Martin v. Marshall ( 2006 )

431 F.Supp.2d 1038 (2006)

Eulogio MARTIN, Petitioner,
v.
John MARSHALL, Warden, Respondent.

No. C 05-3486 MHP.

United States District Court, N.D. California.

May 17, 2006.

Joseph Vincent Camarata, Law Offices of Joseph V. Camarata, Vallejo, CA, for Petitioner.

Brian G. Walsh, Office of the Attorney General for the State of California, Scott Colin Mather, CA State Attorney General's Office, San Francisco, CA, for Respondent.

MEMORANDUM & ORDER

Re: Petition for Writ of Habeas Corpus

PATEL, District Judge.

Eulogio Martin, an inmate at the California Men's Colony in San Luis Obispo, California, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. section 2254. His petition is now before the court for review pursuant to 28 U.S.C. section 2243 and Rule 4 of the Rules Governing Section 2254 Cases. Having considered the arguments presented and for the reasons stated below, the court enters the following memorandum and order.

BACKGROUND

Petitioner was convicted of second-degree murder in connection with a shooting that took place on November 15, 1979 in San Francisco.^[1] The facts surrounding petitioner's crime are largely undisputed, and are set forth in petitioner's Life Prisoner Evaluation (Pet.'s Exh. E). One of the victims, Walter Acosta, had a prior relationship with petitioner relating to the sale of drugs. Acosta was well known in his neighborhood as a drug dealer with a penchant for violence. Petitioner owed Acosta money for drugs and for damage to a car petitioner had borrowed. Petitioner claims that Acosta had threatened and harassed him in the weeks leading up to the shooting.

On November 15, 1979, petitioner was sitting in a restaurant with two friends. Acosta entered the restaurant and approached petitioner. Petitioner asked Acosta to leave, but Acosta refused. Petitioner was convinced that Acosta had come to the restaurant to shoot him. Petitioner had entered the restaurant unarmed, but one of his friends passed him a gun. It was clear that Acosta would not leave the restaurant, and when petitioner saw him reach into his pocket, petitioner began to shoot at him. He shot Acosta seven times, killing him immediately. Petitioner claims he had lost control of himself at this point, and continued shooting, hitting two innocent bystanders. One bystander died, while the other sustained a non-fatal shot to the foot. A .39 caliber gun was found on Acosta.

On February 22, 1980, petitioner was sentenced to a prison term of fifteen years-to-life, with a five year enhancement. Petitioner's fifth parole hearing took place on. April 30, 2003. At that hearing, the Board of Prison Terms ("Board" or "BPT") concluded that petitioner was suitable for parole. The Board detailed its findings in its order. See Pet.'s Exh. B, at 57-61. The Board found that petitioner had no juvenile criminal record. Id. at 57. Petitioner's only prior offense was a charge of possession of a controlled substance in 1978, to which he pleaded no contest. Pet. at 12. He was placed on probation for this crime and was deported to Mexico. Id. The Board also found that petitioner lacked a significant history of violent crime, and that he committed the instant offense as a result of stress in his life. Pet.'s Exh. B at 58. Petitioner showed signs of remorse, understood the nature and magnitude of the offense and accepted responsibility for his criminal behavior. Id. The record indicated that his last psychological evaluation, performed by Dr. Kate Burkham, supported release. Id. at 59. Dr. Burkham had found that petitioner fell in the low-moderate range for future offense within the community as long as he abstained from substance abuse and' followed through with his plans for parole. Id. The doctor also found petitioner a low-medium risk for future violence. Id. Because of maturation, growth, a better understanding and advanced age, the Board found that petitioner had a reduced possibility of recidivism. Id. at 58.

The Board also outlined petitioner's accomplishments while in prison. Id. at 57-58. Petitioner participated in education programs, self-help and therapy, vocational programs, institutional job assignments, and volunteer work. Id. Petitioner had been involved in Alcoholics Anonymous and Narcotics Anonymous since 1990. Id. at 59. He participated in several courses, including a marriage and family course, an anger management course, The Big Four Fellowship and the Inmate Peer Education Program. Id. Petitioner also improved his marketable job skills while in prison. Id. at 57. He earned a certificate in Vocational Sewing Machine Repair and completed a Vocational Automachine Shop course. Id. Since February 2001, petitioner has worked in the Prison Industry Authority shoe factory, earning above average to exceptional work reports. Id. at 39, 57.

The Board found that petitioner had realistic parole plans in Jalisco, Mexico, including job offers in his brother's auto shop and his sister's textile shop, and family support. Id. at 58. He planned to live with his parents on their ranch. Id. The Board found these plans realistic due to an INS hold indicating that petitioner would be deported to Mexico after release. Id. at 36.

The Board's Decision Review Unit approved the grant of parole on September 2, 2003. Governor Gray Davis reversed the grant of parole on September 24, 2003.^[2]

In his review of petitioner's parole grant, Governor Davis cited several reasons for reversing the Board's decision. See Pet.'s Exh. D. First, Governor Davis stressed the gravity of petitioner's crime, highlighting the facts that petitioner continued to fire the gun after Acosta was dead and that petitioner failed to call for help after committing the crime. Governor Davis stated that petitioner's crime demonstrated a "callous disregard for human life and a lack of remorse." Second, Governor Davis disagreed with the Board's finding that the crime was a result of stress in petitioner's life. Governor Davis concluded that petitioner was responsible for his stress because he voluntarily entered into a life of selling drugs and he failed to go to the police when Acosta threatened him. Third, Governor Davis stated that petitioner's parole plans in Mexico were unrealistic. The Governor pointed out that petitioner has a history of entering the United States illegally. Therefore, the Governor concluded, petitioner should have viable parole plans in the United States as well as in Mexico.

The Governor also relied on at least two facts that were not discussed in petitioner's April 30th hearing. First, petitioner has received twenty disciplinary violations while in prison. Ans. at 7. The disciplinaries included "possession of drugs, weapons materials and gambling paraphernalia." Pet.'s Exh. D at 3. Since 1995, however, petitioner has not had a serious rules violation. Ans. at 7. Second, the Governor asserts that petitioner was stabbed three times between 1987 and 1990 as a result of his involvement with loan sharks in prison.^[3]Id. The Governor found that these two facts belied the Board's finding that petitioner was suitable for parole based on positive institutional behavior.

After the Governor reversed petitioner's parole grant, petitioner filed a petition for writ of habeas corpus in the San Francisco Superior Court ("Superior Court"). The Superior Court denied the petition. The California Court of Appeal and the Supreme Court subsequently denied the petition without comment. After exhausting his state remedies, petitioner filed a petition for writ of habeas corpus in this court.

Petitioner contends that there was no evidence to support the Governor's reversal of petitioner's parole grant, and that petitioner was therefore denied due process of the law.

LEGAL STANDARD

I. Liberty Interest in Parole

The Fifth and Fourteenth Amendments prohibit the government from depriving an inmate of life, liberty, or property without due process of law. U.S. CONST. amends. V, XIV. In the parole context, a violation of an inmate's due process occurs when (1) the inmate has been deprived of a constitutionally protected liberty interest in parole, and (2) the inmate has been denied adequate procedural protections in the parole process. See, e.g., Biggs v. Terhune, 334 F.3d 910, 913 (9th Cir.2003).

There is no cognizable right to parole under the Federal Constitution. The Supreme Court has held, however, that when a state's parole statute uses mandatory language, the statute "creates a presumption that parole release will be granted" unless certain findings are made, and thereby gives rise to a constitutionally protected liberty interest. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Board of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). California Penal Code section 3041 states that "[t]he panel or board shall set a release date unless it determines that" statutorily defined determinations are met. Thus, under Greenholtz and Allen, the Ninth Circuit found "that California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir.2002).

The second prong of the due process inquiry — whether the inmate has been afforded an adequate parole process — is satisfied if two considerations are met. First, the parole procedure itself must provide an inmate with sufficient safeguards. The inmate must be afforded an opportunity to be heard before an unbiased decisionmaker, and in the case of a denial of parole, must be informed of the reasons underlying the decision. See Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir.1987). Second, "some evidence" must support the decision to grant or deny parole. Id. (adopting the "some evidence" standard established by the Supreme Court in Superintendent v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)). The evidence underlying the grant or denial of parole must have "some indicia of reliability." Id. The "some evidence" standard applies equally to the Board's decision and the Governor's review of the grant or denial of parole. See, e.g., In re Rosenkrantz, 29 Cal.4th 616, 656, 660-61, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2003). The Governor is not limited to considering the same factors considered by the Board. Id. at 677, 128 Cal.Rptr.2d 104, 59 P.3d 174.

However, the deferential "some evidence" standard has outer limits. See Coleman v. Board of Prison Terms, No. 96-0783 LICK PAN, slip op. at 9 (E.D.Cal. May 19, 2005). If it is established that a particular judgment was predetermined, then a prisoner's due process rights will have been violated even if there is "some evidence" to support the decision. See Bakalis v. Golembeski, 35 F.3d 318, 326 (7th Cir.1994) (a decision-making "body that has prejudged the outcome cannot render a decision that comports with due process."); see also, In re Rosenkrantz, 29 Cal.4th at 677, 128 Cal.Rptr.2d 104, 59 P.3d 174 (a parole decision "must reflect an individualized consideration of the specified criteria and cannot be arbitrary and capricious."). The California Supreme Court has explicitly stated that a blanket no-parole policy as to a certain category of prisoners is illegal. See In re Minnis. 7 Cal.3d 639, 102 Cal.Rptr. 749, 498 P.2d 997 (1972); see also In re Morrall, 102 Cal. App.4th 280, 125 Cal.Rptr.2d 391 (2003).

II. Habeas Corpus

The court is required to analyze state habeas claims under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA provides that an

application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

28 U.S.C. § 2254(d)(1). Although petitioner is "a person in custody pursuant to the judgment of a State court," it is unsettled in the Ninth Circuit whether the state courts' review, of the Governor's parole decision is a "state court proceeding" as contemplated by AEDPA. See McQuillion, 306 F.3d at 901. Petitioner is not challenging the state trial court's handling of his trial. "Nonetheless, it is possible that, because his claim of a due process violation by the state parole authority was heard by state courts on collateral review, that claim has been `adjudicated on the merits in [a] State court proceeding' within the meaning of AEDPA." Id. (alteration in original).

Accordingly, this court will review the last reasoned state court opinion under the standards outlined in AEDPA. See Ylst v. Nannemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). The Supreme Court has interpreted AEDPA to require a district court to uphold the state court's decision unless that decision was an "objectively unreasonable" application of a clearly established federal law. Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Here, the last reasoned state court opinion occurred in the Superior Court for the County of San Francisco. Thus, this court will apply the deferential AEDPA standard to the Superior Court proceeding to determine whether it was "objectively unreasonable" to find the denial of petitioner's parole to be supported by some evidence.

DISCUSSION

Petitioner argues that the state court erred in its analysis of the factors underlying the Governor's decision to reverse petitioner's parole grant, and that there was no evidence warranting the Governor's reversal. Petitioner also notes that another district court has granted relief based on the finding that the Governor operated under a blanket no-parole policy for prisoners convicted of murder, and that this may provide an explanation for the Governor's reversal here.

Respondent argues that this court must uphold the Superior Court's decision because that court did not err in finding that there was some evidence to support the Governor's decision to reverse the grant of parole.

I. Due Process Violation

A. Liberty Interest in Parole

Respondent asserts that a recent California Supreme Court decision, In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005), abrogated California's state-created liberty interest in parole. Respondent's argument depends on a single decision from the Eastern District of California, Sass v. Board of Prison Terms, 376 F.Supp.2d 975 (E.D.Cal.2005). The Northern District has expressly declined to follow Sass, reaffirming that California law recognizes a liberty interest in parole. Lewis v. Solis, No. 04-2152 JF, 2005 WL 3454137, at *3-*4 (N.D.Cal. Dec.14, 2005) (Fogel, J.).

Indeed, all subsequent decisions have rejected Sass. See, e.g., Coleman, No. 96-0783 LKK PAN (finding that there is a liberty interest under California's parole scheme (citing McQuillion, 306 F.3d 895, Greenholtz, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668, Biggs, 334 F.3d 910, and In re Rosenkrantz, 29 Cal.4th 616, 128 Cal. Rptr.2d 104, 59 P.3d 174)); Saifullah v. Carey, No. C 02-2664 MCE, 2005 WL 1555389 *9 (E.D.Cal. June 28, 2005) (citing Biggs for the proposition that there is a liberty interest in parole); Devries v. Schwarzenegger, No. C 05-0235, 2005 WL 2175875 (E.D.Cal. Sept.8, 2005), as amended, 2005 WL 2604203, *3-*4 (E.D.Cal. Oct.13, 2005) (concluding that Dannenberg found there was no liberty interest in a uniform parole date, which is different from holding that the parole scheme as a whole does not create a conditional liberty interest); Clay v. Kane, No. 04-8663, slip op. at 18 (C.D.Cal. Dec. 21, 2005) ("The [Dannenberg] court did not hold that there is no protected liberty interest in parole whatsoever. It simply held that the BPT was not required to compare one inmate's parole suitability with the parole suitability determinations given to other inmates who had been convicted of similar crimes.... California courts continue to analyze claims regarding denial of parole under the Due Process Clause, even after Dannenberg."). The court therefore finds that California Penal Code section 3041 continues to establish a liberty interest in parole.

B. Compliance with the "Some Evidence" Standard

Petitioner contends that there was no evidentiary basis for the Governor's reversal of the parole grant. Respondent argues that the Governor identified specific evidence in support of several parole suitability factors, which satisfies the "some evidence" standard. Respondent stresses that the Governor may independently review the evidence that was before the Board, and has wide discretion to come to a different conclusion on parole suitability based on that evidence.

Section 2402 of Title 15 of the California Code of Regulations ("section 2402") sets forth a non-exhaustive list of factors to consider when determining an inmate's suitability or unsuitability for parole.

Subsection (c) of section 2402 enumerates six factors that tend to show unsuitability for parole. The Governor found that the Board placed insufficient weight on three of the six factors: (1) the seriousness of the crime; (2) the extent to which the nature of the crime showed a callous disregard for human life; and (3) the disciplinary violations during the period prior to 1995, eight years before the parole hearing. See § 2402(c)(1)(A), (c)(1)(D) and (c)(6).

Subsection (d) of section 2402 sets forth nine factors tending to demonstrate a prisoner's suitability for parole. The Governor made three findings under subsection (d): (1) the commission of the crime showed a lack of remorse because petitioner fled the scene without securing medical help; (2) life stress should not be considered because any stress petitioner experienced was due to his own fault; and (3) petitioner lacks viable parole plans. See § 2402(d)(3), (d)(4), and (d)(8).

The Superior Court found no evidence to support the Governor's conclusions with respect to the unsuitability factors, a conclusion which this court finds to be reasonable. The record indicates that petitioner committed the crime, at least in part, out of an immediate fear for his life and that he had no prior violent offenses. These two facts temper the view that petitioner displayed a "callous disregard for human life" and contextualize the serious nature of the crime. With respect to petitioner's disciplinary violations, there is significant evidence in the record of petitioner's positive institutional behavior, which reasonably mitigates the effect that petitioner's past violations have on his suitability for parole. Under the deferential AEDPA standard, the Superior Court's findings with respect to the unsuitability factors were therefore not objectively unreasonable, and this court will not disturb that court's conclusions.

The Superior Court concluded that some evidence supported the Governor's findings relating to the suitability factors, but did not specify the evidence it relied upon in reaching that conclusion. This court will therefore independently review the factual record in order to determine whether the Superior Court's findings were objectively unreasonable. See Greene v. Lambert, 288 F.3d 1081, 1088-89 (9th Cir.2002).

As a threshold matter, petitioner argues that the state court's ruling was in error because all the Governor's findings with respect to unsuitability factors were rejected. According to petitioner, evidence that a particular suitability factor does not apply cannot constitute evidence that petitioner is unsuitable for parole. In other words, petitioner argues that the absence of a factor indicating suitability does not constitute some evidence of unsuitability for parole.

Petitioner reads the governing regulation too narrowly. As the Superior Court noted, subsection (b) of 2402 provides that "[a]ll relevant, reliable information available to the panel shall be considered in determining suitability for parole." The subsection further provides that the panel may consider "any other information which bears on the prisoner's suitability for release." Thus, the Governor's findings under the suitability factors may properly be considered in denying parole under the broad scope of subsection (b). The court will now review the evidence supporting those factors.

The Governor relied on only three facts in finding that petitioner did not meet the suitability criteria for parole. First, the Governor noted that petitioner fled the scene of the crime rather than seeking medical assistance for the victims, demonstrating a lack of remorse. Indeterminate Sentence Parole Release Review, Pet.'s Exh. D at 2 ("After he was done shooting, rather than call for help for those that he injured, he ran out of the restaurant.... "). Second, the Governor disapproved of the Board's finding that petitioner committed the crime as a result of stress in his life. Id. ("The stress that [petitioner] faced was ... of his own making by continuing to deal drugs."). Finally, the Governor determined that petitioner's parole plans in Mexico, despite petitioner's INS hold, were unrealistic. Id. at 2-3 ("[A]lthough [petitioner] had previously been deported, he came back to the United States illegally. While he may have employment, family and residency in Mexico, he also has two grown children here.... If he is not deported, there is nothing in this record to indicate that [petitioner] has viable parole plans here in the United States.").

With respect to the third of these findings, the court finds that the Governor's reasoning is contrary to the regulation and to common sense. Section 2402(d)(8) provides that a prisoner may be suitable for release if "[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release." The subsection does not require that a prisoner have viable parole plans in the United States. Petitioner, as the Governor acknowledges, has realistic parole plans in Mexico. He has at least two job offers and a place to live. When Governor Davis reversed petitoner's grant of parole in 2003, petitioner had an INS hold and was certain to be deported to Mexico upon release. Respondent does not contend that petitioner's immigration status has changed in any way. The Governor's reasoning would require petitioner to make plans to enter the United States illegally, and then communicate those illegal plans to the Board in order to be granted a release date. This argument is untenable, and the court therefore finds the Superior Court's determination of this issue objectively unreasonable.

The Governor's reliance on the first two facts — petitioner's flight from the scene of the crime without securing medical help and petitioner's involvement with drugs at the time he committed the crime — presents a different problem. Both of these facts date from at or before the time of the crime. Because petitioner cannot change the past, denying petitioner parole based only on the facts surrounding the crime itself effectively changes his sentence from twenty years-to-life into life imprisonment without the possibility of parole.

The Supreme Court has recognized that [t]he requirements of due process vary with the private and governmental interests at stake and the circumstances of the alleged deprivation.... To insure that a state-created parole scheme serves the public interest purposes of rehabilitation and deterrence, the Parole Board must be cognizant not only of the factors required by state statute to be considered, but also the concepts embodied in the Constitution requiring due process of law.

Biggs, 334 F.3d at 916 (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Greenholtz, 442 U.S. at 7-8, 99 S.Ct. 2100). In Biggs, the Ninth Circuit applied the Supreme Court's language in Morrissey and Greenholtz when analyzing whether the denial of an inmate's parole violated his constitutional due process rights. The court recognized that in the context of denying an inmate parole, reliance "on an unchanging factor, [such as] the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." Id. at 917. The petitioner in Biggs had been convicted of first-degree murder. Id. at 912. Although he had been a model inmate throughout his incarceration, a parole panel found him unsuitable for parole after he had served fourteen years of a twenty-five years-to-life sentence. Id. at 913. The panel based its decision in part on the gravity of the offense. The appellate court found that there was evidence to support this finding, but cautioned that over time, "should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of Biggs' offense and prior conduct would raise serious questions involving his liberty interest in parole." Id. at 916.

This case presents a stronger case for release than Biggs for several reasons. First, petitioner's commitment offense was less serious than the petitioner's in Biggs. The Biggs petitioner was involved in a violent, manipulative, and premeditated murder, while petitioner here acted impulsively and, at least in part, in response to the circumstances. See id. at 912. Second, the Biggs petitioner had not yet served the full terms of his sentence, while petitioner here has exceeded his sentence by approximately six years. Finally, unlike petitioner here, the petitioner in Biggs had not been granted parole by the original panel hearing his case. Petitioner here has "demonstrate[d] exemplary behavior and evidence of rehabilitation," as required by the Biggs court, for a significant period of time. Therefore, the sole reliance on petitioner's commitment offense in denying him parole impinges on petitioner's constitutional liberty interest in parole.

The Eastern District of California has also considered the problem of continuing to rely on an unchanging factor in denying an inmate a parole release date. See Irons v. Warden of California State Prison-So-lano, 358 F.Supp.2d 936, 947 (E.D.Cal. 2005). The court in Irons noted that if reliance on an unchanging factor were enough to constitute a valid denial of parole, petitioner would have "no hope for ever obtaining parole except perhaps that a panel in the future will arbitrarily hold that the circumstances were not that serious or the motive was more than trivial." Id. The petitioner in Irons had been denied parole at his fifth parole hearing. Id. at 939. The petitioner had been convicted of second-degree murder, and his fifth parole hearing occurred after he had served sixteen years of a seventeen years-to-life sentence. The court reversed the denial of parole, finding that the Board had impermissibly relied on the commitment offense and petitioner's drug use at the time of the offense, when petitioner had "continue[d] to demonstrate exemplary behavior and evidence of rehabilitation." Id. at 947 (citing Biggs.) Petitioner here presents facts more favorable to a finding of suitability for parole than the petitioner in Irons. He has surpassed his minimum sentence, and has already been found suitable for parole by two decision-making bodies.

Applying the principles espoused in Irons and Biggs to this case, the court finds that there was no evidence to support the Governor's reversal of petitioner's parole grant. As the granting Board found, petitioner has not had a significant disciplinary violation since 1995. He has been in prison for approximately twenty-six years and has taken advantage of numerous rehabilitation and enrichment programs. He has exceeded his minimum sentence by approximately six years. Petitioner's supervisor at the Prison Industry Authority shoe factory documented that petitioner demonstrates "exceptional teamwork, attitude, and cooperation with staff and coworkers," and that petitioner is an "asset, not easily replaced on short notice, if not impossible." After four panels denied petitioner a release date, he was granted parole at his fifth hearing. The Governor's sole reliance on "the circumstance of the offense and conduct prior to the offense," Biggs, 334 F.3d at 917, constitutes a due process violation. The court finds no evidence to support any of the Governor's reasons for denying parole, and therefore finds that the Superior Court's denial of the petition for habeas corpus was objectively unreasonable.

II. The No-Parole Policy

The flimsy nature of the evidence underlying the Governor's denial of parole and the facile, legally flawed argument with respect to petitioner's parole plans indicate another problem with the denial of parole in this case. As petitioner notes,^[4] a recent decision from the United States District Court for the Eastern District of California concluded that Governors Wilson and Davis operated under a blanket no-parole policy for inmates serving sentences for murder. Pet.'s Mem. Supp. Pet. Writ of Habeas Corpus at 25-28 (citing Coleman, No. 96-0783 LKK PAN, slip op. at 9). The Coleman court's factual findings are equally applicable to the instant petition and may provide an alternative reason behind Governor Davis's reversal of petitioner's parole grant.

Under Governors Wilson and Davis, the state "disregarded regulations ensuring fair suitability hearings and instead operated under a sub rosa policy that all murderers be found unsuitable for parole." Coleman, 96-0783 LKK PAN, slip op. at 3. Between 1992 and 1998, less than one percent of prisoners serving murder terms were released on parole, while about four percent had been released on parole during the previous period. Id. The petitioner in Coleman presented testimony from former BPT Commissioners that the no-parole policy was enforced by "(1) appointing Board members less likely to grant parole and more willing to disregard their statutory duty; (2) removing Board members more likely to grant parole; (3) reviewing decisions finding a prisoner suitable and setting a new hearing before a different panel; (4) scheduling rescission hearings for prisoners who had been granted a parole date; (5) re-hearing favorable rescission proceedings and hand-picking panels to ensure the desired outcome; (6) panel members agreeing upon an outcome in advance of the hearing; and (7) gubernatorial reversal of favorable parole decisions." Id.

The no-parole policy for murderers was initiated by Governor Wilson and continued under Governor Davis. Id. at 4. Davis was governor of California from 1999 until 2003, the date of the petition in this case. The California Supreme Court in In re Rosenkrantz found that "the Board held 4800 parole suitability hearings between January 1999 through April 2001, granting parole to 48 murderers." Id. (citing In re Rosenkrantz, 29 Cal.4th at 685, 128 Cal. Rptr.2d 104, 59 P.3d 174). However, of the 48 prisoners granted parole, "the governor reversed 47 of the Board's decisions and only one murderer out of 4800 actually was released on parole." Id. The Coleman court noted evidence submitted by the petitioner in In re Rosenkrantz of an interview with Governor Davis in the April 9, 1999 edition of the Los Angeles Times:

[T]he governor was adamant that he believes murderers — even those with second-degree convictions — should serve at least a life sentence in prison. Asked whether extenuating circumstances should be a factor in murder sentences, the governor was blunt: `No. Zero.... They must not have been listening when I was campaigning .... If you take someone else's life, forget it. I just think people dismiss what I said in the campaign as either political hyperbole or something that I would back away from.... We are doing exactly what we said we were going to do.'

Id. at 4-5 (internal quotation marks omitted) (citing In re Rosenkrantz, 29 Cal.4th at 684, 128 Cal.Rptr.2d 104, 59 P.3d 174).

Based on the above facts, the Coleman court concluded that the denial of parole under the governors' no-parole policy for murderers is per se invalid, because the petitioner in that case was denied his constitutional right to be heard by an impartial decision-maker. See Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ("Not only is a biased decision-maker constitutionally unacceptable but `our system of law has always endeavored to prevent even the probability of unfairness.'" (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955))). The Ninth Circuit has held that a California inmate is "entitled to have his release date considered by a Board that [is] free from bias or prejudice." O'Bremski v. Maass, 915 F.2d 418. 422 (9th Cir.1990). Inmates are entitled to the same constitutional safeguards when the Governor reviews parole decisions. See In re Rosenkrantz, 29 Cal.4th at 660, 128 Cal.Rptr.2d 104, 59 P.3d 174.

Here, Governor Davis's reasoning behind his reversal of petitioner's parole grant is thin to the point of being pretextual. At best, the Governor gave petitioner's post-conviction accomplishments cursory attention; the conclusion, however, appears to have been preordained. The Governor's review of petitioner's case therefore did not comport with petitioner's constitutional rights, and the court finds that the reasoning in Coleman further justifies a grant of relief in this case.

CONCLUSION

For the reasons set forth above, the petition for habeas corpus is GRANTED unless, within 60 days of this order, respondent provides a parole suitability hearing that comports with due process.

IT IS SO ORDERED.

NOTES

[1] All references in this section are to the Petition for Writ of Habeas Corpus unless otherwise noted.

[2] After another parole suitability hearing on June 23, 2004, a subsequent Board, independently from the Governor, found petitioner unsuitable for parole. Pet.'s Exh. M. The result of that hearing is not at issue here.

[3] The court has found nothing in the record to support this contention except for Governor Davis's reliance on this fact in his decision to reverse the grant of parole.

[4] As respondent emphasized at the April 10, 2006 hearing, petitioner expressly declined to assert the Coleman court's factual findings as an alternative basis for granting the habeas petition. The purpose of the court's discussion of Coleman here is to provide a possible explanation for the reasoning behind the Governor's decision to reverse the grant of parole.