Boyd v. ALMAGER

677 F.Supp.2d 1221

Glenn L. BOYD, Jr., aka Glenn Leslie Boyd, Jr., Petitioner, v. Victor M. ALMAGER, Warden (A), Respondent.

Case No. ED CV 07-1651-RSWL(RC).

United States District Court, C.D. California.

December 9, 2009.

Glenn Boyd, Imperial, CA, pro se.

Linnea Daya Piazza, Office of Attorney General, San Diego, CA, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

RONALD S.W. LEW, Senior District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.

IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition and dismissing the action with prejudice.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

ROSALYN M. CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Ronald S.W. Lew, Senior United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

I

On June 14, 1988, in San Bernardino County Superior Court case no. SCR45508, a jury convicted petitioner Glenn Boyd, aka Glenn Leslie Boyd, Jr., of first degree murder in violation of California Penal Code ("P.C.") § 187(a) (count 1) and second degree robbery in violation of P.C. § 211 (count 2);¹ however, the jury found not true the special circumstance allegation that petitioner committed the murder during the commission of a robbery within the meaning of P.C. § 190.2(a)(17) and the firearm allegation that petitioner personally used a firearm within the meaning of P.C. §§ 1203.06(a) (1)/12022.5. Boyd, 222 Cal.App.3d at 548, 271 Cal.Rptr. 738; Lodgment nos. 1-2. The trial court sentenced petitioner to prison for a term of 25 years to life on count 1 and a concurrent five-year term on count 2. Lodgment nos. 1-2.

The petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the judgment in a reported opinion filed July 25, 1999. Boyd, 222 Cal.App.3d at 556-77, 271 Cal. Rptr. 738. On August 4, 1990, petitioner filed a petition for review in the California Supreme Court, which denied the petition on October 30, 1990; however, Justice Mosk was of the opinion the petition should be granted. People v. Boyd, California Supreme Court case no. S017253.

II

On August 15, 2006, petitioner had his second parole suitability hearing, Lodgment no. 3, at which time a panel of the California Board of Parole Hearings ("Board") denied petitioner parole for three years, finding he is "not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." Lodgment no. 3 at 86. In reaching its decision, the Board made the following findings:

The offense was carried out in an especially cruel and callous manner. This wasn't a rival—anyone who had hurt petitioner. This young man was trying to put himself through college delivering pizza. Umm, so there was planning involved. The pizza man was—you knew the pizza man was coming so there was, you know, you waited for him. The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. This man presented no threat whatsoever, The robbery had taken place. You had taken his pizza. You had taken his money. He was already bent over from just a—a punch and a kick. He was basically defenseless and there was no need to go further and take this man's life. The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. There was great violence, viciousness, and a high degree of cruelty involved in this crime. The motive for the crime was very trivial in relation to the offense. I—it's trivia is the word, because, according to your own testimony, you already had money. This man only had a few dollars so if that was the case, and he wasn't even putting up any fight. Looks like you two jumped him and that was the end of it. That could—you could've just walked away with the pizza and he probably would've just got in his place and—and at least left with his life. And you would've had his money and his pizza. Uh, so that was a very trivial reason. 2 And another troubling thing about this whole situation to me is, uh, (inaudible) involving a lack of insight. Petitioner hasn't shown any, uh, remorse, as far as I'm concerned. I mean, no responsibility whatsoever ... taken for anything that happened. 3 Uh, the petitioner has an unstable social history which includes, you know, petitioner hanging around, I'm not saying petitioner was gang-affiliated, but hanging around with gangsters and the type of people selling drugs, running a drug house. I mean that puts it on a whole other level. I mean petitioner had actually been promoted from just being a street-level drug dealer to ... running a house and petitioner had people working for him. 4 And the psychological report dated in 4/6/2006, authored by Bob Ohrling, Ph.D.; uh, he says that within the community petitioner would be no greater risk of danger than the average citizen, and, uh, personally, I disagree with that because I think it's inconclusive because before that it states, even the part petitioner admits to in the report states that petitioner's friend had requested petitioner... leave a gun for him and petitioner threw the gun in the bushes; and so it's like this report didn't cover any type of insight, any kind of remorse on petitioner's part. Uh, it just—so, I consider that part inconclusive. 5 Uh, the prisoner lacks realistic parole plans in that he does not have acceptable employment plans. We need up-to-date letters, sir. And, nevertheless, petitioner should be commended for the good things petitioner has accomplished while he's been incarcerated. Uh,...—he's managed to, uh, get his GED, and he's managed to get a—his A.A. degree with a 3.5 GPA. That's very good. And he's planning to go on and get his B.A. Umm, petitioner's had exceptional work reviews. Umm, and he's—he's got three vocations already: Carpentry, Plumbing and Office Service Tech. Uh, self-help, I think petitioner's got, uh, a ton of AA extensively—AA, NA, uh, he's attended anger management, uh, bible studies. Uh, he's got tons of chronos, positive chronos. Uh, so, he's, uh,—he's gotten eight 128As, and the last one of those was in 6/13/1989; that was for out of bounds. Petitioner's gotten three 115s, the last one of those was 6/1/95, disobeying orders. Uh, so, petitioner looks like he's been keeping his nose clean for the last 11 years. Uh, so—but nevertheless, these positive aspects

of petitioner's behavior do not outweigh the factors of unsuitability. In a separate decision, the hearing panel finds that it is not reasonable to expect that parole would be granted at a hearing during the following three years. So, this is a three-year denial. Uh, it's for the reasons I've previously stated. Uh, I think this crime was very cruel. Uh, it's—it was—the crime was done, and planned without feeling bad about hurting others. There was plenty of opportunity to get out of this situation, but this man lost his life senselessly. So this was a senseless killing, and the—the victim was extremely vulnerable in that he wasn't even attacking petitioner or anything. He was already doubled over and knocked to the ground. Uh, `til— the inmate did not care if people suffered. So this man was just shot for dead and left. Petitioner went away. Uh, and the reason for the crime was very small compared to the hurt it caused. These people, his family, friends, people he'd known, their whole life has been shattered by this. They can't write letters to him or watch his family grow up, so this man—there was a great degree of harm caused in this crime because this man's life was taken needlessly. With that, that's going to conclude the, uh, reading of the decision....

Lodgment no. 3 at 86-90.

On or about February 21, 2007, petitioner filed a habeas corpus petition in the San Bernardino County Superior Court challenging the Board's decision, Lodgment no. 8, and on March 6, 2007, the Superior Court denied the petition, stating:

Was the board justified by the evidence in denying parole? Certainly it was. ¶ The circumstances of Petitioner's murder of a defenseless pizza delivery man are heinous in the extreme. He and his fellow murderer beat up and shot to death a man for no money. Despite any "good conduct" Petitioner has displayed while in prison, the prison board was fully justified in deciding that a person who would commit such a crime does not belong in the company of ordinary citizens whom he might prey upon in the future.

Lodgment no. 9 at 2. On or about April 3, 2007, petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on April 12, 2007. Lodgment nos. 10-11. Finally, on April 30, 2007, petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on November 14, 2007. Lodgment nos. 12-13.

III

On December 14, 2007, petitioner filed the pending petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging the Board's decision finding him unsuitable for parole, raising the sole claim that the Board violated his "right to due process by repeatedly basing a parole denial on the unchanging factors of petitioner's crime and other...