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finding due process violation based on Board's "continued reliance" on pre-conviction factors to justify denial of parole suitability after petitioner had served twenty-one years of fifteen years to life sentence for second degree murder, had participated in therapy and self-help programming and had impeccable prison record
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Case No. CV 03-1261-ER.
January 23, 2004
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS.
The Court has received, read and considered the papers filed in connection with Petitioner James Masoner's Petition for Writ of Habeas Corpus. The Court has come to the following CONCLUSIONS:
The terms "especially cruel," and "heinous" are not unconstitutionally vague as used in the context of C.C.R. 2402(C)(1). This issue was settled in a previous suit brought by Petitioner, Masoner v. Thurman, 996 F.2d 1003 (1993). However, it bears repeating that Tuliaepa v. California 114 S.Ct. 2630 (1994) applies to jury instructions regarding aggravating factors in capital cases, and neither precludes the use of terms such as "especially cruel" as guidelines nor applies to Board of Prison Terms (BPT) parole suitability evaluations.
BPT examination of factors in aggravation previously denied by the trier of fact does not violate due process or the doctrine of collateral estoppel. As established in Masoner 996 F.2d at 1004, Petitioner was convicted on an implied malice theory based upon his subjective awareness of the dangerous nature of his actions, which is entirely consistent with the conclusion that he acted with callous disregard for human life.
California Penal Code § 3401(b) does impose an affirmative obligation upon the Board of Prison Terms (BPT), creating a cognizable Due Process right in the expectation of parole.
Although the gravity of the commitment offense and other pre-conviction factors alone may be sufficient to justify the denial of a parole date at a prisoner's initial hearing, subsequent BPT decisions to deny a parole date must be supported by some post-conviction evidence that the release of an inmate is against the interest of public safety.
Masoner's successful rehabilitation and spotless prison record, in combination with his having served 21 years and the type of crime usually associated with such a sentence under the Universal Terms Matrix, indicate that there is no legitimate post-conviction justification for the BPT's repeated refusal to grant him a parole date. Masoner has never received any disciplinary violations for any reason. He has participated in Alcoholics Anonymous continuously since 1988, participated in group counseling from 1991 to 1995, and individual counseling from 1990 to 1991. In 1997 he completed the Values Clarification program. Furthermore, according to the BPT's own psychological evaluation conducted by Dr. Joe Reed and Dr. Steven Terrini, if released to the community, Masoner's violence potential is considered to be no more than that of the average citizen in the community. The same report describes Petitioner's alcohol problem as being in a state of sustained full remission. There is clearly no post-conviction evidence to support the BPT's finding that Masoner is not suitable for parole.
As Magistrate Judge correctly states, Petitioner does have a Due Process interest in being granted a parole date. McQuillon v. Duncan, 306 F.3d 895, 901-902. Further, this situation is exactly what Biggs v. Terhune, 334 F.3d 910 envisions when it suggests that repeated refusals by the BPT to grant a parole date to an inmate with an exemplary record are a violation of the prisoners's Due Process rights. Id. at 919. Given Petitioner's impeccable prison record, extensive self-improvement, including participation in Alcoholics Anonymous as well as group and individual therapy, and the BPT's continued reliance on pre-conviction factors to justify its refusal to grant him a parole date, the parallels between Petitioner's case and Biggs are striking and compel a different result than that recommended by the Magistrate Judge. As a result, the Court REJECTS the Magistrate Judge's recommendation that Masoner's Petition be denied.
Therefore, the Court hereby GRANTS Petitioner's Petition for Writ of Habeas Corpus.
The Court REMANDS the case to the Board of Prison Terms, ordering it to grant Masoner a Parole date within 30 days unless legitimate post-conviction evidence can be found to suggest that his release would pose a danger to public safety.
IT IS SO ORDERED.
IT IS FURTHER ORDERED that the Clerk of the Court shall serve, by United States mail or by telefax or by email, copies of this Order on all counsel of record in this matter and on Plaintiff.