Free Motion to Dismiss - District Court of California - California

Case 4:07-cv-04713-CW

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EXHIBITE

Case 4:07-cv-04713-CW
Name: Address:

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PEDRO

FELIC\I:M~,O'

P.O. BOX 689 SOLEDAD, CA 93960-0689,

_

CDC or ID Number:

C-59854 --------;-------

E042143

COURT OF APPEALS . FOURTH APPELLATE DISTRICT
(Court)

PEDRO FELICIANO,
Petitioner vs.

PETITION FOR WRIT OF HABEAS CORPUS

No.

B. CURRY, WARDEN, et. ai.
Respondent

-'_ (To be supplied by the Clerk of the Court)

£042143

INSTRUCTIONS - READ CAREFULLY.
· · If you are challenging 'an order of commitment or a criminal conviction and are filing this petition in the

Superior Court, you should file It in the county that made the order,
If you are challenging the conditions ofyour confinement and are filing this petition in the Superior Court, you

should file it in the county in which you are confined
· Read the entire before answering any questions.

.

· . This petition must be clearly handwritten in ink or typed. You should exercise care to make sure .all answers are true .and correct. . Because the petition includes 'a verification, the making of a statement that you know is false may result in a conviction for perjury, · Answer all applicable questions in the proper spaces. If you need additional spaces, add an extra page and indicate that your .answer is "continued on additional page."

·

If you are filing this petition in the Superior Court, you need file only the original unless local rules require additional copies.
Many courts require more copies.

· ·
· ·

If you are filing this petition in the Court of Appeal, file the original and four copies. If you are filing this petition in the California Supreme Court, file the originaland thirteen copies.
Notify the Clerk of the Court in writing if you change your address after filing your petition. In most cases, the law requires service of a copy of the petition on the district attorney, city attorney, or city prosecutor. See Penal Code section 1475 and Government Code section 72193. You may serve the copy by mail.

Approved by the Judicial Counsel of California for use under Rules 56.5 and 201(h)(1) of the California Rules of Court. [as amended effective January 1, 1999]. Subsequent amendments to Rule 44(b) may change the number of copies to be furnished the Supreme COUli and court of appeal.
FormApprovedby the JudicialCounselof California MC.275 [Rev. January I. 1999]

PETITION FOR WRIT OF HABEAS CORPUS

Pageone: of six PenalCode § 1473elseq. Cal. Rulesof Court. rules 55.5. 201(h)

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This petition concerns:

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A conviction
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2.

Where are you incarcerated?_ Why are you in custody?

CORRECT IONAL TRAINING FAC I L I TY-SOLEDAD MURDER IN THE FIRST DEGREE· AND ATTEMPTED MURDER

3.

Answer subdivisions a. through i. To the best ofyour ability.
a. State reason for civil commitment or, if criminal conviction, state nature of offense and enhancements (for example, "robbery with use of deadly weapon").

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b. c.
d.

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187 PC; and 664/187 PC
SAN BERNARDINO -'--"'SUPERIOR COURT ---=-'-..::=._

Name and location of sentencing or committing court: Case number: _ _~
SCR -"'39275

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e. f.
g.

Date convicted or committed: Date sentenced:

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Length of sentence: 'When do you expect to be released? ~

27 YEARS TO - LIFE - - - - - - - - - - - . , - - . . . , . . . . - - - - - ----r-r-

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1.

UNKNOWN

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Were you represented by counsel in the trial court?

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Yes.

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No: If yes, state the attorney's name and address.

4.

What was the LAST plea you entered? (Check one)

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Not guilty

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Guilty

0

Nolo Contendre

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Other. ;

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5:

If you pleaded not guilty, what kind of trial did you have?

Q9

Jury

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Judge without jury

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S~lbmitted on transcript

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Awaiting trial

MC-275 [Ro\'.

)'111"'' ' I, 1999

PETITION FOR WRIT OF HABEAS CORPUS

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)W,{xn~l\1i~~XXXXXXXX~..~I1OO.KJ{X .

THE SAN BERNARDINO SUPERIOR COURT FAILED TO APPLY THE PROPER CONTROLLING LAW TO THE ISSUES RAISED IN THIS WRIT THUS VIOLATING PETITIONER'S CONSTITUTIONAL RIGHT TO EQUAL PROTECTION,

a. Supporting facts: The Second District Court of Appeal in In re Wen Lee, 143 Cal,App.4th (2006), stated: "Besides not being especially atrocious, heinous or callous, Leeis crimes have little, if any, predictive value· for future criminality." Petitioner submits that as in Lee, his crime has no predictive value for future criminality and should not be a factor in
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parole consideration. The Cotirt in Lee added, liThe test isAwhether some evidence supports the reasons the Governor (Board) cites for denying parole, but whether some evidence indicates a parolee's release unreasonably endangers public safety." Also, in In re Weider, the Sixth Appellate Distric't, 2006 DJDAR 15795, stated: "Dannenberg clarified that, in finding an inmate unsuitable for parole, the Board may rely solely upon the circumstances of the crime. Dannenberg recognized, however, that reliance upon the circumstances of the prisoner's offense alone might contravene the 'inmate's constitutionally protected expectation of parole. Quoting Rosenkrantz the Court explained, 'such a violation could occur, for example, where no circumstances of the offense reasonably could be consid~red more aggravated or ~iolent than the minimum necessary to sustain a conviction for that offense.
til

b. Supporting cases,rules, or other authority: In re Wen Le~, 143 Cal.A~p.4th 1400 (2006) In re Bernard Weider, 2006 DJDAR 15795

MC·275 [Rev.January 1. 1999)

PETITION FOR WRIT OF HABEAS CORPUS

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GROUND FOR RELIEF . Ground 1: State briefly the ground on which you base your claim for relief For example, "the trial court imposed an illegal enhancement." (If you have additional grounds for relief, use a separate page for each ground. State ground 2 on page four. For additional grounds, make copies of page four and number the additional grounds in order.)

SEE ATTACHED

a.

Supporting facts: Tell your story briefly without citing cases 01: law. If you-are challenging the legality of your conviction, describe the facts upon which your conviction is based. If necessary, attach additional pages. CAUTION: you must state facts, not conclusions. For example, if you are claiming incompetence of counsel you must state facts specially setting forth what your attorney did or failed to do and how that affected your trail. Failure to allege sufficient facts willresult in denial ofyou petition. (See in Swain (1949) 34 Ca1.2d300,304.). A rule of thumb to follow is: who did exactly what to yiolate your rights at what time (when) or place (where) . . (If available, attach declarations, relevant records; transcripts, or other documents sup\?orting your claim). .

SEE ATTACHED

b.

Supporting cases, rules, or other authority (optional): (Briefly discuss. or list by name and citation, the cases necessary, attach an extra page.)

0;' other authorities

that you think are relevant to your claim. .

If

SEE ATTACHED

MC-275.tRc:v. January I, 19q91

PETITION FOR WRIT OF HABEAS CORPUS

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7. Ground 2 or Ground

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ll!":LjJplicable):

SEE ATTACHED

a.

Supporting facts:

SEE ATTACHED

b. Supporting cases, rules, .01' other authority:

SEE ATTACHED

PETITION FOR WRIT OF HABEAS CORPUS

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TABLE OF CONTENTS TITLE
Cover Table of Contents Points and Authorities Judicial MC-275 Ground 1 Ground 2 Conclusion

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Prayer for Relief
Proof of Service by Mail Exhibit 'A' (Hearing Transcript 2004) Exhibit 'B' (Psychological Evaluation) Exhibit 'C' Life Prisoner Evaluation. Report (LPER) Exhibit 'D~ (Previous Decisions 1998,2000 & 2002)

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69-73

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TABLE OF AUTHORITIES AUTHORI).'Y CONSTITUTIONAL AUTHORITIES
U.S. CONSTITUTION, AMENDMENT 7, 14 5,6,9, 10, 11, 13, 14 5, 6,9, 10, 11, 13, 14

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PAGE

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CALIFORNIA CONSTITUTION, ARTICLE I, SECTIONS 7,15

FEDERAL CASE LAW
Bigg~ v. Terhune, (2003 9 th Cir.)
334 F.3d 910 Greenholtz v. United States (1987) 100 Ca1.3d 794. McQui1lion v. DelCan, (9 th Cir.) 306 F.3d 895 ~ 5,6,8,9,10 10 5,6

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STATE CASELAvV
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California v. Morales, (1975) 11~ S.Ct. 1597 15 Inl:e Capistran, (2003) 107 Cal.App.d" 1299 16 In Ie Caswell, (10/1 % 1) 92 Ca1.AppA th 1017 17 In re Jacks011; (1985) 39 Cal.App.Srd 464 18 In re Minnis, 19 7 Ca1.3d at p. 647 In re N0D11an MOITall, (2002) 20 102 Cal.App.d" 280 In re Edward Ramirez, (2001); 21 94 Cal.App.s" 549 In re Rodrigi.lt~z, 22 . (1975) 14 C.3d 639 Iri re Rosenkrantz (2002) 23 29 Cal.App.d" 659· 24 In re Rosenkrantz, 95 Cal.App.d'" 358 25 In reo George Scott 119 Cal.App.d'" 26 In re Mark Smith, (2003) Cal.App.d" 343 27
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5, 6, 8, 13, 14 5,6,9,1013, 14 13,14 5,6 13, 14

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TABLE OF AUTHORlTIESPAGE 2

PENAL CODE

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§ 3000(b)(I)
§ 3041(a) §3041(b) § 3041.5
§ 3041.5(b)(2)

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. 10, 11
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§ 5076.2

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CALIFORNIA CODE of REGULATIONS CCRSECTION PAGE

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CCR § 2000(b) (48) [Good Cause] CCR § 2000(b) (61) [Material Evidence] CCR § 2000(b) (89) [Relevant Evidence] CCR § 2400 et seq.

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§ 2282(a)
§ 2402(a) § 2402(c)(1)(D) § 2403(c)

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§ 3375.2(7)(A)

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THE BOARD OF PRISON TERl\1S ILLEGALLY USED PENAL CODE SECTION 3041(b) [THE EXCEPTION] TO FIND PETITIONER UNSUITABLE FOR PAROLE. AS THERE IS NOT A MODICUM OF EVIDENCE THAT PETITIONER IS A CURRENT THREAT TO SOCIETY OR OTHERvVISE UNSUITABLE FOR PAROLE THE DECISION WAS ARBITRARY AND CAPRICIOUS VIOLATING PETITIONER'SSTATE AND FEDERAL DUE PROCESS RIGHTS.

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On AUGUST 31, 2005, Petitioner PEDRO FELICIANO, C-59854 (hereinafter "Petitioner"), was provided a Life Term Parole Consideration Heming before the Board of Prison Tenus (hereinafter "Board", "BPT",. or "Panel"); Please refer to Exhibit' A' which is the Hearing Transcript (hereinafter "HT" or "Transcript"). Said Hearing was Petitioner's FOURTH parole suitability hearing. Petitioner's Minimum Eligible Parole Date (hereinafter "MEPD"), was JUNE 16, 2000. 1 The purpose of this BOaTd hearing was for the setting of Petitioner's telm to his offense and for a finding of suitability for parole (See Penal Code § 3041.5; In re Edward Ramirez, 94 Cal.App.d'? 541 (2001); McQuillion v. Ducan, (9th Cir.) 306 F.3d 895; In re Nomlan Morrall, (2002) 102 Cal.AppA th 280; In re Rosenkrantz, (2002) 29
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uniformly

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Cal.App,4th 660; In re Mark Smith, (2003) Cal.AppA th 343; and the recent Biggs v. Terlmne, (2003 9th Cir.}334F.3d910. The result of this Board hearing was an erroneous and unlawful finding of unsuitability and
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a release date was not set. Instead, Petitioner was given a two (2) year denial and did not appeal this decision through the administrative remedy because the Board has eliminated the BPT Appeals Unit and no longer allows for the filing of administrative q.ppeals on BPT denials
1 .; The Court of Appeal in In re George Scott, (2004) 119 Cal.AppAth 871, reaftlnlled th~ rationale of the Ramirez and Smith Courts when it declared "...parole is the rule, rather than the exception, arid conviction for 1h second degree murder does not automatically render one unsuitable. (In re Smith, (2003) 114 Cal.AppA 343, lh 366). Inre Ramirez, supra, 94 Cal.AppA 549' ...[a]ll violent crimes demonstrate the perpetrator's potential for posing a grave risk to public safety, yet parole is mandatory for violent felons serving determinate sentences. ' Penal Code § 3000 subd. (b)(1).) And the Legislature has clearly expressed its intent that when murders .: who are the great majority of inmates serving indeterminate sentences - approach their minirnum eligible parole date, the Board shall normallv set a parole release date..." (id. at p. 570). ' 2. - The Court of Appeal on June 24, 2004, in In re George Scott, supra, 119 Cal.App.d" at 887 fn. 7, also reaffirmed the Legislative Intent of Uniform terms by stating: "The first two sentences of the DSL declare 'that the purpose of imprisonment fora crime is punishment' and that [t]his purpose is best served by terms proportionate to the seriousness of the offense with provisions for uniformity in the sentences of offenders committing the same offense under similar circumstances. (Penal Code § 1170, subd. (a)(1).) Nothing in the DSL or its legislative history suggests that legislative concern with uniformity was limited to those serving determinate terms. Penal Code § 3041 shows that this interest does extend to individuals such as [this Petitioner] who are serving indeterminate life terms. (Id., citing Ramirez, supra 94 Cal.App.d" at 559).

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of parole for indeterminately sentenced prisoners such as Petitioner. Petitioner submits that the
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Board's regulation, that is the California Code of Regulations (hereinafter "CCR"), § 2402(a) DEMANDS that the Board set a release. date unless Petitioner CURRENTLY presents an ,
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unreasonable risk of danger to the public. Petitioner subinits that the representing District Attorney did not provide any new and/or additional evidence whatsoever that Petitioner is an unreasonable risk of danger to thepublic or otherwise unsuitable for parole. Additionally, Petitioner submits that the Board speaks in meaningless generalities and fails to address the exact nature of Petitioner's CURRENT character. By not doing so, theBoard violated the intent and spirit of Penal Code (hereinafter '.'PC'), § 3041.5
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and In re Ramirez,

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supra, which dictates that the Board shall normally set a parole release date. (citing Biggs v. Terhune, supra); TheCourt in Biggs, supra, held that the Board's continueduse of the crime (or any other unchanging circumstances) as a basis for denial ofparole when Petitioner's Institutional Behavior remains exemplary may be a violation of both State and Federal Due Process. For the past ten (10) years, Petitioner has had no occurrence of serious or violent disciplinary action, thus exemplifyinghimself

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as a model prisoner. Petitioner seeks

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acknowledgment of the facts that since 1995, there has been thereafter a continuous ten (1 0) . year history free of any disciplinary action or occurrence.. Petitioner submits that the Board's failure to uniformly measure his offense and set his term proportionately to others similarly situated and to find him suitable forparole violates both State and Federal dueProcess. Also; , the current policy ofthe Board, which will be discussed more fully infra, is the setting of a parole date which is all too often the exception rather than the norm, and thus violates Petitioner's Liberty Interest that is present in a parole date; lnre Rosenkrantz, supra; McOuillion v. Ducan, supra; Biggs v. Terhune, supra. At the Petitioner's board hearing the

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3 -' There is no evidence that the crime is "particularly egregious" to justify the use of the exception clause of PC § 3041(b); In re Norman Monall, supra, the court concluded "[WJe agree that an inmate cannot be denied parole' simply on the type of offense he committed." (See also In re Minnis, 7 Ca1.3cl at p. 647). To the contrary, it falls squarely in the Board's own proportionality matrix CCR § 2403(c) at axis B-II. Without post-conviction credits Petitioner has served twenty two (22) years. Adding post conviction credits he has served twenty seven (27) plus years, essentially reaching his matrix as required. There is no evidence that Petitioner is a current risk or threat to .society and the Board's conclusions are not supported by the record. (See Bi2!!s, supra).

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BPT relied solely on Petitioner's commitment offense and prior history to justify its unlawful finding of unsuitability. Beginning at page 36 of Exhibit 'A', the HT, the Board stated: "The offense was carried out in an exceptionally cruel and callous manner" (line 12-13) "The offense was carried out in a dispassionate ...manner too." (lines 26) "The offense was carried out in a mamler that demonstrates an exceptionally callous disregard for the safety of others." (37 lines 14-15)

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III addition; and with regard to the Petitioner's suitability, the board elTed in disregarding
Petitioner's Mental Health Evaluation which is supportive of release (please refer to HT
DECISION pg. 38 lines 22-24 line). Petitioner's Psychiatric Reports have been much instructive. Specifically, Dr. J. .Reed, Ph.D., CTF-Soledad, Staff Psychologist, stated: "There is no evidence of a mood or thought disorder" (See Exhibit 'B' pg. 1, Psychological Evaluation, Current Mental Status) "He demonstrated empathy for the damage done to the victims, including his ex-wife, her boyfriend, and his three children." (Id., Review of Life Crime, p. 2)
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"He seems genuinely penitent for his crime and appears to understand the causative factors leading to the instant offense." (Id., p. 2) "He seems committed to never using violence to solve 'problems again." (Id.,

p. 2)

And under "Assessment of Dangerousness" Dr. J. Reed stated: "His risk for violentbehavior within a controlled setting is considered to be low relative to this level II inmate population in a prison setting." (Id., p. 2) "If released to the community, clinically assessed, his risk for violence is expected to be average to that of the average citizen in the community." (Id., P. 3) "There ate no significant risk factors or precursors to violence for this individual." (Id., p. 3) Additionally, the Board ignored that Petitioner has been deemed by the Califomia
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Department of corrections a Model prisoner with A~l-A status, and Not a threat to society, and

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that Petitioner's crime is not "particularly egregious" (especially cruel and callous) by placing ·Petitioner in a Leyel Il prison setting.
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Also, in the Life Prisoner Evaluation Report (hereinafter "LPER") attached as Exhibit 'C', Petitioner's Correctional Counselor, CC-I Palmer, states:

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"Based on the commitment offense, prior prison record, and prison adjustment, FELICIANO would probably pose a low risk to the public, if released from prison. FELICIANO has remained disciplinary free since 1984. He has been an active participant in self help and therapy programs throughout the year of 1999 and 2002. FELICIANO received a recent NAJAA laudatory chrono dated
2/22/2004 for showing his ability to comprehend all aspects of the Twelve Step

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Program. FELICIANO also has learned a trade in upholstery while in prison and would like to pursue his trade as possible employment. This writer believes that FELICIANO has shown positive programming adjustment while in prison and deserves consideration for parole." .On Page 6, CCI Palmer, documents that FELICIANO attended a Millati Islamic 12 week (Path to Peace) Anger Management program (2/20/02) and also a Life Skills program (8/25/99). 0 n
2/25/02 he also attended a 9 week Impact Program, (Exhibit 'C' p. 7)

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Again, in In re Norman G.MolTall, supra, the Court concluded; "A refusal to consider the particular circumstances relevant to an inmate's individual suitability for parole would be
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contrary to law." Moreover, the Court in Biggs, supra, addressed the Board's continued illegal use of the crime and/or prior history to justify a denial. of parole:
4. California Code of Regulations, Title 15, section 3375.2 subd. (7)(A) states: "An inmate serving any life term shall not be housed in a Level I or II facility if any ofthe following case factors are present: The Commitment Offense involved... unusual violence...." And on June 24, 2004, the Court of Appeal in In re Geor~e Scott, supra, 119 Ca1.AppA1h at 892 fn. 11, found that the Board's regulations provide that even ifthe Clime is "exceptionally callous" an inmate may be found suitable for parole. The Court declared that "Under the Board regulations, base terms for life prisoners are not calculated until after an inmate is deemed suitable for release. (§ 2282, subd. (a).) The regulations therefore contemplate that an inmate may be deemed suitable for release even though his offense demonstrated "exceptionally callous disregard for human suffering." (§ 2402, subd, (c)(1)(D).)" (Id)

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" ... a continued reliance...

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an unchanging factor, the circumstances 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". (Biggs, supra, 334 F.3d at 917).
In Biggs, supra, the appeal was pursuant to his initial suitability hearing. The Petitioner has now had FOUR Board hearings and submits that his most recent denial rests solely on the commitment offense, (as did his previous hearings in 1998, 2000, and 2002, included hereinas Exhibit 'D"), and therefore violates both State and Federal Due Process. Most importantly, there is no evidence that the public safety requires a l,engthier period of incarceration (please refer to PC § 3041.(b)), in relation to other instances of the same crime please refer to PC §
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3041.5. Petitioner submits that understanding and perspective of the crime is compelled by the Board's own proportionalitymatrix (please refer to CCR Division 2, § 2403(c). The matrix scale and rating of the more common and routine variations of murder appear to a codification of when a crime ofthis nature can be more egregious than average. Petitioner submits that his crime falls squarely in the matrix {cate'g6ryNONE,
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years]. With-post conviction credits, Petitioner has exceeded the maximum by-more than-five (5) years and without-post conviction credit application, Petitioner has servedhis matrix, The : Board fails in any attempt to substantiate why Petitioner's crimeis so heinous as to require that Petitioner be exempted time and time again from the g-eneral rule that a parole date shall normally be set; please see hue Ramirez, supra, wherein the court states:

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"The Board must weigh the inmate's criminal conduct not against ordinary social norms, but against other instances of the same crime or crimes. (Ramirez, supra, Cal.App.d'" at p. 570).
Petitioner submits that the record is devoid of the Board making such a comparison. Similarly, Petitioner's Psychiatric Report evidence, like Biggs, supra, is supportiveofrelease; contrary to the Board's erroneous mid specious findings (please see Exhibit 'A' and 'B'). The court in Big:gs, addressed the Board's illegal usage of needed therapy and other illegal reasons

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to justify a highly illegal denial. the Court concluded:

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"The record in this case and the transcript of Biggs' hearing before the Board clearly show that many of the conclusions and factors relied upon bv the Board were devoid of eVidentiary basis." (Biggs, supra, 334 F.3d at p. 915)
The Court in Biggs, supra, went on to warn the Board that while there was "some evidence" to use the clime as a basis for denial at his initial hearing, the board's continued use of the crime as a basis for continual denials would be a violation of Biggs Federal due process rights. Petitioner submits that the Board's sole usage of the initial commitment offense and/or prior social history, on a continual basis to deny him a parole date has violated his sth and 14th Amendment rights under the United States Constitution to not be deprived of his liberty.

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"[T]o ensure 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 the state statute to be considered. but also the concepts embodied in the Constitution requiring due process of law... "[Please see e.g. in Greenholtz, 442 U.S. at 7-8.]."
~,supra, 334

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F.3dat p. 916)

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"The Parole Board's sole supportable reliance

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the gravity of the offense and

conduct prior toImprisonment to justify denial of Parole can be initially justified as fulfilling the requirements set forth by state law. Over time however, should B-iggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denving him a parole date simplY because of the nature of his offense and prior conduct would raise serious questions involving his liberty interest in parole...(Id)
. Petitioner. also submits that the Board has adopted an anti and/or no parole policy per se, or a policy of under-inclusion demonstrating a policy of systematic bias; granting only an approximate 232 parole dates out of over 11,000 parole hearings, thus violating the legislative intent of PC § 3041(a) that; " ...a parole date shall n01111allv be set in a manner that will provide uniform terms for offenders with crimes of similar gravity and magnitude...". And, violating

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Petitioner's State and Federal due process rights as well (please" see In re Ramirez; supra, at" page 565). Petitioner contends that the evidenced behavior by a" quasi-judicial Board, of a " policy demonstrating an approximate 98.5% denial rate, supports the prem.ise that such a policy exists (i.e. anti andlor no parole policy of under-inclusion or systematicbias): this policy violates the strictures of substantive due process.
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The existence of said policy in denying parole may explain why the Board only grants parole in less than two (2) percent of the cases it hears; it also explains the bias demonstrated in the present case. In this case, Petitioner's own circumstances, the Board's pronouncement ofnumerous unlawful conclusions, not supported by the record, violates the process due to Petitioner under the State and Federal Constitutions. Based upon the herein-demonstrated bias, the Board's decision cannot be shielded by the "someevidence" standard. The only appropriate remedy is an" independent review.

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Case 4:07-cv-04713-CW

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1

PETITIONER'S

RIGIlT

TO

HAVE

SEPARATELY

STATED

AND

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SPECIFICALLY DIRECTED (SEPARATE AND DISTINCT) REASONS WHEN GIVEN A MULTI-YEAR DENIAL WAS NOT PROTECTED BY THE BPT IN VIOLATION OF HIS STATE. AND FEDERAL CONSTITUTIONAL DUE

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PROCESS PROTECTIONS AND CbNTRADICTORY OF THE LEGISLATIVE INTENT OF PENAL CODE § 3041.5(b)(2).
1. The statement ofreasons for a multi-year denial must be a separate and distinct

statement that is not a mere recital ofthe same reasons used to deny parole worded slightly differently. 2. In denying Petitioner parole for a period of two (2) years, the BPT failed to cite its reasons for a multi-year denial. 3. The BPT's stated reason for parole denial "vas: "The.offense was carried out in an especially cruel and callous manner. On June 15, 1982, Mr. Rodriguez and Ms. Hernanclez, the estranged wife of Pedro Feliciano, pulled up in front' of his apartment. There was a conversation, Mr Feliciano went inside of his apartment carne out - or came into the doorway brought arifle a .22 Caliber automatic rifle from his house, stood in the doorway fired two to four shots in the direction of the victim striking Rodriguezin the neck mid Mrs. Hernandez - Ms. Hernandez, his estranged wife, in the head. Subsequently, Mr. Rodriguez was injured - was able to .drive away out of harm's way and Ms. Hemandez wasptonounc~d dead at the Lorna Linda Medical Center. That's particularly callous and was clearly carried out in a dispassionate calculated manner," (Exhibit 'A' p. 36) 4. The BPT's stated reason for a multi-year denial was; NOT GIVEN. 5. A multi-year denial can only be applicable when valid grounds exist to find Petitioner unsuitable for parole. Petitioner has adequately established in his argument ante that the ,BPT's reasoning for denying parole was unsubstantiated, lacking even "some evidence" that he is CURRENTLY an unreasonable risk to the public and was therefore arbitrary, capricious, lacked basis in fact, and/or was contrary to law.

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Supportlng cases:
"If the Legislature had intended a single statement of reasons to suffice for both the

refusal to set a parole date and the decision to postpone annual review, it would not have enacted language specifically calling for a statement of reasons on the latter...Accordingly, this Court holds the Board to the Legislative requirement that its reasons for postponing a suitability hearing be separately stated and specifically . directed to that question." In re Jackson, (1985) 39 Cal.App.3d 464

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Penal Code § 3041.5(b)(2) that requires a separate and distinct statement that is not a mere recital of the same reasons used to deny parole worded slightly differently. Penal-Code § 5076.2 CCR § 2000(b) (48) [Good Cause]; (61) [Material Evidence]; [RelevantEvidence] CCR § 2400 et seq. California Constitution Article I §§ 7, 15 [Due Process]
U.~.

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Constitution Amendment 14 [Due Process]

In re Capistran, (2.003) 107 Cal.App A th 129~ In re Morrall, 102 Cal.Appo4t~l 280 . Inre Rosenkrantz, 95 Cal.App.d'" 358 In re Ramirez, 94 Cal.App.s" 549 lIne Caswell, (10110/01) 92 Cal.Appo4th 1017 In re Rodriguez, (1975) 14 C.3d 639 . Califomia v. Morales, (1975) 115 S.Ct. 1597

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CONCLUSION . The Board's decision was arbitrary and capricious. The Petitioner did not receive a fair hearing, 110r will he ever.

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Petitioner submits and contends that the finding of unsuitability was arbitrary and capricious: I). Due to the Board carrying out it's political function of adhering to a no or anti-parole policy; 2). Due to the Board's acting contrary to the intent and spirit of PC § 3041 (a); 3). Due to basing its decisions on unsupported allegations; and 4). Due to the Board's refusal to adhere to aforementioned decisions and the controlling authorities.
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Petitioner prays this Court order him released and lor discharged, or at the very least, direct the Board to issue a decision within ten (-10) days granting parole.settinghis termvuniformly" as mandated by the legislature.

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- - - - ,.--- ..---..

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---.

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... ..__ .._---_._-_._-_._-_

-_..

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PRAYER FOR RELIEF

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1. Issue an Order to Show Cause on an expedited basis. 2. Appoint Counsel. 3. Conduct an Evidentiary Hearing. 4. Order Petitioner's appearance before the Court.
5. Order Petitioner-taken back before the Board for a finding of suitability within ten (10)

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days, or in the altemative, order Petitioner released forthwith; 6. Declaratory relief, and 7. Any other relief this Court deems fair, just and appropriate.

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-_ __...__._.. __.__ .._--_._-_.--_..
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Case 4:07-cv-04713-CW
8.

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Did you appeal from the conviction, sentence, or commitment? DYes. D No. If yes, give the following information: a. . Name of court ("Court of Appeal" or "Appellate Dept. of Superior Court"):

b. d. e.

Result:

------------------------- c.
-:..-'--

Date of decision:

-----------_ _ ---, --,..,
_

Case number or citation of opinion, if known: Issues raised: (1) (2)
(3) -'----,-

-'---

f.

Where you represented by counsel on appeal?

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Yes.

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No. If yes, state the attorney's name and address, if known:

9.

Did you seek review in the California Supreme Court? DYes. . a. c. c. Result: Case number or citation of opinion, if known: Issue raised: (1)
(2) ---:

0

No. If yes, give the following information: _ _ _
_

-

-,...._ _ b. Date of decision: .,.---,----'-

(3)

---------,....-----------------------------------,--, .

10. If your petition makes a claim regarding your conviction, sentence, or commitment that you or your attomey did not make on appeal, explain why the claim was not made on appeal: .

11. Administrative Review: a. If your petition concerns conditions of confinement or other claims for which there are administrative remedies, failure to exhaust administrative remedies may result in the denial of your petition, even if it is otherwise meritorious. (See in re Muszalski (1975) 52 Cal.App.3d 500 [125 Cal. Rptr. 286].) Explain what administrative review you sought or explain why you' did not seek such review:

. b. Did you seek the highest level of administrative review available? Yes. No. IIttach documents thai show you have exhausted your udministrative remedies.
Me·2;5 [Rev. Juttuury I. 1999J

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PETITION FOR \OVRlT OF HABEAS CORPUS

P;J/?e five of six.

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12. Other than direct appeal,have you'fil;,..;'"any other petition, applications, or motions Wl ·... respect to this conviction, commitment, issue in any court? Yes. If yes, continue with number 13. No. Ifno, skip to number 15. .

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B.a.

(l)Nameofcourt:

~

-.,.... ---,-

-,--_ _ ----'-_

(2) Nature of proceeding (for example, "habeas corpus petition"): (3) Issues raised: (a) (b) --'---'-

_

(4) Result (Attach order or explain why unavailable): (5) Date of decision: b.
(l)Nameofcourt:_~

-'-_ _-'-_--,.

_

-'-___'

-------------___' -'-----

(2) Nature ofproceeding: (3)Issues raised: (a) (b) -,--

-----'------------------------'_-'--_ _~ _ -,--_

(4) Result(Attach order or explain why unavailable):
(6) Date of decision: _ _-'-c.
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For additional prior petitions, applications, or motions, provide the same information on a separate page.

14. If any of the courts listed in number 13 held a hearing, state name of court, date of hearing, nature of hearing, and result:

15. Explain any delay in the discovery of the claimed grounds for relief and in raising the claims petition. (See in re Swain (1949) 43 Ca1.2d300, 304.)

16. Are you presently represented by counsel?

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Yes.

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No. If yes, state the attorney's name and address, ifknown:

17.Do you have any petition, appeal, or other matter pending in any court?

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Yes.

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No. If yes, explain:

18.Ifthis petition might lawfully have been made to a lower court, state the. circumstances justifying an application to this court:

I, the undersigned, say: I am the petitioner in this action. I declare under penalty of perjury under the laws of the State of California that the foregoing allegations and statements are true and correct, except as to matters. that are stated on my information and belief, and . ~ ., . as to those matters, I believe them to be true and correct.~

Date:

1

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-"'~'-"",--J-ft;~~I1L;,J1Z~~tii!:.,(J(/.:::.Jh·y~sl~~l~':'1~·u:-li~~~::::~:f=T~IT=~O~NE=R)----------"",c4t:=.

MC-275 [Rev. January I. 1999)

PETITION FOR WRIT OF HABEAS CORPUS

Pageslx of six.