Opinion
No. CIV S-03-0020 GEB DAD P.
March 19, 2007
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with this petition for a writ of habeas corpus. Petitioner is in custody pursuant to a 1986 judgment of conviction on a charge of second degree murder entered in the Orange County Superior Court. In the petition for writ of habeas corpus filed in this action on January 8, 2003, petitioner challenges a decision of the California Board of Parole Hearings (Board) rendered on January 11, 2001, finding him not suitable for parole. For the reasons set forth below, the undersigned recommends that petitioner's application for a writ of habeas corpus be denied.
PROCEDURAL AND FACTUAL BACKGROUND
In 1986, petitioner was convicted of second degree murder and received a sentence of fifteen years to life in state prison. (Pet. at 1.) The facts of petitioner's crime are as follows:
Lianne Lando invited friends to a pool party on the afternoon of August 10, 1985, at the home she shared with her boyfriend, Gary Eccher. Lando and Eccher were not only roommates but also partners in selling cocaine.
James and Toni Ellis were the first to arrive for the party. They found the yard gates locked and thought no one was home. After waiting a while, James looked through a bedroom window and saw a bloody pillow on the floor. He entered the house through another window and went to the bedroom where he found signs of a struggle. The waterbed was covered with blood. In the connecting bathroom he saw Lando's nude body draped over the bathtub, her arms and head submerged under bloody water. The police were called.
At approximately 3:30 p.m. police officer Helmick and fire captain Goldsmith entered the house. They found Lando's body in the bathroom. She had been strangled with an electrical cord, which was still around her neck, and had been savagely beaten about the face and head. The bloody scene and most of the items ultimately seized were in plain view.
After Goldsmith determined Lando was dead, Helmick searched the house for additional persons. Finding none, he and Goldsmith left the house. Police officer McKernon, who had entered during this initial search, remained as a guard inside the residence.
Once outside, Helmick began to interview witnesses. Soon other officers arrived, including crime scene investigators who entered the house and began "processing the crime scene." They took photographs, made diagrams and seized articles in plain view in the bedroom, including the bloody sheets and pillows, a broken lamp, and a plastic trash can smeared with blood. Other items not in plain view were also seized.
At about 6 p.m. Investigator Whitson took the trash can into the kitchen, dusted it, and found a latent palm print — later identified as Eccher's — in the blood. Blood stains consistent with both Eccher's and Lando's blood were found later on the sheets.
Without calling a halt to these events, lead investigator Martin dispatched an officer at 6:15 to get a search warrant. The magistrate was not informed of the activities in progress. The warrant, eventually executed at 9:20 p.m., did not mention the lamp, trash can, sheets, or Lando's body, all of which had already been seized. None of the items seized pursuant to the warrant were admitted in evidence at trial.
Eccher had taken half a pound of cocaine and $27,000 in drug money from the house. He fled to Mexico where he was apprehended on September 14.
Prior to trial Eccher moved to suppress all evidence seized during the five-hour warrantless search of his house. The court denied the motion as to most of the evidence, including the latent palm print, on the grounds of plain view and inevitable discovery. The court also found the fragility of blood evidence — exacerbated by the large number of investigators milling around the crime scene — created an exigency justifying immediate seizure of the palm print before it could be inadvertently destroyed.
The court did order certain items suppressed which had not been in plain view. These included a bloody light bulb and lamp shade found underneath the bedding and some beer bottles found in the kitchen.
At trial Eccher testified he killed Lando during an argument over his continued use of their saleable cocaine. The jury convicted him of murder in the first degree. The court denied his motion for new trial but reduced the crime to second degree murder.
(Pet., Ex. 9 at 2-4.)
On January 11, 2001, petitioner appeared before the Board for his third parole consideration hearing. (Pet., Ex. 1; Pet'r's Reply to Resp't's Supplemental Answer, at 10.) The Board found petitioner unsuitable for parole and deferred further parole consideration for two years. (Pet., Ex. 1 at 58-60.)
Subsequent to the parole hearing at issue in the instant petition, petitioner received parole hearings in 2003 and 2005, at which he was again found unsuitable for parole. (Pet'r's June 30, 2006 "Motion for Judicial Notice" (MJN).) Petitioner has provided evidence that he was granted habeas relief from the Board's 2003 decision by the Orange County Superior Court on the ground that the Board "lacked a factual basis for its determination petitioner was unsuitable for parole." (Exhibit attached to MJN at 2.) However, from the evidence submitted by petitioner it appears that in granting relief, that state court merely required the Board to conduct a new parole suitability hearing, which it did in January of 2005. (Id. at 2-3.) There is no evidence in the record before this court regarding any other disposition of the matter pursuant to the Superior Court's order granting habeas relief. However, this court has independently verified that petitioner remains in custody.
Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the Sacramento County Superior Court. (Pet., Ex. 2.) That petition was denied by order dated December 21, 2001. (Id.) Petitioner subsequently filed a motion for reconsideration of the Superior Court's decision, which was denied by order dated January 10, 2002. (Id.) Petitioner next challenged the Board's decision in a petition for writ of habeas corpus filed in the California Court of Appeal for the Third Appellate District. (Pet., Ex. 3.) That petition was summarily denied by order dated February 28, 2002. (Id.) Petitioner subsequently filed a petition for a writ of habeas corpus in the California Supreme Court. (Pet., Ex. 4.) That petition was summarily denied by order dated October 16, 2002. (Id.)
Petitioner filed the instant petition for a writ of habeas corpus on January 8, 2003. Respondents filed an answer on June 30, 2003. Petitioner filed a traverse on September 3, 2003. Respondents filed a supplemental answer on July 18, 2005, and petitioner filed a supplemental traverse on September 29, 2005.
ANALYSIS
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v.Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in 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.28 U.S.C. § 2254(d). See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
II. Petitioner's Claims
Petitioner claims that his right to due process was violated when the Board failed to find him suitable for parole at his third parole hearing in 2001. He argues that the evidence shows he would not pose a danger to the public if released. (Pet. at 6-8.) He further argues that the Board is failing to set parole release dates in a manner that provides uniform terms for inmates who have committed offenses of similar gravity and magnitude, in violation of California law. Petitioner argues that he has already served more time than California law requires for his crime and that he has served more time in prison than other inmates who have committed similar or more serious crimes. (Id. at 3-6.) Petitioner contends that the Board did not evaluate his eligibility for parole "with an appreciation for the proportionality of his sentence or the gravity of the threat he poses to the public compared with other murderers." (Id. at 7.)
Petitioner also argues that the evidence does not support the Board's finding that he needs further therapy in order to become eligible for parole. (Id. at 8-9.) He argues that the evidence demonstrates he has taken advantage of all available therapy and that he has learned to cope with stress in a nondestructive manner. Petitioner also notes that his "BPT Psych Report" and "BPT Counselor's Report" found that he would be "an excellent candidate for parole" and that he was a "low degree of threat to the public." (Id. at 8; see also Pet., Exs. 5, 6.)
Petitioner contends that the evidence does not support the Board finding that his crime was "especially callous." (Pet. at 9.) Petitioner provides evidence of other cases where persons convicted of murder were released on parole and served less time than petitioner. (Pet., Ex. 11.) Petitioner further argues that the Board improperly found him ineligible for parole based on the fact that his crime was "cruel, heinous and atrocious," because those terms are unconstitutionally vague. (Pet. at 11.)
Petitioner also claims that the Board discriminated against him when it found him unsuitable for parole because it denied him "a full and fair consideration for parole based on his disability," in violation of the Americans with Disabilities Act. (Id. at 12.) He explains that "specifically, the BPT has refused to set a parole release date for petitioner due to his substance abuse history/addict which was a causative factor in the crime," and that "the BPT has failed to provide petitioner an individualized assessment of his future dangerousness because of this disability." (Id. at 13.) Petitioner states that he has received treatment for substance abuse and has been "drug and alcohol free since 1985 by his choice." (Id.)
Next, petitioner argues that the Board decision finding him unsuitable for parole violated the Ex Post Facto Clause because the definition of criminal conduct has changed since he committed his crime. (Id. at 14-17.) Petitioner explains that the percentage of persons found suitable for parole at the first and all subsequent parole suitability hearings has declined approximately 10-15% since 1985, when he committed his crime. (Id. at 14.) He argues that the current Board is unwilling to grant parole for prisoners who would have received a parole date at the time he committed his crime. Petitioner notes that newspaper articles report that former Governor Gray Davis expressly refused to grant parole to inmates convicted of murder. Petitioner claims that the Board's refusal to grant him a parole date violated the Ex Post Facto Clause because the Board "is applying the parole guidelines in a fixed and mechanical way." (Id. at 17.) Specifically, petitioner complains that the Board has used fixed and unchanging factors multiple times to deny him a parole date. Finally, petitioner complains that his minimum 15 year sentence and the Board's "own matrix for second degree murder (§ 2403(c)) are not given any weight in the individualized determination process." (Id. at 18.)
III. State Court Opinion
In the present case, both the California Supreme Court and the California Court of Appeal summarily denied petitioner's state habeas petitions challenging the Board's January 11, 2001 decision denying petitioner release on parole. The order issued by each of these courts is "an unexplained order," i.e., "an order whose text or accompanying opinion does not disclose the reason for the judgment." Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991). When confronted with a state court's unexplained order, the federal court applies the following presumption: "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803. In applying the look-through presumption, unexplained orders are given no effect. Id. at 804. See also Bains v. Cambra, 204 F.3d 964, 970-71, 973-78 (9th Cir. 2000) (holding that where the highest state court to reach the merits of a habeas petition issued a summary opinion that does not explain the rationale of its decision, federal court review under § 2254(d) is of the last explained state court opinion to reach the merits).
The Sacramento County Superior Court issued an order that set forth reasons for denying habeas relief on petitioner's claims. This court will look through the unexplained orders of the California Supreme Court and the California Court of Appeal to the decision of the Sacramento County Superior Court in order to determine whether the state courts' adjudication of petitioner's federal claims satisfies the standards set forth in § 2254.
The Sacramento County Superior Court explained the rationale of its decision to deny petitioner habeas relief as follows:
Petitioner seeks habeas corpus relief from the Board of Prison Terms's denial of parole for him on January 11, 2001.
Petitioner's first claim is that there is no evidence in the record to support the Board panel's finding of unsuitability for parole.
The standard for judicial review of a finding by a parole board panel is that there is "some evidence" to support the panel's conclusion (Superintendent v. Hill (1985) 472 U.S. 445, 456-457; In re Powell (1988) 45 Cal.3d 894, 903-904).
In this case, there was "some evidence" to support the conclusion. It is not unreasonable for the Board panel to conclude that strangulation by a lamp cord involves special cruelty to the victim, when the victim had also been beaten and struck with the lamp itself just before being strangled (see generally 15 Cal. Code Reg. § 2402(c)(1)(C), (D) [guidelines only]). Petitioner had past arrests including one for assault, and one drunk driving conviction, indicating an increase in the seriousness of his criminal conduct (see generally 15 Cal. Code Reg. 2402(c)(2) [guidelines only]). Further, he admitted having a gambling problem at the time, as well as a drug and alcohol problem (see generally 15 Cal. Code Reg. § 2402(c)(3)(5) [guidelines only]) With regard to his gambling problem, it is notable that the Board considered his 1996 CDC 115 violation for gambling-related matters as so bothersome as to show a need for a lengthier period of time of incarceration. Indeed, the 1996 CDC 115 alone is "some evidence" to support the Board panel's denial of parole, as it showed that petitioner's gambling problem was a continuing one (see generally 15 Cal. Code Reg. § 2402(c)(6) [guidelines only]). It is not unreasonable to infer from that that his alcohol and drug problems also might not be resolved. His willingness to continue engaging in criminal behavior or behavior related to criminal activity alone is a sufficient reason to deny someone parole, and it cannot be said that the Board panel was arbitrary in utilizing the 1996 CDC 115 as a significant reason to deny his parole. As such, petitioner's first claim is denied.
Petitioner next claims that the Board panel abused its discretion in failing to read all of the documents in petitioner's file. First, petitioner claims that the Board panel did not read his parole package plan, his six letters of support from churches, his support letter from his trial attorney, or his "resumes" signed by California attorneys. This is not so. The Board panel took out the parole plan at the hearing and went through it with petitioner, and thoroughly considered his Orange County plans which appeared to be positive and in his favor. The Board panel also specifically noted his letters of support from several churches. As for the support letter from his trial attorney, the Board panel took it out and went over it in detail with petitioner at the hearing. The Board panel also took out the "resumes" and noted their general contents with petitioner. The claim therefore fails to state a prima facie case for relief (In re Bower (1985) 38 Cal.3d 865).
Petitioner next claims that the Board panel erred in referring to petitioner as having committed "robbery" of the victim, when he was never charged with nor convicted of robbery. This claim was not exhausted in the administrative appeal (In re Dexter (1979) 25 Cal.3d 921, 925; In re Serna (1978) 76 Cal. App.3d 1010, 1014). Regardless, it is meritless. That petitioner was never charged with robbery does not mean that the circumstances of the underlying offense could not be considered. Those circumstances showed that the victim's purse, car keys, and automobile were missing, giving rise to the reasonable inference that petitioner had taken them and gone to Mexico. The Board panel was not precluded from considering this. Moreover, even if the Board panel had not considered this, it would not have made a difference in the unsuitability finding, which was based more on the nature of the strangling itself and more importantly on the 1996 CDC 115. The claim, therefore, is denied.
Finally, petitioner claims that 15 Cal. Code Reg. § 2402(c)(1)(A) — (E) are unconstitutionally vague, because every murder is cruel, heinous, atrocious, and carried out in a dispassionate manner. Petitioner also claims that this language is impermissible as a usurpation of the legislative function. The court need not reach these issues, however, because the parole denial was also based on petitioner's 1996 CDC 115, which, as discussed above, alone constitutes sufficient "some evidence" to support the parole denial.
(Pet., Ex. 2.)
Petitioner subsequently filed a motion for reconsideration of the Superior Court's order and a request that the court take judicial notice of In re Ramirez, 94 Cal. App. 4th 549 (2001). That motion was denied, with the Superior Court reasoning as follows:
Ramirez is not yet final, having been decided on December 12, 2001. As such, it is subject to modification by the First District Court of Appeal, or to grant of review or depublication order by the California Supreme Court. It may not be considered by the court at this time.
In any event, even if the court were to consider Ramirez, it would not warrant reconsideration of the denial of the habeas petition. As concluded in the denial order, that petitioner suffered a CDC 115 violation in 1996 for gambling-related matters alone constituted "some evidence" to support the Board of Prison Terms's denial of parole. Ramirez, in its unfinal form, would not alter this conclusion, as it concerned the denial of parole to an inmate based solely on the commitment offense.
(Pet., Ex. 2 at consecutive p. 5.)
IV. Discussion
A. Due Process
Petitioner's first claim is that the Board's 2001 decision finding him unsuitable for parole violated his right to due process.
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging due process violations must first demonstrate that he or she was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989);McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).
A protected liberty interest may arise from either the Due Process Clause of the United States Constitution or state laws.Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, "a state's statutory scheme, if it uses mandatory language, `creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." McQuillion, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 12 (1979)). California's parole scheme gives rise to a cognizable liberty interest in release on parole, even for prisoners who have not already been granted a parole date. Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006);Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); McQuillion, 306 F.3d at 903. Accordingly, this court must examine whether the deprivation of petitioner's liberty interest in this case lacked adequate procedural protections and therefore violated due process.
Because "parole-related decisions are not part of the criminal prosecution, the full panoply of rights due a defendant in such a proceeding is not constitutionally mandated." Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987) (internal quotations and citation omitted). Where, as here, parole statutes give rise to a protected liberty interest, due process is satisfied in the context of a hearing to set a parole date where a prisoner is afforded notice of the hearing, an opportunity to be heard and, if parole is denied, a statement of the reasons for the denial. Id. at 1390 (quoting Greenholtz, 442 U.S. at 16). See also Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (describing the procedural process due in cases involving parole issues). Violation of state mandated procedures will constitute a due process violation only if the violation causes a fundamentally unfair result. Estelle, 502 U.S. at 65.
In California, the setting of a parole date for a state prisoner is conditioned on a finding of suitability. Cal. Penal Code § 3041; Cal. Code Regs. tit. 15, §§ 2401 2402. The requirements of due process in the parole suitability setting are satisfied "if some evidence supports the decision." McQuillion, 306 F.3d at 904 (citing Superintendent v. Hill, 472 U.S. 445, 456 (1985)); Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994) (citingPerveler v. Estelle, 974 F.2d 1132, 1134 (9th Cir. 1992)). For purposes of AEDPA, Hill's "some evidence" standard is "clearly established" federal law. See Sass, 461 F.3d at 1129 (citing Hill, 472 U.S. at 456). "The `some evidence' standard is minimally stringent," and a decision will be upheld if there is any evidence in the record that could support the conclusion reached by the factfinder. Powell, 33 F.3d at 40 (citing Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987)); Toussaint v. McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986). However, "the evidence underlying the board's decision must have some indicia of reliability." Jancsek, 833 F.2d at 1390. See also Perveler, 974 F.2d at 1134. Determining whether the "some evidence" standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or the weighing of evidence. Toussaint, 801 F.2d at 1105. The question is whether there is any reliable evidence in the record that could support the conclusion reached.Id.
In Biggs, the Ninth Circuit Court of Appeals recognized that a continued reliance on an unchanging factor such as the circumstances of the offense could at some point result in a due process violation. That holding has been acknowledged as representing the law of the circuit. Irons v. Carey, ___ F.3d ___, 2007 WL 656345, *5 (9th Cir. Mar. 6, 2007); Sass, 461 F.3d at 1129. While the court in Biggs rejected several of the reasons given by the Board for finding the petitioner unsuitable for parole, it upheld three: (1) petitioner's commitment offense involved the murder of a witness; (2) the murder was carried out in a manner exhibiting a callous disregard for the life and suffering of another; and (3) petitioner could benefit from therapy. Biggs, 334 F.3d at 913. However, the court cautioned that continued reliance solely upon the gravity of the offense of conviction and petitioner's conduct prior to that offense in denying parole could violate due process. In this regard, the court observed:
As in the present instance, the parole board's sole supportable reliance on the gravity of the offense and conduct prior to imprisonment to justify denial of parole can be initially justified as fulfilling the requirements set forth by state law. Over time, however, should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of his offense would raise serious questions involving his liberty interest in parole.Id. at 916. The court also stated that "[a] continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." Id. at 917.
In Sass, the Board found the petitioner unsuitable for parole at his third suitability hearing based on the gravity of his convicted offenses in combination with his prior offenses. 461 F.3d at 1126. Citing Biggs, the petitioner in Sass contended that reliance on these unchanging factors violated due process. The court disagreed, concluding that these factors amounted to "some evidence" to support the Board's determination. Id. at 1129. The court provided the following explanation for its holding:
While upholding an unsuitability determination based on these same factors, we previously acknowledged that "continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." Biggs, 334 F.3d at 917 (emphasis added). Under AEDPA it is not our function to speculate about how future parole hearings could proceed. Cf. id. The evidence of Sass' prior offenses and the gravity of his convicted offenses constitute some evidence to support the Board's decision. Consequently, the state court decisions upholding the denials were neither contrary to, nor did they involve an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d).Id.
Finally and most recently, in Irons the Ninth Circuit sought to harmonize the holdings in Biggs and Sass, stating as follows:
Because the murder Sass committed was less callous and cruel than the one committed by Irons, and because Sass was likewise denied parole in spite of exemplary conduct in prison and evidence of rehabilitation, our decision in Sass precludes us from accepting Iron's due process argument or otherwise affirming the district court's grant of relief.
We note that in all the cases in which we have held that a parole board's decision to deem a prisoner unsuitable for parole solely on the basis of his commitment offense comports with due process, the decision was made before the inmate had served the minimum number of years required by his sentence. Specifically, in Biggs, Sass, and here, the petitioners had not served the minimum number of years to which they had been sentenced at the time of the challenged parole denial by the Board. Biggs, 334 F.3d at 912; Sass, 461 F.3d 1125. All we held in those cases and all we hold today, therefore, is that, given the particular circumstances of the offenses in these cases, due process was not violated when these prisoners were deemed unsuitable for parole prior to the expiration of their minimum terms.
Furthermore, we note that in Sass and in the case before us there was substantial evidence in the record demonstrating rehabilitation. In both cases, the California Board of Prison Terms appeared to give little or no weight to this evidence in reaching its conclusion that Sass and Irons presently constituted a danger to society and thus were unsuitable for parole. We hope that the Board will come to recognize that in some cases, indefinite detention based solely on an inmate's commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process, given the liberty interest in parole that flows from the relevant California statutes. Biggs, 334 F.3d at 917.Irons, 2007 WL 656345, *5-6.
Whatever uncertainty there may be as to the law of the circuit following the decisions in Biggs, Sass and Irons, petitioner is not entitled to federal habeas relief on his challenge to the 2001 Board decision denying him parole. In this case, the Board commenced its decision finding petitioner unsuitable for parole by stating that the panel had reviewed "all information received from the public" and had concluded that "the prisoner is not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." (Answer, Ex. A at 55.) The phrases "unreasonable risk of danger to society" and "a threat to public safety" are derived from § 3041(b) of the California Penal Code and § 2281(a) of Title 15 of the California Code of Regulations. Pursuant to this statute,
It does appear that since his judgment of conviction was entered in 1986, that by the time of the Board's 2001 decision, petitioner had served or nearly served the minimum number of years required by his fifteen years to life sentence. See Irons v. Carey, ___ F.3d ___, 2007 WL 656345, *5 (9th Cir. Mar. 6, 2007).
[t]he panel or board 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, and that a parole date, therefore, cannot be fixed at this meeting.
The state regulation that governs parole suitability for life prisoners states as follows with regard to the statutory requirement of California Penal Code § 3041(b): "Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." Cal. Code Regs. tit. 15, § 2281(a). The same regulation requires the Board to consider all relevant, reliable information available regarding
the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release.
Cal. Code Regs. tit. 15, § 2281(b).
The regulation identifies circumstances that tend to show suitability or unsuitability for release. Id., § 2281(c) (d). The following circumstances tend to show that a prisoner is suitable for release: the prisoner has no juvenile record of assaulting others or committing crimes with a potential of personal harm to victims; the prisoner has experienced reasonably stable relationships with others; the prisoner has performed acts that tend to indicate the presence of remorse or has given indications that he understands the nature and magnitude of his offense; the prisoner committed his crime as the result of significant stress in his life; the prisoner's criminal behavior resulted from having been victimized by battered women syndrome; the prisoner lacks a significant history of violent crime; the prisoner's present age reduces the probability of recidivism; the prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release; institutional activities indicate an enhanced ability to function within the law upon release. Id., § 2281(d).
The following circumstances tend to indicate unsuitability for release: the prisoner committed the offense in an especially heinous, atrocious, or cruel manner; the prisoner had a previous record of violence; the prisoner has an unstable social history; the prisoner's crime was a sadistic sexual offense; the prisoner had a lengthy history of severe mental problems related to the offense; the prisoner has engaged in serious misconduct in prison. Id., § 2281(c). Factors to consider in deciding whether the prisoner's offense was committed in an especially heinous, atrocious, or cruel manner include: multiple victims were attacked, injured, or killed in the same or separate incidents; the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; the victim was abused, defiled or mutilated during or after the offense; the offense was carried out in a manner that demonstrated an exceptionally callous disregard for human suffering; the motive for the crime is inexplicable or very trivial in relation to the offense. Cal. Code Regs., tit. 15, § 2281(c)(1)(A) — (E). Under current California law, the Board is apparently not required to refer to sentencing matrixes or compare the prisoner's crime to other crimes of the same type in deciding whether the crime was especially cruel or exceptionally callous but may find the crime especially cruel or exceptionally callous if there was violence or viciousness beyond what was "minimally necessary" for a conviction. In re Dannenberg, 34 Cal. 4th 1061, 1095 (2005).
The Board, in addressing the factors considered in reaching its decision that petitioner was unsuitable for parole, provided as follows:
PRESIDING COMMISSIONER LAWIN: Thank you. We're back on the record, and all parties have returned to the room in the hearing for Gary Eccher. The Panel has reviewed all information received from the public and relied on the following circumstances in concluding that the prisoner is not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The commitment offense was carried out in an especially cruel manner. It was the murder of Leann Lando. She was strangled after the inmate and she apparently had a disagreement, altercation, the report reads, relative to cocaine. He apparently hit her with a light — a lamp, and then strangled her with the cord. She was found in the bathroom of her residence, and was found by friends who had come to the home. The inmate then fled to Mexico. He was arrested about a month later. He also took with him when he left the residence her purse, drugs and money as well. And this offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. The prisoner had an escalating pattern of criminal conduct. He had minor record prior to the commitment offense. It included larceny and aggravated assault, which was apparently dismissed. He had a drunk driving arrest for which he was convicted, and then he had other occasions to be arrested or retained [sic] relative to his business and alcohol being served to minors. Again, they were detentions or arrests only. He also has, in terms of history and criminality, he began using cocaine around 1979. He then — or prior to that had used marijuana as a teenager, and he used alcohol as well. The prisoner has not sufficiently participated in beneficial self help programs, and he has failed to demonstrate evidence of positive change in that he does have what we consider to be a recent 115. That was December 1996 for bookmaking, which was changed to possession of gambling paraphernalia. He has a total of three 115's since his incarceration, and two 128a counseling chronos. The hearing Panel notes that responses to PC 3042 notices indicate opposition to a finding of parole suitability, specifically from the District Attorney's Office of Orange County as well as from the victim next of kin. The Panel makes the following findings. The prisoner needs therapy in order to face, discuss, understand and cope with stress in a nondestructive manner, and until further progress is made, the prisoner continues to be unpredictable and a threat to others. And the prisoner's gains are recent. He must demonstrate the ability to maintain gains over an extended period of time, and specifically I'm talking about the disciplinary violation of 1996. It has been four years since that last discipline. And he is to be commended for the fact that he has only received three 115's since his incarceration, again, the last one a little over four years ago. He's also to be commended for the fact that he has programmed exceptionally well. He has acquired two certifications as paralegal and mill and cabinet. He has become, I don't know what level to call it, but he is a leather crafter and has obviously become very proficient in that field to the extent that he's able to acquire a contract with CDC for the production of leather goods. He has also participated in NA and or AA, some form of substance abuse. There are various accounts as to when that participation began, but it would appear that it has been solid since 1993, and may, in fact, been for 10 years. He's also to be commended for participation in Anger Management, Alternatives to Violence, and in Yoga. He's had numerous commendations or chronos commending his work and his actions, one fairly recent one from the senior librarian who commends him for his work for the last five years. And that work has been as a law clerk in the inmate library. However, these positive aspects of his behavior do not yet outweigh the factors of unsuitability. This is a two year denial. In a separate decision, the Hearing Panel finds it is not reasonable to expect that parole would be granted at a hearing during the following two years. The specific reasons for this finding are as follows. The prisoner committed the offense in an especially cruel manner. It is the murder of Leann Lando. She was strangled to death, left in the bathroom of her residence. This occurred after the inmate and she apparently got into an altercation relative to cocaine. After he committed this offense, he then fled the country and went to Mexico where he was later arrested. He has also taken from the residence the victim's purse and some drugs and money as well. And this offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. Ms. Lando was found by friends who had come over for a prearranged party. And the motive for the crime was very trivial in relation to the offense. The prisoner does have a history of misconduct which includes a number of arrests. He has one conviction for driving under the influence. The other arrests were for items related — or actions related to a business he and his father owned, a bar or nightclub, and he had one larceny for which he had stolen two bicycles. And that was also dismissed. His misconduct included smoking marijuana prior to his senior year in high school, something he appeared to continue to some degree. And then he began using cocaine in about 1979. And he recently committed a serious disciplinary violation in that the last 115 was four years ago for possession of gambling paraphernalia. The prisoner has not completed the necessary programming which is essential to his adjustment and needs additional time to gain such programming. And that specifically relates to his AA NA participation and any other self help programs that become available to him. Therefore, a longer period of observation is required before the Board should find him suitable for parole. During the next two years, the Panel recommends that the prisoner remain disciplinary free. Not even any 128's. And, if available, participate in self help. Mr. Eccher, you're doing remarkably well. This Panel was very impressed, not only with your presentation and with your preparation, but with all that you are doing. And we encourage you to keep up the good work. You — that 115 is bothersome because it was four years ago, and it does indicate, still, a lack of following rules, if nothing more. So, we look forward to your putting some space between that 115 and your next hearing. But, again, we encourage you to keep up the excellent work that you are doing.
(Answer, Ex. A at 55-60.)
Under the circumstances presented here, this court cannot say that the record of petitioner's January 11, 2001 suitability hearing is "so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary."Hill, 472 U.S. at 457. In fact, the facts in this case are similar in many respects to those in Sass, where the petitioner was found unsuitable for parole at his third suitability hearing based on the commitment offense and the petitioner's prior criminal history. As discussed above, the Ninth Circuit concluded that these factors amounted to "some evidence" to support the Board's determination. Sass, 469 F.3d at 1129. Further, it was not unreasonable for the Board to conclude that petitioner's crime was "especially cruel" and demonstrated a "callous disregard for human suffering," where petitioner strangled the victim with an electrical cord and "savagely" beat her on the face and head in a dispute over drugs. In addition, in this case the California Superior Court noted that petitioner suffered a serious disciplinary conviction for possession of gambling paraphernalia four years prior to the parole consideration hearing. This alone is enough to distinguish petitioner's case from one in which continued and repeated reliance on unchanging factors such as the circumstances of the offense and conduct prior to imprisonment may run afoul of due process. Certainly, petitioner's serious disciplinary conviction is significant additional evidence supporting the Board's decision finding him unsuitable for parole in 2001. Accordingly, under the circumstances of this case, petitioner is not entitled to relief on his due process claim.
As described above, petitioner has made several claims that the Board's decision to find him unsuitable for parole violated California law. Specifically, petitioner contends that: (1) the Board is failing to set parole release dates in a manner that provides uniform terms for inmates who have committed offenses of similar gravity and magnitude, in violation of California law; (2) he has already served more time than California law requires for his crime; and (3) he has served more time in prison than other inmates who have committed similar or more serious crimes. Petitioner argues that the BPT is required to adhere to a certain formula (the "Matrix System") in setting his release date. Many of petitioner's arguments in this regard were recently rejected by the California Supreme Court in In re Dannenberg, 34 Cal. 4th at 1061 (holding that the Board is not required to refer to its sentencing matrices or to compare other crimes of the same type in deciding whether a prisoner is suitable for parole). More importantly for purposes of this federal habeas corpus action, petitioner has not cited any federal law for the proposition that the Due Process Clause requires a state parole board to either set a parole date where the board members believe a prisoner poses an unreasonable risk of danger to society, engage in a comparative analysis before denying parole suitability, or to set a parole date within a state's "matrix." Petitioner's arguments that the state court has erred in applying state sentencing laws to his release date are not cognizable in this federal habeas corpus proceeding. Estelle, 502 U.S. at 67-68.
B. Ex Post Facto Claim
Petitioner claims that the Board violated the federal constitutional prohibition on ex post facto laws when it denied him parole in 2001. He argues that the Board has interpreted the criteria for a finding of parole suitability more stringently in the years since 1985, resulting in a 10 — 15% decrease in the number of inmates who are found suitable for parole. (Pet. at 14.) Petitioner contends that he would have been found suitable for parole if his hearings had taken place prior to 1985. In this vein, petitioner argues that the Board is "subtly altering the definition" of the phrase "callous disregard for human suffering" to include within its reach virtually any murder. (Id. at 15.) Petitioner compares the length of time he has remained in prison to the prison terms of other prisoners who, in petitioner's view, committed more heinous crimes than his. Finally, petitioner argues that former Governor Gray Davis had an unlawful policy against parole for inmates convicted of murder.
The Constitution provides that "No State shall . . . pass any . . . ex post facto Law." U.S. Const. art. I, § 10. Himes v. Thompson, 336 F.3d 848, 854 (9th Cir. 2003). A law violates the Ex Post Facto Clause of the United States Constitution if it: (1) punishes as criminal an act that was not criminal when it was committed; (2) makes a crime's punishment greater than when the crime was committed; or (3) deprives a person of a defense available at the time the crime was committed. See Collins v. Youngblood, 497 U.S. 37, 52 (1990). The Ex Post Facto Clause "is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts." Himes, 336 F.3d at 854 (quoting Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)) (quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995)). The Ex Post Facto Clause is also violated if: (1) state regulations have been applied retroactively to a defendant; and (2) the new regulations have created a "sufficient risk" of increasing the punishment attached to the defendant's crimes.Himes, 336 F.3d at 854. Not every law that disadvantages a defendant is a prohibited ex post facto law. In order to violate the clause, the law must essentially alter "the definition of criminal conduct" or increase the "punishment for the crime."Lynce v. Mathis, 519 U.S. 433, 441-42 (1997). See also Morales, 514 U.S. at 504, 506-07 n. 3.
Petitioner has failed to demonstrate that the Board's decision finding him unsuitable for parole resulted from a new law that retroactively increased his punishment or altered the definition of his crime. Petitioner does not contend that current parole regulations are more onerous than those in place at the time he committed his offense. In fact, he concedes that the parole regulations have not changed. Although petitioner claims that the current Board is refusing to grant parole to prisoners who would have been found suitable for release in previous years, he has failed to demonstrate that this has occurred because of a change in the law or a change in the definition of criminal conduct. In other words, even assuming that petitioner is correct in contending that the Board is finding fewer prisoners suitable for parole, he has failed to show that this is a result of a new law that is being applied retroactively to him, in violation of the Ex Post Facto Clause. As described above, there was reliable and credible evidence before the Board to support its decision finding petitioner unsuitable for parole in 2001.
Petitioner's argument that his sentence is longer than sentences given to other individuals convicted of crimes more serious than his, is in the nature of an Eighth Amendment claim as opposed to an ex post facto claim. However, the Eighth Amendment "`does not require that a defendant's sentence be harmonized with the sentences imposed by other courts on other defendants.'" United States v. Zavala-Serra, 853 F.2d 1512, 1518 (9th Cir. 1988). Accordingly, petitioner's claim in this regard lacks merit and relief should be denied.
Petitioner also claims that the Board's refusal to find him suitable for parole was based on an illegal gubernatorial policy against parole for inmates convicted of murder and not on the individual circumstances of his case. Petitioner has failed to substantiate this allegation with credible proof of such an illegal policy. Accordingly, this argument does not lend support to petitioner's ex post facto claim. Petitioner has failed to provide evidence that such a "no parole" policy on the part of a former governor played any part in the Board's decision to find petitioner unsuitable for parole. As discussed above, independent of any alleged policy, there was "some evidence" in the record to support the Board's decision. See In re Rosenkrantz, 29 Cal. 4th 616, 684-86 (2002) (California Supreme Court rejecting petitioner's claim that the decision of a former Governor to reverse a parole suitability decision of the Board resulted from a blanket policy of denying parole in all murder cases because there was "some evidence" to support the Governor's decision).
For the foregoing reasons, petitioner is not entitled to relief on his ex post facto claim.
C. Unconstitutionally Vague
Petitioner next claims that "utilization of the language found in § 2402(c)(1)(A-E) as a reason for parole unsuitability is unconstitutional, as the terms used therein are too vague to have any discernible meaning." (Pet. at 11.)
A statute or regulation is void for vagueness "if it fails to give adequate notice to people of ordinary intelligence concerning the conduct it proscribes or if it invites arbitrary and discriminatory enforcement." United States v. Doremus, 888 F.2d 630, 634 (9th Cir. 1989). In Butler v. Calderon, 1998 WL 387612 (N.D. Cal. 1998), the court found that a prisoner's vagueness challenge to standards relied upon by the Board at a parole hearing must fail where the prisoner had received the process due under the decision in Greenholtz v. Inmates of Nebraska Penal. Id. at *5. As set forth above, petitioner's parole suitability hearing under attack here satisfied the requirements of due process; therefore, petitioner's vagueness claim is without merit. Id.; see also Glauner v. Miller, 184 F.3d 1053, 1055 (9th Cir. 1999) (per curiam) (statute requiring that an inmate be certified "not a menace to the health, safety or morals of others" before being eligible for parole was not unconstitutionally vague); Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987) (rejecting claim that due process required articulation of a standard definition of the term "significant planning and preparation" in the parole context).
Claims similar to that presented by petitioner in this regard have been rejected by several California district courts. See Winston v. California Bd. of Prison Terms, 2006 WL 845584, *2 (E.D. Cal. 2006); Sariaslan v. Butler, 2004 WL 2203472, *5 (N.D. Cal. 2004); Masoner v. California, 2004 WL 1080177, *1 (C.D. Cal. 2004).
In addition, it does not appear that California Code of Regulation Title 15, § 2402(c)(1) has been found to be unduly vague or overbroad under federal law. Nor has federal law been found to preclude the use of terms such as "especially cruel" or "callous" as guidelines in Board parole suitability evaluations. Cf. Maynard v. Cartwright, 486 U.S. 356 (1988) (in a capital case, the "especially heinous, atrocious, or cruel" aggravating circumstance was unconstitutionally vague because it did not offer sufficient guidance to the jury in deciding whether to impose the death penalty); Tuilaepa v. California, 512 U.S. 967, 972 (1994); (statutory aggravating circumstances in capital cases "may not be unconstitutionally vague"). Accordingly, the opinion of the California Court of Appeal upholding the constitutionality of this statute is not contrary to or an unreasonable application of clearly established federal law and may not be set aside. 28 U.S.C. § 2254(d)(1).
D. Americans With Disabilities Act
Petitioner also claims that the Board discriminated against him when it found him unsuitable for parole, in violation of the Americans with Disabilities Act (ADA). Petitioner claims that he "has been denied a parole release date on 3 different occasions primarily due to his substance abuse history/addict." (Pet. at 13.) He also claims that "the [Board] follows an unwritten policy of denying parole to prisoners with substance abuse histories in violation of Title II of the ADA." (Id.)
Title II of the ADA provides that: "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Claims brought pursuant to the ADA are cognizable in habeas corpus actions. See Bogovich v. Sandoval, 189 F.3d 999, 1004 (9th Cir. 1999). Similarly, the Ninth Circuit has held that plaintiffs bringing an action for prospective injunctive relief against state parole authorities "may state a claim under Title II [of the ADA] based on their allegations that the parole board failed to perform an individualized assessment of the threat they pose to the community by categorically excluding from consideration for parole all people with substance abuse histories." Thompson v. Davis, 295 F.3d 890, 894 n. 4 (9th Cir. 2002). However, the court also recognized that the ADA does not bar any consideration of an inmate's disability in making individualized assessment of the future dangerousness of the inmate; but rather bars only the categorical denial of parole to persons with disabilities. Id.
Here, petitioner was not categorically denied parole based on his history of substance abuse but, as described above, was afforded an individualized assessment of his suitability for parole. Petitioner's past history of substance abuse was a legitimate factor for the Board to take under consideration, along with other factors, in determining whether he was suitable for release on parole. The mere fact that the Board advised petitioner to participate in programs for persons addicted to substance abuse does not demonstrate that the decision finding petitioner unsuitable for parole resulted from a policy of discriminating against drug addicts. There is no credible evidence that discrimination played any part in the Board's decision. In short, petitioner has failed to demonstrate that the Board's refusal to find him suitable for parole "was by reason of [his] disability." Thompson, 295 F.3d at 895. Accordingly, petitioner is not entitled to habeas relief on his ADA claim.
V. Requests for Judicial Notice
On June 30, 2001, petitioner filed a motion requesting that this court take judicial notice of two habeas corpus cases filed in this court (Saif'ullah v. Carey, Case No. CIV S-02-2664 MCE DAD P and Blair v. Folsom State Prison, Case No. CIV S-04-2257 MCE GGH P), and an order from the California Court of Appeal in which petitioner's challenge to his 2003 parole consideration hearing was granted. On November 20, 2006, petitioner filed a motion requesting that the court take judicial notice of an opinion by the California Court of Appeal in the case of In re Wen Lee. The court has read and considered the cases and order submitted by petitioner in his two motions for judicial notice. Accordingly, petitioner's requests for judicial notice will be granted. See United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (a court "may take judicial notice of a document filed in another court `not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings'") (quoting Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir. 1992)). See alsoSan Luis v. Badgley, 136 F. Supp. 2d 1136, 1146 (E.D. Cal. 2000) (federal courts may "take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue") (quoting U.S. ex rel Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)).
Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that petitioner's June 30, 2006 and November 20, 2006 motions for judicial notice are granted.
IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).