Hogue v. Cal. Bd. Of Parole Hearings

BRIAN HOGUE, Petitioner,

v.CALIFORNIA BOARD OF PAROLE HEARINGS, et al., Respondents.

No. 2: 08-cv-1056-FCD TJB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: December 14, 2010

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Brian Hogue, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of life imprisonment after pleading guilty to first degree murder with a firearm enhancement in 1977. Petitioner challenges the February 2007 decision by Governor Schwarzenegger reversing the October 2006 decision by the Board of Parole Hearings (the "Board") which had granted Petitioner parole. Petitioner presents several claims in his petition; specifically: (1) the Governor's reversal of Petitioner's parole release date was an abuse of discretion as there was no evidence to support the reversal ("Claim I"); (2) the Governor was without authority to revoke Petitioner's parole as his decision violates the Ex Post Facto Clause ("Claim II"); and (3) failureof the Board to set a parole date violates Petitioner's due process and equal protection rights. For the foregoing reasons, Petitioner is entitled to federal habeas relief on Claim I.

II. FACTUAL¹ AND PROCEDURAL BACKGROUND

On the evening of May 1, 1977, Brian Hogue shot and killed 61-year-old Fred Piperio. Brian went to a bar, where he drank a few beers. Armed with a loaded handgun, Brian demanded cash from Fred while Fred was counting money from the register. Fred gave Brian cash. Brian then instructed Fred to go into the bathroom and lie down. Again, Fred complied. At that point, Brian took out his gun and shot Fred in the back of the head, killing him. Brian left the bar.

Brian told a friend that he was going to the Redding Municipal Airport. The friend informed police and Brian was arrested at the airport. He had more than $1,000 in his possession. Brian admitted to police that he robbed the victim and shot him in the back of the head.

Mr. Hogue pled guilty to first-degree murder and was sentenced to life in prison plus a consecutive five-years-to-life sentence for using a firearm.

(Resp't's Answer, Ex. A at p. 97.) In October 2006, the Board conducted a subsequent parole consideration hearing. The Board ultimately concluded that Petitioner was suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. In February 2007, the Governor reversed the Board's decision and found that Petitioner would pose an unreasonable risk of danger to society if released at that time.

Petitioner challenged the Governor's decision in the County of Shasta Superior Court. The Superior Court denied Petitioner's state habeas petition in a decision on October 20, 2007. The California Court of Appeal, Third Appellate District summarily denied Petitioner's state habeas petition on December 6, 2007. The California Supreme Court summarily denied Petitioner's state habeas petition on March 12, 2008. Petitioner filed the instant federal habeaspetition in May 2008.

III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's 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 state court. See 28 U.S.C. 2254(d). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v. Andrande, 538 U.S. 63 (2003).

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id.. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectivelyunreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding... and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned decision on the merits came from the County of Shasta Superior Court with respect to Claims I and II. With respect to Claim III, the California Supreme Court denied that Claim on the merits without discussion. Thus, with respect to Claim III the record will be independently reviewed to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See infra note 6.

IV. PETITIONER'S CLAIMS FOR REVIEW

A. Claim I

In Claim I, Petitioner argues that the Governor's reliance on the circumstances surrounding his commitment offense violated his due process rights. 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 a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. See Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989).

A protected liberty interest may arise either from the Due Process Clause itself or from state laws. See, e.g., Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create a protected liberty interest in the receipt of a parole date. See Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, if a state's statutory parole scheme uses mandatory language, it "'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby giving rise to a constitutional liberty interest." McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 2002) (quoting Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 12 (1979)).

The full panoply of rights afforded a defendant in a criminal proceeding is not constitutionally mandated in the context of a parole proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The Supreme Court has held that a parole board's procedures are constitutionally adequate if the inmate is given an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. See Greenholtz, 442 U.S. at 16.

As a matter of state law, denial of parole to California inmates must be supported by at least "some evidence" demonstrating current dangerousness. See Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (en banc) (citations omitted). "California's 'some evidence' requirement is a component of the liberty interest created by the parole system of the state." Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). Thus, a reviewing court such as this one must "decide whether the California judicial decision approving the governor's decision rejecting parole was an 'unreasonable application' of the California 'some evidence' requirement or was it 'based on an unreasonable determination of the facts in light of the evidence.'"² Hayward, 603 F.3d at 562-63.

The analysis of whether some evidence supports denial of parole to a California state inmate is framed by the state's statutes and regulations governing parole suitability determinations. See Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007), overruled in part on other grounds, Hayward, 603 F.3d 546. This court "must look to California law to determine the findings that are necessary to...