Sanchez v. Curry

Filing 11

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS. Within 30 days from the date of this order, BPH must set a parole date for petitioner. Within 10 days of petitioner's release, respondent must file a notice with the court confirming the date on which petitioner was paroled. Signed by Judge Vaughn R Walker on 8/25/2010. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 8/25/2010)

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Sanchez v. Curry Doc. 11 1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner Jorge Sanchez, a state prisoner incarcerated at the Correctional Training Facility in Soledad, California, seeks a writ of habeas corpus under 28 USC 2254 challenging the denial of parole by the California Board of Parole Hearings ("BPH"). BPH's v BEN CURRY, Warden, Respondent. / JORGE SANCHEZ, Petitioner, ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS No C 07-3599 VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA denial of parole challenged here followed the governor's reversal of BPH's earlier decision that found petitioner suitable for parole. Following the governor's reversal, BPH held petitioner's third parole suitability hearing and found him unsuitable for parole. #6-2 at 2, 94100. Petitioner unsuccessfully challenged BPH's Doc #6-4 at Doc decision in the state superior and appellate courts. 23; Doc #6-5 at 2. After the Supreme Court of California denied Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 his petition for review, Doc #6-6 at 2, petitioner filed the instant federal petition for writ of habeas corpus. Doc #1. The court found petitioner's claim that BPH violated his due process rights, when liberally construed, colorable under 28 USC 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Doc #2. Respondent filed an answer, Doc #6; petitioner did not file a traverse. On April 28, 2009, while the instant petition was pending, petitioner had a subsequent parole suitability hearing at which time BPH again found petitioner suitable for parole. Doc #7-2 at 2. And again the governor subsequently reversed and denied petitioner a parole date. Doc #7-3 at 26. On April 22, 2010, the Ninth Circuit issued its decision in Hayward v Marshall, 603 F3d 546 (9th Cir 2010) (en banc), which addressed important issues relating to federal habeas review of BPH decisions denying parole to California state prisoners. On May 6, 2010, the court ordered the parties to file supplemental briefing explaining their views of how the Hayward en banc decision applies to the facts presented in petitioner's challenge to BPH's decision denying him parole. Doc #8. Respondent filed supplemental briefing on May 28, 2010; petitioner filed his briefing on June 25, 2010. Doc ## 9 & 10. For the reasons set forth below, the court finds that the state courts' endorsements of BPH's decision denying petitioner parole at his September 2005 parole suitability hearing "was an `unreasonable application' of the California `some evidence' 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requirement and was `based on an unreasonable determination of the facts in light of the evidence.'" (citations omitted). See Hayward, 603 F3d at 56263 The petition will be granted. I On January 13, 1990, petitioner, while driving at a high rate of speed in Los Angeles County, failed to stop for a red light, swerved through an intersection and hit two pedestrians as they were crossing the street. Doc #6-2 at 10. One of the victims at the Id at 1011. Id at 11. scene died and the other suffered major injuries. Petitioner's blood alcohol level was .24 percent. Petitioner pled guilty to second degree murder in Los Angeles County Superior Court and, on August 3, 1990, was sentenced to fifteenyears-to-life in state prison. Doc #6-1 at 2. II The Ninth Circuit's recent en banc decision in Hayward clarified the scope of federal habeas review of BPH decisions denying parole to California state prisoners. Hayward, 603 F3d 546. The court first explained the law in California as it relates to parole suitability determinations: The California parole statute provides that the Board of Prison Terms "shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of 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." The crucial determinant of whether the prisoner gets parole in California 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is "consideration of the public safety." In California, when a prisoner receives an indeterminate sentence of fifteen years to life, the "indeterminate sentence is in legal effect a sentence for the maximum term, subject only to the ameliorative power of the [parole authority] to set a lesser term." Under the California parole scheme, the prisoner has a right to a parole hearing and various procedural guarantees and rights before, at, and after the hearing; a right to subsequent hearings at set intervals if the Board of Prison Terms turns him down for parole; and a right to a written explanation if the Governor exercises his authority to overturn the Board of Prison Terms' recommendation for parole. Under California law, denial of parole must be supported by "some evidence," but review of the [decision to deny parole] is "extremely deferential." Hayward, 603 F3d at 56162 (footnotes and citations omitted). The court further explained that: [s]ubsequent to Hayward's denial of parole, and subsequent to our oral argument in this case, the California Supreme Court established in two decisions, In re Lawrence [190 P 3d 535, 549 (Cal 2008)] and In re Shaputis, [190 P 3d 573, 582 (Cal 2008)] that as a matter of state law, "some evidence" of future dangerousness is indeed a state sine qua non for denial of parole in California. We delayed our decision in this case so that we could study those decisions and the supplemental briefs by counsel addressing them. As a matter of California law, "the paramount consideration for both the Board [of Prison Terms] and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety." [Lawrence, 190 P 3d at 552.] There must be "some evidence" of such a threat, and an aggravated offense "does not, in every case, provide evidence that the inmate is a current threat to public safety." [Id at 554.] The prisoner's aggravated offense does not establish current dangerousness "unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state" supports 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the inference of dangerousness. [Id at 555.] Thus, in California, the offense of conviction may be considered, but the consideration must address the determining factor, "a current threat to public safety." [Id at 539.] Hayward, 603 F3d at 562 (footnotes omitted). After providing this background on California law as it applies to parole suitability determinations, the court then explained the role of a federal district court charged with reviewing the decision of either BPH or the governor in denying a prisoner parole. According to the Ninth Circuit, this court must decide whether a decision "rejecting parole was an `unreasonable application' of the California `some evidence' requirement, or was `based on an unreasonable determination of the facts in light of the evidence.'" Hayward, 603 F3d at 56263 (citations omitted); see also Cooke v Solis, 606 F3d 1206, 1208, n 2 & 1216 (9th Cir 2010) (applying Hayward and explicitly rejecting the state's argument that "the constraints imposed by [the Antiterrorism and Effective Death Penalty Act ("AEDPA")] preclude federal habeas relief" on petitioner's claim; noting that in Hayward, the court "held that due process challenges to California courts' application of the `some evidence' requirement are cognizable on federal habeas review under AEDPA"). III When assessing whether California parole board's suitability determination was supported by "some evidence," the court's analysis is framed by the "regulatory, statutory and 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 constitutional provisions that govern parole decisions in California." Cooke, 606 F3d at 1213 (citing In re Rosenkrantz, 29 Under Cal 4th 616 (2002)); see Hayward, 603 F3d at 56162. California law, prisoners serving indeterminate life sentences, like petitioner, become eligible for parole after serving minimum terms of confinement required by statute. 1061, 106970 (2005). In re Dannenberg, 34 Cal 4th Regardless of the length of the 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." tit 15, 2402(a). Cal Code Regs In making this determination, BPH must consider various factors, including the prisoner's social history, past and present mental state, past criminal history, the base and other commitment offenses, including behavior before, during and after the crime, past and present attitude toward the crime and any other information that bears on the prisoner's suitability for release. See Cal Code Regs tit 15, 2402(b)(d). In considering the commitment offense, BPH must determine whether "the prisoner committed the offense in an especially heinous, atrocious or cruel manner." 2402(c)(1). Cal Code Regs tit 15, The factors to be considered in making that "(A) Multiple victims were attacked, injured determination include: or killed in the same or separate incidents; (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) The victim was abused, defiled or mutilated during or after the offense; (D) The offense was carried 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 out in a manner which demonstrates an exceptionally callous disregard for human suffering; (E) The motive for the crime is inexplicable or very trivial in relation to the offense." Id. According to the California Supreme Court, "the core statutory determination entrusted to the Board and the Governor [in determining a prisoner's parole suitability] is whether the inmate poses a current threat to public safety * * *." Cal 4th 1181, 1191 (2008). In re Lawrence, 44 And, "the core determination of `public safety' under the statute and corresponding regulations involves an assessment of an inmate's current dangerousness." Id at 1205 (emphasis in original) (citing Rosenkrantz, 29 Cal 4th 616 & Dannenberg, 34 Cal 4th 1061). The court further explained that: a parole release decision authorizes the Board (and the Governor) to identify and weigh only the factors relevant to predicting "whether the inmate will be able to live in society without committing additional antisocial acts." * * * These factors are designed to guide an assessment of the inmate's threat to society, if released, and hence could not logically relate to anything but the threat currently posed by the inmate. Lawrence, 44 Cal 4th at 120506 (citations omitted). inquiry, therefore, is: whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude. The relevant 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Shaputis, 44 Cal 4th 1241, 125455 (2008). Under California law, the evidence of current dangerousness "must have some indicia of reliability." 119 Cal App 4th 871, 899 (2004) (Scott I). In re Scott, Indeed, "the `some evidence' test may be understood as meaning that suitability determinations must have some rational basis in fact." 133 Cal App 4th 573, 590, n 6 (2005) (Scott II). Subsequent to Hayward, the Ninth Circuit issued decisions in Cooke, 606 F3d 1206, and Pirtle v California Board of Prison Terms, No 07-16097, 2010 WL 2732888 (9th Cir July 12, 2010), both of which focused on the notion that the "some evidence" of current dangerous must be reliable. In Cooke, the court ultimately reversed In re Scott, the district court's denial of Cooke's challenge to BPH's decision denying him parole finding that BPH's stated reasons for denying parole did not support the conclusion that Cooke posed a current threat to public safety. court stated: [E]ach of the Board's findings * * * lacked any evidentiary basis. Nothing in the record supports the state court's finding that there was "some evidence" in addition to the circumstances of the commitment offense to support the Board's denial of Petitioner's parole. The Parole Board's findings were individually and in toto unreasonable because they were without evidentiary support. When habeas courts review the "some evidence" requirement in California parole cases, both the subsidiary findings and the ultimate finding of some evidence constitute factual findings. Here, there was no evidence that reasonably supports either the necessary subsidiary findings or the ultimate "some evidence" finding. Accordingly, we hold that the state court decision was "`based on an unreasonable 8 Cooke, 606 F3d at 1216. Specifically, the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 determination of the facts in light of the evidence.'" Hayward, 603 F3d at 563 (quoting 28 USC 2254(d)(2)). Cooke is entitled to a writ of habeas corpus. Id; see also Pirtle, 2010 WL 2732888 at *8 (affirming the district court's decision to grant habeas relief, concluding: "[i]n sum, there is no evidence in the record to support the Board's finding that Pirtle poses a current threat to public safety. The Board's stated reasons for the denial of parole either lacked evidentiary support, had no rational relationship to Pirtle's current dangerousness, or both"). IV Petitioner initially sought federal habeas corpus relief from BPH's September 2005 decision finding him unsuitable for parole and denying him a subsequent hearing for one year on the ground that the decision did not comport with due process. Doc #1. In his supplemental post-Hayward briefing, petitioner argues that under the California "some evidence" standard noted in Hayward and as set forth in the California Supreme Court decision in Lawrence, he is entitled to federal habeas relief from this court. court agrees. Doc #10. The A A review of the September 2005 parole suitability hearing transcript shows that most of BPH's comments reflected in the sevenpage decision were laudatory of petitioner, as was the evidence 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 submitted to assist BPH in determining petitioner's parole suitability. Indeed, in its decision, BPH noted that petitioner was a "good candidate" for parole and concluded with an acknowledgment that he was "doing all the right things." Doc #6-2 at 99100. During the evidentiary portion of the hearing, BPH reviewed numerous letters from petitioner's family and community documenting widespread support of his release, a review which comprised seventeen pages of the parole suitability hearing transcript. BPH noted that petitioner's wife and children and other close relatives say that [he was] always a great father and a great provider," and concluded that there "is no doubt [petitioner has] quite a bit of family and community support." Doc #6-2 at 34, 51. BPH acknowledged that petitioner was gainfully employed in a trade before entering prison, that he had three offers of employment awaiting him upon his parole, that he has a "marketable skill" and that he has a "backup trade" of auto body. Id at 5153, 94. BPH noted petitioner had "acceptable employment plans" and "viable residential plans." Id at 97. BPH also observed that petitioner's remorse for what he had done was "genuine" and concluded that he was "going to be an excellent advocate for people not to use alcohol and not to abuse alcohol and the consequences that they incur to many parties when it happens." Doc #6-2 at 95. Petitioner admitted that he had a Id at problem with alcohol and took responsibility for his crime. 71. When asked "[a]re you in any way trying to minimize your own responsibility for your actions?" petitioner replied "[n]o, I am 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 responsible." Id. Petitioner also expressed a desire to "be active Id at 75. BPH and share with those that have the same problems." found petitioner's answers regarding what he had learned about himself and his commitment offense since coming to prison as "impressive" and commended him on "actually learning" and understanding "the difference between someone being here for 25 years and not changing, and someone being here for 10 years and changing." Id at 76. Notwithstanding BPH's clear recognition of an reliance on this favorable body of evidence, BPH concluded that petitioner was "not suitable for parole and pose[d] an unreasonable risk of danger to society * * * if [he were to be] released from prison." at 94. Doc #6-2 In reaching that decision, BPH relied heavily on the circumstances of the commitment offense, noting: multiple victims were injured and killed in the same incident. There is one deceased victim, Nicholas Ruiz, and an injured victim, Ms. Roasaura Martinez, was seriously injured needing much medical care after the crime. The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering and that the inmate had a alcohol blood level of .24 and proceeded to get into his vehicle after being discouraged from his other passengers on a Saturday afternoon, and proceeded to drive the car and subsequently causing the murder and injury of the two victims. The motive for the crime is inexplicable and very trivial in relation to the offense. I'm not quite sure how to reconcile these, but there's not [sic] explanation for feeling that after you had been drinking all day long that you can get into a car and drive safely home. It's very trivial in that you could have easily, I think, called for another relative to come and pick you and the other passengers up from the bar and drive you home if they were indeed as intoxicated as you were, 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 none of you should have been driving. Id at 9495. BPH also noted that petitioner's criminal history included failing conditional probation three times related to his arrests for driving while intoxicated on August 15, 1980, October 27, 1980 and December 19, 1987. Doc #6-2 at 96. Finally, BPH stated petitioner had "failed to upgrade educationally and vocationally as previously recommended by the Board" and that petitioner's "gains are recent and he must demonstrate an ability to maintain these gains over an extended period of time." Id at 96 & 97. Specifically, BPH stated: We do recognize that there are some language difficulties with the English and Spanish, but we would definitely encourage you to try to upgrade educationally * * * **** My observation is that you're intelligent enough. (indiscernible) 15 years and you've never made an attempt to get a GED, which will give you a better chance of getting to bigger things. In vocation, I believe you had two years of hands-on experience here when it comes to you autobody, but 15 years is a lot of time. You could have gotten some more. Try to get your GED. I think you can do it. Id at 96, 99100 (emphasis added). BPH further noted that petitioner needed therapy to cope with stress in a non-distractive manner, and that "[u]ntil progress is made, the inmate continues to be unpredictable and a threat to others." Doc #6-2 at 94. Petitioner unsuccessfully challenged BPH's decision denying him parole in state superior court. Doc #6-4 at 23. The 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 court determined BPH's decision denying petitioner parole was supported by "some evidence," and explained as follows: The Board based its decision on several factors, including [petitioner's] commitment offense. There is some evidence that petitioner is unsuitable for parole based on the finding that there [were] multiple victims injured or killed in the same incident. (See Cal Code Regs, tit 15, 2402, subd (c)(1)(A)). The record further reflects that the Board also relied on several additional factors in denying petitioner parole at this time, and there is some evidence to support that decision. The Court finds that there is some evidence that petitioner is unsuitable due to petitioner's failure to upgrade in vocational programming while in prison. (See Cal Code Regs, tit 15, subd (d)(9)). Id at 3. Petitioner then filed a petition for a writ of habeas corpus in the state appellate court, which that court denied in a decision that read in its entirety: The petition for writ of habeas corpus has been read and considered. The petition is denied for failure to state sufficient facts or to provide an adequate record or legal authority demonstrating entitlement to the relief requested. There is "some evidence" to support the findings of the Board of Parole [Hearings]. (See In re Dannenberg (2005) 34 Cal 4th 1061, 1071). Doc #6-5 at 2. In its decision denying petitioner relief the state appellate court provided only a legal conclusion and unexplained case citations and further lacked any legal analysis. The court therefore will analyze under AEDPA the decision of the superior 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 court, which addressed the merits of petitioner's claim in a reasoned decision. See LaJoie v Thompson, 217 F3d 663, 669 n 7 (9th Cir 2000); Williams v Rhoades, 354 F3d 1101, 1106 (federal court may look to any lower state court decision that was examined, and whose reasoning was adopted, by the highest state court to address the merits of a petitioner's claim). As explained below, the court finds that the state courts' endorsements of BPH's decision to deny petitioner parole were an unreasonable application of the California "some evidence" standard, and were based on an unreasonable determination of the facts in light of the evidence presented in the state courts. See Hayward, 603 F3d at 56263. After careful review of the law and the factual record now before the court, it is difficult, if not impossible, to reconcile BPH's decision to deny petitioner parole with the evidence upon which it relied to make that decision. There simply was no reliable evidence to suggest that if released on parole, petitioner would pose an unreasonable and current risk of danger to society or threat to public safety if released from prison. Cal 4th at 120506. habeas relief. Cal Code Regs tit 15, 2402(a); Lawrence, 44 As a result, petitioner is entitled to federal B In addition to relying on petitioner's commitment offense and his three prior arrests for driving while intoxicated to conclude that he "pose[d] an unreasonable risk of danger to society" and therefore was not suitable for parole, BPH cited several other 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 factors, including his failure to "upgrade educationally and vocationally as previously recommended by the Board" and his inability to cope with "stress in a non-distractive [sic] manner." Doc #6-2 at 96 & 97. An examination of the record shows these findings are not only unsupported by any reliable evidence, but are, in fact, blatantly contradicted by it. As explained in detail below, this case presents a scenario strikingly similar to that presented in Pirtle, where BPH's "stated reasons for the denial of parole either lacked evidentiary support, had no rational relationship to [petitioner's] current dangerousness, or both"). 2732888 at *8 Pirtle, 2010 WL Indeed, when stripped of its factually unsubstantiated conclusions, BPH's decision to deny petitioner parole rests solely on the nature of his commitment offense and prior offenses, which were committed fifteen to twenty-five years before his 2005 parole suitability hearing. This result is wholly incompatible with California's "some evidence" standard set forth in Lawrence, 44 Cal 4th at 120506, as well as California's mandate that the inquiry into petitioner's current dangerous not focus on "the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude." Shaputis, 44 Cal 4th at 1255. 1 One reason BPH gave in support of its September 2005 decision denying petitioner parole was his failure to "upgrade 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 educationally and vocationally as previously recommended by the Board." Doc #6-2 at 96 (emphasis added). But at petitioner's prior parole suitability hearing held in September 2004, rather than recommend that he upgrade educationally and vocationally, BPH actually commended petitioner's efforts in these areas: Certainly, we feel that the prisoner has participated in educational programs and selfhelp programs. Now education programs, and as my colleague put on the record, you can go back and track the prisoner's progress as it relates to his grade point level. He's raised his grade point level to a 6.2, with English being a second language. And what was really compelling about this, there's a letter in the file, my colleague read into the record from R Dixon, who is an English teacher at the institution, and she noted that [petitioner] has constantly been a part of (inaudible) clearly very intelligent, eager and willing to learn. In Mexico, [petitioner] earned the equivalent of a GED, and if he were able to take the test in Spanish today, I have no doubt that he would pass it * * * So the point of putting that on the record is that maybe the prisoner has (inaudible) English as a second language, but certainly he's very gifted in his native language. That has precluded him from upgrading vocationally and we note that, in prison. See Sanchez v Curry, No C-06-3438-VRW (PR) (ND Cal filed May 26, 2006) Doc #4, Ex D at 5758.1 BPH further noted at the 2004 hearing: Institutional job assignments, if one reviews the record, you'd see that the prisoner has The court takes judicial notice of the court file in Sanchez v Curry, No C-06-3438-VRW (PR) (ND Cal filed May 26, 2006), petitioner's challenge to his 2004 parole denial. See Bias v Moynihan, 508 F3d 1212, 1225 (9th Cir 2007) (a district court "may take judicial notice of proceedings in other courts, both within and without the federal judiciary system, if those proceedings have a direct relation to matters at issue") (internal quotation marks and citations omitted). 16 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id at 58. received outstanding work reports from his educational endeavors. And when he's worked he's also received outstanding work reports. But most telling is his institutional job assignments have (inaudible) quest to advance educationally. And, certainly, one would have to take their hat off to [petitioner] in his persevering in trying to get a GED in using English as a second language." In the 2005 decision denying petitioner parole, BPH noted that petitioner had been in prison for "15 years and [he's] never made an attempt to get a GED * * *." Doc #6-2 at 99. But again, this statement is contradicted by the evidence. 2004 hearing, BPH noted: At petitioner's You've been involved for a number of years in Adult Basic Education, the Literacy Lab. * * * You went from a basic non-reader when you came to prison, that you've increased your reading level * * *. There are a great number of chronos in your file indicating that you're cooperative with the teacher, that you're a great assistance [sic] with other students, that you have a natural ability to teach and to encourage other students. **** You're progressing now at a rate in Adult Basic Education where the goal that you had mentioned very early on of obtaining a GED is closer. See Sanchez v Curry, No C-06-3438-VRW (PR) (ND Cal filed May 26, 2006) Doc #4, Ex D at 2526 (emphasis added). Even the governor, in "[Petitioner], who reversing petitioner's 2004 parole grant, noted: mostly spoke only Spanish upon entering prison, has improved his English-speaking skills by taking adult basic-education classes and participating in the Literacy Lab. He also has taken classes in 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pursuit of a GED." See id, Doc #4, Ex E at 2 (emphasis added). Further, during the evidentiary portion of petitioner's 2005 parole suitability hearing, BPH noted that he had been "going to school" and that the only reason petitioner failed to complete the body shop vocation program was because he was transferred from one part of the prison to another. Doc #6-2 at 5253. Further, even assuming there was evidence that petitioner failed to upgrade vocationally while in prison, other reliable evidence submitted at the hearing completely neutralized that failure as justification to deny petitioner a parole date. Specifically, the evidence showed that prior to entering prison, petitioner was gainfully employed in a trade and that he had three offers of employment awaiting him should he be granted parole. #6-2 at 5153, 94. Doc Simply put, BPH's conclusion that petitioner failed to "upgrade educationally and vocationally as previously recommended by the Board" "either lacked evidentiary support, had no rational relationship to [petitioner's] current dangerousness, or both". Pirtle, 2010 WL 2732888 at *8. 2 Another reason BPH cited in support of its conclusion that petitioner "continues to be unpredictable and a threat to others" was his need for "therapy" and his lack of psychological "progress." Doc #6-2 at 97. Specifically, BPH concluded that "the inmate needs therapy in order to face, discuss, understand, and cope with stress in a non-distractive [sic] manner. * * * The inmate's gains are 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recent and he must demonstrate an ability to maintain these gains over an extended period of time." Id. But even a cursory examination of the record shows BPH's conclusion that petitioner needed therapy to cope with stress in a healthy manner is simply unsupported by any reliable evidence. In its September 2005 decision denying petitioner parole, BPH cited petitioner's May 14, 2003 psychological evaluation, which "was supportive" and "state[d] that [petitioner] has no more risk [of violence] than the average citizen." Doc. #6-2 at 97. At petitioner's 2004 hearing, BPH summarized that evaluation as follows: in consideration of several factors that include [petitioner's] lack of violent criminal history, his absence of 115 violations, or his disciplinary action and insight demonstrated regarding his lack of alcohol abuse history, his violence potential within a controlled setting is estimated to be below average relative to this Level II population. If released to the community, his violence potential is estimated to be no more than the average citizen in the community. Sanchez v Curry, No C-06-3438-VRW (PR) (ND Cal filed May 26, 2006) Doc #4, Ex D at 6162. The report further noted that petitioner "does not appear to have any history of being violent, even when under the influence of alcohol. It does not appear that the use of Id alcohol in the future would necessarily lead to violent acts." at 62. Finally, as petitioner's attorney noted without objection his psychological evaluations from 1996, 1999, and 2003 each supported his release. Id at 51. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, at the 2005 hearing, BPH commended petitioner for having no disciplinary history during his fifteen years of imprisonment, noting that was "indeed * * * a significant accomplishment." Doc. #6-2 at 9798. BPH commended petitioner for "participating and obviously being a strong member of the Alcoholics Anonymous group as well as completing Anger Management[] * * * [and for his] involvement and work with the Spanish ministry and securing two [Alcoholics Anonymous] sponsors who are available to [him] upon [his] release * * *." Id. Further, when specifically asked at the hearing whether he had used alcohol when "under stress anymore than when you would drink when you were not under stress," petitioner responded "I didn't drink * * * when I was under stress, or when I had problems." Id at 75. Again, simply put, BPH's conclusion that petitioner "continues to be unpredictable and a threat to others" and needed "therapy in order to face, discuss, understand, and cope with stress in a non-distractive [sic] manner" either lacked evidentiary support, had no rational relationship to [petitioner's] current dangerousness, or both". Pirtle, 2010 WL 2732888 at *8. 3 The remaining factor BPH cited in support of its decision denying petitioner parole was his three failed conditional probation terms related to his arrests for driving while intoxicated on August 15, 1980, October 27, 1980 and December 19, 1987. But two of the three arrests occurred twenty-five years before the 2005 hearing; 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the most recent arrest was eighteen years prior. Doc #6-2 at 96. These prior arrests especially when viewed in conjunction with petitioner's current and consistent avid participation in Alcoholics Anonymous while in prison, the fact that he secured two sponsors in anticipation of his release and his strong desire to prevent others from making the same grave costly mistake he did simply are too stale to be considered reliable evidence that petitioner posed a current threat to public safety in 2005. Shaputis, 44 Cal 4th at 1255; Pirtle, 2010 WL 2732888 at *8 (because BPH's stated reasons for denying petitioner parole had "no rational relationship to [petitioner's] current dangerousness" petitioner was entitled to federal habeas relief. V For the foregoing reasons, the petition for a writ of habeas corpus is GRANTED. Within thirty (30) days from the date of See Pirtle, this order, BPH must set a parole date for petitioner. 2010 WL 2732888 at *8. Within ten (10) days of petitioner's release, respondent must file a notice with the court confirming the date on which petitioner was paroled. // // // // // // 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The clerk of the court shall terminate all pending motions, enter judgment in accordance with this order and close the file. IT IS SO ORDERED. VAUGHN R WALKER United States District Chief Judge G:\PRO-SE\VRW\HC.07\Sanchez-07-3599-BPH grant.wpd 22

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