Opinion
No. CIV S-06-2615 RRB EFB P.
October 31, 2007
ORDER
Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a).
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.
A judge "entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. It is not apparent from the face of the application that the petitioner is not entitled to the relief sought.
Accordingly, it is hereby ordered that:
1. Petitioner's request for leave to proceed in forma pauperis is granted.
2. Respondent shall file and serve either an answer or a motion in response to petitioner's application within 60 days from the date of this order. See Rule 4, Fed.R. Governing § 2254 Cases. Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rules 4, 5, Fed.R. Governing § 2254 Cases.
3. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer.
4. If the response to petitioner's application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within 30 days of service of the motion, and respondents' reply, if any, shall be filed within 15 days thereafter.
5. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's January 31, 2007, petition for a writ of habeas corpus with any and all attachments on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California.
PETITION AMENDED PETITION
Superior Court, Alameda County September 25, 1990 (Sentenced on 11-26-90) 15 years to life N/A N/A N/A CALIFORNIA SUPREME COURT HABEAS CORPUS SAME GROUNDS RAISED IN THIS PETITION N/A N/A not N/A concisely briefly facts facts CAUTION: In order to proceed in the federal court, you must ordinarily first exhaust your available state court remedies as to each ground on which you request action by the federal court. If you fail to set forth all grounds in this petition, you may be barred from presenting additional grounds at a later date. you should raise in this petition all available grounds PETITIONER CONTENDS THAT HE IS BEING DENIED HIS LIBERTY INTEREST RIGHT BY THE FORMER BOARD OF PRISON TERMS WITHOUT SOME EVIDENCE TO DENY PAROLE TO PETITIONER BASED UPON ERRONEOUS briefly On or about 1990 Petitioner was convicted of Second Degree Murder and sentenced to 15 years to life. Petitioner's minimum eligible release date was on December 30, 1998. On Oct. 2004 Petitioner appeared before the Board for his third (3rd) subsequent parole hearing and was denied the setting of a parole release date for one year based upon the nature of the crime SEE ENCLOSED CONTENTIONS briefly SEE ENCLOSED ARGUMENT 1. Name and location of court which entered the judgment of conviction under attack ____________________ 2. Date of judgment of conviction 3. Length of sentence 4. Nature of offense involved (all counts) ______________________________________________________________ Second Degree Murder ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ 5. What was your plea? (Check one) (a) Not guilty (b) Guilty (c) Nolo contendere If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details: ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ 6. If you pleaded not guilty, what kind of trial did you have? (Check one) (a) Jury (b) Judge only N/A 7. Did you testify at the trial? Yes No 8. Did you appeal from the judgment of conviction? Yes No 9. If you did appeal, answer the following: (a) Name of court (b) Result _____________________________________________________________________________________________________ (c) Date of result and citation, if known ______________________________________________________________________ (d) Grounds raised _____________________________________________________________________________________________ ________________________________________________________________________________________________________________ (e) If you sought further review of the decision on appeal by a higher state court, please answer the following: (1) Name of court (2) Result _________________________________________________________________________________________________ ____________________________________________________________________________________________________________ (3) Date of result and citation, if known __________________________________________________________________ (4) Grounds raised _________________________________________________________________________________________ (f) If you filed a petition for certiorari in the United States Supreme Court, please answer the following with respect to each direct appeal: (1) Name of court (2) Result _________________________________________________________________________________________________ ____________________________________________________________________________________________________________ (3) Date of result and citation, if known __________________________________________________________________ (4) Grounds raised _________________________________________________________________________________________ ____________________________________________________________________________________________________________ 10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any court, state or federal? Yes No 11. If your answer to 10 was "yes," give the following information: (a) (1) Name of court (2) Nature of proceeding _______________________________________________________________________________________________________ (3) Grounds raised _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No (5) Result ________________________________________________________________________________________________ (6) Date of result ________________________________________________________________________________________ (b) As to any second petition, application or motion give the same information: (1) Name of court (2) Nature of proceeding ___________________________________________________________________________________ ________________________________________________________________________________________________________ (3) Grounds raised _________________________________________________________________________________________ ________________________________________________________________________________________________________ ________________________________________________________________________________________________________ ________________________________________________________________________________________________________ ________________________________________________________________________________________________________ (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No (5) Result (6) Date of result _________________________________________________________________________________________ (c) Did you appeal to the highest state court having jurisdiction the result of action taken on any petition, application or motion? (1) First petition, etc. Yes No (2) Second petition, Yes No (d) If you did appeal from the adverse action on any petition, application or motion, explain briefly why you did not: ________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________ 12. State every ground on which you claim that you are being held unlawfully. Summarize the supporting each ground. If necessary, you may attach pages stating additional grounds and supporting same. For your information, the following is a list of the most frequently raised grounds for relief in habeas corpus proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you may have other than those listed if you have exhausted your state court remedies with respect to them. However, (relating to this conviction) on which you base your allegations that you are being held in custody unlawfully. Do not check any of these listed grounds. If you select one or more of these grounds for relief, you must allege facts. The petition will be returned to you if you merely check (a) through (j) or any one of these grounds. (a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea. (b) Conviction obtained by use of coerced confession. (c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure. (d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest (e) Conviction obtained by a violation of the privilege against self-incrimination. (f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. (g) Conviction obtained by a violation of the protection against double jeopardy. (h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled. (i) Denial of effective assistance of counsel. (j) Denial of right of appeal. A. Ground one: PAROLE PROCEDURES IN VIOLATION OF STATE AND FED. COST. Supporting FACTS (state without citing cases or law) ______________________________________________ B. Ground two: _________________________________________________________________________ Supporting FACTS (state without citing cases or law): ____________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________unchanging factors) and that Petitioner would pose a threat to society. See Board Hearing Decision on file in the present case.
Petitioner has been denied the granting of a parole date without their being some evidence to deny parole in violation of the State and Federal Constitution.
On Oct. 2004, when Petitioner appeared before the Board he had met 99% of all the Board's recommendations but was denied parole based upon the nature of the crime and that Petitioner would pose and unreasonable risk of danger to society or a threat to public safety if released from prison. See decision on filed with the Court.
Petitioner contends that he met 99% of the Boards previous recommendations and the Board did not have sufficient evidence to substantiate a denial of parole.
Petitioner contends that the Board's reliance upon the nature of Petitioner's commitment offense and that the commitment offense was carried out in an especially cruel and callous manner and that the offense was carried out in a very cruel and it was extremely callous and was carried out very dispassionately and that the offense was carried out in a manner that showed a total disregard for human suffering and has failed to sufficiently participate in beneficial self-help and programming and failed to demonstrate evidence of positive change are all stated without legal authority or evidence to substantiate such a finding by the Board that justify a denial of setting a parole release date.
Petitioner contends that the record before the Court contains no evidence that supports the nature of the offense or that Petitioner would pose an unreasonable risk of danger to society or a threat to the public if released from prison.
Petitioner contends that the Board assertion that the nature of the crime was carried out any different from any other Second Degree Murder beyond what was minimally necessary to convict Petitioner of Second Degree Murder must fail because the record contains no such evidence to support that the nature of the crime was out of the ordinary.
Petitioner contends that the law is clear that California Life prisoners has a liberty interest right to parole as it stands today. Sass v. Cal. Bd. of Prison Terms, 2006 W.L. 2506393.
Petitioner contends that a parole board's decision, like a prison disciplinary board's decision, deprives a prisoner of due process if it is not supported by "some evidence" or is "otherwise arbitrary." Hill, 472 U.S. at 457; see McQuillion v. Duncan, 306 F. 3d 895, 904 (9th Cir. 2002). The Board, and the California State Supreme Court did not explain in their denial of parole and Answer to the writ of habeas corpus how the boards determination in this case satisfied the "some evidence" portion of the Hill rule, and the Supreme Court does not acknowledge the "otherwise arbitrary" portion of the rule in denying habeas corpus.
Petitioner contends that the State Court decision is contrary to, and an unreasonable application of, clearly establish federal law as determined by the United States Supreme Court. The State Supreme Court gave no written opinion. The record before this Federal Court does not support the Board's finding. The Supreme Court and the Board failed to explain in the decision how the Court determined in this case satisfied the "some evidence".
Petitioner contends that this Federal Court must make "an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law and that the decision of the board to deny parole based upon unchanging factors was legally proper under United States precedent case law and that the denial of habeas corpus by the State Supreme Court was contrary to, and an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. Only by that examination by this Federal Court may the determination be made that the board's decision to denv parole was objectively reasonable. Delgado v. Lewis, 223 F. 3d 976, 982 (9th Cir. 2000) (internal citation omitted); see alsoPham v. Terhune, 400 F. 3d 740, 742 (9th Cir. 2003); Pirtle v. Morgan, 313 F. 3d 1160, 1167 (9th Cir. 2002) ("We have relaxed AEDPA's strict standard of review when the state court reaches a decision on the merits but provides no reasoning to support its conclusion.")
As noted above, although the State Supreme Court gave no written denial the Federal Court must turn to the only written decision from the Board Transcripts which does not explain what evidence was used to determine that Petitioner is a present threat to society to deny parole. There is no hint in the board decision nor in the Supreme Court denial that the nature of the crime is more than any other second degree. There is no hint in the boards denial of parole nor in the Supreme Court denial of habeas corpus what factual evidence was used other than empty words that the nature of the crime justify denial of parole.
The board reliance on the nature of the crime are unchanging factors that will never change and precedent case law prohibits the use of unchanging facts as a reliable means to deny Petitioners liberty interest right to parole and the boards denial and the Supreme Court denial of habeas corpus fails to apply Hill's, supra "some evidence" test to the facts of this case.
Petitioner contends that the boards citing the gravity of Petitioner's conviction sixteen years (16) years ago doesn't constitute some evidence to support the boards decision to deny Petitioner his liberty interest right to parole, especially without relying on evidence that is present which would established federal law as determined by the United States Supreme Court. Only by that examination by this Federal Court may the determination be made that the board's decision to deny parole was objectively reasonable. Delgado v. Lewis, 223 F. 3d 976, 982 (9th Cir. 2000) (internal citation omitted); see alsoPham v. Terhune, 400 F. 3d 740, 742 (9th Cir. 2003); Pirtle v. Morgan, 313 F. 3d 1160, 1167 (9th Cir. 2002) ("We have relaxed AEDPA's strict standard of review when the state court reaches a decision on the merits but provides no reasoning to support its conclusion.")
As noted above, although the State Supreme Court gave no written denial the Federal Court must turn to the only written decision from the Board Transcripts which does not explain what evidence was used to determine that Petitioner is a present threat to society to deny parole. There is no hint in the board decision nor in the Supreme Court denial that the nature of the crime is more than any other second degree. There is no hint in the boards denial of parole nor in the Supreme Court denial of habeas corpus what factual evidence was used other than empty words that the nature of the crime justify denial of parole.
The board reliance on the nature of the crime are unchanging factors that will never change and precedent case law prohibits the use of unchanging facts as a reliable means to deny Petitioners liberty interest right to parole and the boards denial and the Supreme Court denial of habeas corpus fails to apply Hill's, supra "some evidence" test to the facts of this case.
Petitioner contends that the boards citing the gravity of Petitioner's conviction sixteen years (16) years ago doesn't constitute some evidence to support the boards decision to deny Petitioner his liberty interest right to parole, especially without relying on evidence that is present which would verify that Petitioner is a present threat or danger to society today, not 16 years ago when the crime was committed. The Board Transcript doesn't describe evidence that Petitioner is a dangerous threat to society today and 16 years after the commission of his crime and without any explanation as to how the evidence can satisfy the Hill standard or why it does. Why, for example, does this particular conviction constitute "some evidence" that Petitioner presently constitutes a danger to society? Why is this offense particularly grave"? How can the nature of this offense constitute a denial of parole? On the contrary. The record from the Staff Psychologist clearly states that Petitioner is not a threat or present danger to society. See Exhibit "A" hereto attached. There is no logical or legal explanation to these questions and the Supreme Court and the Board did not provide one in their answer, the board did not provide one in their denial as the board transcripts reveal that is before the Court and this Federal Court must now provide one according to precedent case law.
Petitioner contends that the "some evidence" standard should not apply to a Court's review of parole decision. See Carrillo v. Fabian, Supreme Court of Minnesota 710 NW 2d 763. Petitioner contends that the "some evidence" standard, the narrowest review standard (requiring but any evidence whatsoever, according to the California Supreme Court) should not apply to a review of the evidence involved in this State's parole decisions.
Petitioner contends that the "some evidence" standard of judicial review evolved from Superintendent v. Hill (1985) 472 445, 455 ["Hill"]. See In re Powell, 45 Cal. 3d at 904. It is difficult to understand why the narrowest of standards should apply. First, the United States Supreme Court prescribed it inHill, supra, to apply to a hearing at which disciplinary charges were based on a confidential source causing the prisoner's due process right to be diminished by the prison's need for security and confidentiality. A California lifer's due process right is not diminished because neither the parole determination process used by BPH nor adjudication of habeas claims requires or involves any security concern.
Second, the State's courts that adopted Hill's, supra, some evidence standard to review parole decisions expressly held that California's life prisoners did not have due process liberty interest in a parole grant. In re Powell, supra, 45 Cal. 3d at 911. The contrary has now been established. MaQuillion, 306 F. 3d at 902; Rosenkrantz, 29 Cal. 4th at 621. Sass v. Cal. Bd. of Prison Terms, 2006 W.L. 2506393. Due process demands a finding of something more than "some" (any) evidence in the record to protect what is now defined as a vested liberty interest protected by the Due Process Clause.
Third, Hill, excluded claims that alleged that the procedure used by the agency did not comply with state law. ( 472 U.S. at 457 ["respondents relied only upon the Federal Constitution, and did not claim that the disciplinary board's findings failed to meet evidence standards imposed by state law"].)
Petitioner contends that it is long overdue in the State of California to secure a court ruling as that of the Supreme Court of Minnesota in the case of Carrillo v. Fabian, supra which held that Minnesota state prisoners have a protected liberty interest in parole that requires a broader standard, i.e., a hearing panel's decision must be based on a "preponderance of the evidence."
Petitioner submits that it is time for this Federal Court to apply the Minnesota Supreme Court's reasoning to go along with the Liberty Interest Ruling in the Ninth Circuit Ruling in Sass v. Cal. Bd. of Prison Terms, supra, to require a preponderance of the evidence in the record to uphold a governor's or BPH panel's parole decision. The Board's decision are supposed to be based on a preponderance of the evidence of parole suitability in the record. Good cause" is the standard. (In re Powell, supra, 45 Cal. 3d at 901;In re Brown (1967) 67 Cal. 2d 39, 342; In re McClain (1960) 55 Cal. 2d 78, 87; In re Caswell (2001) 92 Cal. App. 4th 1017, 1024, 1026; In re Clutchett (1974) 39 Cal. App. 3d 561, 656; In re Monzo (1973) 33 Cal. App. 3d 144, 147; 15 CCR § 2450, "good cause" being defined by the Board as "a preponderance of the evidence that there is a factual basis and good reason for the decision." (15 CCR § 2000(b)(49) (emphasis added).)
THE BOARD OF PAROLE HEARINGS IS CHARGED WITH DETERMINING THE PAROLE SUITABILITY OF PRISONERS SERVING INDETERMINATE LIFE TERM SENTENCES II.
Petitioner contends that the Board of Parole Hearings is obligated to set a release date for life term inmates at the parole consideration hearing unless the inmate poses a significant risk to public safety. Penal Code Section 3041(b).
THE BOARD OF PAROLE HEARINGS HAS SET FORTH "GUIDELINES" TO AID IN ITS PAROLE SUITABILITY DETERMINATIONS. 15 CCR 2281 2402 III. PETITIONER'S POSITIVE EFFORTS OVER SIXTEEN YEARS SUPPORTS SUITABILITY FOR PAROLE AND OUTWEIGH ALL NEGATIVE FACTORS OF UNSUITABILITY FOR PAROLE IV.Petitioner contends that there are nine (9) points of suitability pursuant to 15 CCR § 2281 and 2402, and six (6) criteria of unsuitability which states in pertinent part;
A. CIRCUMSTANCES TENDING TO SHOW SUITABILITY.
1. NO JUVENILE RECORD. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential for personal harm to victims. 15 CCR § 2281(d)(1).
A hard look at Petitioners file indicates that there is no evidence that he has ever caused physical harm to anyone during the commission of a crime other than the present crime (i.e. in the present crime Petitioner did not commit the actual murder). Likewise, there is not a single allegation of assault or violence in which Petitioner has been convicted of throughout his criminal history. See Exhibit "A" hereto attached. Since Petitioners incarceration he has not been cited for any violence with a weapon and has only been cited for one fist fight that left no one hurt or injured and Petitioner other disciplinaries over the past sixteen years were for minor infractions that had nothing to do with violence.
2. STABLE SOCIAL HISTORY. The prisoner has experienced reasonably stable relationships with others. 15 CCR § 2281(d)(2).
"[T]he first sixteen years of Petitioner's life was spent in a stable, emotional close family environment where he had good parental example and supervision with his mother and father. Petitioner's family has no "arrest history nor history of mental illness. Petitioner has maintained relationships with loved ones while in prison. Petitioner has also managed to develop strong relationships with others while serving his sentence. Several people he has met since entering prison have dedicatedly continued to write impressive letters of support with pledges to aid in whatever way they can, offering living accommodations, employments, employment opportunities, and even financial assistance. See Exhibit "B" hereto attached. 3. SIGNS OF REMORSE. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or the prisoner has given indications that he understands the nature and magnitude of the offense. 15 CCR § 2281(d)(3). Petitioner has demonstrated that he regret his decision and still carries remorse for what he did 16 years ago. See Psychologist and Counselors Report. California Department of Rehabilitation Staff Psychologist have recognized this in the Psychological Assessment issued for the Board hearings. See Psychologist Report hereto attached as Exhibit "A". Petitioner has developed a great deal of insight into his commitment offense and the reasons for his past behavior. See Exhibit "A". 4. MOTIVATION FOR CRIME. The prisoner committed his crime as the result of significant stress in his life, especially if the stress had built over a long period of time. 15 CCR 2281(d)(4).
In spite of Petitioner having a good family and parental guidance he dropped out of High School in the 11th grade to support his two children and started associating with a delinquent peer group and started drinking and using marijuana and shortly afterwards suffered minor arrest with county jail time and probation. Petitioner's two arrest as a juvenile and three adult arrest before the present crime and his past drinking and marijuana use reflects his self destructive tendencies. See Exhibit "B".
Today, Petitioner is a mature older man of 36 years old who leads a principled life and who looks forward to the day that he can embrace his mother, children, wife, sister, loved ones and become a full-time family man. Petitioner also has many friends who eagerly await his release and who are ready to support him.
5. BATTERED WOMAN SYNDROME. At the time of the commission of the crime, the prisoner suffered from battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization. 15 CCR § 2281(d)(5).
Not Applicable.
6. LACK OF CRIMINAL HISTORY. The prisoner lacks any significant history of violent crimes. 15 CCR § 2281(d)(6).
Petitioners criminal history does not include several incidents where his actions resulted in injury to others besides the present offense.
7. AGE. The prisoners present age reduces the probability of recidivism. 15 CCR § 2281(d)(7).
Petitioner has sixteen (16) years in prison; he is now thirty six (36) years old. Petitioner's age indicates that there is minimal likelihood that he would commit further crime. The most recent Psychological Assessment concludes that the Petitioner's level of dangerousness now is low. See Psychologist Report. 8. UNDERSTANDING AND PLANS FOR FUTURE. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release. 15 CCR § 2281(d)(8).
Petitioner has a place of residence with his wife and his wife upon release and financial support from his family. Petitioner will request additional assistance from paroles of (EDD) with job opportunities when released. See attached Board Report. 9. INSTITUTIONAL BEHAVIOR. Institutional activities indicate an enhanced ability to function within the law upon release. 15 CCR § 2281(d)(9).
Petitioner "has never been cited for using a weapon on another inmate nor has he suffered a District Attorney Referral since his incarceration, nor from the one fist fight that he has had. Petitioner has also been a dedicated and effective worker since his incarceration, receiving outstanding work supervisors reports. See Exhibit "B". In addition he received many Laudatory Chronos attesting to his hard work. See Exhibit "A" and "B". His excellent job performance and work ethic attest to the probability of his success and therefore substantially reduce his chances of recidivism.
B. CIRCUMSTANCES TENDING TO SHOW UNSUITABILITY.
1. COMMITMENT OFFENSE. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: (a) Multiple victims were attacked, injured 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 out in a manner which demonstrates an exceptionally callous disregard for human suffering; and (e) The motive for the crime is inexplicable or very trivial in relation to the offense. 15 CCR § 2281(c)(1).
Petitioners commitment offense is a serious crime to be sure, however, it was not of such character as to rise to the level of "especially heinous, atrocious, or cruel," as analyzed under the Board's guidelines and the most recent ruling in In re Scott, supra (2005), see below citation. The crime of Petitioner involved only one victim and was not carried out in a dispassionate manner such as an execution-style murder. Lastly, the motive for the crime. The motive was not inexplicable or very trivial; for example, an outrageous response to a trivial act. Petitioner is not a loose cannon.
The murder here, as compared to others, was not particularly egregious. See In re Scott, supra . It should also be noted that the longer an inmate remains incarcerated, increasingly, less emphasis should be placed on factors such as this, because this factor will forever remain unchanging. This was Petitioners third subsequent parole consideration hearing. Petitioner has served the statutory minimum eligibility and has served the fifteen year base team according to the Matrix range. Petitioners minimum eligible release date was on December 30, 1998. In the In re Scott case he only served 18 years and was found suitable in 2004 when he had served 16 years.
2. PREVIOUS RECORD OF VIOLENCE. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age. 15 CCR § 2281(c)(2).
See sections A.1 and A.6, above.
3. UNSTABLE SOCIAL HISTORY. The prisoner has a history of unstable or tumultuous relationships with others. 15 CCR § 2281(c)(3)
See section A.1, above.
4. SADISTIC SEXUAL OFFENSES. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim. 15 CCR § 2281(c)(4).
Not applicable.
5. PSYCHOLOGICAL FACTORS. The prisoner has a lengthy history of severe mental problems related to the offense. 15 CCR § 2281(c)(5)
No history of mental problems. Petitioners commitment offense is not at all related to a psychiatric disorder. See attached Psychological reports. 6. INSTITUTIONAL BEHAVIOR. The prisoner has engaged in serious misconduct in prison or jail. 15 CCR § 2281(c)(6).
Petitioner has had disciplinary offenses while incarcerated. These offenses were for a simple fist fight that did not leave anyone injured. Petitioner has never been cited for using a weapon on another inmate or cited for institutional violence from being in involved in a riot. Petitioner's record indicates a de-escalating pattern of administrative violations.
PETITIONER'S LIFE SENTENCE HAS BEEN ALTERED BY THE BOARD TO RESEMBLE A SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE OR DEATH, THUS CONSTITUTES AN EX-POST FACTO APPLICATION OF THE LAW V. Indeed, a second degree murder must be "heinous, atrocious or cruel", if, as here, the offense is to serve as the basis for parole denial. 15 Cal. code Regs. § 2402(c)(1). In addition, in such cases, the prisoner must presently present a danger to society. Cal. Penal Code § 3041(b). In short, in the present case, the circumstances surrounding the crime or the manner in which it was committed must show not only that the murder at issue was more cruel or vicious than the ordinary second degree murder and that Petitioner would likely pose a current risk to public safety if released. The record in the case before the Court contains absolutely no evidence that would meet either of the two requirements. Thus, there can be little doubt that the Board violated the applicable rules when it denied to Petitioner parole solely on the basis of his commitment offense, alleged incorrect assertion of not sufficiently participating in beneficial self help programs.Petitioner contends that the jury nor the Sentencing Court found that Petitioner committed his crime in an especially cruel and callous manner . . . a dispassionate manner . . . a manner that demonstrates. . . . a callous disregard for the law . . . [and] for another human being . . .
Petitioner contends that in 1990 when Petitioner committed the present crime Penal Code § 187 and § 190 did not include the crime of second degree murder being committed in "an especially cruel and callous manner . . . a dispassionate manner . . a manner that demonstrates . . . a callous disregard for the law . . . [and] for another human being. On the contrary. Penal Code § 187/190.1 special circumstances is more fitting to the Board identifying the nature of Petitioner's crime being of such magnitude to deny setting a parole release date based upon the nature of the crime as the Board Transcripts describe.
Penal Code § 190.2(14)(a) which also include the death penalty and facts not found true in Petitioner's case. See Exhibit "C" hereto attached. For the Board to find the nature of Petitioner's crime to be justified to deny parole falls under BPT rules § 2281(c)(1) which includes special circumstances provisions and language that Petitioner was not convicted of nor facts found by a Judge or jury. Such retrospective application of the BPT/DSL regulations increased Petitioner's sentence to life without the possibility of parole without affording to Petitioner Due Process or the process that is due to a trial by jury. Penal Code § 190.2(14) states in pertinent part:
The murder was especially heinous, atrocious, or cruel.
Likewise, the BPT/DSL regulations enacted on June 28, 1979, pursuant to BPT § 2281(c)(1) also states:
(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner.
Petitioner suffers from a second degree murder conviction which carries a fifteen year to life sentence with the possibility of parole. Discounting earned good time/work time credits. Petitioner has exceeded the minimum suggested base term for his sentence as established by the Board's Parole Matrix by a minimum of six (6) years. Petitioner has exceeded the maximum suggested base term of 21 years including his good time/work time credits.
Petitioner contends that California's Legislature promulgated Penal Code § 3041 subdivisions (a) and (b) mandating proportionality in the actual amount of time served by prisoners convicted of murder. Accordingly, the question of proportionality should not be ignored by the Board or this Court. In response to the Legislature's promulgation of Penal Code § 3041 the Board amended § 2402(c) to their regulations which established a matrix, which codifies the more commonplace variations of murder. The matrix also quantifies the various circumstances and victim considerations on a scale which assigns increasing terms of punishment based on increasing severity. The very existence of the matrix demonstrates that different instances of murder be, and must be meaningfully compared. See California Code of Regulations Title 15 § 2403(c).
Petitioner contends that in the case of the Board, when examining the crime for the purpose of analyzing suitability, they must engage in an identical comparative process before citing the circumstances of the crime as a factor of unsuitability. As stated by the California Court of Appeal, one must "weigh the inmate's criminal conduct not against ordinary social norms, but against other instances of the crime or crimes." See In re Ramirez , (2001) 94 Cal. App. 4th 549, 570.
The Board totally ignored the existence of the matrix in their use of Petitioner's crime as the primary purpose for finding him unsuitable for parole. By labeling the crime "especially cruel and callous and carried out in a manner which demonstrates and exceptionally callous disregard for human suffering" and point out that the cause of the crime was very trivial and based upon this finding the board declared that Petitioner would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Board seeks to justify their decision to retain Petitioner in prison. Such position defines the legislative mandate to normally set terms, and to set terms in an uniform and proportionate manner.
It is a well-established rule of statutory construction that when a word or phrase has been given a particular scope of meaning in one part or portion of a law it shall be given the same scope and meaning in other parts or portions of the law." People v. DeGuzman (2003) 113 Cal. App. 4th 538, 547-548 citing People v. McKay (2002) 27 Cal. 4th 601, 621.
Since it is clear that within one part of the statutory scheme governing parole there is a mandated framework for quantifying the severity of any given instance of murder, it seems equally clear that the Board has to be precluded from adopting contrary standards for similar and related parts of the same scheme. It is contrary to both common sense, and the apparent legislative intent, that the Board would be allowed to examine a crime that falls within the terms contained on the matrix and seems to speak directly to Petitioner's facts, and characterize it as being so exceptionally egregious as to invoke the exception to the rule that the Board "Shall normally" set a parole date. . . . Not once, but on three different appearances before the Board after serving the minimum statutory requirement of ten (10) calendar years and beyond the matrix maximum of 21 years including the work and good time credits.
Petitioner contends that because there is no lawful grounds on which his disproportionate sentence has been enacted, he asserts that the excessive period of time he has, and continues to serve beyond the ten year statutory minimum requirement supports the conclusion that the Board has abandon the proper application of statute, case law, and/or regulations governing Petitioner's sentence.
Further, because there appears to be no other lawful explanation of this abandonment of applicable law, Petitioner asserts that the Board seeks to impose upon him, ex-post facto, the greater penalty of life without the possibility of parole under special circumstances. This petition for writ of habeas corpus centers around Petitioner's third subsequent parole consideration hearing, each time being denied one and two years and the panel refusing to set a release date.
The United States, as well as the California Constitution prohibits the passage and enforcement of ex-post facto laws. This includes laws that increase punishment for a crime after it has been committed. This bedrock principle of American Criminal Justice was established more than two hundred years ago in the case of Calder v. Bull , (1978) 3 U.S. [3 Dall.] 368, 390-391.
The interpretation of exactly what is and is not and ex post facto law has been defined and redefined a number of times by the court; the general conclusion being, the ex-post facto clause guards against the "danger that legislatures might disfavor certain persons after the fact . . ." Garner v. Jones , (2000) 529 U.S. 244, 253. Joseph P. Dyer III v. James Bowlen , No. 04-5478 United States Court of Appeals, Sixth Circuit (2006). Petitioner asserts that the Board Panel's refusal to set his term in accordance with applicable law has created a new application of law resembling, and/or patterned after life without the possibility of parole under special circumstances or a death sentence which is disproportionate to the crime he stands convicted of as demonstrated throughout this petition for writ of habeas corpus and this new application falls within the scope of ex-post facto application of law and is therefore prohibited by the Federal and State Constitution.
WHEREFORE, for all of the foregoing reasons habeas corpus should be granted, an ORDER to Show Cause issued and federal counsel appointed to represent Petitioner.
I swear under the penalty of perjury that all of the information in this petition is true, correct and complete. SEE ENCLOSED CONTENTIONS briefly SEE ENCLOSED ARGUMENT SEE ENCLOSED CONTENTIONS briefly SEE ENCLOSED ARGUMENT briefly N/A N/A N/A N/A N/A N/A N/A N/A N/A January 2007
C. Ground three: ________________________________________________________________________ Supporting FACTS (state without citing cases or law): ____________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ D. Ground four: ________________________________________________________________________ Supporting FACTS (state without citing cases or law): ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 13. If any of the grounds listed in 12A, B, C, and D were not previously presented in any other court, state or federal, state what grounds were not so presented, and give your reasons for not presenting them:______________________________________________________ ________________________________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________________ 14. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack? Yes No 15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein: (a) At preliminary hearing ________________________________________________________________________________________________________________________________________ (b) At arraignment and plea ________________________________________________________________________________________________________________________________________ (c) At trial ___________________________________________________________________________________________________________________________________ (d) At sentencing ____________________________________________________________________________________________________________________________________ (e) On appeal ____________________________________________________________________________________________________________________________________ (f) In any post-conviction proceeding ____________________________________________________________________________________________________________________________________ (g) On appeal from any adverse ruling in a post-conviction proceeding ______________________________________________________ ___________________________________________________________________________________________________________________________________ 16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? Yes No 17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes No (a) If so, give name and location of court which imposed sentence to be served in the future: __________________________________________ (b) Give date and length of the above sentence: _______________________________________________________________________________________ (c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future? Yes No Wherefore, petitioner prays that the Court grant petitioner relief to which he may be entitled in this proceeding. ______________________________________________________ Signature of Attorney (if any) I declare under penalty of perjury that the foregoing is true and correct. Executed , (date) ____________________ Signature of Petitioner PSYCHOLOGIST REPORT DECLARING PETITIONER NOT TO BE A LOW THREAT TO SOCIETY EXHIBIT "A" CALIFORNIA STATE PRISON — SOLANO Vacaville, California PSYCHOSOCIAL EVALUATION FOR THE BOARD OF PRISON TERMS NAME: Halfin, Leonard CDC#: E77274The following is a psychological report solely conducted for the Board of Prison Terms.
Information for this was gathered from an interview with the inmate on 9-15-05 and a review of his central and medical file. He has been interviewed before for this purpose and this report will serve as updated information. The last psychological report for this purpose was in 2000.
IDENTIFYING INFORMATION:
Mr. Halfin is a first termer currently serving 15-years to life for Murder 2. He has filed a writ of habeas corpus regarding parole release date and is currently "going through the process."
As a youth, he was sent to Juvenile Hall regularly for fighting and had 2 criminal arrests prior to the commitment crime — for Assault, and for Attempted Robbery, outside of Vehicle Code violations at age 18.
It appears that his last CDC-115 was in 2004 for Grooming although he disputes this and he has had other Grooming chronos. He had other CDC-115's in 1994 for Physical Altercation, and Disrespect Toward Staff. He has numerous 128's with the last one in 2000 for Smoking with the others generally for Smoking, Grooming and Performance.
DEVELOPMENTAL/FAMILY HISTORY:
He was born in Oakland and at age three moved to Hayward, returning to Oakland three years later. His father was a janitor/hotel manager and his mother was an LVN. He had two brothers and one sister and all were at least 9 years older. There is no history of mental illness in the family. The father suffered from alcoholism when the inmate was 6-11 years of age. The parents divorced when he was 16 and his mother and sister raised him. His father was deceased by 2000.
He has denied any known pregnancy, birth, or developmental problems. He also denied trouble learning to walk, talk, read, or write. He denied any history of physical abuse or sexual abuse.
He has family visitors ever month or two including his sister, niece, wife, and 18-year-old son. He phones and writes weekly.
EDUCATION:
He does not have any learning disabilities, nor was he in special education classes. He completed 11th grade with no disciplinary problems and he obtained average grades.
He showed maximum grade level testing for Reading but scored at the 4th grade level in Math. He scored in the Low Average Range (IQ 80-89) of intelligence. He is currently working on his GED — participating in education full time — from 6am — 2pm. Otherwise, he spends time working out, playing football, and studying and reading (Koran, Arabic, and Math).
He completed a 6-hour workshop on health information regarding Hepatitis A, B, and C. He completed Conflict Resolution group in 2004. He currently participates in Men's Violence Prevention Program. In March 2004, it was noted that he had become Muslim and chose al-Islam — a religion of peace" as his way of life. Today he noted,
"It really helped me a lot — more than I thought. It teaches me to be peaceful, calm and to use your head — things I wasn't doing. Having to pray five times per day helps me focus." He noted that with tension on the yard, "I then have this one outlet that shows you how to be peaceful." "I'm very thankful to be a Muslim" and he attends services on Fridays.
PSYCHOSEXUAL DEVELOPMENT/MARITAL HISTORY:
No untoward sexual behavior has been noted, although he began fatherhood quite early. He had two children when he was about 16 and 17 by two girlfriends. He has been married for 3 years to a childhood friend.
MILITARY HISTORY:
None.
EMPLOYMENT HISTORY:
He quit school to make money. He worked three months at the Oakland Zoo but left in 1987 because he was not making enough money. He worked a summer job in 1986 in a warehouse.
In prison, he has earned multiple certificates in office and clerk skills, blueprint reading, and carpentry. He currently works as a Supervision Academic Instructors (SAI) Clerk for vocation and education.
SUBSTANCE ABUSE HISTORY:
He used alcohol weekly for several years and has denied use of drugs except for marijuana when he was 18 — 19 and had used it every day all day. He sold cocaine between ages 17-19 and earned about $1,000 per week. He attended Alcoholics Anonymous in 1997 for about a year.
PSYCHIATRIC/MEDICAL HISTORY:
He has no medical problems and no mental health history. There is no family history of mental illness. He suffered an accidental self-inflicted gunshot wound in 1987. He denied any history of suicidal ideation or suicidal attempts.
PLANNING ON RELEASE:
He plans to "get a job, help my wife, spend time with my son, and help take care of my mother." He would like to live a "normal, simple life," with his wife. Letters of support are on their way, he said, but has no job offers yet. If he is required to attend self-help groups, "I have no problem with that" and "maybe what I went through could help them on the streets."
MENTAL STATUS:
Mr. Halfin appeared as a medium built 35-year-old man with a shaved head, and good hygiene and grooming. He had a normal speech pattern, and he exhibited a medium activity level with good eye contact. He was positive in mood with and easy smile and noted that he is in a good mood most of the time. He feels down perhaps one day a week when he thinks about home, his son, his mother, and prison. He was cooperative, logical, and oriented, and his concentration appeared at least adequate. No particular memory problems were observed. He denied psychotic thought processing or perceptions according to questions presented to him along these lines (ideas of thought insertion or mind reading/control, ideas of reference/over personalizing, feelings of being followed or others out to get him, and hallucinations). He denied any history of feeling that he possessed special powers or abilities.
He evidenced possession of some verbal abstraction skills in his interpretations of proverbs.
He noted that he helps others by "giving people good advice who are going home" and also tells them "At least you're going home — I gotta stay." He recently admonished another inmate for throwing a ball on the roof. When he feels stressed, he has a few people in whom he confides.
REVIEW OF CRIME:
He participated in killing a 15 year old who was suspected to be a witness in a previous killing. He was an active 18-year-old gang member who "passively accepted and even facilitated the planned murder of a 15 year old female who was suspected of being a snitch."
He and two codefendants planned a Burglary. In the Burglary, the inmate discovered the victim and disclosed her presence to one of the codefendants who shot and killed her.
Today, he noted the following:
"I was really immature — not using my head. I didn't care — didn't know the law (You do things and don't recognize the law — if you don't know those kind of laws. I didn't know that being as I didn't shoot her, I could get this much time. If I had known the law — I wouldn't have went. If I thought about what I was going to do, I wouldn't have went.) So many things — not paying attention to . . . I was going with them to be going — I should have thought about my children, myself, etc. . . . I know I was wrong . . . I knew it was wrong . . . I was faced with the victim's sister in the visiting room . . . it was a grave, grave, grave error that affected everybody's life . . . can't beat myself up about it because it causes stress . . . I accept this punishment . . . I apologize . . . won't help bring her back. We were going to rob a guy — there was a girl there — she was going to be telling on another case that . . . he (crimie) was in. The crimie was going to shoot her . . . (I was involved) because I was going to rob the other guy. Did I know she'd be there? Yes, I did . . . (afterwards) I left . . . at first I was like in a state . . . I can't believe this just happened — that I just did that . . . then I thought, 'Nobody's going to tell so we'll get away with it.' (How does he feel now about it?) Hurtful, painful, great monstrous mistake I made. Very sad . . . I was young, being down, in an environment where you have to make a name for yourself. That's the stuff you're going to do . . . putting fear in people, selling dope . . . (now) I don't socialize in that environment — not a good environment — selling dope and weed . . . everything happens for a reason and I chose that path. I had a good upbringing . . . just the path I chose. I wasn't forced into it — it was a wrong decision . . . no one should be in that gang but if you're in that environment — that's what you're going to fall into. There's nothing good about gangs."
RISK OF DANGEROUSNESS/RECOMMENDATIONS:
Mr. Halfin is working to upgrade himself educationally, but he scores significantly low in Math which is surprising given his claim to have done fairly well academically in school, and not to have had any learning disabilities. He may have some difficulty with some sections of the GED, given his low math score. He continues active in self-help groups and has earned multiple certificates vocationally, he said. He has a relative minor disciplinary history with no particular threat or aggression noted. He appears motivated toward self-improvement and vocational studies. He admits his actions in the crime and seems to have remorse for his actions. He seems to have reasonable parole plans upon verification although there do not appear to be any recent job offers in the file. He appears reasonably socially connected to family members outside. He does not evidence issues of attitude, mood, anger, or revenge relative to a risk of dangerousness at this point upon release. If living situation and job prospects are intact, he would present with a low risk of dangerousness upon release.
COUNSELOR'S REPORT FOR BOARD HEARING EXHIBIT "B"
ExhibitCOMMITMENT FACTORS: Life Crime: Offense Summary: Prisoner's Version: Aggravating Mitigating Circumstances: Aggravating Factors Mitigating Circumstances: MULTIPLE CRIMES: PRECONVICTION FACTORS: Juvenile Record: Adult Convictions and Arrests: Personal Factors POSTCONVICTION FACTORS: Special Programming/Accommodations: Custody History: Therapy and Self-Help Activities: Disciplinary History: Date: Inst Rule# Offense/Disposition: Other: FUTURE PLANS: Residence: Employment: Assessment: USINS STATUS: SUMMARY: E. LEE R. LONG
I. A. Murder Second, Penal Code (PC) 187, Count one, Alameda County Case Number: #101246A. Sentence: 15 years to Life. Minimum Eligible Parole Date: December 30, 1998. The weapon used was a .38 caliber revolver. Received into the California Department of Corrections (CDC) on December 10, 1990. Victim: Natasha Deloney, age: 15 years old. 1. On August 10, 1988, Clinton Thomas wanted to rob a rival drug dealer, who lived in the Brookfield Village area of Oakland, California. He wanted to take his money and drugs. Thomas persuaded Leonard Halfin and Derek Williams to help him. Thomas told Derek Williams that Natasha Deloney would be at the residence and that she was a snitch. Natasha Deloney had told the Oakland Police about a murder Derek Williams had committed on March 31, 1988, in which he shot Bruce Barron to death. Derek Williams wanted to kill her so she could not testify against him in court. The three of them planned the crime as follows: Clinton Thomas was to break in through the front door and secure that part of the residence with his weapon, a 9mm automatic pistol. Leonard Halfin and Derek Williams were to enter the residence and do a room-to-room search for Natasha Deloney. If and when she was found, Halfin was to say, "Okay J. Dove, handle your business." This was the signal for Derek Williams to shoot Natasha Deloney. The three disguised themselves by dressing in old clothes and masks, and carried out their plan. Halfin was armed with an Uzi submachine gun and Williams was armed with a .38 revolver. After carefully and methodically executing their plan, shooting and killing Natasha Deloney, the three then left the residence. Derek Williams later admitted that when he and Halfin found Natasha, she raised her hands in surrender and started shaking. He then shot her once in the chest. At the time of the murder, victim Natasha Deloney was 15 years old, Leonard Halfin was 18 years old, Clinton Thomas was 16 years old, and Derek Williams was 16 years old. On December 29, 1988, Leonard Halfin was arrested and charged with murder in the second degree. He was convicted on September 25, 1990 and sentenced to 15 years to Life on November 26, 1990. He was received into CDC on December 10, 1990, at San Quentin-Reception Center. 2. The District Attorney's version of the offense was read aloud to Halfin and he agreed with that version. He went on to say that he denies any involvement in the planning of the murder. He claims he only went to the residence to take part in the robbery and that his gun was unloaded during the entire incident. Halfin states his part in the crime was only to "hold the people still", and he was not aware that Derek Williams was planning to actually kill Natasha Deloney. 3. a. : 1. Halfin armed himself with an Uzi submachine gun. 2. He wore old clothes and a mask to disguise himself and avoid detection. 3. Halfin found the victim, Natasha Deloney, in the house and then told Derek Williams, "Okay J. Drove, handle your business." That business, fully known to Halfin, was to execute a person who Williams believed might have see him commit another murder, the murder of Bruce Barron on March 31, 1988. 4. Halfin was an active participant in the planned "hit" and the way it was carried out indicates sophistication and pre-meditation. b. 1. Halfin did not shoot Natasha Deloney. 2. Halfin admitted his part in the murder after his arrest and entered a plea of "No contest" to the charges. 3. Halfin did not initiate the crime, however it should be noted that he was easily persuaded to take part in it. 4. Halfin did not have an extensive criminal history. B. N/A. II. A. December 12, 1984, Attempted Robbery (PC) 211 referred to juvenile court. January 16, 1985, Battery (PC) 242, sentenced to formal supervision at home. B. October 4, 1988 (VC) 14601 sentenced to (2) years court probation, and (3) days county jail. November 7, 1988 (VC) 14601 sentenced to probation and jail. C. : Halfin was born on December 6, 1969, in Oakland, California, to the union of Pearlee and Joseph Halfin. He has two older brothers and one older sister. At age 3, the family moved to Hayward, California. Approximately 3 years later, they moved back to Oakland, where he resided until his arrest for the current offense. Halfin lived with his mother Oakland. His father is deceased. His mother is a nurse and currently lives in Galt, California. Halfin states there has never been any mental disorders in his immediate family. He says his father was an alcoholic when he was between the ages of 6 and 11. His brother, Richard Halfin, was convicted of PC 261, Rape, In 1976, and was committed to State Prison for two years. When Halfin was 16 years old, his parents were divorced. He was subsequently raised by his mother and sister. Halfin has never been married. He has a 17-year-old son by a former girlfriend. He also has a 16-year-old daughter by a second former girlfriend. The children live with their mothers in Oakland, California. Halfin attended Oakland High School through the 11th grade. He did not finish high school. He claims he had no disciplinary problems, and did not belong to any gangs. He worked for three months at Knowland Zoo and quit in 1987 because he was not making enough money. At the time of his arrest, Halfin denied owning a vehicle or real estate. He had no debts. He has never served in the military. He is in good health. In 1987, he shot himself in the left hand. He admits the use of alcohol on a weekly basis and primarily consumes gin. Halfin admits to the temporary use of marijuana but denies the use of any hard drugs. He admits to the sale of cocaine as his source of income, earning approximately $1,000.00 per week. Halfin told this writer that he considers Clinton Thomas and Derek Williams to be his enemies. He said that if he should happen to be in the same area as his enemies they would fight. III. A. None noted. B. The prisoner was received into CDC (SQ/RC) on December 10, 1990, from Alameda County after his conviction for Murder Second and sentenced to a 15 year to Life term. On January 15, 1991, he was transferred to Pelican Bay State Prison (PBSP) Level IV. On April 30, 1993, he was transferred to CSP-Solano, Level III. On December 8, 1994 he was transferred to CSP-Corcoran, Level III. On February 2, 1995, he was transferred to PVSP, Level III. His last transfer occurred on March 27, 1999, where he was received at CSP-Solano, Level II. The prisoner's custody has remained at Medium A since May 17, 1995. He has made a reasonable adjustment since arriving into CDC. He has participated in various vocational and educational assignments since 1990. The prisoner CDC-812 is noted regarding his association and/or involvement with validated members of the 415. For additional information refer to (4) CDC-128B's dated July 28, 1997, located in the General Chrono Section of Central File. C. The prisoner received a laudatory chrono for participating in a (6) hour workshop on training regarding Hepatitis A, B, and C Pathogens (refer to CDC-128B dated July 11, 2001. D. CDC-115's . 12/26/90 SQ-RC 3015/3017 Not in assigned cell/unauthorized and responsibility for count; Guilty: Assessed 30-days loss of credits and 30-days of canteen. 4/22/94 CSP-SOL 3004(B) Disrespect towards Staff; Guilty: Assessed 15-days loss of night yard and 20-hours extra duty. 9/2/94 CSP-SOL 3005 (C) Physical Altercation; Guilty: Assessed 30-days loss of credits and 2 weekends CTQ's. 7/10/96 PVSP 3005(B) Disobeying Orders; Guilty: Assessed 30-days loss of credits and 10 days DD with credit for time served. 9/4/99 CSP-SOL 3062(J) No beard chrono; Guilty: Reduced to CDC-128A and Administrative CDC-115. 12/3/99 CSP-SOL 3062(H)(1) Grooming Standards (mustache); Guilty: Assessed 15-loss of evening yard. 3/31/00 CSP-SOL 3062(H)(2) Grooming Standards (Beard); Guilty: Reduced to Administrative CDC-115. Assessed 40-hiours extra duty. E. On June 26, 2001 the prisoner appeared before the Board of Prison Terms (BPT) for his Subsequent #1 Hearing. The panel recommended a 3-year denial and that the prisoner 1.) Become and remain disciplinary free, 2.) Work towards reducing his custody, 3.) Upgrade vocationally and educationally, and 4.) Participate in self-help and therapy. IV. On April 18, 2002, the prisoner was married to Pearl M. Halfin, at CSP-Solano Visiting Hall. Mr. Nasir, the Muslim Chaplain, performed the ceremony. A. Upon release from prison, Halfin plans on living with his wife, Pearl M. Halfin. She lives at 2250 96th Avenue, Oakland, CA. 94609; telephone number: (510) 434-0594. Halfin does have the support of his wife and family. Support letters are pending arrival in time for next board appearance. B. The prisoner mentioned he would like to pursue a career in the clerical field. He has completed his GED and has a Certificate of Completion in Vocational Office Services and Related Technologies (OSRT). The prisoner may request additional assistance from paroles or (EDD) with job opportunities when released. C. N/A. V. N/A VI. A. Considering the commitment offense, prior record and prison adjustment, this writer believes the prisoner would pose a low degree of threat to the public at this time, if released from prison. B. Prior to release, the prisoner could benefit from remaining disciplinary free, participating in self-help when available, and continue programming in work or vocational assignment. C. This Board Report is based on an interview with the prisoner and a complete Central File review lasting approximately (5) hours. D. Prisoner was afforded an opportunity to examine his Central File on March 23, 2004, in preparation for his Subsequent Consideration Hearing #2. Refer to CDC-128B dated March 23, 2004. E. No accommodation for the purpose of effective communication was required per the Armstrong Remedial Plan (ARP). Prepared by: Reviewed by: Reviewed by: __________ E. LEE R. LONG V. DOBSON-DAVIS CCI CCII C PRGraph
SENTENCING ABSTRACT OF JUDGMENT EXHIBIT "C" EXHAUSTION OF STATE REMEDIES S134717 IN THE SUPREME COURT OF CALIFORNIA En Banc In re LEONARD HALFIN on Habeas CorpusPetition for writ of habeas corpus is DENIED. (See In re Dannenberg (2005) 34 Cal.4th 1061; In re Rosenkrantz (2002) 29 Cal.4th 616.)
Chin, J., was absent and did not participate.