Milot v. Haws

• Decision Date: 08 June 2009
• Docket Number: Case No. CV 08-3814-SGL (RNB).
• Citation: 628 F.Supp.2d 1152
• Parties: Gary MILOT, Petitioner, v. Brian HAWS, Warden, Respondent.
• Court: U.S. District Court — Central District of California

628 F.Supp.2d 1152

Gary MILOT, Petitioner, v. Brian HAWS, Warden, Respondent.

Case No. CV 08-3814-SGL (RNB).

United States District Court, C.D. California, Southern Division.

June 8, 2009.

Roger S. Hanson, Roger S. Hanson Law Offices, Santa Ana, CA, for Petitioner.

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

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

STEPHEN G. LARSON, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings and papers herein, including the Magistrate Judge's Report and Recommendation. Objections to the Report and Recommendation have been filed by respondent, and the Court has made a de novo determination of those portions of the Report and Recommendation to which objections have been made.

1. Respondent's objection to the Magistrate Judge's finding that petitioner has a liberty interest in parole suitability

Respondent contends that petitioner "failed to present a federal question for habeas corpus review because he does not have a federally protected liberty interest in parole release." (See Objs. at 2). As respondent is compelled to acknowledge, however, Ninth Circuit cases have repeatedly held that, as a matter of clearly established Supreme Court law, California's parole scheme gives rise to a cognizable liberty interest in release on parole that is protected by the Due Process Clause. See Irons v. Carey, 505 F.3d 846, 850 (9th Cir.2007) (as amended), denial of rehearing en banc at 506 F.3d 951 (9th Cir.2007); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir.2006); McQuillion v. Duncan, 306 F.3d 895, 901-02 (9th Cir.2002); see also Caswell v. Calderon, 363 F.3d 832, 838 (9th Cir.2004); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.2003).

Respondent's objection based on the pendency of Hayward v. Marshall, 512 F.3d 536 (9th Cir.), reh'g en banc granted, 527 F.3d 797 (2008), must also be rejected. While the Hayward en banc panel may overrule earlier Ninth Circuit decisions, until such time if any as the Hayward en banc panel does so, this Court is bound to follow existing Circuit precedent in the absence of an intervening contrary Supreme Court decision. Respondent is unable to point to any such intervening contrary Supreme Court decision.

Finally, to the extent respondent contends that California's parole scheme does not give rise to any liberty interest in the setting of a parole date (see Objs. at 4), the California Supreme Court has held otherwise. See In re Lawrence, 44 Cal.4th 1181, 1212, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008) ("In Rosenkrantz, supra, 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174, we expressly recognized that judicial review of a Governor's parole decision for adherence to both statutory and constitutional mandates was both (a) contemplated by the governing statutes and the California Constitution, and (b) integral to protecting an inmate's constitutional liberty interest in the setting of a parole date.").

2. Respondent's objection to the Magistrate Judge's application of the California Supreme Court's state standard of judicial review to litigate whether the state court decisions were contrary to or an unreasonable application of clearly established United States Supreme Court law

Respondent divides this section of the Objections into three subsections.

A. In subsection A, respondent contends that the "some evidence" standard of review is not clearly established Supreme Court law in the parole suitability context. (See Objs. at 5). However, Ninth Circuit cases have held otherwise. Specifically, the Ninth Circuit repeatedly has held that, as a matter of clearly established Supreme Court law, the Board's or Governor's decision to deny parole must be supported by "some evidence" with some indicia of reliability and cannot otherwise be arbitrary, as a matter of clearly established Supreme Court law. See Irons, 505 F.3d at 851; Sass, 461 F.3d at 1129 (quoting Superintendent v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)); Jancsek, 833 F.2d at 1390 (adopting the Hill standard); see also Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904. Until such time as the cases so holding are overruled by an en banc Ninth Circuit decision or the Supreme Court has issued a contrary intervening decision, this Court is bound to follow those cases.

B. In subsection B, respondent contends that there is no clearly established federal law holding that a parole suitability decision relying on the commitment offense and other pre-offense factors to deny parole violates federal due process. (See Objs. at 6-8). This is a red herring argument because the Magistrate Judge acknowledged this fact in his Report and Recommendation. (See R & R at 1159-73).

C. In subsection C, respondent contends that the California Supreme Court's decision in Lawrence has no bearing on whether relief should be granted under the AEDPA. (See Objs. at 8-10). This Court disagrees. Under Irons, the analysis of whether the Board's or the Governor's unsuitability determination is supported by "some evidence" is framed by the "statutes and regulations governing parole suitability" determinations in California. 505 F.3d at 851. First, this Court must determine the findings "necessary to deem a prisoner unsuitable for parole." Then, this Court must review the record to determine whether the state court's decision holding that these findings were supported by "some evidence" constituted an unreasonable application of the "some evidence" standard. See id. at 851. In Lawrence, the California Supreme Court clarified what findings are necessary to deem a prisoner unsuitable for parole under California's statutes and regulations governing parole suitability. This Court is bound by the California Supreme Court's construction of its own laws. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see also Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005).

Notably, a number of other federal district courts in California have come to the same conclusion that, under Irons, Lawrence governs the application of the "some evidence" standard. See, e.g., Adams v. Schwartz, 2008 WL 4224561, at *12-*13 (E.D.Cal. Sept. 12, 2008) (granting habeas relief, citing In re Lawrence and describing some evidence standard as requiring that "an inmate poses a current threat to public safety, rather than some evidence of the existence of a statutory unsuitability factor"), Report and Recommendation adopted at 2008 WL 4601088 (Oct. 14, 2008); Tash v. Curry, 2008 WL 3984597, at *4, *10-*12 (N.D.Cal. Aug. 27, 2008) (granting habeas relief, citing Irons's direction to look to California law and analogizing case to In re Lawrence): see also Ortega v. Dexter, 2008 WL 5263833, at *6 (C.D.Cal. Dec. 16, 2008) (denying habeas relief, but citing In re Lawrence and describing some evidence standard as "not whether the evidence supported any particular factor regarding parole suitability, but rather whether `some evidence' indicates the prisoner's release unreasonably would endanger public safety").

In addition, there have been at least two other cases that post-dated the Magistrate Judge's Report and Recommendation in which the district courts came to the same conclusion regarding Lawrence. See Moore v. Marshall, No. EDCV 07-1481-MMM (CT), 2009 WL 363280, at *1 (C.D.Cal. Feb. 12, 2009) (denying habeas relief, but rejecting respondent's argument that Lawrence "does not impact" petitioner's request for habeas relief since Irons directs that the federal court's analysis of some evidence is framed by state law); Ally v. Mendoza-Powers, No. 1:06-CV-00414 AWI JMD HC, 2008 WL 4330404, at *4, *6 (E.D.Cal. Sept. 18, 2008) (denying habeas relief, but recognizing that Lawrence constitutes part of California law that frames application of some evidence standard under Irons). Report and Recommendation adopted at 2009 WL 196335 (Jan. 28, 2009).

3. Respondent's objection to the Magistrate Judge's proposed remedy

Respondent contends that the remedy ordered is improper for several reasons. First, while acknowledging that there is "no decisional law on point," respondent contends that "related federal authorities" suggest that an inmate's remedy is limited to a new parole consideration hearing before the Board that comports with due process. Second, respondent contends that under "Marsy's Law" (passed by voters in the November, 2008, election),¹ the Board is required to provide 90 days' notice to the victim's next of kin and that the recommended order for the hearing to be held within 30 days is an insufficient amount of time for the Board to comply with that notice provision. Finally, respondent contends that, since conditions and length of a state parole term are matters of state law, this Court cannot order that petitioner be credited time against his parole term. (See Objs. at 10-12).

As to respondent's first contention, federal habeas courts have "broad discretion in conditioning a judgment granting habeas relief and in "dipos[ing] of habeas corpus matters `as law and justice require.'" See Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987); Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir.2005) (federal courts "have a fair amount of flexibility in fashioning specific habeas relief); Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir.1994) ("A federal court is vested with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus.") (internal quotations and citations omitted).

In the context of parole decisions that violate due process, there is no federal law holding that the only remedy available to a federal habeas court is a remand to the Board for a new hearing. Indeed, in McQuillion v. Duncan, 342 F.3d 1012, 1015 (9th Cir.2003), where the Ninth...