Pirtle v. Cal. Bd. Of Prison Terms

• Decision Date: 12 July 2010
• Docket Number: No. 07-16097.,07-16097.
• Citation: 611 F.3d 1015
• Parties: John H. PIRTLE, Petitioner-Appellee,v.CALIFORNIA BOARD OF PRISON TERMS; D.L. Runnels; Attorney General for the State of California, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

611 F.3d 1015

John H. PIRTLE, Petitioner-Appellee,v.CALIFORNIA BOARD OF PRISON TERMS; D.L. Runnels; Attorney General for the State of California, Respondents-Appellants.

No. 07-16097.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 12, 2008.

Submission Vacated Dec. 3, 2008.

Resubmitted May 28, 2010.

Filed July 12, 2010.

COPYRIGHT MATERIAL OMITTED

Daniel J. Broderick, Federal Defender, Ann C. McClintock, Assistant Federal Defender, Sacramento, CA, for the petitioner-appellee.

Edmund G. Brown, Jr., Attorney General for the State of California, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill, Supervising Deputy Attorney General, Sacramento, CA, for the respondents-appellants.

Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, District Judge, Presiding. D.C. No. CV-04-00518-FCD/KJM.

Before STEPHEN REINHARDT, JOHN T. NOONAN, and RAYMOND C. FISHER, Circuit Judges.

REINHARDT, Circuit Judge:

California state prisoner John H. Pirtle was given a parole date in 1990, but in 1994, the California Board of Prison Terms rescinded his parole. After that, the Board denied Pirtle parole three other times prior to a denial in 2002.¹ Pirtle filed a petition for a writ of habeas corpus, asserting that the Board's 2002 denial of parole violated his constitutional right to due process. The state courts denied his petition, but the district court granted the writ. The State appeals. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I.

In 1980, Pirtle was convicted of second-degree murder for killing his wife. He was sentenced to a term of seventeen years to life in prison. Ten years later, after a hearing, the Board determined that Pirtle 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.” The Board found that Pirtle committed the crime “as a result of significant stress in his life,” that he showed remorse, and that he accepted responsibility for his actions. It also found that Pirtle had a stable social history prior to his marriage to the victim, had no juvenile or adult convictions for violent offenses, had performed well in his prison job assignments, had matured since his crime, had received positive psychiatric reports, and had developed realistic plans for his parole. The Board set his release date for December 30, 1994.

In March 1994, however, the Board rescinded Pirtle's parole. It found that the previous panel had not given sufficient weight to the gravity of the original offense, the fact that he had been carrying a concealed weapon, or his history of alcohol abuse, crime, and domestic violence. The Board denied Pirtle's parole again in 1995, 1996, 1998, and 2002. Each time, the Board relied on the circumstances of Pirtle's crime, his history of criminal conduct, and his failure to attend a substance abuse program. The Board's 2002 denial of parole is the subject of this appeal.

At the 2002 hearing, the Board considered two descriptions of Pirtle's crime. The first was from the 1990 Board report following Pirtle's first parole hearing, at which he was deemed suitable for parole. That report was read into the record at the hearing and was transcribed as follows:

On March the 8th, 1980 at approximately 1:17 a.m., the Gridley Police Department was notified of the shooting at The Moose Lodge. Upon arrival at the scene, the responding police officers observed the victim, Diane Pirtle, lying on the floor with a gun-shot wound to her upper chest area. The victim was transported to the memorial hospital where she was pronounced dead at approximately 1:20 a.m. The prisoner, John Pirtle, arrived at the police department and informed personnel on duty that he had just shot his wife at The Moose Lodge. He then produced a small pistol and placed it on the counter. Pirtle then was taken into custody, and when informed that the victim, his wife, had died, responded by stating, okay. An autopsy performed on the victim revealed that she had died as a result of a single 25 caliber bullet entering her upper chest and penetrating her heart and liver. Witnesses relate that at approximately 10:30 p.m. on March 7, 1980, the defendant-the prisoner had entered The Moose Lodge, approached his wife, slapped her in the face and then left. At approximately 1:00 a.m. on March 8, 1980, the prisoner returned to the Moose Lodge, ordered a drink at the bar and paced around the bar area while the victim and another man danced to the music. When the music stopped, the prisoner walked up to the victim, placed his arms around her and shot her in the chest. The prisoner then exited the building.

(name spelling and reading errors omitted).

Next, the Board read into the record Pirtle's own account of the crime that he gave in 1990. It was transcribed as follows:

The prisoner relates that on the day prior to the killing, he and his wife discussed their marital problems and decided to give their marriage one more try. The following day his wife came to pick him up at the bar where he was bartending. She told him that she wanted to stay in town and drink and he could go home if he wished. The prisoner stated that he left his wife and proceeded home in order to give money to his children for dinner. He then returned to town, had several drinks and went to The Moose Lodge where he observed his wife with another man. The prisoner indicated that this upset him to the point that he slapped his wife before going uptown to continue drinking. He then went to a nearby town where he continued to drink before returning to Gridley. The prisoner stated that on the way back he was stopped by a police officer who told him to go home, which he did. After sleeping for an hour, the prisoner stated he woke up and found his wife was still not home. He returned to look for her. Not finding her at several bars, he went to The Moose Lodge where he found her dancing with another man. He waited for the music to end before approaching the victim and asked her if she was ready to go home. The prisoner indicated that his wife told him that she was not going to go home with him, but that she was going home with Ron, her dancing partner. The prisoner stated that the next thing he recalled was a loud bang and seeing his wife fall to the floor. He then found himself over the gun and became very confused. He walked out of the bar and drove to the police station. The prisoner indicated his remorse for the killing of his wife by stating that he cared for her a great deal. He further indicated that he had no predisposition to murder her. He states that he had a habit of carrying a loaded weapon with him most of the time for protection. He had been drinking prior to this shooting but does not feel that he was inebriated at the time of the shooting. The prisoner gave no explanation or motive for his action other than his wife rebuffing him for someone else.

In addition to the circumstances of the commitment offense, the Board considered Pirtle's prior criminal history. He had no juvenile arrest record, ² and as an adult he had misdemeanor convictions for drunk driving, disturbing the peace, disorderly conduct, and escape from the county honor farm. He also had a felony drunk driving conviction.

The Board also discussed Pirtle's tumultuous marriage to the victim. Both Pirtle and the victim were alcoholics and they fought frequently. On at least six occasions, the police were called to break up drunken fights between the Pirtles.

Finally, the Board questioned Pirtle about his history of alcohol abuse. Pirtle was asked why he stopped attending Alcoholics Anonymous (“AA”) meetings in prison. He told them that attendance at AA meetings was a condition of his original parole date, but when his date was revoked, he stopped attending because he does not believe in a higher power, which is an important aspect of AA. At a 1996 hearing, the Board asked him why he did not attend AA meetings and he replied, “if you don't believe in a higher power you cannot do the 12 steps, and I don't believe in a higher power.” The 2002 panel was aware of Pirtle's reasons for not attending AA.

At the conclusion of the 2002 hearing, the Board found that Pirtle was “not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” It found that his crime was committed in “an especially cruel and callous manner,” and that it was “carried out in a dispassionate calculated manner.” Additionally, the Board found that “[t]he motive for the crime was inexplicable or very trivial in relationship to the offense.”

The Board also found that Pirtle had an “escalating pattern of criminal behavior” and that he had “failed to profit from society's previous attempts to correct his criminality.” It noted his unstable social history, including his alcohol abuse and the allegations that he was abusive toward his wife. The Board found that he needed to upgrade vocationally, participate in therapy or a self-help group to learn how to manage anger and stress, and take part in a substance abuse program. The Board emphasized its particular concern that Pirtle had not “made a lifelong commitment to a substance abuse program.”

On January 27, 2003, Pirtle filed a petition for a writ of habeas corpus in the Butte County Superior Court, asserting that the Board's denial of parole violated his constitutional right to due process because the decision was not supported by any evidence. The state court issued a Waltreus denial of his petition, which is a summary dismissal issued when a petitioner raises claims in a habeas corpus petition that were already decided on direct appeal. See In re Waltreus, 62 Cal.2d 218, 42 Cal.Rptr. 9, 397 P.2d 1001, 1005 (1965). The Waltreus denial was in error, because the question whether the Board denied ...