Free Response to Order to Show Cause - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 JULIE L. GARLAND Senior Assistant Attorney General 4 ANYA M. BINSACCA Supervising Deputy Attorney General 5 BRIAN C. KINNEY, State Bar No. 245344 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5255 7 Fax: (415) 703-5843 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 14 SIMEON LUJAO, 15 Petitioner, 16 v. 17 BEN CURRY, Warden, 18 Respondent-Appellee. 19 20 Judge: The Honorable Vaughn R. Walker In this habeas corpus action, state inmate Simeon Lujao contends that the Board of Parole ANSWER TO THE ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES C07-4900 VRW IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

21 Hearings unconstitutionally denied him parole at his 2006 subsequent parole consideration 22 hearing. 23 This Court issued an order to show cause on January 17, 2008. Respondent Ben Curry, the

24 current Acting Warden of the Correctional Training Facility, answers as follows: 25 26 ANSWER In response to the petition for writ of habeas corpus filed on September 21, 2007,

27 Respondent hereby admits, denies, and alleges: 28 / / /
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1.

Lujao is lawfully in the custody of the California Department of Corrections and

2 Rehabilitation (CDCR) following his August 30, 1988 conviction for second-degree murder. 3 (Ex. A, Abstract of Judgment.) Lujao pleaded guilty to this charge. He is currently serving an 4 indeterminate sentence of fifteen years to life. Lujao does not contest this conviction in the 5 instant action. 6 2. Respondent affirmatively alleges that Lujao killed his cousin, Arturo Vasaya, by

7 stabbing him eleven times while the two rode as passengers in a car. (Ex. B, Probation Officers 8 Report, at p. 1-2; Ex. C, 2004 Life Prisoner Evaluation Report, at p. 1.) The driver, concerned 9 for his own safety, pulled the car over and exited the vehicle. (Id.) The driver then went for 10 help. (Id.) Lujao attempted to flee the area by hitchhiking. (Id.) Soon thereafter, sheriff 11 deputies apprehended Lujao. (Id.) Lujao had blood on his hands, face, and clothes. (Id.) The 12 deputies also discovered that Lujao had a large blood-covered knife with him. (Id.) 13 3. Respondent admits that the Board of Parole Hearings found Lujao unsuitable for

14 parole on September 5, 2006. (Ex. D, Subsequent Parole Consideration Hearing Transcript, at 15 pp. 29-43.) The Board based its denial on the commitment offense, Lujao's failure to develop a 16 marketable skill, his lack of realistic parole plans, and his failure to participate in self-help 17 programs, such as those dealing with anger management issues. (Id.) 18 The Board noted that at Lujao's last parole hearing, it recommended that he attend self-help

19 classes, and learn a trade. (Ex. D, at p. 10; see also Ex. E, 2006 Life Prisoner Evaluation, at p. 20 4.) The Board asked Lujao why he had failed to perform either recommendation since his last 21 hearing. (Ex. D, at p. 11; Ex. E, at p. 3-4.) In regards to the self-help therapy, Lujao remarked, 22 "I am in control of myself, and I know what I am doing so, I don't really need it for myself." 23 (Ex. D, at p. 13, see also Ex. D, at p. 15-16 [Lujao commenting, "I already control my anger"].) 24 Lujao also admitted that he committed the murder because he lost control of his emotions. (Id. at 25 p. 17.) In addressing why he had not learned a trade, Lujao answered that he did not need a trade 26 because he was going back to the Phillippines. (Id. at pp. 10-11, 13.) 27 4. Respondent affirmatively alleges that Lujao is not a U.S. citizen and is subject to

28 deportation to the Philippines if released. (Ex. B, at pp. 3, 5; Ex. E, at p. 4.) Furthermore, the
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1 probation officer's report indicates that Lujao has an outstanding warrant from the Phillippines 2 for the December 7, 1983 murder of Uldarcio Benitez. (Id.) Lujao told the Board at his 2006 3 parole consideration hearing that he would not discuss this issue because he already discussed it 4 at his previous parole hearing. (Ex. D, at p. 8.) 5 5. Respondent admits that Lujao filed a habeas petition in San Benito Superior Court

6 generally alleging the same claims that he alleges here. The San Benito Superior Court denied 7 this petition on March 22, 2006. (Ex. F, Superior Court Denial.) Respondent further admits that 8 the California Court of Appeal issued a May 21, 2007 denial of Lujao's habeas petition, which 9 generally alleged the same claims that he alleges here. (Ex. G, Appellate Court Denial.) 10 Respondent further admits that the California Supreme Court issued an August 8, 2007 denial of 11 Lujao's habeas petition, which generally alleged the same claims that he alleges here. 12 Thus, Respondent admits that Lujao exhausted his state court remedies in regard to the

13 claims concerning the Board's 2006 decision to deny him parole. However, Respondent denies 14 that Lujao exhausted his claims to the extent that they are more broadly interpreted to encompass 15 any systematic issues beyond the 2006 denial. 16 6. Respondent denies that the state court's adjudication of Lujao's claims was contrary

17 to, or involved an unreasonable application of, clearly established federal law as determined by 18 the Supreme Court. 28 U.S.C. § 2254(d)(1). 19 7. Respondent preserves the argument that Lujao does not have a federally protected

20 liberty interest in parole. See Sandin v. Connor, 515 U.S. 472, 484 (1995) (no federal liberty 21 interest is created unless an action imposes an atypical or significant hardship compared with 22 ordinary prison life); Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12 23 (1979) (liberty interest in conditional parole-release date created by unique structure and 24 language of state parole statute); and In re Dannenberg, 34 Cal. 4th 1061, 1087 (2005) 25 (California's parole scheme is a two-step process that does not impose a mandatory duty to grant 26 life inmates parole before a suitability finding); contra Sass v. Cal. Bd. of Prison Terms, 461 27 F.3d 1123, 1128 (9th Cir. 2006) (holding that California inmates have a federally protected 28 liberty interest in parole date).
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8.

Respondent affirmatively alleges that Lujao had an opportunity to present his case to

2 the Board, and the Board provided him with a detailed explanation for its parole denial. Thus, 3 Lujao received all process due under Greenholtz, the only clearly established federal law 4 regarding due process rights of inmates at parole hearings. 5 9. Respondent affirmatively alleges that the Board's decision is supported by some

6 evidence. However, notwithstanding the Ninth Circuit's contrary decision in Irons v. Carey, 505 7 F.3d 846, 851 (9th Cir. 2007), Respondent denies that the Supreme Court has ever clearly 8 established that a state parole board's decision must be supported by some evidence. 9 10. Respondent denies that the Board's decision to deny Lujao parole violated the terms of

10 his plea agreement. Lujao was originally charged with first-degree murder. (Ex. B, at p. 1.) He 11 pleaded guilty to fifteen years to life for second-degree murder. (Ex. A.) Lujao did not accept or 12 receive a plea agreement that he would only serve twenty-one years in prison. Rather, when he 13 pleaded guilty he accepted the possibility that he could serve his entire life in prison if he was 14 never deemed suitable for parole. 15 11. Respondent affirmatively alleges that federal due process does not preclude the Board

16 from relying on immutable factors to deny parole. Sass, 461 F.3d at 1129. The Board properly 17 considered the gravity of Lujao's commitment offense as required under California law. See 18 Cal. Penal Code § 3041(b). Respondent denies that the commitment offense has lost its 19 predictive value and is no longer evidence of Lujao's current risk of dangerousness to society. 20 Respondent further denies that the Board failed to consider the circumstances of the murder, 21 such as the stress Lujao was under at the time he stabbed his cousin eleven times. 22 12. Respondent denies Lujao's claim that there is no evidence supporting the finding that

23 he lacks a marketable trade. Respondent further denies Lujao's claim that there is no evidence 24 supporting the Board's finding that he failed to adequately participate in self-help programs, 25 such as those specific to anger management issues. Respondent affirmatively alleges that clearly 26 established federal law does not require some evidence to support either finding. Nonetheless, 27 some evidence supports both findings by the Board. 28 13. Respondent admits Lujao's claims are timely under 28 U.S.C. § 2244(d)(1), and are
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1 not barred by any other procedural defenses. 2 3 14. Respondent denies that an evidentiary hearing is necessary in this matter. 15. Respondent affirmatively alleges that Lujao fails to establish any grounds for federal

4 habeas relief. 5 16. Except as expressly admitted above, Respondent denies, generally and specifically,

6 each allegation of the petition, and specifically denies that Lujao's administrative, statutory, or 7 constitutional rights have been violated in any way. 8 Accordingly, Respondent respectfully requests that the Court deny the petition and dismiss

9 these proceedings. 10 11 12 13 14 15 THE STATE COURT DENIAL OF LUJAO'S HABEAS CLAIM WAS NEITHER CONTRARY TO, OR AN UNREASONABLE APPLICATION OF, CLEARLY ESTABLISHED FEDERAL LAW, NOR BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS. The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) modified "the role MEMORANDUM OF POINTS AND AUTHORITIES ARGUMENT

16 of federal habeas courts in reviewing petitions filed by state prisoners by placing a new 17 constraint on the power of a federal habeas court to grant a state prisoner's application for a writ 18 of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. 19 Taylor, 529 U.S. 362, 412 (2000). Under AEDPA, a federal court may grant a writ of habeas 20 corpus on a claim that a state court already adjudicated on the merits only if the state court's 21 adjudication was either: (1) "contrary to, or involved an unreasonable application of, clearly 22 established Federal law, as determined by the Supreme Court of the United States;" or (2) "based 23 on an unreasonable determination of the facts in light of the evidence presented at the State 24 Court proceeding." 28 U.S.C. § 2254(d)(1-2). 25 A. 26 27 The State Court Decisions Were Not Contrary to Clearly Established Federal Law.

In Greenholtz, the United States Supreme Court established the due process protections

28 required in a state parole proceeding. The Court held that the only process due at a parole
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1 consideration hearing is an opportunity for the inmate to present his case, and an explanation for 2 a parole denial. Greenholtz, 442 U.S. at 16. 3 Lujao received both of these protections at his 2006 parole consideration hearing. (See

4 generally Ex. D.) Furthermore, Lujao does not contend otherwise in his petition. Accordingly, 5 Lujao's petition fails under AEDPA because he received all procedural protections due under 6 clearly established federal law. 7 1. 8 9 The Ninth Circuit's some-evidence test is not clearly established Supreme Court law.

The some-evidence standard of review should not apply to a federal habeas proceeding

10 challenging a parole denial, because the Supreme Court has never found that due process 11 requires this level of judicial review. 12 The United States Supreme Court has reiterated that for AEDPA purposes, "clearly

13 established federal law" refers only to the holdings of the nation's highest court on the specific 14 issue presented. Carey v. Musladin, __ U.S. __, 127 S. Ct. 649, 653 (2006). In Musladin, the 15 Ninth Circuit held that under clearly established federal law courtroom spectators who wore 16 buttons depicting the victim in a murder trial inherently prejudiced the defendant and denied him 17 a fair trial. Id. at 652. In vacating the Ninth Circuit's decision, the Supreme Court explained 18 that the two Supreme Court cases that the Ninth Circuit relied on -- one involving a defendant 19 who was required to wear prison clothing during trial and the other concerning a defendant who 20 had four uniformed troopers placed behind him at trial -- involved state-sponsored courtroom 21 practices that were unlike the private conduct of the victim's family. Id. at 653-54. As a result, 22 the Court held that "given the lack of applicable holdings from [the Supreme Court], it could not 23 be said that the state court `unreasonably appl[ied] . . . clearly established Federal law.'" Id. at 24 653-54. 25 Similarly, the Supreme Court found in Schriro v. Landrigan, __ U.S. __, 127 S. Ct. 1933,

26 1942 (2007), that a federal habeas petitioner maintained no claim under AEDPA because 27 Supreme Court precedent finding ineffective assistance of counsel when an attorney fails to 28 adequately investigate mitigating evidence is factually distinct from a defense attorney failing to
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1 investigate mitigating evidence after the client demonstrates a reluctance to assist the 2 investigation. Consequently, the Supreme Court indicated that circuit courts may not import -- 3 under the guise of "clearly established federal law" -- a federal standard used in one 4 context to a different factual circumstance. Id.; see also Musladin, 127 S. Ct. at 653-54.1/ 5 Despite the Supreme Court's guidance in this area, the Ninth Circuit continues to extend the

6 Hill some-evidence standard of review -- a Supreme Court holding applicable to prison 7 disciplinary hearings -- to habeas petitions challenging denials of parole. Sass v. Cal. Bd. of 8 Prison Terms, 461 F.3d 1123 (9th Cir. 2006) (referencing Superintendent v. Hill, 472 U.S. 445 9 (1985) -- a prison disciplinary case -- for proposition that Board's denial of parole requires 10 some evidence); Irons v. Carey, 505 F.3d 846 (9th Cir. 2007) (pet. for reh'g en banc denied). 11 Furthermore, Greenholtz, the only Supreme Court decision concerning the due process

12 rights of an inmate in the parole context, specifically recognized the procedural distinction 13 between the government denying an inmate parole and the government determining guilt by way 14 of an adversarial proceeding. Greenholtz, 442 U.S. at 15-16. Based on this distinction, the 15 Supreme Court determined that a denial of parole only requires the state to provide an 16 opportunity for the inmate to present his case and an explanation for the parole denial -- not 17 additional protections, such as those in an adversarial proceeding. Id. (reasoning that "to require 18 the parole authority to provide a summary of the evidence would convert the [parole19 consideration] process into an adversary proceeding and to equate the Board's parole release 20 determination with a guilt determination"). 21 As a result, for AEDPA purposes, the Hill some-evidence standard of review required for

22 prison disciplinary hearings should not apply to a federal habeas proceeding challenging a parole 23 24 25 26 27 28 1. Likewise, the Ninth Circuit has recently affirmed this principle in a number of cases. See e.g., Foote v. Del Papa, 492 F.3d 1026, 1029 (9th Cir. 2007) (affirming district court's denial of habeas claim alleging ineffective assistance of appellate counsel based on an alleged conflict of interest because the Supreme Court has never held -- even though the Ninth Circuit has -- that such an irreconcilable conflict violates the Sixth Amendment); and Nguyen v. Garcia, 477 F.3d 716 (9th Cir. 2007) (holding that because the Supreme Court had not extended a defendant's right to counsel -- established in Wainwright v. Greenfield, 474 U.S. 284 (1986) -- to a competency hearing, federal law was not clearly established for AEDPA purposes).
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1 denial. However, Respondent recognizes that the Ninth Circuit has held otherwise and will 2 argue this case accordingly. 3 4 5 2. Even if the some-evidence standard were clearly established federal law, the state court decisions correctly applied this standard.

Assuming the some-evidence standard applies, Lujao's claim fails under AEDPA because

6 the state court decisions were not contrary to, and did not involve an unreasonable application of, 7 this "minimally stringent" standard. The some-evidence standard of review "does not require 8 examination of the entire record, independent assessment of the credibility of the witnesses, or 9 weighing of the evidence;" rather, it is satisfied if there is "any evidence in the record that could 10 support the conclusion reached by the [Board]." Hill, 472 U.S. at 455-57; see also Sass, 461 11 F.3d at 1129 (stating that "Hill's some evidence standard is minimal"). 12 California law requires that some evidence support the Board's decision to deny parole. In

13 re Rosenkrantz, 29 Cal. 4th 616, 658 (2002). Therefore, the state court decisions at issue here 14 applied the correct federal standard. Even so, when the state court holdings fail to provide a 15 reasoned explanation, as they do here, the reviewing court must independently review the record 16 to determine whether the state court decisions were a reasonable application of federal law. 17 Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). 18 Here, the state court denials were a reasonable application of the some-evidence standard of

19 review, because the Board's decision contains evidentiary support. 20 First, the Board relied on the gravity of the commitment offense as dictated by California

21 Penal Code 3041(b). (Ex. D, at pp. 29-30; see also Ex. B [describing severity of the murder].) 22 Second, the Board relied on Lujao's failure to participate in self-help programs, specifically

23 those addressing his anger issues. (Ex. D, at pp. 30-33.) Lujao acknowledged that in the four 24 years leading up to his 2006 parole hearing, he had not participated in any anger management or 25 self-help programs. (Id. at p. 14.) He also acknowledged that he committed the murder because 26 he lost control of his emotions. (Id. at p. 17.) Yet, Lujao squabbled with the Board concerning 27 his need for anger therapy, and remarked, "I am in control of myself, and I know what I am 28 doing so, I don't really need it for myself." (Ex. D, at p. 13.)
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Lastly, the Board relied on Lujao's lack of realistic parole plans and his failure to develop a

2 marketable skill. (Id. at p. 33.) Again, the Board's finding contains evidentiary support. Lujao 3 even acknowledged that he had not learned a marketable skill or trade since his last parole 4 hearing, when the Board had recommended that he learn one. (Id. at pp. 10-11, 13.) 5 Furthermore, Lujao rationalized his failure to learn a skill by telling the Board that all the trades 6 he could learn would not be beneficial in the Philippines. (Id. at p. 13.) 7 Accordingly, the Board's denial is supported by some evidence. Therefore, the state court

8 denials of Lujao's habeas petitions were not an unreasonable application of the some-evidence 9 standard of review. 10 B. 11 12 The State Court Decisions Upholding the Board's Parole Denial Reasonably Determined the Facts.

Under the second AEDPA standard, a federal court may grant habeas relief if the state court

13 decisions were based on an unreasonable determination of the facts in light of the evidence 14 presented at the state court proceedings. 28 U.S.C. § 2254(d)(2). 15 Here, the exhibits Lujao presented at the state court proceedings, such as the probation

16 officer's report, and the 2006 parole consideration hearing transcript, are identical to the exhibits 17 he presents in his current petition. These exhibits all support the Board's findings, and, 18 therefore, Lujao has not demonstrated that the state court decisions were based on an 19 unreasonable determination of the facts. 20 Indeed, the Board relied on accurate information with regard to determining Lujao's parole

21 suitability. In addressing the commitment offense, the Board relied on Lujao's 2004 Life 22 Prisoner Evaluation Report, which was based on the facts presented in the Probation Officer's 23 Report. (Ex. D, at p. 7; Ex. C, at p. 1.) In addressing Lujao's failure to participate in self-help 24 programs and his failure to learn a marketable skill, the Board relied on Lujao's testimony and 25 his 2006 Life Prisoner Evaluation Report. (Ex. D, at p. 10; Ex. E, at pp. 3-5.) 26 Lujao does not allege nor provide any evidence to suggest that these documents contained

27 inaccurate information. As a result, the record indicates that the Board relied on accurate 28 information, and it did not base its decision on an unreasonable determination of the facts.
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CONCLUSION Lujao fails to demonstrate a basis for relief under AEDPA's two standards permitting a

3 habeas remedy after a state court has already adjudicated the same issue. Under the first 4 standard, the state court's adjudication of Lujao's claim was not contrary to, or an unreasonable 5 application of, clearly established federal law, as determined by the United States Supreme 6 Court. Lujao received all process entitled under Greenholtz, and -- although not required by 7 clearly established federal law -- some evidence supports the Board's decision. Under the 8 second AEDPA standard, the record reflects that the evidence presented at the parole hearing, 9 such as Lujao's testimony, and his 2004 and 2006 Life Prisoner Evaluation reports, accurately 10 reflected the facts. Thus, Respondent respectfully requests that the petition be denied. 11 12 13 14 15 16 17 18 19 20 21 22 23
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Dated: March 17, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYA M. BINSACCA Supervising Deputy Attorney General

/S/ BRIAN C. KINNEY BRIAN C. KINNEY Deputy Attorney General Attorneys for Respondent

24 25 26 27 28

SF2008400425

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: Case No.: I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On March 17, 2008, I served the attached ANSWER TO THE ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Simeon Lujao (D-94153) Correctional Training Facility P.O. Box 689 Soledad, CA 93960-0689 In pro per I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on March 17, 2008, at San Francisco, California. Simeon Lujao v. Ben Curry, Warden C 07-4900 VRW (PR)

R. Panganiban Declarant

/S/ R. Panganiban Signature

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