In re Freeman CA6 ( 2021 )

Filed 11/8/21 In re Freeman CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re CLIFTON FREEMAN, H047829
(Santa Clara County
on Habeas Corpus. Super. Ct. No. 102114)
In 1985, Clifton Freeman pleaded guilty in the Santa Clara County Superior Court
to second degree murder (Pen. Code, § 1871). In 1986, the superior court sentenced
Freeman to a prison term of 15 years to life.
In this appeal by the Warden of the California Medical Facility (Warden), we
review whether the superior court properly granted Freeman habeas corpus relief from a
2018 decision by the Board of Parole Hearings (the Board) denying Freeman parole. The
Warden contends, inter alia, that the court granted Freeman relief on a claim he never
raised in his petitions for writ of habeas corpus, which contravenes controlling habeas
corpus law. We agree and reverse the superior court’s November 4, 2019 order granting
Freeman relief without prejudice to Freeman filing a new, original petition for writ of
habeas corpus challenging his continued incarceration.
1 Unspecified statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL BACKGROUND
A. Underlying Crime and Conviction
Late one evening in June 1985, then 17-year-old Freeman killed a neighbor while
she was in her yard. At the time, he resented her because she used to call him “Frank,”
instead of his correct name. In addition, shortly before the killing, Freeman had asked
another neighbor to lend him an air pump to repair a bike tire. That neighbor refused and
called Freeman a racial slur, which upset him. Feeling angry, Freeman hurled two rocks
at the victim. The first rock missed her, so he threw another. The second rock struck her
head and she fell to the ground on her driveway. Freeman went over to her and thought
about “put[ting] [] water on her to bring her back . . . from being knocked out.” But she
“started breathing and [] making noise,” so Freeman “thought she was all right.” He left
her and went home; he “was scared, paranoid.” The victim’s nine-year-old son
discovered her and summoned help. The victim’s head injury proved fatal; she died three
days later.
Later in 1985, Freeman pleaded guilty to second degree murder. In 1986, the
superior court sentenced Freeman to 15 years to life in prison.
B. Habeas Corpus and Parole Board Proceedings
In June 2016, the superior court denied a petition for writ of habeas corpus
Freeman had filed challenging a February 2015 Board finding that he was unsuitable for
parole.
In February 2017, Freeman, in propria persona, filed another petition for writ of
habeas corpus. He claimed, relying principally on In re Butler (2015) 236 Cal.App.4th
1222 (which was subsequently reversed in In re Butler (2018) 4 Cal.5th 728), that the
Board had improperly failed to calculate and set his “base term,” his continued
incarceration constitutes cruel and unusual punishment, the state had breached its plea
agreement with him in violation of his rights to due process and was bound by the
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agreement’s terms, and the state had arbitrarily converted his sentence into a de facto
sentence of life without the possibility of parole.
In April 2017, the superior court issued an order to show cause and appointed
counsel to represent Freeman. The court described Freeman’s petition as “arguing that
his continued custody has become unconstitutionally disproportionate to his culpability
and thus constitutes cruel and unusual punishment under the Eighth Amendment to the
United States Constitution and article I, section 17, of the California Constitution.”
In June 2017, the Attorney General filed a return asserting, inter alia, that Freeman
waived his disproportionality claim when he pleaded guilty, his base term has no
relevance to his maximum prison sentence, and his sentence has not become
constitutionally excessive. In October 2017, Freeman responded by filing a combined
denial and supplemental petition for writ of habeas corpus (first supplemental petition).
In the supplemental petition, Freeman added a claim that challenged the Board’s setting
of his base term at 20 years and argued the Board should have used a base term matrix
(i.e., regulatory criteria employed by the Board to assess a life prisoner’s culpability for
the commitment offense and the proportionality of the punishment imposed for that
offense) formulated specifically for youth offenders.
In December 2017, the superior court issued an order stating that this claim
Freeman sought to add by way of his first supplemental petition was “adequately raised
in the original petition, [so] a separate order to show cause on it is unnecessary.” In
addition, the court ordered the Attorney General to provide “further briefing consisting of
a calculation and explanation of [Freeman]’s base and adjusted base term, i.e., matrix and
credits, and all supporting materials,” because that information was relevant to Freeman’s
“disproportionate punishment claim.”
On January 30, 2018, the Board afforded Freeman his “Eighth Subsequent Parole
Suitability Hearing” and again denied him parole. In making its decision, the Board
“gave great weight to the youthful offender factors because [Freeman] was 17 when he
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committed the Life Crime.” The Board recognized that “the brain is not fully developed”
in a 17 year old, “so he’s [] less culpable . . . than an adult who [] may have committed a
similar act [at a] later stage in life. [Freeman] also demonstrated some of the hallmark
features of youth, [] including impulsivity, [] recklessness, a lack of empathy, lack of
concern, [and] lack of care [] for anyone other than himself at the time.” The Board
observed, “the issue here is one of growth and maturation. [A]lthough . . . [Freeman] has
grown [] while in prison, . . . he takes a couple steps forward and then another step back,
and that was the issue for today.”
The Board noted Freeman, who was 50 years old at the time of the hearing, had
“gotten recent 115s” (i.e., prison rule violations). The violations involved Freeman twice
fondling his genitals in the presence of female prison recreation therapists. In the
Board’s view, Freeman’s behavior during these two incidents “displays some real
impulsivity, [and] a lack of behavioral control,” and “the victims were all kind of
. . . unsuspecting female victims, [] much like that of . . . the Life Crime. So that’s the
common thread there.” The Board found that Freeman’s responses to questions they had
asked him about the violations “just don’t add up.” In addition, Freeman had recently
received a “counseling chrono” (Form CDC 128–A) for disrespecting a prison staff
member and acting in an angry and disruptive manner, which was “inappropriate” and
showed “lack of control” and “some anger,” like Freeman “did in the Life Crime.” The
Board observed that Freeman “still [had] some work to do in terms of learning to manage
[his] behavior” and a “need for [] further maturation and growth in some areas.” This
was the Board’s “primary concern.”
In addition, the Board considered the gravity of Freeman’s crime, characterizing it
as “horrific” and having “significant impacts.” The Board further noted “some
instability” in Freeman’s “relationships within [his] family” and “the domestic violence
. . . within the family environment.” The Board “also found that [Freeman] had a history
of serious [] mental illness and, [] those issues [] are better managed today than they were
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perhaps at the time . . . of the crime. . . . [A]nd that’s a good thing, so there’s progress
there.” The Board acknowledged that “the California Supreme Court has ruled that after
a long period of time, those static factors -- like the crime, any instability in your family
or relationship history, [] any history of serious mental problems -- [] may be [] factors
that no longer indicate that [Freeman is] still a threat to the public today when [he has]
engaged in a long period of rehabilitation. And there’s been a real change to [his] past
and present mental state.”
The Board noted that Freeman had “done a lot of positive things” in prison,
including participating in “some very healthy groups,” but said “there’s still some room
for growth” and “focus on the impulse control, healthy relationships, [and] impulsivity.”
The Board suggested Freeman talk with his “clinician” about how to manage his
behavior, noting that he is “in treatment” and “medication compliant.” In addition, the
Board mentioned an October 2017 psychological report which indicated that Freeman
“had a risk to reoffend in [] a sexual way” based on his “recent conduct in prison.”
“[A]fter weighing all of the relevant, reliable information available,” the Board
“concluded that Mr. Freeman currently poses an unreasonable risk of danger to society or
a threat to public safety.” The Board deferred Freeman’s next parole hearing for three
years. It also noted that Freeman’s file would be administratively reviewed in about a
year and, if Freeman refrained from additional misconduct, there was a possibility his
next parole hearing would be convened in approximately 18 months.
In February 2018, the Attorney General filed a supplemental brief pursuant to the
superior court’s December 2017 order requesting further briefing. The Attorney General
asserted that Freeman “is not serving an unconstitutionally excessive sentence. And his
20-year base term is irrelevant to his constitutional disproportionality claim.” Freeman
responded by filing two supplemental briefs in April 2018, arguing that his continued
custody had become unconstitutionally disproportionate to his culpability and constitutes
cruel and unusual punishment.
5
In July 2018, after the California Supreme Court had overruled Butler, the superior
court invited Freeman to file a supplemental habeas corpus petition on “the Montgomery
issue” (see Montgomery v. Louisiana (2016) 577 U.S. 190 (Montgomery)) and “whether
Freeman has again been denied parole based on his history of mental health issues.” 2
Further, the court suggested that Freeman “brief the question of remedies” in his
supplemental petition, noting “[o]ne [possible remedy] is to remand this matter to the
Board with directions to consider the Montgomery question and precluding them from
denying parole based on California Code of Regulations, title 15, § 2402 (c), alone,”3 and
a “second possible remedy is determining whether Freeman’s incarceration has already
reached the point of being an Eighth Amendment violation and ordering his immediate
release.”
In March 2019, Freeman filed his second supplemental petition for writ of habeas
corpus (petition) and incorporated by reference his February 2017 petition for writ of
habeas corpus, October 2017 denial, and April 2018 “supplemental denials.” In the
petition, Freeman alleged that he suffers from intellectual disabilities and mental health
2 In Montgomery, the United States Supreme Court clarified that Miller v.
Alabama (2012) 567 U.S. 460 “announced a substantive rather than a procedural rule,
and therefore operates retroactively. [Citation.] Montgomery explained that
‘Miller . . . did more than require a sentencer to consider a juvenile offender’s youth
before imposing life without parole; it established that the penological justifications for
life without parole collapse in light of “the distinctive attributes of youth.” [Citation.]
Even if a court considers a child’s age before sentencing him or her to a lifetime in
prison, that sentence still violates the Eighth Amendment for a child whose crime reflects
“ ‘unfortunate yet transient immaturity.’ ” [Citation.] Because Miller determined that
sentencing a child to life without parole is excessive for all but “ ‘the rare juvenile
offender whose crime reflects irreparable corruption,’ ” [citation], it rendered life without
parole an unconstitutional penalty for “a class of defendants because of their status”—
that is, juvenile offenders whose crimes reflect the transient immaturity of youth.’ ” (In
re Kirchner (2017) 2 Cal.5th 1040, 1048; see also id. at p. 1042.)
3 Title 15, section 2402, subdivision (c), of the California Code of Regulations sets
forth “circumstances [that] tend to indicate unsuitability for release.” (Regs. tit. 15,
§ 2402, subd. (c).)
6
issues. He claimed that (1) given the nature of his offense and his age, intellectual
disabilities, and mental illness, his sentence has become unconstitutionally
disproportionate to his culpability and violative of state and federal protections against
cruel and/or unusual punishment, and (2) his prison confinement violates due process
because it has failed to address his mental health and intellectual disabilities in a manner
that renders him suitable for parole release.
Freeman’s first claim was based solely on principles of disproportionate
punishment under California law and the Eighth Amendment to the United States
Constitution. Specifically, he argued, inter alia, that there is no evidence that he is
incorrigible, and “[t]he constitutional limits of [him] being incarcerated for the offense he
committed when he was 17 years old have passed. It is unconstitutional to keep this
juvenile offender incarcerated due to concerns related to his mental health, or impulse
control issues that result from his intellectual disabilities. Denial on these grounds is de
facto sentence of life without the possibility of parole, regardless of how many
perfunctory parole hearings are law [sic]. The law provides for other avenues to address
potential societal concerns regarding petitioner’s mental health and/or intellectual
limitations, indefinite incarceration is unconstitutional and not the proper avenue.”
Freeman asserted further that “he should be immediately ordered released.”
Regarding his second claim, Freeman argued that he “is in the wrong place” and
should be “house[d] in a state hospital[] or a developmental center where he can receive
the treatment and accommodations that he needs to be found suitable for parole.”
Freeman asked the superior court to order that he be “transferred to a facility and
program that can accommodate and treat his . . . intellectual disabilities and mental health
issues.” Freeman’s second claim, which was based in part on due process, did not
challenge the length of his sentence or the Board’s conduct at his parole hearing.
7
In April 2019, the superior court filed an order to show cause “based on
Mr. Freeman’s habeas corpus petition of March 14, 2019.” The order directed the
Warden to file a return.
The Attorney General filed a return to the order to show cause in June 2019. The
Attorney General asserted that (1) Freeman failed to establish that his 34 years in prison
for murder is an unconstitutionally disproportionate punishment under state law, (2) he
failed to prove his prison sentence violates the Eighth Amendment, (3) his due process
claim regarding the quality of his care in prison should be dismissed because of
procedural deficiencies, and (4) even if Freeman’s due process claim were to be
substantively considered, it should be denied as lacking merit. In addition, the Attorney
General asserted various procedural bars to the claims in Freeman’s petition and
mentioned that, “after the Board denied parole in January 2018, Freeman committed three
additional serious rule violations—two of which were sexual in nature—in February,
April, and July of 2018.”
In July 2019, Freeman filed a denial.
On November 4, 2019, the superior court filed an order granting Freeman’s
petition. Citing Montgomery, the court stated “[t]he issues raised by the instant petition
are rooted in the United States Supreme Court’s rule ‘that a lifetime in prison is a
disproportionate sentence for all but the rarest of children, those whose crimes reflect “
‘irreparable corruption.’ ” ’ ” The court quoted, at length, the California Supreme
Court’s decision in People v. Franklin (2016) 63 Cal.4th 261 and explained that certain
concerns about the application of section 3051 (governing youth offender parole
hearings) which were recognized but not directly addressed by our high court in Franklin
“are ripe in this case.”
The superior court stated that, despite “stringent requirements” “that children are
different from adults” and “ ‘hope for some years of life outside prison walls must be
restored’ ” unless the “youth offender’s crime reflects ‘irreparable corruption,’ ” “the
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Board again cited [Freeman]’s ‘history of serious mental illness,’ invoked his unstable
social history, and identified the motive for [Freeman]’s crime as alternatively
inexplicable or very trivial.” The court observed that, “while the Board’s reasoning may
pass muster under the highly deferential ‘some evidence’ test used by the courts to review
parole denials for adults [citations], [Freeman] is not an adult offender.” Rather,
Freeman’s continuing, 34-year incarceration “is constitutionally permissible only if his
‘crime reflects irreparable corruption resulting in permanent incorrigibility.’ [Citation.]
Presently, such a finding has not been made, nor is there any evidence of this.” The court
opined that Freeman’s “parole hearings have not been meaningful opportunities for
release insofar as the Montgomery and Miller [decisions] are concerned. Without a more
specific, reviewable record wherein careful consideration and great weight are given to
youth factors, or a finding by the Board that [Freeman] is permanently incorrigible,
[Freeman]’s hearings will continue to be so.” The court explained that the “Board seems
to have focused heavily on the question of [Freeman]’s growth and increased maturity”
and criticized the Board’s “rationale” that Freeman “ ‘still [had] some room for
growth,’ ” because “this cannot be the standard when only permanent incorrigibility truly
justifies imprisoning a youth offender for life without parole.”
Further, the superior court noted that Freeman is “is intellectually disabled and is
functioning at the level of a 12 year-old,” which explains his inability “to articulate his
insight to the Board’s satisfaction or to demonstrate ‘credibility’ in their eyes,” and
“explains the poor impulse control that has led to disciplinary issues.” To the court, it
“appear[ed] that [Freeman] is no longer being punished for the crime he committed as a
juvenile; he is instead being punished for his youth offender characteristics. As such, his
continued incarceration raises the specter of cruel and unusual punishment.”
The superior court concluded that “Freeman’s most recent parole hearing [(i.e., the
January 2018 hearing)] did not comport with due process as required by case law of the
United States Supreme Court, the California Supreme Court, and by California Penal
9
Code section 3051, subdivision (e). [Freeman] is a youth offender and therefore entitled
to release absent either l) a finding that he is permanently incorrigible or 2) a specific,
reviewable record whereupon the gravity of the convicted offense truly outweighs the
diminished culpability of youth, the hallmark features of youth, and the growth and
increased maturity of [Freeman] after careful consideration and great weight given to
such youth factors. The Board’s decision here does not reflect the appropriate application
of the correct standard for release, nor a considered analysis of the dispositive questions
surrounding [Freeman]’s suitability for release. Accordingly, the Board is ordered to
conduct a new hearing.” (Fn. omitted.) The superior court vacated the Board’s parole
denial and said that “[u]nless there is substantial new and different evidence presented” at
“another hearing comporting with due process,” Freeman “must be granted parole.”
The Attorney General timely appealed the superior court’s November 4, 2019
order. Additionally, on February 13, 2020, the Attorney General filed a petition for writ
of supersedeas requesting a stay of the superior court’s order. On April 29, 2020, this
court granted the petition for writ of supersedeas to stay, pending this appeal, the superior
court’s November 4, 2019 order.
II. DISCUSSION
The Attorney General contends the superior court erred in three ways when it
granted Freeman habeas corpus relief: (1) “the court granted relief on an unraised claim
in contravention of habeas jurisprudence;” (2) “even if the superior court could consider
an unraised claim, the court violated In re Shaputis II (2011) 53 Cal.4th 192, 220-221
(Shaputis II) by applying the wrong standard of judicial review and misconstruing the
Board’s core function to assess inmates’ current dangerousness;” and (3) even assuming
the superior court properly concluded that Freeman should be given a new parole hearing,
“the court ordered relief contrary to In re Prather (2010) 50 Cal.4th 238 [] by ordering
Freeman a new parole consideration hearing where the Board must alter its public-safety
inquiry.”
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Freeman counters that “the superior court decision is based on a finding the
continued incarceration of a youthful offender with significant mental health issues
violates the Eighth Amendment when the reasons for denying parole are inherently
connected to Freeman’s youthful offender status and his mental health issues.” He
maintains that his continued incarceration has become unconstitutionally disproportionate
to his culpability and violates state and federal constitutional prohibitions against cruel
and unusual punishment. He asserts further that the superior court “properly considered”
his claim that “his sentence was cruel and unusual despite the Board’s finding [he]
presented a current danger to public safety” (bolding and some capitalization omitted).
Freeman concludes by asserting that he “should be ordered released on parole.”
The Attorney General replies that Freeman failed to address any of the arguments
raised in appellant’s opening brief. According to the Attorney General, Freeman, instead
“attempts to revive the claim he averred below by arguing he should be released from
prison immediately because his sentence has become constitutionally excessive. . . . But
. . . the superior court neither adjudicated this issue in the first instance nor ordered
[Freeman’s] immediate release from prison.”
A. Standard of Review and Relevant Legal Principles
“When a superior court grants relief on a petition for habeas corpus without an
evidentiary hearing, as happened here, the question presented on appeal is a question of
law, which the appellate court reviews de novo. [Citation.] A reviewing court
independently reviews the record if the trial court grants relief on a petition for writ of
habeas corpus challenging a denial of parole based solely upon documentary evidence.”
(In re Lazor (2009) 172 Cal.App.4th 1185, 1192.)
Regarding parole suitability hearings, “ ‘ “Section 3041 mandates that the Board
‘ “ ‘normally’ ” ’ set a parole date for an eligible inmate, and ‘ “must” ’ do so unless it
determines that an inmate poses a current threat to public safety. [Citation.]
[Fn. omitted.] As a result, parole applicants have ‘a due process liberty interest in parole’
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and ‘ “an expectation that they will be granted parole unless the Board finds, in the
exercise of its discretion, that they are unsuitable for parole in light of the circumstances
specified by statute and by regulation.” ’ ” ’ ” (In re Shelton (2020) 53 Cal.App.5th 650,
662–663 (Shelton).) Pursuant to section 4801, subdivision (c), “[w]hen a prisoner
committed his or her controlling offense . . . when he or she was 25 years of age or
younger, the board, in reviewing a prisoner’s suitability for parole pursuant to Section
3041.5, shall give great weight to the diminished culpability of youth as compared to
adults, the hallmark features of youth, and any subsequent growth and increased maturity
of the prisoner in accordance with relevant case law.” (§ 4801, subd. (c).)
A court “ ‘ “ ‘review[s] the Board’s decision under a “highly deferential ‘some
evidence’ standard.” ’ ” ’ ” (Shelton, supra, 53 Cal.App.5th at p. 663; see also Shaputis
II, supra, 53 Cal.4th at p. 221.) The court “ ‘must uphold the decision of the Board
. . . “unless it is arbitrary or procedurally flawed,” and it “reviews the entire record to
determine whether a modicum of evidence supports the parole suitability decision.”
[Citation.] “The reviewing court does not ask whether the inmate is currently dangerous.
. . . Rather, the court considers whether there is a rational nexus between the evidence
and the ultimate determination of current dangerousness. The court is not empowered to
reweigh the evidence.” [Citation.] At the same time . . . the Board’s decision must
“ ‘reflect[] due consideration of the specified factors as applied to the individual prisoner
in accordance with applicable legal standards.’ ” [Citations.]’ [Citation.] [A court is]
required to affirm a denial of parole ‘unless the Board decision does not reflect due
consideration of all relevant statutory and regulatory factors or is not supported by a
modicum of evidence in the record rationally indicative of current dangerousness, not
mere guesswork.’ ” (Shelton, at p. 663.)
Furthermore, in In re Palmer (2021) 10 Cal.5th 959 (Palmer), the California
Supreme Court concluded that “the Board’s denial of parole does not prevent inmates
serving indeterminate terms . . . from challenging [(via habeas corpus petition)] their
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continued incarceration as cruel or unusual under the California Constitution.” (Id. at
p. 968.) The court explained: “It remains the judiciary’s responsibility to decide whether
a prison term has become excessive, and a court properly respects the Legislature’s
prerogative not by performing some ritualistic deference, but by analyzing the challenged
punishment under the traditional, lenient legal standard” set forth in In re Foss (1974) 10
Cal.3d 910 and In re Lynch (1972) 8 Cal.3d 410. 4 (Palmer, at p. 971.) Accordingly, our
high court concluded that “[i]f a court [] finds the inmate’s continued confinement has
become excessive, it may order the inmate’s release from prison.” (Id. at p. 980.) But
“such release does not guarantee [] automatic termination of the inmate’s statutory parole
period” because, under our state’s statutory scheme, parole is “a distinct phase of
punishment” which “remains valid” unless it “separately or in combination with [the
inmate’s] years of imprisonment [has] become constitutionally excessive.” (Ibid.)
Regarding the procedures governing habeas corpus petitions, “ ‘[w]hen presented
with a petition for writ of habeas corpus, a court must first determine whether the petition
states a prima facie case for relief—that is, whether it states facts that, if true, entitle the
petitioner to relief—and also whether the stated claims are for any reason procedurally
barred.’ ” (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1233
(Board of Prison Terms).) “ ‘If the court determines that the petition does not state a
prima facie case for relief or that the claims are all procedurally barred, the court will
deny the petition outright, such dispositions being commonly referred to as “summary
denials.” [Citation.]’ [Citation.] ‘When, on the other hand, a habeas corpus petition is
sufficient on its face (that is, the petition states a prima facie case on a claim that is not
4
The “three analytical techniques to aid [a court’s] deferential review of
excessiveness claims [are]: (1) an examination of the nature of the offense and the
offender, with particular attention to the degree of danger both pose to society; (2) a
comparison of the punishment with the punishment California imposes for more serious
offenses; and (3) a comparison of the punishment with that prescribed in other
jurisdictions for the same offense.” (Palmer, supra, 10 Cal.5th at p. 973.)
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procedurally barred), the court is obligated by statute to issue a writ of habeas corpus.’ ”
(Id. at p. 1234.) Alternatively, the court can issue an order to show cause in lieu of the
writ of habeas corpus. (Ibid.)
The order to show cause signifies a preliminary determination that the petitioner
has made a prima facie showing of entitlement to relief and “also directs the respondent
to address the ‘claims raised in the petition and the factual bases for those claims alleged
in the petition.’ ” (Board of Prison Terms, supra, 130 Cal.App.4th at p. 1234; see also
People v. Duvall (1995) 9 Cal.4th 464, 475 (Duvall).) “After the return is filed, the
petitioner replies in a pleading called a traverse [or denial (see Cal. Rules of Court, rule
4.551(e))], in which the petitioner must indicate whether the factual allegations in the
return are admitted or disputed.” (Board of Prison Terms, at p. 1235.) “Thus, it is the
parties’ pleadings that define the issues.” (Ibid.) “To bring additional claims before the
court, petitioner must obtain leave to file a supplemental petition for writ of habeas
corpus.” (Ibid.)
The superior court does not have the authority to address claims not raised in a
habeas corpus petition. “Section 1484 does not specifically provide the superior court
with the power to ensure that all claims that could be raised regarding the legality of
petitioner’s detention have been raised, or to supplement the petition with new claims by
way of the order to show cause.” (Board of Prison Terms, supra, 130 Cal.App.4th at
p. 1236.) “Only those claims raised in the original habeas corpus petition or in a
supplemental habeas corpus petition may be considered by the court.” (Id. at p. 1237; see
also In re Lugo (2008) 164 Cal.App.4th 1522, 1542–1543 (Lugo); Duvall, supra, 9
Cal.4th at p. 478.)
B. Analysis
We agree with the Attorney General that, here, the superior court improperly
granted Freeman relief on a claim that he did not raise in his petitions for writ of habeas
corpus.
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In his February 2017 petition, Freeman claimed that the Board had improperly
failed to calculate and set his base term, his continued incarceration constitutes cruel and
unusual punishment, the state had breached its plea agreement with him and was bound
by its terms, and the state had arbitrarily converted his sentence into a de facto sentence
of life without the possibility of parole. Additionally, in October 2017, Freeman filed a
combined denial and supplemental petition that further claimed youth offenders should
have a different “base term” matrix than adult offenders. In December 2017, the superior
court ruled that Freeman’s alleged supplemental claim regarding the “base term” was
subsumed in the claims he had raised previously in his February 2017 petition.
More than a year later, in July 2018, the superior court invited Freeman to file a
supplemental petition for writ of habeas corpus addressing Montgomery, supra, 577 U.S.
190, and the Board’s January 2018 denial of parole. In turn, Freeman filed his second
supplemental habeas corpus petition in March 2019. In that petition, Freeman alleged
that he suffers intellectual disabilities and mental illness and specifically raised two
claims. In the first claim, Freeman asserted that, given the nature of his crime and his
personal characteristics, his sentence had become unconstitutionally disproportionate and
violative of constitutional prohibitions against cruel and/or unusual punishment. In his
second claim, Freeman asserted that he was being denied his constitutional rights to due
process by the state’s failure to give him “a suitable opportunity to make the life changes
necessary to be considered suitable for parole” (bolding and capitalization omitted).
Freeman consequently asked the superior court to “[g]rant the petition and make a
finding that petitioner’s continued incarceration is unconstitutional” and “[o]rder
petitioner transferred to a facility and program that can accommodate and treat his
. . . intellectual disabilities and mental health issues.”
As detailed previously, on November 4, 2019, the superior court vacated the
Board’s January 2018 denial of parole on due process grounds—not the Eighth
Amendment and corresponding state constitutional claims Freeman had raised in his own
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petitions or his due process claim alleging a failure of state officials to address his mental
health and intellectual disabilities. The court’s order asserted Freeman’s parole hearing
“did not comport with due process as required by case law . . . and by California Penal
Code section 3051, subdivision (e).”5 Relying in large part on Montgomery, Miller, and
Franklin, the superior court reasoned that “because the record does not establish that
[Freeman] is one of these ‘rarest of children’ ” “ ‘whose crimes reflect permanent
incorrigibility’ ” and “lacks meaningful support for the assertion that the Board gave
‘great weight’ to ‘the diminished culpability of youth’ and ‘the hallmark features of youth
. . . in accordance with relevant case law,’ the parole denial violated due process.”
Although the court alluded to Freeman’s “continued incarceration” as “rais[ing] the
specter of cruel and unusual punishment,” it manifestly found that the Board’s January
2018 parole denial ran afoul of Freeman’s rights to due process, rather than the
protections afforded him by the Eighth Amendment and article I, section 17 of the
California Constitution. In accord with that conclusion, the court directed that Freeman
“be provided another hearing comporting with due process,” not that he be released from
prison, the remedy Freeman had requested for his constitutional disproportionality claim.
Freeman did not expressly or implicitly assert a claim in superior court that
resembles the grounds relied on by the superior court to grant relief in this case. Freeman
alleged a “due process” claim regarding the state’s purported denial of “ ‘a fair
5 Section 3051, subdivision (e), provides: “The youth offender parole hearing to
consider release shall provide for a meaningful opportunity to obtain release. The board
shall review and, as necessary, revise existing regulations and adopt new regulations
regarding determinations of suitability made pursuant to this section, subdivision (c) of
Section 4801, and other related topics, consistent with relevant case law, in order to
provide that meaningful opportunity for release.” (§ 3051, subd. (e); cf. In re Brownlee
(2020) 50 Cal.App.5th 720, 726 [concluding that the prisoner “is not entitled to a youth
offender parole hearing because he is already eligible for parole. (§ 3051, subd.
(a)(1)(C).) Nonetheless, the Board of Parole Hearings shall apply ‘the diminished
culpability of youth as compared to adults’ criteria at his next [and all future] parole
hearing. [Fn. omitted.] (§ 4801, subd. (c).)”])
16
opportunity to make the life changes necessary to be considered suitable for parole in the
future’ ” and, thus, asked to be transferred for appropriate treatment. In his petitions he
did not challenge on due process grounds the January 2018 parole hearing procedures or
finding that he was unsuitable for parole. On this record, we conclude the superior court
granted Freeman habeas corpus relief on a claim that he did not raise. Because the
superior court did not have this authority, we must reverse its November 4, 2019 order.
(See Lugo, supra, 164 Cal.App.4th at pp. 1542–1543; Board of Prison Terms, supra, 130
Cal.App.4th at pp. 1234–1235, 1237.)
Given our conclusion that the superior court erred, we need not address the
Attorney General’s alternative arguments for reversal. Nevertheless, we must decide the
appropriate remedy. In his brief, the Attorney General urges us to “reverse the superior
court’s order” and “direct the superior court to deny Freeman’s habeas petitions.”
However, the Attorney General does not offer any specific argument for why we should
make such an order, and the superior court’s November 4, 2019 order did not delineate or
explicitly state whether it had denied any or all claims for which it seemingly granted an
order to show cause.
Because there is uncertainty in the record regarding the superior court’s treatment
of Freeman’s stated claims, including that his punishment has become unlawfully
disproportionate, we will direct that our reversal of the superior court’s grant of habeas
corpus relief is without prejudice to Freeman filing a new, original petition for writ of
habeas corpus challenging his continued incarceration under his current circumstances.6
6
We note that Freeman asserts in his briefing that “[h]e should be ordered released
on parole” because the “term [he] has now served is disproportionate to his individual
culpability given his youth and mental disabilities.” However, here, we decide only the
Warden’s appeal from the superior court’s order granting Freeman habeas corpus relief
and reverse that order for the reasons stated. We do not consider in this appeal the merits
of Freeman’s disproportionality claim. Further, we are not addressing an original habeas
corpus proceeding initiated by Freeman in this court. (See § 1507; see also Robinson v.
17
III. DISPOSITION
The superior court’s November 4, 2019 order is reversed without prejudice to
Freeman filing a new, original petition for writ of habeas corpus challenging his
continued incarceration.
Lewis (2020) 9 Cal.5th 883, 895–896.) We express no opinion as to how the superior
court should decide any habeas claim regarding Freeman’s continued incarceration.
18
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Elia, Acting P.J.
____________________________________
Grover, J.
H047829
In re Freeman on Habeas Corpus