Hyde v. Moore

PAUL E. HYDE, Petitioner,

v.STEVE MOORE, Respondent.

No. CIV S-09-3240-FCD-TJB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date: December 23, 2010

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Paul E. Hyde is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that habeas relief be denied.

II. PROCEDURAL HISTORY

Petitioner is currently serving a sentence of seven years to life. Pet'r's Pet. 1, ECF No. 1;¹ see also Hyde v. Moore, No. CIV S-08-1365-FCD-TJB, 2010 WL 4321606, at *1 (E.D. Cal. Oct. 26, 2010). "In 1973, at age 19, in the Los Angeles County Superior Court [C]ase No. A068239, [Petitioner] was convicted of first degree murder (§ 187; count 5), four counts of robbery of the first degree (§ 211; counts 1, 2, 6 & 7), assault with a deadly weapon with the intent to commit murder (former § 217; count 3), and assault by means of force likely to produce great bodily injury and with a deadly weapon (§ 245, subd. (a)(1); count 4), each with the personal use of a firearm (§ 12022.5)." Hyde, 2010 WL 4321606, at *1 (quoting In re Hyde, 154 Cal. App. 4th 1200, 1202, 65 Cal. Rptr. 3d 162 (2007)) (internal quotation marks omitted). In the instant action, Petitioner challenges the decision by the California Board of Parole Hearings (the "Board") denying Petitioner parole. Petitioner appeared before the Board on April 19, 2007.

Dated August 16, 2007, Petitioner's petition for writ of habeas corpus was filed in the Los Angeles County Superior Court challenging the Board's decision.² See Resp't's Answer Ex. 1, ECF No. 10. In a decision dated October 29, 2007, the Superior Court issued a reasoned decision denying parole. See Resp't's Answer Ex. 2.

On April 8, 2008, Petitioner sought relief in the California Court of Appeal, Second Appellate District. See Resp't's Answer Ex. 3. On May 8, 2008, the California Court of Appeal denied the petition without comment or citation. See Resp't's Answer Ex. 4.

On June 9, 2008, Petitioner sought relief in the California Supreme Court. See Resp't's Answer Ex. 5. On December 17, 2008, the California Supreme Court denied the petition with only a citation to People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 2d 259, 886 P.2d 1252 (1995). See Resp't's Ex. 6.

On November 20, 2009, Petitioner filed the instant federal petition for writ of habeascorpus. See Pet'r's Pet. Respondent filed an answer to the petition on October 22, 2010, see Resp't's Answer, to which Petitioner filed a traverse on November 2, 2010. See Pet'r's Traverse, ECF No. 11.

III. FACTUAL BACKGROUND

A. Commitment Offense³

The record reflects that on December 7, 1972,... Petitioner robbed William and Maureen Wilson at gunpoint at their bicycle shop. After taking the money from Mr. Wilson's wallet,... Petitioner directed both victims into the bathroom and told them that if they did not wait five minutes before coming out, he would kill them. On December 9, 1972,... Petitioner robbed Leandra Lack, an attendant at a service station.... Petitioner ordered Ms. Lack to open a cash box and took the money from it. He then directed Ms. Lack to face the wall. As Ms. Lack tried to comply with... Petitioner's orders, he shot her twice, hitting her once in her back and once in her leg. On January 8, 1973,... Petitioner shot and killed Rueben Holtzkener in a suspected armed robbery at Mr. Holtzkener's shoe repair store. Mr. Holtzkener was shot once in the chest and once in the abdomen and it appeared that money was missing from the opened cash drawer. On January 9, 1973,... Petitioner and an accomplice robbed Juan Nieves and Jenny Charr at gunpoint at a fast food restaurant. He stole money from the cash register and fled. Finally, on January 10, 1973,... Petitioner robbed Larry Mendez at gunpoint at an ice cream shop and stole money from that cash register. Subsequent ballistics tests matched the bullets found in Ms. Lack and Mr. Holtzkener to a gun found in... Petitioner's apartment and witnesses identified... Petitioner as the person who committed the other robberies.

Resp't's Answer Ex. 2, at 3.

B. April 19, 2007, Parole Hearing

On April 19, 2007, the Board held Petitioner's "21^st subsequent parole hearing." Pet'r's Pet. Ex. K, pt. 2, at 6. For at least the past twenty years, Petitioner had the same attorney representing him at parole hearings. Id. However, at the April 19, 2007, parole hearing, Petitioner had a new attorney because the previous one was "deceased, " having been "murdered in his driveway [on] January 29^th, [2007,]...." Id. Petitioner was "nervous" because previous counsel "knew how [he] got to the place [he is] at now, " and if Petitioner "missed something, " previous counsel "knew how to fill it in." Id. at 7.

During the hearing, the Board added that "just for clarification, " it "incorporate[d] by reference" the January 3, 2007, Superior Court decision by the Honorable Steven R. Van Sicklen, which granted Petitioner habeas relief. Id. at 121; see Pet'r's Pet. Ex. A, pt. 1, at 27-28; see also Hyde, 2010 WL 4321606, at *1. In the January 3, 2007, decision, the Superior Court "remand[ed] the order to the Board to reconsider its decision and to conduct a new hearing within 45 days of service of this order to reconsider [Petitioner's] suitability for parole...." Pet'r's Pet. Ex. A, pt. 1, at 28. At the April 19, 2007, hearing, the Board stated "a writ of habeas corpus is the reason that brings us all here today." Pet'r's Pet. Ex. K, pt. 1, at 121.

At the hearing, the Board discussed Petitioner's background. Id. at 91. Petitioner is the "third of six children." Id. at 110. Petitioner was "born in Los Angeles, raised by both parents, " and is "the only person in [his family] to have been arrested." Id. Petitioner "complete[d] the 12^th grade, but did not receive a diploma because [he] w[as] a few units short for graduation...." Id. For the last five months of high school, Petitioner "lived with [his] maternal grandmother in Los Angeles." Id. Petitioner's mother stated "she sent [Petitioner] there for [his] own safety" because Petitioner claimed he witnessed an arrest and "purported beating by police officers by a youngster who later hung himself in jail." Id. Petitioner also alleged "he was picked up by police, beaten and threatened to keep his mouth shut, " but a "polygraph... showed deception." Id. Petitioner "worked part-time and full-time during the summer, " and did "various odds and ends sorts of jobs." Id. Petitioner "notes his family has always been close and supportive. He continues to receive frequent family visits, phone calls or letters. He reports none of his immediate family have substance abuse problems, major mental health problems or a criminal record." Pet'r's Pet. Ex. G, pt. 1, at 48. Petitioner also has no history of drug or alcohol abuse, Pet'r's Pet. Ex. K, pt. 1, at 112-13, and no history of juvenile convictions. Pet'r's Pet. Ex. G, pt. 1, at 50.

At the time of the commitment offense, Petitioner was unmarried. Petitioner has been married twice since his incarceration. Pet'r's Pet. Ex. K, pt. 1, at 112. "The first marriage was in 1977 and divorced in 1982, " with "[n]o children from that marriage." Id. Petitioner was married again in 1983, and had one child from that marriage, who was twenty-eight years old at the time of the hearing. Id.

Petitioner performed well in prison. See, e.g., Pet'r's Pet. Ex. G, pt. 1, at 48-50; see also, e.g., Pet'r's Pet. Ex. K, pt. 1, at 127-31. Petitioner "has a lengthy documented history of participation in educational and self-improvement activities." Pet'r's Pet. Ex. G, pt. 1, at 49; see Pet'r's Pet. Ex. K, pt. 1, at 129-30. In 1974, Petitioner received his high school diploma while incarcerated, and "[s]ince then, he has taken many college courses." Pet'r's Pet. Ex. G, pt. 1, at 48. Petitioner had "exceptional work skills, " Pet'r's Pet. Ex. K, pt. 1, at 134, and "consistently received above average to exceptional job ratings by his supervisors." Pet'r's Pet. Ex. G, pt. 1, at 50. Petitioner was "confident" he could "obtain employment in the computer field, and that [he] possess[ed] lumbing, [e]lectronics, [g]lazing, [and] ainting skills." Pet'r's Pet. Ex. K, pt. 1, at 133. At the time of the hearing, Petitioner "had several offers [of employment] last year, which still remain[ed] available." Id.

After the Deputy District Attorney presented his closing arguments, the Board denied

Petitioner parole for a period of one year. The Board explained:

PRESIDING COMMISSIONER DAVIS: Okay. Without question, [Petitioner], the [Board]... takes nothing away from the work that you've done since 1991, that clearly you have amassed many, many positive things. However, these positive aspects of behavior do not outweigh the factors for unsuitability. This is a one-year denial. The [Board] will recommend that you remain disciplinary free, that... you continue to participate in self-help, that you participate in independent reading, which you clearly are doing already, and we would [re]commend to you that... the [Board] will accept short reports, two or three paragraphs indicating an understanding of what you have read, what effect ithas on you in terms of your particular situation. For example, in your case, maybe a greater understanding of what the specific triggers were that led to this situation, and that you can review the record itself and perhaps, if for no one else other than yourself, come to an understanding of what occurred and more... importantly[,] why it occurred. And the [Board] will be requesting a new psychological evaluation to be prepared under our new format prior to the next hearing. And Commissioner, you had some things you wanted to add.

DEPUTY COMMISSIONER WEAVER: Yes. I would suggest to you, [Petitioner], that when you have a chance for an Olsen review, that you look through all the documents in your files even though they're...