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EXHIBIT C
Case 4:07-cv-04713-CW
Name: Address:_---'-
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PEDR.O FELICIAt:1,'-,_""
, f'
~"
P. O. -BOX - - - - - - - 689 2-321L - -SOLEDAD, CA 93960-0689
C-59854
IN AND FOR THE COUNTY OF SAN BERNARDINO
(Court)
PEDRO FELICIANO,
Petitioner vs.
PETITION FOR WRIT OF HABEAS CORPUS
A.
Respondent
KANE, WARDEN, et. a1.
No.
------=-==-----...~IiIlIII!!!~_JJ-(To be supplied by the
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.
INSTRUCTIONS -
,'~
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READ CAREFULLY
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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 of your 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.
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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 applicab!e questions in the proper spaces. If you need additional spaces, add an extra page and indicate that your answer is "continued on additional page."
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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 original and 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 Court and court of appeal. Form Approved by the PETITION FOR WRIT OF HABEAS CORPUS Page oneof six
JudicinlCounsel of Cali torula MC·275 [Re\'. JOIllHlI'Y J. 1999] PenalCode 1473et seq. CoL Rules of COUI'I. 1'1I1es 56.5.201 (11)
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Case 4:07-cv-04713-CW
. This petition concerns:
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o o o
1. 2. 3.
A conviction
DA sentence Jailor prison conditions Other (specify): Your name: Where are you incarcerated?_ Why are you in custody?
U:a Parole D Credits' D Prison discipline
PEDRO FELICIANO CORRECTIONAL TRAINING FACILITY-SOLEDAD' MURDER IN THE FI RST DEGREE AND ATTEMPTED MURDER
Answer subdivisions
a.
Q.
through i. To the best ofyour ability.
State reason for 'civil commitment or, if criminal conviction, state nature of offense and enhancements (for example, "robbery with use of deadly weapon").
b. c. d.
Penal code or other code sections:
and 664/187 PC =1-=8:....7'---=P.....;C::....!.;---'~c=..-"'-=:...."-"-=..::'-'---=-....=...
-:-
--'--_
Name and location of sentencing or committing court:.,....- SAN BERNARDINO SUPERIOR COURT__ ~~ _'___'____'__' Case number: S CR 39 2 7 5
e. f.
Date convicted or committed: Date sentenced:
--~----'-----'-------:------'----------:----------
1/27/83
--------------,-------------------------,--27 YEARS TO LIFE --------'-------_------'-------.;------,-----_'__ _
g.
h.
1.
Length of sentence:
When do you expect to be released? _ _ U_N_K_N_O_W_N
Were you represented by counsel in the trial court? ~ Yes'; -D· No. If yes, state the attorney's name and address.
4.
What was the LAST plea you entered? (Check one)
Q9
5.
Not guilty
0
Guilty
0
Nolo Contendre
0
Other:
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-'--
_
If you pleaded not guilty, what kind of trial did you have?
Q9
Jury
o
Judge without jury'
D
Submitted on transcript
D Awaiting trial
MC-275 [Rev.January I. 1999
PETITION FO~ 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 or 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 will result III denial of you petition, (See in Swain (1949) 34 Ca1.2d300, 304.) A rule of thumb to follow is: who did exactly what to violate your rights at what time (when) or place (where), , (If available, attach declarations, relevant records, transcripts, or other documents 'supporting your claim). .
SEE ATTACHED
b.
Supporting cases; rules, or other authority (optional): (Briefly discuss, or list.by name and' citation, the cases or other' authorities that you think are' relevant to your claim. necessary, attach an extra page.)
If
SEE ATTACHED
MC-275 [Rev, January I, 1999)
PETITION FOR WRIT OF HABEAS CORPUS
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7.
Ground 2 or Ground
(i1
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"~}licable):
SEE ATTACHED
a.
Supporting facts:
SEE ATTACHED
b. Supporting cases, rules, or other authority:
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SEE ATTACHED
MC·275 [Rev. January 1,.1999]
PETITION FOR WRIT OF HABEAS CORPUS
Pagefour of six.
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PEDRO FELICIANO C-59854 P .0. BOX 689 ZW - 3 21L ' SOLEDAD, CA 93960-0689 in pro per
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SUPERIOR COURT OF CALIFORNIA IN AND FOR
T~E ~OUNTY
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OF SAN BERNARDINO
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In re FELICIANO Petitioner,
Case No. :
PETITION FOR WRIT OF HABEAS C,ORPUS et aI,
v ..
A.P. KANE, WARDEN CA), Respondent
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TABLE OF CONTENTS
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TITLE
Cover Table of Contents Points and Authorities Judicial MC~275 Ground 1 Ground 2 Conclusion 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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TABLE OF AUTHORITIES AUTHO RITY CONSTITUTIONAL AUTHORITIES U.S. CONSTITUTION, AMENDMENT 7, 14
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CALIFORNIA CONSTITUTION, ARTICLE I,SECTIONS 7,15
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FEDERAL CASE LAW
Biggs v. Terhune , (2003 9(h Cir.) 334 F.3d 910 Greenholtz v. Un ited States (1987) 100 CaD d 794. th MeOuillion v. DrlCan, (9 Cir.) 306 F.3d 895 5,6,8,9, 10 10 5,6
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STATECASE LAW
California v. Mor ales, (1975) 115 S.Ct. 1597 In re Capistran, (2003) , 107 Ca1.AppA th 1299 In re Caswell, (1 0/10/01) 92 Cal.App.d'" 10 17 In re J aekson, (19 85) 39 Cal.App.3rd 464 In re Milmis, 7 Cal:3d at p. 647 In re Norman Mo !Tall, (2002) 102 Cal.AppA t11 2 80 In re Edward Rari lirez, (2001); 94 Cal.App.d" 54 9 In re Rodriguez, (1975) 14.C.3d (5 39 In re Rosenkrantz (2002) 29 Cal.App.d" 65 9 In re Rosenkrantz,,' 95 Cal.App.c" 35 8 In re George Seo tt 119 Cal.AppA th In re Mark Smith, (2003) Cal.App.zl'" 343
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TABLE OF AUTHORITIES PAGE 2 PENAL CODE PAGE
§ 3000(b)(l)
§ 3041(a)
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§ 3041(b)
§ 3041.5
§ 3041.5(b)(2) § 5076.2
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CALIFORNIA CODE of REGULATIONS CCRSECTION PAGE
CCR § 2000(b) (48) [Good Cause] CCR § 2000(b) (61) [Material Evidence] CCR § 2000(b) (89) [Relevant Evidence] CCR § 2400 et seq. § 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 TERMS ILLEGALLY USED PENAL CODE SECTION 3041(b) [THE EXCEPTION] TO FIND PETITIONER UNSUITABLE FOR PAROLE. AS THERE IS NOT A MODICUM OF EVIDENCE THAT PETITIONERIS A CURRENT THREAT TO SOCIETY OR OTHERWISE UNSUITABLE FOR PAROLE THE DECISION WAS ARBITRARY AND CAPRICIOUS VIOLATING PETITIONER'S STATE 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 Hearing before the Board of Prison Terms (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 Board hearing was for the setting of Petitioner's term uniformly 2 to his offense and for a finding of suitability for parole (See Penal Code § 3041.5;' In re Edward Ramirez, 9A Cal.AppAth 541 (2001); McQuillion v. Ducan, (9 th Cir.) 306 F.3d 895; In re Norman Mon"all, (2002) 102 Cal.AppAth 280; In re Rosenlaantz,' (2002) 29
Cal.App.e'" 660; In re Mark Smith, (2003) Cal.App.a'" 343; mid the recent Biggs v. Terhune,
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(2003 9th Cir.) 334 F.3d 910. The result ofthis Board hearing was an erroneous and unlawful finding of unsuitability and 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 appeals on BPT denials
1 - The COUli of Appeal in In re George Scott, (2004) 119 Cal.AppAth 871, reaffirmed the rationale of the Ramirez and Smith Courts when it declared " ...parole is the rule, rather than the exception, and conviction for second degree murder does not automatically render one unsuitable. (In re Smith, (2003) 114 Cal.AppA th 343, 366).Jn re Ramirez, supra, 94 Cal.App.d" 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)(l).) And the Legislature has clearly expressed its intent that when murders - who are the great majority of inmates serving indeterminate sentences - approach their minimum eligible parole date, the Board shalln011llally 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.t'" 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 for a crime is punishment' andthat [t]his purpose is best served by terms proportionate to the seriousness of the offense with provisions for uniformity in the sentences of offenders conunitting the same offense under similar circumstances. (Penal Code § 1170, subd. (a)(l).) 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 Board's regulation, that is the California Code of Regulations (hereinafter "CCR"), § 2402(a)
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DEMANDS that the Board set a release date unless Petitioner CURRENTLY presents an . unreasonable risk of danger to the public. Petitioner subinits that the representing District
Attomey did not provide any new and/or additional evidence whatsoever that Petitioner is all unreasonable risk of danger to the public or otherwise unsuitable for parole, Additionally, Petitioner submits that the Boardspeaks in meaningless generalities and fails to address the exact nature of Petitioner's CURRENT character. By not doing so, the Board 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). The Court in Biggs, supra, held that the Board's continued use of the crime (or any other unchanging circumstances) as a basisfor denial ofparole when Petitioner's Institutional Behaviorremains exemplary may be a violation of both State and Federal Due Process.
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For the past tell (10) years, Petitioner has had no occurrence of serious or violent disciplinary action, thus exemplifying himself as a model prisoner. Petitioner seeks acknowledgment of the facts that since 1995, there has been thereafter a continuous ten (10) 'year history free of any disciplinary action or occurrence. Petitioner submits that the Board's failure to uniformly measure his offense and set his tennproportionately to others similarly situated and to find him suitable for parole violates both State and Federal due Process. Also, the current policy of the 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; In re Rosenkrantz, supra; McQuillion 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 § 304l(b); In re Norman MOlTall, supra, the court concluded "[W]e agree that an inmate cannot be denied parole" simply on the type of offense he committed." (See also In re Minnis, 7 Ca1.3d at p. 647). To the contrary, it falls squarely ill the Board's own proportionality matrix CCR § 2403(c) at axis B-1!. 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 orthreat to society and the Board's conclusions are not supported by the record. (See Biggs, 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:
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"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 manner that demonstrates an exceptionally callous \ disregard for the safety of others." (37 lines 14-15)
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In addition, and with regard to the Petitioner's suitability, the board erred 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) "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)
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And under "Assessment of Dangerousness" Dr. J. Reed stated: "His risk for violent behavior 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 are 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 Department of corrections a Model prisoner with A-l-A status, and Not a t1~eat to society, and
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that Petitioner's crime is not "particularly egregious" (especially cruel and callous) by placing Petitioner in a Level II prison setting.
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Also, in the Life Prisoner Evaluation Report (hereinafter "LPE~") 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 participantin self help and therapy programs throughout the year of 1999 and 2002. FELICIANO received a recent NA/AA laudatory chrono dated
212212004 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 (2/20102) and also a Life Skills program (8125/99).0 n
2125/02 he also attended a 9 week Impact Program. (Exhibit 'C' p. 7)
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Again, in In re N0l111al1 G. MOlTall, supra, the Court concluded; "Arefusal to consider the particular circumstancesrelevantto an inmate's individual suitability for parole would be 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 of the following case fa~tors are present: The Commitment Offense involved... unusual violence...." And on JU1~e 24, 2004, the Court of Appeal in In're George Scott, supra, 119 Cal.App.s" at 892 fn. 11, found that the Board's regulations provide that even if the crime 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)(l)(D).)" (Id)
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"... a continued reliance... on an unchanging factor, the circumstances ofthe 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 herein as Exhibit 'D"), and therefore violates both State and Federal Due Process. Most importantly, there is no evidence that the public safety requires a lengthier 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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Petitioner submits that understanding and perspective of the crime is compelled by the Board's own proportionality matrix (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
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of when a crime of this nature can be more egregious than average. Petitioner submits that his crime falls squarely in the matrix {category NONE, 19-20-21 years]. With post conviction credits; Petitioner has exceeded the maximum by-more than Jive (5) years and without' post conviction credit application, Petitioner has served'hismatrix. The Board fails in any attempt to substantiate why Petitioner's crime is 'so heinous as to require that Petitioner be exempted time and time again from the general rule that a parole date shall normally be set; please see In re 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.4 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 supportive ofrelease; contrary to the Board's erroneous and specious findings (please see Exhibit 'A' and 'B'). The court in Biggs, addressedthe Board's illegal usage of needed therapy and other illegal reasons
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to justify a highly illegal denial. the COUli concluded: "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 by the Board were devoid of evidentiary basis." (Biggs, supra, 334 F.3d at p. 915) The Court in Biggs, supra, went on to wam the Board that while there was "some evidence" to use the crime 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 sale usage of theinitial commitment offense and/or prior social history, on a continual basis to deny him a parole date has violated his 5th and 14th Amendment rights under the United States Constitution to not be deprived of his liberty. "[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.]." (Biggs, supra, 334 F.3d atp. 916)
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"The Parole Board's sole supportable reliance on the gravity of the offense and conduct prior to imprisonment to justify denial of Parole can be initially justified as fulfilling the requirements set forth by state law. Over time however, should Biggs 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...(ld) 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 normally by set in a manner that will provide
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unifonn terms for offenders with Climes 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 premise that such a policy exists (i.e. anti andlor no parole policy of under-inclusion or systematic bias): this policy violates the strictures of substantive due process. The existence of said policy in denying parole may explain why the Board only grants parole in less than two (2) percent ofthe cases it hears; it also explains the bias demonstrated in the present case. In this case, Petitioner's own circumstances, the Board's pronouncement of numerous unlawful conclusions, notsupported 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 "some evidence" standard. The only appropriate remedy is an independent review.
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PETITIONER'S
RIGHT
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STATED
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SPECIFICALLY DIRECTED (SEPARATE AND 'DISTINCT) REASONS WHEN
GIVEN A MULTI-YEAR DENIAL WAS NOT PROTECTEH BY THE BPT IN
VIOLATION OF HIS STATE, AND FEDERAL CONSTITUTIONAL DUE PROCESS PROTECTIONS AND CONTRADICTORY 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
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statementthat is not a mere recital ofthe same reasonsused 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 was: "The offense was carried out in an especially cruel and callous manner, On June 15, 1982, Mr. Rodriguez and Ms. Hernandez, the estranged wife of Pedro Feliciano, pulled up in front of his apartment. There was a conversation, My Feliciano went inside of his apartment came out - or came into the doorway brought a rifle a .22 Caliber automatic rifle fr-om his house, stood in the doorway fired two to four shots inthe direction of the victim striking Rodriguez in the neck and Mrs. Hemandez - Ms. Hemandez, his estranged wife, in the head. Subsequently, Mr. Rodriguez was injured - was able to drive away out of harm's way and Ms. Hemandez was pronounced dead at the Loma Linda Medical Center. That's particularly callous and was clearly carried out in a
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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
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unreasonable risk to the public and was therefore
arbitrary, caprioious, lacked basis in fact, and/or was contrary to law.
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Page 18 of 23
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Supporting 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 ofthe same reasons used to deny parole worded slightly differently. ( .
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CONCLUSION
The Board's decision.was arbitrary and capricious. The Petitioner did not receive a fair hearing, nor will he ever.
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Petitioner submits and contends that the finding of unsuitability was arbitrary and capricious: 1). 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 § 304.1 (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, setting his term "uniformly" as mandated by the legislature:
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PRAYER FOR RELIEF
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. S. Order Petitioner taken back before the Board for a finding of suitability. within ten (10) days, or in the alternative, order Petitioner released forthwith; 6. Declaratory relief, and· 7. Any other relief this Court deems fair, just and appropriate.
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PROOF OF SERVICE
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I declare that: I, PEDRO FELICIANO, C-59854, am a resident of the State of California, County of Monterey. I am over 18 years of age and I am a party to the within action. My residence address is P.O. Box 689, Soledad, California, 93960-0689. On
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Noven~ber ,.26*': 2005 I served the foregoing Petition for Writ of Habeas Corpus on the
parties listed below by placing a true copy thereof enclosed in a sealed envelope with postage fully prepaid in the United States mail at Soledad, California, addressed as follows:
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SUPERIOR COURT OF CALIFORNIA County of San Bernardino Appeals & Appellate District 401 N. Arrowhead Ave. San Bernardino, CA 92415:.0063 Bill Lockyer Attomey General, et al Office of the Calif. Attomey General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102-7004 Office of the District Attorney 3389 Twelfth St. Riverside, CA 92501 There is regular delivery service by the U.S. PostalService between the place of mailing and the places so addressed. I declare under penalty of perjmy under the laws of the State of California that the foregoing is true and correct.
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Executed this ;l U
day of November, 2005, at Soledad,
Califo~7~,
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:$~d@f
PEDRO FELICIANO
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Case 4:07-cv-04713-CW
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Page 22 of 23
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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, ifknown: Issues raised: (1) (2)
(3)
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f.
Where you represented by counsel on appeal? DYes. D No. If yes, state the attorney's name and address, if known:
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Did you seek review in the a. c. c. Result:
C~lifomia Supreme Court?
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DYes. tlNo. If yes; give the following information:
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b. Date of decision: ---' -,----
_____,---_____,---_ -'_ _
Case number or citation of opinion, if known: --:Issue raised: (1) (2)
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( 3 ) _ -_ _~_------------_-------------
10.. If your petition makes a claim regarding your conviction, sentence, or commitment that you 'or your attorney 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? D Yes.D No. Attach documents that show you have exhausted your administrative remedies,
MC-275 [Rev. January I, 1999]
PETITION FOR WRIT.OF :a:ABEAS CORPUS
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12. Other than direct appeal, have you filea any other petition, applications, or motions with 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.
(1) Name of court:
--__,_-------------------_
(2) Nature of proceeding (for example, "habeas COIpUS petition"): (3) Issues raised: (a)
(b)
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(4) Result (Attach order or explain why unavailable): (5) Date of decision:
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b.
(Ij Name of court:
(2) Nature of proceeding: (3) Issues raised: (a) (b) ---,-
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(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 011 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 . Ca1.2d 300, 304.)
16. Are you presently represented by counsel?
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Yes.
[!J No.
If yes, state the attorney's name and address, if known:
17.Do you have any petition, appeal, or other matter pending in any court?
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Yes. [] No. If yes, explain:
18. If this petition might lawfully have been made to a lower, court, state the circumstances justifying an application to this court:
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I, the undersigned, say: I am the petitioner iiI 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 " to those matte", I believe them to be hue
end oorreot.~
Date:
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MC-275 [Rev. January I, 1999]
PETITION FOR WlUT OF HABEAS CORPUS.
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