population,” but also notes “[v]iolence potential is
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unpredicatable in that causative factors are multidetermined.” Id., at 32-33. Dr. Blanchard, in an
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excerpt, finds, inter alia, petitioner’s risk of violent recidivism to be average, that his “greatest
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risk factor”... “is his history of alcohol dependence.” Id., at 34. Dr. Blanchard also found
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petitioner statements about the crime to sound “rehearsed and meaningless” and that he did “not
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appear to have fully accepted the gravity of his crime.” Id. Dr. Blanchard, nevertheless, found
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petitioner to be “competent and responsible for his own behavior” and to know right from wrong.
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Id. At the hearing, petitioner objected to Dr. Venard’s report as biased/racially biased and when
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asked to demonstrate how the psychologist showed racial bias, petitioner stated:
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Okay. He assessed me because I fathered some children at an early
age, that that shows a propensity for violence, or then he uses
words like cultural expectations. That’s just buzz words, that - -
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Docket # 2-1, p. 62; Answer, 2009 BPH transcript (docket # 16-2), pp. 66.5
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When petitioner was questioned as to how referencing his having children and
multiple wives showed a racial bias, petitioner stated:
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A copy of Dr. Venard’s “Comprehensive Risk Assessment” is located at docket # 16-4,
pp. 55-66.
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References from this point on to the BPH transcript, for the sake of simplicity, will just
refer to pages within docket # 16-2 (filed with the Answer).
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No, that’s a biasness, as far as I’m concerned, as to saying that
because I have children at an early age or dropped out of school to
take care of the children, that that shows a propensity for violence.
That was my only complaint on that that was racial.
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Docket # 16-2, pp. 67-68.
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Deputy Commissioner Goughnour, having engaged in a discussion to try to elicit
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a specific basis for petitioner’s claims of bias, at that point stated that he was not “getting
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anywhere on this” and the hearing moved on. Id., at 68.
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Because the state Court of Appeals and California Supreme Court’s denial was a
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summary one,6 the court must look through to the last reasoned decision, in this instance, the
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denial by the Contra Costa County Superior Court. When reviewing a state court’s summary
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denial of a claim, the court “looks through” the summary disposition to the last reasoned
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decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000), citing Ylst v.
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Nunnemaker, 501 U.S. 797, 803-04, 111 S. Ct. 2590 (1991).
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Petitioner contends that the Board “willfully and maliciously relied
on both bias and racially bias information [...] from ...an
[e]valuator that was not supported by any previous report ...”. The
risk assessment report authored by Dr. Venard on March 3, 2009
was unfavorable, as it assessed petitioner as a moderate-high risk
for future violence. Ex. D, p. 11-12 (Risk Assessment).
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Petitioner objected at the hearing on the grounds the forensic
psychologist showed racial bias. [] Petitioner complained that there
were racial undertones related to the clinician’s observation that he
had had numerous children with a variety of women and that he
had dropped out of school. Ex. D, p, 3, 8 (Risk Assessment); Ex.
D, p. 62-63 (Board Hearing). The Clinician concluded that
petitioner’s “antisocial behaviors [were] the result of enduring,
inflexible and pervasive pattern of inner experience that deviate[d]
markedly from cultural expectations.” Ex. D, p. 8 (Risk
Assessment).
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When pressed by the Board, however, petitioner was unable to
articulate any specifie aspect of the report that showed racial
discrimination. Ex. D, p. 60-62 (Board Hearing). At this time
petitioner has failed to articulate the basis for his claim of racial
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Answer, Ex. 6 (docket # 29-9).
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discrimination. There was nothing in the record before the Board
or in the risk assessment that supports a claim that the Board relied
on racially-biased information.
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Contra Costa County Superior Court ruling in docket # 2 at pp. 35-36; Answer, docket # 16-3,
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pp. 14-15.
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The court’s review of the BPH transcript reveals that this is an accurate
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summary of what transpired at the hearing. Petitioner is correct to concede that this claim is
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among those that come under a challenge based on the “some evidence” standard. As noted, the
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parties timely filed supplemental briefing, but as was set forth in the earlier order (docket # 18),
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there appears to be no federal due process requirement for a “some evidence” review. Quoting,
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inter alia, Estelle v. McGuire, 502 U.S. 62, 67 (1991), the Supreme Court recently re-affirmed
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that “‘federal habeas corpus relief does not lie for errors of state law.’” Swarthout v. Cooke, ___
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U.S. ___, 131 S. Ct. at 861. Id. While the high court found that the Ninth Circuit’s holding that
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California law does create a liberty interest in parole was “a reasonable application of our cases”
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(while explicitly not reviewing that holding),7 the Supreme Court stated:
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When, however, a State creates a liberty interest, the Due Process
Clause requires fair procedures for its vindication-and federal
courts will review the application of those constitutionally required
procedures. In the context of parole, we have held that the
procedures required are minimal.8
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Swarthout v. Cooke, at 862.
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While not specifically overruling Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en
banc), the Supreme Court instead referenced Pearson v. Muntz, 606 F.3d 606 (9th Cir. 2010),
which further explained Hayward. Thus, the Supreme Court’s decision in Swarthout, essentially
overruled the general premise of Hayward. When circuit authority is overruled by the Supreme
Court, a district court is no longer bound by that authority, and need not wait until the authority is
also expressly overruled. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en
banc). Furthermore, “circuit precedent, authoritative at the time it was issued, can be effectively
overruled by subsequent Supreme Court decisions that ‘are closely on point,’ even though those
decisions do not expressly overrule the prior circuit precedent.” Miller, 335 F.3d at 899 (quoting
Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002)). Therefore, this court
is not bound by Hayward.
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References from this point on to the BPH transcript, for the sake of simplicity, will just
refer to pages within docket # 16-2 (filed with the Answer).
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Citing Greenholtz,9 the Supreme Court noted it had found under another state’s
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similar parole statute that a prisoner had “received adequate process” when “allowed an
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opportunity to be heard” and “provided a statement of the reasons why parole was denied.”
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Swarthout v. Cooke, at 862. Noting their holding therein that “[t]he Constitution [] does not
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require more,” the justices in the instances before them, found the prisoners had “received at least
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this amount of process: They were allowed to speak at their parole hearings and to contest the
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evidence against them, were afforded access to their records in advance, and were notified as to
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the reasons why parole was denied.” Id.
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The Supreme Court was emphatic in asserting “[t]hat should have been the
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beginning and the end of the federal habeas courts’ inquiry....” Swarthout v. Cooke, at 862. “It
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will not do to pronounce California’s ‘some evidence’ rule to be ‘a component’ of the liberty
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interest....” Id., at 863. “No opinion of ours supports converting California’s “some evidence”
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rule into a substantive federal requirement.” Id., at 862. Thus, federal courts are precluded from
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review of the state court’s application of its “some evidence” standard. The essence of Claim 2
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of being prejudiced by a biased evaluation is essentially a claim that California’s “some
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evidence” requirement was violated.
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None of petitioner’s claims of bias are predicated on any claim that the decision-
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makers themselves were biased10 but rather that the assessment made by Dr. Venard was biased
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Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979).
The Supreme Court has long recognized that “[a] fair trial in a fair tribunal is a
basic requirement of due process.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623 (1955);
Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456 (1975); Bracy v. Gramley, 520 U.S. 899,
904–05, 117 S.Ct. 1793 (1997); see also, Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995)
“Fairness requires the absence of actual bias ... .and even the probability of unfairness.”
Murchison, 349 U.S. at 136. The Supreme Court counts a ‘neutral and detached’ hearing body as
among the “minimum due process requirements” for a parole board. Morrissey v. Brewer, 408
U.S. at 489, 92 S. Ct. 2593. “Because parole board officials perform tasks that are functionally
comparable to those performed by the judiciary, they owe the same duty: ‘to render impartial
decisions in cases and controversies that excite strong feelings because the litigant’s liberty is at
state.’” O’Bremski v. Maass, 915 F.2d 418, 422 (9th Cir. 1990).
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and not supported by prior psychologists’ reports and was thus arbitrary and capricious. In
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essence, the claim is that California’s “some evidence” standard was not met when the BPH
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panel was presented with an allegedly biased evaluation of his psychological condition.
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However, this argument goes no further than the ordinary credibility of a witness argument one
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might make at any proceeding. As such it is totally encompassed by the Swarthout “some
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evidence” review preclusion.
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The copy of the transcript of BPH initial parole consideration hearing at issue in
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this action demonstrates that petitioner was amply “allowed an opportunity to be heard” at the
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hearing and was undisputedly “provided a statement of the reasons why parole was denied.”
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Answer, 2009 BPH transcript (docket # 16-2), pp. 6-91. It is undisputed that petitioner had
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ample opportunity to be heard and that he was provided with a statement of reasons for his
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denial, which is all the due process the federal Constitution requires. Claim 2 should be denied.
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Claim 3
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In support of petitioner’s claim that the BPH commissioners continued “to violate
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ADA Northern District Court Ordered Stipulation, Due Process, and Equal Protection by using
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petitioner’s medical condition (nephritis) as an element to deny parole plans,” petitioner contends
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that BPH Commissioners Anderson and Goughnour denied petitioner parole in violation of a
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court-ordered stipulation. Petition, p. 8. The stipulation petitioner references is from a civil
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rights action in the Northern District of California, Culler v. Hepburn, et al., No. C-01-1484
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WHA EDL PR (Docket # 2-2, pp. 167-254) dated April 29, 2004, wherein plaintiff (petitioner
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herein) stipulated to a dismissal with prejudice and defendant parole board members stipulated:
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that they will not consider plaintiff’s disability, specifically his
nephropathy as alleged in his complaint dated April 9, 2001,
including any resulting inability to work, as a basis to deny his
suitability for parole at any future parole hearings for which he may
be eligible.11
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A copy of this stipulation and dismissal is also found submitted with the Answer at
docket # 16-5, pp. 88-89.
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The state court decision with respect to this claim stated:
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Petitioner contends that the Board Commissioners violated the
Northern District Court Ordered Stipulation by using petitioner’s
medical condition as an element to deny paroled plans. On May 4,
2004 [] the U.S. District Court for the Northern District of
California in Jerryal Culler Sr. v. B.P.T. Chairman Dave Hepburn,
et al. [] issued a stipulation in which defendants Hepburn, Angle,
McCormick, and Munoz, and Parole Board members stipulated
that they would not consider petitioner’s disability, specifically his
nephropathy “as alleged dated April 9, 2001, including any
resulting inability to work, as a basis to deny his suitability for
parole at any future parole hearings...”. Ex. A.
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In the present case, the Board initially determined that petitioner
did not suffer from any disability that would have prevented him
from participating in the hearing, in particular petitioner confirmed
that he did not have any difficulty seeing, reading, and walking.
Nor did he suffer from any mental health issues. Ex. D, p. 6
(Board Hearing).
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Petitioner then informed the Board that he had nephritis, a kidney
disease that caused his body to enlarge. Ex. D, p. 7, 35-36 (Board
Hearing). In the Life Prisoner Evaluation Report dated May 2009
which the Board reviewed, petitioner expressed the view that he
did not want his future employment plans to be an issue as he had a
liver condition in which he might not be able to work. Petitioner
stated that he did not want that to be a reason not to grant parole.
Ex. C, p. 5. To further punctuate this point, petitioner told the
Board that he was at stage three kidney failure and could go into
renal failure at any time so his ability to work “will be less than
zero...unless they can stop the flare.” Ex. D, p. 64 (Board
Hearing). Petitioner explained that he would be disabled and
would have to be on dialysis. (Id.)
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Despite his unfortunate disability, petitioner expressed the view to
the Board that he did not believe he would have any problem
getting employment. He stated that “with all these jobs that are
becoming available right now, I’ll have a job in no time. I’ve
worked all my life...”. Ex. D, p. 35 (Board Hearing). Petitioner
stated that his union and social security would assist him in
providing a source of funds to enable him to take care of himself.
Ex. D, p. 64-65 (Board Hearing). The Board noted petitioner’s
confidence in the face of the current status of the California
economy and petitioner responded that “I’ll take whatever [job] is
available.” Ex. D, p. 36 (Board Hearing).
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Nowhere in the record does the Board use petitioner’s medical
condition as an element to deny parole. In fact the record indicates
that petitioner clearly articulated that he did not want his kidney
disease to be used as grounds to deny him parole and reassured the
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Board that he was ready, willing and able to work. Therefore there
is nothing in the record to support petitioner’s conclusory claim
that the Board used petitioner’s medical condition as an element to
deny his parole.”
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Contra Costa County Superior Court ruling in Docket # 2 at pp. 36-37; Answer, docket # 16-3,
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pp. 15-16.
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There are a number of procedural and substantive threshold issues which must
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first be discussed here. Petitioner relies, in part, on a settlement in Northern District civil action
8
based on the Americans with Disabilities Act (ADA). Respondent barely references this claim,
9
and the court’s subject matter jurisdiction is in some doubt here. Unless the district court in the
10
Northern District retained jurisdiction to enforce the settlement, even if based on federal claims,
11
district courts, have no jurisdiction to enforce the settlement. Kokkonen v. Guardian Life Ins.
12
Co., 511 U.S. 378, 114 S.Ct. 1673 (1994). Moreover, even assuming jurisdiction to take into
13
account the civil settlement, a habeas action outside the district of settlement is a doubtful place
14
to enforce such settlements. Finally, even if reviewed on the merits of the disability allegations,
15
petitioner has not correctly characterized the record.
16
First, this is not an ADA “procedures” case, i.e., it does not deal with access
17
issues concerning the parole eligibility hearing itself. Rather, petitioner’s complaint is that the
18
ADA (or the settlement) was violated if the BPH adversely considered petitioner’s disability
19
when determining the substance of the parole eligibility decision, specifically, if petitioner’s
20
inability to work because of his disability was used to deny eligibility. This is an issue, at least
21
initially, addressed by Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002). Thompson held that
22
the BPH (the BPT) could not categorically deny eligibility for parole based on a particular
23
disability. Id. at 858 (fn.4). However, an individualized assessment that an inmate’s disability,
24
for example, would endanger the public was not violative of the ADA. Id.
25
Petitioner presents no claim of a categorical usage of plaintiff’s disability, or
26
categorical denials based on disability in general with respect to ability to work as a parole
13
1
requirement. Thus, the Thompson holding does not apply. However, going further, individually
2
assessing a disability on one’s propensity to be dangerous is one thing; inserting a work
3
requirement regardless of disability is another. Nevertheless, it is clear from reading the entire
4
transcript of the BPH hearing, that the BPH commissioners did no such thing. Indeed, it was
5
petitioner who extensively explored the subject and continued his argument that his kidney
6
problems should make no difference. See Answer, Exhibit 1, Part 2 at 11 (electronic pagination)
7
(issue raised by a BPH commissioner to ensure that petitioner was not having difficulty in
8
participating at the hearing, at 40 (where a commissioner raised the issue only in passing when
9
referencing petitioner’s realistic work plans), at 69 where petitioner’s attorney questioned
10
petitioner about his disability, and raised the issue that petitioner might well qualify for disability
11
payments if released).
12
This court’s review of the record confirms that the ruling by the state
13
court accurately reflects the record of the BPH hearing. To the extent that petitioner seeks relief
14
based on an alleged violation of a federal court order, petitioner does not provide any basis for a
15
finding that any such violation occurred.
16
Claim 4
17
Petitioner states that BPH commissioners in 1998, 2001, 2002, 2005, 2007 and
18
2009, have repeatedly used petitioner’s commitment offense as a basis for parole denial and have
19
now, without supporting judicial authority’ reclassified petitioner’s non-murder offense12 as a
20
murder in violation of his due process and equal protection rights. Petition, p. 9. Petitioner
21
contends that the BPH’s use of CAL. CODE
22
set forth parole consideration criteria for life prisoners.
23
sets forth the “parole consideration criteria and guidelines for life prisoners” and § 2402
R EGS .
tit.xv, §§ 2281/2[402], the state regulations that
C AL . C ODE R EGS .
tit.xv, § 2281 specifically
24
25
26
12
Petitioner was convicted of aggravated mayhem (Cal. Penal Code § 205) (setting
another person on fire with a flammable liquid) for which he was sentenced to life with the
possibility of parole.
14
1
addresses the “parole consideration criteria and guidelines for life prisoners who have been
2
convicted for murders committed on or after November 8, 1978 and for specified attempted
3
murders.” Petitioner maintains that the use of these regulations by the BPH “is an illegal
4
cr[i]teria [sic] for aggravated mayhem only to establish an [on] going abuse of discretion” as well
5
as arbitrariness and capriciousness in the denial of his parole. Docket # 2, p. 14.
6
Petitioner’s concedes that his conviction carries a life sentence but argues that in
7
repeatedly denying him parole he is being punished disproportionately for the lesser offense of
8
aggravated mayhem, whose mininum eligible parole date was in May 4,1999, by standards
9
applied to convicted murderers. Docket # 2, pp. 13-17; docket # 2-1, pp. 4-5.13 Petitioner cites,
10
inter alia, Irons v. Carey, 358 F. Supp.2d 936, 947 (E.D. Cal. 2005), and Biggs v. Terhune, 334
11
F.3d 910, 916 (9th Cir. 2003) (which, while finding some evidence to support denial of parole,
12
noted that continued denial of a parole date on the basis of petitioner’s offense and previous
13
conduct would implicate inmate’s liberty interest in parole) in support of his claim. The writ
14
granted at the district court level in Irons on the ground that there was insufficient evidence to
15
support the 2001 parole denial decision was reversed by the Ninth Circuit in Irons v. Carey, 505
16
F.3d 846 (9th Cir. 2007) (holding that due process in the circumstances was not violated when
17
parole deemed unsuitable prior to expiration of minimum term). Subsequently, the Ninth Circuit
18
decisions in both Irons and Biggs were overruled by Hayward v. Marshall, 603 F.3d 546 (9th Cir.
19
2010), itself reversed by the decision in Swarthout v. Cooke, 131 S. Ct. 859, 862, finding, as
20
previously set forth, no federal liberty interest in a California inmate’s state-created right to
21
parole, and no federal process due beyond the minimal procedures of “an opportunity to be
22
heard” and “a statement of reasons why parole was denied.”
23
Thus, once again, beyond determining that petitioner received an opportunity to
24
be heard and a statement of reasons for the denial at his parole hearing, which he did, this court
25
13
26
Petitioner states his MEPD was May 9, 1999, but the BPH stated it was May 4, 1999. .
Docket # 2, p. 14; docket # 2-1, pp. 4-5.
15
1
cannot review the basis for the state court’s determination that “some evidence” supported the
2
parole “board’s core finding that petitioner poses a current threat to public safety.” Contra Costa
3
County Superior Court ruling in docket # 16-3, at p. 7. Therefore, this claim must be denied to
4
the extent that his contention is that the use of the unchanging facts of his commitment offense as
5
a basis for denying parole violates his constitutional rights. To the extent that petitioner claims
6
that his offense has been reclassified as a murder offense when he did not commit a murder, that
7
claim is addressed in the discussion of the essentially duplicative Claim 1 below.
8
State Law Claim - Claim 1
9
Petitioner claims that he has been denied due process and equal protection for the
10
sixth time by the failure of BPH to establish the criteria for aggravated mayhem, Cal. Pen. Code
11
§ 1168/203, pursuant to their duty under Cal. Penal Code §§ 3041(A), 3041.5 [6] and because
12
(part of Claim 4) his non-murder offense has been reclassified as murder.
13
The state court ruled as follows on this issue:
14
Petitioner contends that he was considered for parole under a
murder criteria for a non-murder offense. On November 13, 2008
the Northern District California Court ruled on a writ of habeas
corpus filed by petitioner challenging an earlier decision of the
Board. The Court dismissed on several grounds but ordered a
show cause hearing on the issue of whether the Board used the
criteria for murder and whether the application of such criteria to a
prisoner convicted of aggravated mayhem was arbitrary and
capricious. (Ex. A). This case is presently pending before the
District Court.14
15
16
17
18
19
Similarly, during his most recent parole suitability hearing,
petitioner objected that the Board was acting arbitrarily and
capriciously by using the “murder criterion” pursuant to Cal. Cod
Regs, Title 15, § 2402. Ex. D, p. 9 (Board Hearing). Petitioner’s
20
21
22
14
23
24
25
26
A court may take judicial notice of court records. See Barron v. Reich, 13 F.3d 1370,
1377 (9th Cir. 1994); MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United
States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). This court takes judicial notice of the
Northern District case the state court has referenced as pending at the time of its decision, Culler
v. Board of Parole Hearings, No. C-08-1524 WHA (PR) (N.D. Cal.), and notes that, by order
filed on September 8, 2009, that case, pursuant to respondent’s motion to dismiss, was
subsequently dismissed as barred by the AEDPA statute of limitations, and judgment thereon
entered.
16
1
2
3
4
5
6
attorney explained that it was “a legal objection to the nature of the
law.” Ex. D, p,9 (Board Hearing). His counsel represented that
the law under which petitioner was convicted was aggravated
mayhem. Ex. D, p. 9-10 (Board Hearing). Counsel contended that
there was a legal question as to whether people convicted of
aggravated mayhem should have the same parole rules used against
them as convicted murderers. Ex. D, p. 9-10 (Board Hearing).
According to petitioner’s counsel, at the time of the hearing, the
issue was “before the court” and petitioner was waiting for a
decision. Ex. D, p. 9-10. The Board overruled petitioner’s
objection and proceeded with the hearing utilizing Cal. Code
Regs., Title 15, § 2402.
7
8
9
10
11
12
13
14
15
16
17
18
The court finds that the Board followed the proper statutory
scheme for parole suitability decisions. The Board was authorized
to determine whether petitioner, who had been sentenced to an
indeterminate prison term, should be released on parole, in
accordance with the provisions of Penal Code § 3041. Subdivision
(b) section 3041 provides in pertinent part: “The panel or the
board, sitting en banc, shall set a release date unless it determines
that the gravity of the current convicted offense or offenses, or the
timing and gravity of the current or past convicted offense or
offenses, is such that consideration of the public safety requires a
more lengthy period of incarceration for this individual, and that a
parole date, therefore, cannot be fixed at this meeting.”
In determining whether the public safety requires the prisoner to
serve a more lengthy period of incarceration rather than be released
on parole, the Board was guided by the criteria listed in the
California Code of Regulations. The Board must deny parole “if in
the judgment of the panel the prisoner will pose an unreasonable
risk of danger to society if released from prison.” Cal. Code Regs.,
tit. 15, §§ 2281 § (a) 2402 § (a). To assess the risk and thus
determine the prisoner’s suitability for parole, the Board must
consider “[a]ll relevant, reliable information available to the
panel.” Cal. Code Regs., tit. 15, §§ 2281(b), 2402, (b).
19
25
In the present case, petitioner was convicted of aggravated mayhem
for which he was sentence to a term of life with the possibility of
parole. The parole suitability criteria applicable to petitioner, a life
prisoner, were set forth in Cal. Code Regs., tit. 15, § 2281. Cal.
Code Regs., tit. 15, § 2292(a) further provides that “[a]ll life
prisoners committed to state prison for crime(s) committed prior to
July 1, 1977 shall be heard in accordance with rules in effect prior
to 7/1/77. All life prisoners heard after the effective date of these
regulations, who have been committed to state prison for crime(s)
committed after 7/1/77, shall be heard in accordance with this
article.” This retroactivity provision was effective on or about
June 1979.
26
Here, the Board cited the parole suitability criteria for inmates
20
21
22
23
24
17
1
2
3
4
5
6
7
8
9
10
11
convicted of committing murder or attempted murder as set forth
in Cal. Code Regs., tit. 15, §§ 2402. However, because the parole
suitability criteria applicable to life prisoners are identical to the
parole suitability criteria for murderers, the Board applied the
proper criteria to petitioner in determining his suitability for parole.
Board of Prison Terms v. Superior Court (2005) 130 Cal. App. 4th
1212, 1232, fn.5.
Cal. Code Regs., tit. 15, §§ 2280 provides in part that “[a] life
prisoner shall be considered for parole for the first time at the
initial parole consideration hearing. At this hearing, a parole date
shall be denied if the prisoner is found to be unsuitable for parole
under § 2281 (d)...”. Included in the relevant information that the
Board considered in determining petitioner’s suitability for parole
were circumstances that have been termed “parole suitability
factors.” The applicable regulations include the following
suitability factors: (1) no juvenile record; (2) a stable social history;
(3) signs of remorse; (4) the motivation for the crime was
significant life stress; (5) battered woman syndrome; (6) no history
of violent crime; (7) age; (8) realistic plans for the future; and (9)
institutional behavior. Cal. Code Regs., tit. 15, §§ 2281, (b), 2402,
(b).
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
The Board also considered “parole unsuitability factors,” which
were circumstances that “each tend to indicate unsuitability for
release.” Cal. Code Regs., tit. 15, §§ 2281(c), 2402(c). Parole
unsuitability factors included: (1) the commitment offense
(whether “the prisoner committed the offense in an especially
heinous, atrocious or cruel manner”); (2) a previous record of
violence; (3) an unstable social history; (4) sadistic sexual
offenses; (5) psychological factors; and (6) serious misconduct in
prison or jail. Cal. Code Regs., tit. 15, §§ 2281(c), 2402(c). The
presence of several unsuitability factors may have a cumulative
effect, because “[c]ircumstances which taken alone may not firmly
establish unsuitability for parole may contribute to a pattern which
results in a finding of unsuitability.” Cal. Code Regs., tit. 15, §§
2281(b), 2402 (b).
Therefore the parole suitability criteria set forth in Cal. Code Regs.
title 15, § 2281 are identical to the parole suitability criteria stated
in Cal. Code Regs., title 15, § 2402. Petitioner has failed to
demonstrate that the Board considered him for parole under murder
criteria for a non-murder offense. The Board in effect applied the
same criteria as if they had relied on Cal. Code Regs., tit. 15, §
2281.
Contra Costa County Superior Court ruling in docket # 16-3, pp. 11-13.
A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the basis
of some transgression of federal law binding on the state courts. Middleton v. Cupp, 768 F.2d
18
1
1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is
2
unavailable for alleged error in the interpretation or application of state law. Middleton v. Cupp,
3
768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v.
4
Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state
5
issues de novo. Milton v. Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 2178 (1972).
6
The Supreme Court has reiterated the standards of review for a federal habeas
7
court. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475 (1991). In Estelle v. McGuire, the
8
Supreme Court reversed the decision of the Court of Appeals for the Ninth Circuit, which had
9
granted federal habeas relief. The Court held that the Ninth Circuit erred in concluding that the
10
evidence was incorrectly admitted under state law since, “it is not the province of a federal
11
habeas court to reexamine state court determinations on state law questions.” Id. at 67-68, 112 S.
12
Ct. at 480. The Court re-emphasized that “federal habeas corpus relief does not lie for error in
13
state law.” Id. at 67, 112 S. Ct. at 480, citing Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092,
14
3102 (1990), and Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874-75 (1984) (federal courts
15
may not grant habeas relief where the sole ground presented involves a perceived error of state
16
law, unless said error is so egregious as to amount to a violation of the Due Process or Equal
17
Protection clauses of the Fourteenth Amendment).
18
The Supreme Court further noted that the standard of review for a federal habeas
19
court “is limited to deciding whether a conviction violated the Constitution, laws, or treaties of
20
the United States (citations omitted).” Id. at 68, 112 S. Ct. at 480. The Court also stated that in
21
order for error in the state trial proceedings to reach the level of a due process violation, the error
22
had to be one involving “fundamental fairness,” Id. at 73, 112 S. Ct. at 482, and that “we ‘have
23
defined the category of infractions that violate “fundamental fairness” very narrowly.’” Id. at 73,
24
112 S. Ct. at 482. Habeas review does not lie in a claim that the state court erroneously allowed
25
or excluded particular evidence according to state evidentiary rules. Jammal v. Van de Kamp,
26
926 F.2d 918, 919 (9th Cir. 1991). As more recently re-emphasized by the Supreme Court, “‘a
19
1
mere error of state law ... is not a denial of due process.’” Rivera v. Illinois, 556 U.S. 148, 129 S.
2
Ct. 1446, 1454 (2009) (quoting Engle v. Isaac, 456 107, 121, n. 21, 102 S. Ct. 1558 [] (1982)).
3
This claim must be denied.
4
Ex Post Facto Claim - Claim 5
5
Petitioner protests the seven-year denial as a violation of the Ex Post Facto
6
Clause. Petition, p. 10. Specifically, petitioner alleges an ex post facto violation by the
7
application to him of Proposition 9, Marsy’s Law,15 for a deferral of parole consideration for
8
seven years because petitioner was not convicted of murder. Docket # 2, p. 17. Petitioner cites
9
Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960 (1981) for the principle “that two critical
10
elements must be present for a criminal or penal law to be ex post facto: it must be retrospective,
11
that is, it must apply to events occurring before its enactment [] and it must disadvantage the
12
offender affected by it. [Footnotes omitted].” Petitioner cites, inter alia, a state court case, In re:
13
Bray, 97 Cal. App.3d 506, 517-18 (1979), in which a California appellate court found that an
14
amendment to the Determinate Sentencing Law lengthening the period of parole which took
15
effect while petitioner therein was on parole but prior to his scheduled discharge date violated the
16
ex post facto clause when his discharge date was lengthened pursuant to the amendment.
17
Petition, pp. 17-18. Respondent, in opposition, cites California Department of Corrections v.
18
Morales, 514 U.S. 499, 115 S. Ct. 1597 (1995), wherein the Supreme Court reasoned that a 1981
19
amendment to California’s parole procedures allowing the parole board to decrease the frequency
20
of parole hearings in certain circumstances did not violate the ex post facto clause when applied
21
to prisoners convicted prior to the amendment’s enactment. Answer, pp. 19-21. In Morales, the
22
high court noted that the 1981 amendment first, only applied to “a class of prisoners for whom
23
the likelihood of release on parole is quite remote”; second, did not affect the date of an initial
24
paroled suitability hearing, only subsequent hearings; finally, the board retained “authority to
25
26
15
Cal. Penal Code § 3041.5, as amended in 2008 by Proposition 9 (Marsy’s Law).
20
1
tailor the frequency of subsequent suitability hearings to the particular circumstances of the
2
individual prisoner.” 115 S. Ct. at 1603-1604. Thus, the Morales Court found that the subject
3
legislation created “only the most speculative and attenuated risk of increasing the measure of
4
punishment attached to the covered crimes.” Id., at 1605. Respondent maintains therefore that
5
the denial of this claim by the state court was not an unreasonable application of Supreme Court
6
authority.
7
This court, however, will not reach that claim. Petitioner’s claim regarding the
8
application of Proposition 9 resulting in an increased deferral period before his next parole
9
suitability hearing is not a challenge to the parole denial decision itself and is, therefore, not
10
cognizable under 28 U.S.C. § 2254. Although petitioner’s ultimate goal is a speedier release
11
from incarceration, the immediate relief sought on this ground vis-a-vis Marsy’s Law is a
12
speedier opportunity to attempt to convince BPH once again that he should be released; that is
13
too attenuated from any past finding by the BPH of parole suitability for such a claim to sound in
14
habeas. Rather this claim is a challenge to the constitutionality of state procedures denying
15
parole eligibility or suitability and could properly proceed pursuant to an action under 42 U.S.C.
16
§ 1983. Skinner v. Switzer, ___U.S.___, 2011 WL 767703 at *8 (Mar. 7, 2011) (“Success in his
17
suit for DNA testing would not ‘necessarily imply’ the invalidity of his conviction”); id,, citing
18
Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S. Ct. 1242, 1248 (2005) (“Success...does not mean
19
immediate release from confinement or a shorter stay in prison” but “at most [a] new eligibility
20
review” or “a new parole hearing....”). Moreover, the High Court in Wilkinson expressly noted
21
that a claim seeking “an injunction barring future unconstitutional procedures did not fall within
22
habeas’ exclusive domain.” Id. at 81, 125 S.Ct. at 1247 [emphasis in original.] Even earlier, the
23
Ninth Circuit had found that the challenge of inmates to a sex offender treatment program as a
24
violation of, inter alia, the ex post facto clause and their due process rights was appropriate under
25
§ 1983 because victory could only result in “a ticket to get in the door of the parole board....,”
26
and did not undermine the validity of convictions or continued confinement. Neal v. Shimoda,
21
1
131 F.3d 818, 824 (9th Cir. 1997).
2
Moreover, currently, there is a class action proceeding, Gilman v. Brown, CIV-S-
3
05-0830 LKK GGH,16 wherein “the procedures used in determining suitability for parole: the
4
factors considered, the explanations given, and the frequency of the hearings” are what is at
5
issue. Id., p. 8 [emphasis in original]. The “frequency of the hearings” is precisely what is at
6
issue in the instant claim.
7
The Gilman class is made up of:
8
California state prisoners who: “(I) have been sentenced to a term
that includes life; (ii) are serving sentences that include the
possibility of parole; (iii) are eligible for parole; and (iv) have been
denied parole on one or more occasions.”
9
10
11
Id., p. 10.17
12
Petitioner, sentenced to a term of life with the possibility of parole for aggravated
13
mayhem with use of a deadly weapon, challenging a sixth subsequent parole consideration
14
hearing denial, fits squarely within the parameters of the Gilman class.18 Petition, pp. 1, 8;
15
Answer, p. 1 & Dkt. # 12-1, p. 39. This claim should be denied without prejudice and the entire
16
petition denied.
17
\\\\\
18
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19
20
16
21
17
22
See Docket # 182 of Case No. 05-CV-0830.
The Ninth Circuit affirmed the Order, certifying the class. See Docket # 258 in Case
No. 05-CV-0830.
18
23
24
25
26
As a member plaintiff of a class action for equitable relief from prison conditions,
petitioner may not, as plaintiff, maintain a separate, individual suit for equitable relief involving
the same subject matter of the class action. See Crawford v. Bell, 599 F.2d 890, 892-93 (9th
Cir.1979); see also McNeil v. Guthrie, 945 F.2d 1163,1165 (10th Cir. 1991) (“Individual suits for
injunctive and equitable relief from alleged unconstitutional prison conditions cannot be brought
where there is an existing class action .”); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th
Cir.1988) (en banc) (“To allow individual suits would interfere with the orderly administration of
the class action and risk inconsistent adjudications.”).
22
1
Accordingly, IT IS HEREBY RECOMMENDED that the petition be denied.
2
If petitioner files objections, he shall also address if a certificate of appealability
3
should issue and, if so, as to which issues. A certificate of appealability may issue under 28
4
U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a
5
constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate
6
which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3).
7
These findings and recommendations are submitted to the United States District
8
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
9
days after being served with these findings and recommendations, any party may file written
10
objections with the court and serve a copy on all parties. Such a document should be captioned
11
“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
12
shall be served and filed within fourteen days after service of the objections. The parties are
13
DATED: April 16, 2012
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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GGH:009
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cull0912.prl
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