Orozco v. Clark

705 F.Supp.2d 1158

Miguel OROZCO, aka Michael Ochoa, aka Domingo Ramos, Petitionerv.Ken CLARK, Respondent.

Case No. CV 07-7746-JHN(RC).

United States District Court C.D. California.

April 5, 2010.

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Miguel Orozco, Corcoran, CA, pro se.

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

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JACQUELINE H. NGUYEN, 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 Jacqueline H. Nguyen, 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 4, 1982, in Los Angeles County Superior Court case no. A371696, petitioner Miguel Orozco, aka Michael Ochoa, aka Domingo Ramos, pleaded nolo contendere to, and was convicted of, second degree murder in violation of California Penal Code § 187(a), and on September 9, 1982, petitioner was sentenced to 15 years to life in state prison.¹ Lodgment nos. 1 & 2; Petition, Exhs. D-F.

On February 16, 2006, the California Board of Parole Hearings (“Board”) held a parole suitability hearing for petitioner, and determined petitioner was not suitable for parole for two years.² Lodgment no. 4. The petitioner then filed petitions for habeas corpus relief in the Superior Court, the California Court of Appeal and the California Supreme Court, and these petitions were denied.³See Lodgment nos. 5-10. Thus, petitioner has exhausted his state court remedies regarding the Board's 2006 decision to deny him parole, as respondent acknowledges. See Answer ¶ 10.

II

The Board, in denying petitioner parole in 2006, gave the following reasons:

The panel has reviewed the information received from the public and relied on the following circumstances in concluding that the inmate is not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. [1] As it regards the commitment offense, multiple victims were involved in this crime, one was killed and that was Josie Martinez who was the girlfriend of William Bates who was the second victim. Mr. Bates and Mr. Orozco had gotten into an argument earlier in the evening of September 12th, 1981 and this was at the High Hat Bar in Los Angeles. A pool game was going on, a fight broke out and Mr. Orozco was very angry at Mr. Bates for this fight and argument. He left the bar, he was intoxicated at the time and decided to wait in his vehicle for Mr. Bates to leave the bar and then pursue him. The motive for this crime was very trivial in relation to the offense in that it was an argument. The manner in which Ms. Martinez was killed and Mr. Bates was injured was they were driving on a motorcycle, when they left the bar they got on the motorcycle and proceeded to leave and at that point in time Mr. Orozco was in his pick up truck and pursued the motorcycle, hit the motorcycle, the motorcycle was actually impaled on the truck grill and unfortunately Ms. Martinez suffered fatal injuries and Mr. Bates did however survive the attack. [2] And in terms of a previous criminal record, we note approximately 12 arrests, most of the dispositions are unknown and the arrests include receiving stolen property, grand theft auto, misdemeanor drunk driving on a highway, and there was also a[n] arrest for burglary. And so this does demonstrate an escalating pattern of criminal conduct and violence and the inmate did fail to profit from previous attempts to correct his criminality such as probation and county jail. [3] The inmate does have a history of alcohol abuse. And in terms of institutional behavior, early on the inmate was definitely off to a bad start. However, he did reform and debrief from a prison gang and has been disciplinary free since 1989.... [Y]ou're here a lot longer than you would have been had you come in and not joined that gang and committed other offenses.

We feel that you have not yet sufficiently participated in beneficial self help programs, mainly some type of a 12 step program to insure your ongoing recovering abstinence from alcohol use. [4] And in terms of parole plans, we do have the counselor's notation from interviews with the inmate. That he has set up [a] residential plan for himself with relatives, with his brother or his mother and we also have notes that he has been offered a job at Sierra Auto Body and Paint. But we would note Sir that it's a very good thing that your counselor did document this, however we do need to see something on paper from these individuals in terms of documentation for your parole plans because as this process moves forward, you know once you do get a date it goes through several other channels and people need to see documentation as we do that these plans are firm. Okay, and we note that in response to 3042 notices, the District Attorney of Los Angeles County has expressed opposition to a finding of parole suitability. [5] And we also find that the inmate continues to need self help in order to face, discuss, understand, and cope with stress and conflict in a non [-]destructive manner and until progress is made the inmate continues to be unpredictable and a threat to others. We would however like to commend you again for being disciplinary free since 1989 and for going through that debriefing process which must have been a painful decision to make as well as your participating in the auto paint and the work assignment that you currently have. In a separate decision the hearing panel finds that the inmate has been convicted of murder and it is not reasonable to expect that parole be granted at a hearing during the next two years. [6] We note that for many, many years you have been getting one year denials but it seems like in the last two years you know you've had some recommendations made and not fulfilled them so we are giving you the extra time to fulfill these and hopefully at your next parole hearing you will come in completely prepared and hopefully the panel will recognize that and take the [sic] what ever action they choose. The inmate, the reasons for this, the commitment offense, the multiple victims were involved in this accident, one was killed and that was Ms. Josie Martinez, Mr. William Bates was injured and this was a horrific crime actually that those two victim's [sic] were on a motorcycle while leaving the area of the High Hat Bar. The inmate who was angered over a previous altercation pursued them in his car, struck the motorcycle, the motorcycle was impaled on the grill of the truck. Ms. Martinez unfortunately suffered extensive injuries and did die and Mr. Bates was injured. This motive was very trivial in that it was over a previous argument. The inmate does have numerous arrests as well as a history of alcoholism. The inmate does need additional time to complete his second vocation, to get some more self help programming so that we can be assured that your drinking issues with alcohol are completely behind you and that you can articulate to the panel why you will no longer ever be tempted or ever [will] drink alcohol again. There for [sic] a longer period of observation and evaluation is required before the board should find the inmate suitable for parole. We recommend that you remain disciplinary free, if available upgrade vocationally and also if available participate in self help programming.

Lodgment no. 4 at 59-64.

III

On November 29, 2007, petitioner filed the pending habeas corpus petition under 28 U.S.C. § 2554 challenging the Board's 2006 decision to deny him parole, raising the following grounds:

Ground One-“Petitioner has been subjected to an ex post facto violation of his reasonable understanding of his plea agreement with the state of California, in violation of due process protection by the 14th Amendment of the U.S. and California Constitutions”;

Ground Two-“Petitioner's plea has been violated by virtue of the fact that the direct consequences of his plea were changed to First Degree Murder rendering the plea invalid, unknown, unintelligent, involuntary and the product of coersion [sic] by ineffective assistance of counsel in violation of due process protection by the 14th Amendment of the U.S. and California Constitutions”;

Ground Three-“The Board is violating Penal Code statutes and its own rules in making numerous suitability decisions in the instant matter when it disregards relevant, reliable and available information which it is required to utilize in the decision[-]making process, which is prejudicial to Petitioner's [sic] and a violation of Petitioner's guaranteed due process right and the 14th Amendment to [sic] liberty interest”;

Ground Four-“The Board ... is enforcing a ‘No-Parole’ policy”; and

Ground Five-“The Parole Board violated Petitioner's right to due process when facts of the crime that were not proven/found by a jury or admitted by Petitioner were used to aggravate Petitioner's crime in...