Martinez v. Marshall

• Decision Date: 18 June 2010
• Docket Number: Case No. CV 06-7131-DDP (RC).
• Citation: 713 F.Supp.2d 992
• Parties: Arthur MARTINEZ, Petitioner,v.John MARSHALL, Warden, Respondent.
• Court: U.S. District Court — Central District of California

713 F.Supp.2d 992

Arthur MARTINEZ, Petitioner,v.John MARSHALL, Warden, Respondent.

Case No. CV 06-7131-DDP (RC).

United States District Court C.D. California.

May 11, 2010.

Order Denying Reconsideration June 18, 2010.

COPYRIGHT MATERIAL OMITTED

Arthur Martinez, Stanton, CA, pro se.

Lora Fox Martin, CAAG Office of Attorney General of California, San Diego, CA, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

DEAN D. PREGERSON, 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 respondent'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; (3) the Court determines petitioner was denied due process of law when the Governor reversed the Board's 2004 grant of parole to him without “some evidence” in the record; (4) the Court determines the California Supreme Court's decision determining the Governor's reversal of petitioner's 2004 grant of parole did not deny petitioner due process of law was an unreasonable application of federal law, and Judgment shall be entered granting the petition for writ of habeas corpus; and (5) the Board's 2004 grant of parole to petitioner is reinstated, the California Department of Corrections and Rehabilitation shall credit the time petitioner was incarcerated beyond his 2004 release date towards petitioner's parole period, and Judgment shall be entered accordingly.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judgment's Report and Recommendation and Judgment by the United State 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 Dean D. Pregerson, 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 January 17, 1984, in Los Angeles County Superior Court case no. A371885, pursuant to a plea bargain, petitioner Arthur Martinez pleaded guilty to, and was convicted of, one count of second degree murder in violation of California Penal Code (“P.C.”) § 187 (count 6), and petitioner was sentenced to 15 years to life in state prison. Lodgment nos. 1, 11.¹

II

On June 24, 2004, petitioner had a parole suitability hearing before a panel of the California Board of Prison Terms (“Board”),² at which time the Board found him “suitable for parole” on certain terms and conditions, effective October 22, 2004.³ Lodgment no. 3. These terms included precluding petitioner from using or possessing alcoholic beverages and requiring petitioner to submit to alcohol and drug testing participate in a substance abuse program, report to an outpatient clinic for evaluation, and not actively participate in, promote or assist any prison gang, disruptive group or criminal street gang activity or violate any gang abatement order or injunction. Id. In finding petitioner suitable for parole, the Board calculated petitioner's base term as 216 months imprisonment, reduced to 144 months due to post-conviction sentencing credits. Id. On November 9, 2004, Governor Arnold Schwarzenegger reversed the Board's grant of parole,⁴ stating:

At the time of the murder, [petitioner] was 18 years old and on probation due to an earlier adjudication as a juvenile for grand-theft person. He told the Board at his 2004 parole hearing that the offense occurred when he and some friends attacked a man walking on a street and demanded money from him. [Petitioner] also said at his hearing that he was first arrested at age 7, for throwing rocks at a car, and thereafter for possession of a deadly weapon with the intent to commit an assault and unlawfully taking a vehicle.

He described to the Board at the same hearing that he was at the time of the murders part of “a club with a gang-like mentality.” [¶] Since entering prison, [petitioner] has been disciplined three times for serious-rules violations-including once for a stabbing assault on another inmate and once for possession of an inmate-manufactured weapon-and counseled twice for minor misconduct. He also was associated with a gang while in prison, as he told the Board at his 2004 hearing. [¶] But [petitioner] seemed to turn a corner during the mid-1980s. Based on the record before me, he has been gang-free since his debriefing in the mid-1980s and has remained discipline-free since 1986. Likewise, he has worked while in prison to enhance his ability to function within the law upon release. He obtained his GED, has taken FEMA classes, and has received vocational training in upholstery, office services, and dry cleaning. He has held several skilled institutional jobs such as his current position as the recreation coordinator for mentally-ill inmates. He has participated in an array of self-help and therapy, including various substance-abuse programs since 1989, Personal Growth Seminars, Criminal and Gang Members Anonymous, Process Group, Lifer Prisoner's Support Group, Alternatives to Violence, Stress Intervention Peer Program, Anger Management, Criminon, and IMPACT. He has been involved in the hospice-care program and has volunteered as an HIV Peer Educator and a literacy tutor. He has maintained relationships while in prison, been commended by various prison staff, and has received positive Life Prisoner and mental-health evaluations. He also has made realistic parole plans for himself that include confirmed offers of housing and employment. These are all factors supportive of [petitioner's]

release from prison to parole. [¶] Nevertheless, [petitioner's] conduct went beyond the minimum necessary to sustain a single second-degree murder conviction because he participated in an armed robbery during which two men were shot and killed. As described by [petitioner] at the 2004 parole hearing, he and his partners felt “disrespected” because they were asked to get off of Mr. Umana's car. As a result, they went home to retrieve weapons, returned, and demanded money from Mr. Umana, Mr. Leon, and two other men who were present. According to a preliminary investigation report by the Los Angeles Police Department, one of the crime partners said, “If you want to live[,] give us your money.” [Petitioner] fired the shotgun into the air, and a crime partner shot Mr. Umana and Mr. Leon in their heads, killing both men. In addition to the motive for the murders being exceedingly trivial, [petitioner's] conduct after the murders demonstrated an exceptional callousness and a complete lack of remorse and conscience. According to [petitioner], he went home to sleep after the slayings of Mr. Umana and Mr. Leon. And later, he met up with his crime partners and continued the crime spree, ultimately demanding beer from and then beating Mr. Rivas. The magnitude alone of [petitioner's] murderous conduct is a sufficient basis for me to conclude that his release from prison at this time would pose an unreasonable public-safety risk. The Los Angeles County District Attorney's Office apparently agrees. A representative from that office opposed [petitioner's] parole at the 2004 hearing based on, among other factors, the gravity of the crime he committed. [¶] [Petitioner] says he is now remorseful and accepts responsibility for the murders of Mr. Umana and Mr. Leon. Yet at his 2004 hearing, he told the Board that he “wasn't present” when his partners demanded money because he followed behind them approximately 20 to 25 feet. A Commissioner at the 2004 hearing said, “I find it difficult to believe that at the crime scene you didn't know it was a robbery....” I agree. [¶] After carefully considering the very same factors that the Board must consider, I believe [petitioner] would pose an unreasonable risk of danger to society if released from prison at this time. Accordingly, I REVERSE the Board of Prison Terms' June 2004 decision to grant parole to [petitioner].

Lodgment no. 4.

On August 25, 2005, petitioner filed a habeas corpus application in the Los Angeles County Superior Court, Lodgment no. 5, which denied the petition on September 9, 2005, stating:

[T]he Court concludes that the record contains “some evidence” to support the Governor's finding that petitioner is unsuitable for parole. ( In re Rosenkrantz (2002) 29 Cal.4th 616, 667, 128 Cal.Rptr.2d 104, 59 P.3d 174; see Cal.Code regs., tit. 15, § 2402.) [¶] The Governor concluded petitioner is unsuitable for parole because the circumstances of the commitment offense were beyond the minimum necessary to sustain a conviction for second-degree murder, the motive was “exceedingly trivial,” and petitioner's conduct after the murders “demonstrated an exceptional callousness and a complete lack of remorse or conscience.” [¶] Petitioner is serving fifteen years to life for murder in the second-degree. The record reflects that just after midnight on September 19, 1981, petitioner, who was a gang member, along with fellow gang members Perez and Marmol, became involved in a conflict with three men over a car owned by one of the men. Petitioner and his crime partners left but then returned. When they returned, Perez had a sawed-off rifle and petitioner had a shotgun. Perez and Marmol demanded money from one of the men and he handed over one dollar. Perez and petitioner then began shooting. Two of the men were struck and killed by rifle fire. Petitioner, Perez, and Marmol then fled the scene. Petitioner told the Board the three of them had felt “disrespected.” Later on the night of September 19, petitioner, Perez, and Marmol, approached another

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