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October 26, 1995
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. Nos. 94-cv-02138, 94-cv-05735)
Before: HUTCHINSON *fn*, ROTH, and WEIS, Circuit Judges
Argued June 29, 1995
Filed October 26, l995
Defendant bank accepted drafts drawn on plaintiff containing the direction "PAY AND DEPOSIT ONLY TO THE CREDIT OF [payee]" and on which the payee's endorsements were forged. Reasoning that the drafts were in effect negotiable, the district court in this diversity case entered judgment for the bank, based on Article 3 of the Uniform Commercial Code as adopted in Pennsylvania. We conclude that the explicit direction on the drafts precluded transfer and made them nonnegotiable. Moreover, we hold that the endorsements in blank did not make the drafts bearer paper. Accordingly, we will reverse the judgment in favor of the bank and remand the matter for resolution of the plaintiff's claims under the bank collection provisions of the Uniform Commercial Code and the common law.
Universal Premium Acceptance Corporation, having its principal office in St. Louis, Missouri, provides financing to policyholders to pay their insurance premiums. In the fall of 1991, Walter Talbot of the W. Talbot Insurance Agency in Lancaster, Pennsylvania, requested Universal to provide financing for his customers who needed funds to pay premiums on policies issued by the Great American Insurance Company.
Universal accepted Talbot's proposal and sent him the necessary documents, including blank drafts. The face of each instrument contained Universal's name and address in the top left corner, and a large UPAC logo in the top center. Below UPAC's address was printed "PAY AND DEPOSIT ONLY TO THE CREDIT OF: __________ INSURANCE CO." with a space for the amount. On the lower right side of the instrument were blanks for the policyholder's name, the insurance agency name, and a line for "SIGNATURE OF PRODUCER OF RECORD/BROKER/AGENT." In the lower right corner beneath the signature line appear the name and address of the Landmark Bank.
The back of each instrument contained pre-printed language: "Acceptance of this draft acknowledges Universal Premium Acceptance Corporation's interest in the unearned or return premium(s) and that we have issued a policy(ies) to the named applicant (insured) in the amount of the premium indicated."
Between September 1991 and July 1992, Talbot signed drafts for more than $1 million in favor of Great American, but did not deliver them to the insurance company. Instead, he arranged for his confederates to forge the endorsement of Great American and deposit the drafts in an account they opened at defendant York Bank under the name of "Small Businessman's Service Corporation." York deposited the drafts without securing the endorsement of Small Businessman's Service Corporation and transmitted them to Landmark (later renamed Magna Bank of Missouri), Universal's bank in St. Louis.
As part of the scheme, Talbot and his associates set up a dummy "Great American Insurance Company" office in Lancaster and furnished its address and telephone number to Universal. To verify that Great American had issued a policy, Universal would contact that office. After assurance from Talbot's cohorts there that the transaction was in order, Universal would then authorize Landmark to pay the draft.
After the fraud was discovered, Talbot was convicted and imprisoned. Universal recovered part of its loss from Talbot and then filed suit in its own behalf and as assignee of Landmark against York. The complaints asserted claims under Articles 3 and 4 of the Uniform Commercial Code as enacted in Pennsylvania at 13 Pa. Cons. Stat. Ann. 3101-4504, as well as for negligence and conversion.
The district court granted summary judgment for York. Essentially adopting the theories the bank had advanced, the court decided that:
1. The drafts were to be treated as if they were negotiable. Although they did not contain the terms "to the order of" or "to bearer," they could be viewed as negotiable under 13 Pa. Cons. Stat. Ann. Section(s) 3805.
2. Talbot signed the drafts on behalf of Universal.
3. Because Talbot did not intend Great American to have any interest in the drafts, 13 Pa. Cons. Stat. Ann. 3405(a), the fictitious payee provision, applied and shielded York from what otherwise would have been its liability for paying on a forged indorsement.
4. The forged endorsement of Great American was in blank and thereby made the drafts payable to bearer.
5. Because the drafts had become bearer paper, York did not act in bad faith in depositing them in the Small Businessman's Service Corporation account.
Accordingly, the district court found that York was not liable under either the Uniform Commercial Code or common law.
Universal has appealed, contending that the limiting language as to the payee on the drafts did not permit York to deposit them in the Small Businessman's account, that the fictitious payee provision does not apply, and that the negligence claim should not have been resolved in York's favor.
One of the requirements for negotiability under 13 Pa. Cons. Stat. Ann. Section(s) 3104(a)(3) is that an instrument must be "payable to order or to bearer." *fn1 How the parties regard or characterize the instrument is immaterial. "The negotiability of an instrument cannot be established by waiver. . . . [W]here the statute requires certain elements, it is not for private persons to dispense with or waive them." 5A Ronald A. Anderson, Uniform Commercial Code Section(s) 3-104:13 (3d ed. 1994). See also Anderson Section(s) 3-112:1 (official code comment). The drafts here did not meet the terms of Section(s) 3104.
In some circumstances instruments that are not payable "to order" or "to bearer" may nevertheless be within the scope of Article 3 of the Code except that there can be no holder in due course of such an item. 13 Pa. Cons. Stat. Ann. Section(s) 3805 provides that Article 3 "applies to any instrument whose terms do not preclude transfer and which is otherwise negotiable within this division but which is not payable to order or to bearer . . . ."
The commentary to section 3805 cites as a typical example an item that reads "Pay John Doe" without the words "to the order of." See, e.g., Key Bank of Southeastern New York, N.A. v. Strober Bros., Inc., 523 N.Y.S.2d 855 (N.Y. App. Div. 1988). Such instruments have been termed "technically non-negotiable" because they meet all requirements as to form except they are not payable to order or bearer. *fn2 See Henry J. Bailey & Richard B. Hagedorn, Brady on Bank Checks Para(s) 2.17 (7th ed. 1992).The language on the drafts, "PAY AND DEPOSIT ONLY TO THE CREDIT OF: Great American Insurance Company," goes beyond a mere technicality. Not only did these drafts lack "to the order of," they contained specific instructions -- "deposit only to the credit of." Implicit in such language is a warning of non-negotiability. See C.R. v. The Travelers, 626 A.2d 588 (Pa. Super. Ct. 1993) (presuming that proper restriction on face of draft would have prevented negotiation).
The drafts demonstrate that they were not meant to be freely transferable, but were to be "deposited" and "only" to the credit of the insurance company. "Deposited" implies that the instruments were to have a limited use and a short transactional life. "Only" can be understood to modify "deposited" or the payee, but in either instance, the language is quite restrictive. The terms on the face of the items were meant to preclude transfer. See Resorts Int'l Hotel, Inc. v. Salomone, 429 A.2d 1078 (N.J. Super. Ct. App. Div. 1981) (counter checks); Central Bank v. Kaipern Santa Clara Fed. Credit Union, 191 Cal. App. 3d 186 (Cal. Ct. App. 1987) (money orders). We hold, therefore, that the drafts were not "otherwise negotiable" within the scope of section 3805.
As an alternative method of finding negotiability, York argues that even if not originally negotiable, the endorsements in blank by "Great American" converted the drafts into "bearer," negotiable, instruments. We reject that premise.
13 Pa. Cons. Stat. Ann. Section(s) 3204(b) provides that a blank indorsement on a negotiable instrument transforms it into a bearer instrument, but that section has no application to a non-negotiable item. An item which is non-negotiable in its inception remains so. Mere indorsement of such a draft does not change its character. As one court remarked, to sanction any other result would enable an indorser to change the rights and liabilities of the prior parties in a most material fashion. Wettlaufer v. Baxter, 125 S.W. 741 (Ky. 1910). See also Foley v. Hardy, 253 Pac. 238 (Kan. 1927).
These cases are pre-U.C.C., but have retained their authoritative status. See Partney v. Reed, 889 S.W.2d 896 (Mo. Ct. App. 1994) (negotiability determined from four corners of instrument at time it was issued without reference to extrinsic facts).
One commentator has remarked:
"In order to understand the UCC definitions in the area of negotiable instruments, you must first know the law of negotiable instruments. In other words, the Code is not a code that tells a student or a banker or a lawyer what the law is. It is rather a compilation of notes that may serve to remind you of law you had better know before you read the UCC."
David Mellinkoff, The Language of the Uniform Commercial Code, 77 Yale L. J. 185, 192-93 (1967). For views on negotiability as expressed in later treatises, see Anderson Section(s) 3-202:56 at 503 ("An endorsement has no effect upon negotiability, without regard to the nature or terminology of the indorsement"); Brady on Bank Checks Section(s) 2.1 ("Negotiability must be determined solely by what is written on the face of the instrument").
We conclude, therefore, that the drafts did not become bearer or negotiable instruments by virtue of the forged blank endorsements of the Great American Insurance Company.
The general rule is a bank that pays on a forged endorsement is liable to the drawer. However, 13 Pa. Cons. Stat. Ann. Section(s) 3405(a) (the fictitious payee exception) provides that an endorsement by any person in the name of the designated payee is effective if the drawer intends the payee to have no interest in the instrument. That provision is intended to protect banks that cash instruments with such forged endorsements and is based on the assumption that as between the bank and the drawer, the latter is in a better position to prevent the loss.
We have held that section 3405 should be interpreted broadly enough to carry out its purpose. New Amsterdam Casualty Co. v. First Pennsylvania Banking & Trust Co., 451 F.2d 892 (3d Cir. 1971). But, in McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 762 (3d Cir. 1990), we recognized that because this provision "is a banker's exception which dramatically departs from the general UCC rule and narrows the liability of a bank, courts should be cautious in expanding the section's scope beyond its explicit rationale." Commentators have also characterized section 3405 as a banker's provision that should be strictly construed so as not to give more protection than is stated. See James J. White & Robert S. Summers, Uniform Commercial Code Section(s) 16-8 (2d ed. 1980).
13 Pa. Cons. Stat. Ann. Section(s) 3405 is not applicable here because it speaks only to negotiable instruments. Although Article 3 of the Uniform Commercial Code is sometimes applied by analogy to non-negotiable instruments, in that situation as well, the same cautious approach to section 3405 should be used.
The scenario here is quite different from a scheme in which a faithless employee obtains a company check payable to a non-existent person and then cashes it. In such situations there is some merit in relieving the bank from liability and leaving the employer to bear the loss. However, the direction on the drafts here to "pay and deposit only to the credit of Great American" was explicit.
The action of York Bank in permitting the deposit of the drafts in the Small Businessman's Service Corporation account instead of Great American's account created quite a different situation than cashing the check of a fictitious payee. The face of the drafts raised a red flag and was enough to put York on notice that something was amiss in the Talbot group's dealings with it. We are not persuaded that the fictitious payee exception should be carried over to the non-negotiable instruments in this case.
Our conclusions that the drafts are non-negotiable and that the fictitious payee exemption is not applicable undermine the basic premises upon which the district court based its decision. Consequently, the case must be remanded to the district court for further proceedings during which the parties may develop their contentions consistent with appropriate legal principles. We expect that on remand some of the confusion that developed because of the alternative and, at some points, inconsistent theories advanced by the parties may be dispelled. The district court is entitled to a more focused presentation of the issues than that which occurred.
Our holding that these drafts were not negotiable means that some of the parties' arguments to this Court and the district court have become irrelevant. We need not discuss them further, but in the interests of simplification, we will dispose of several issues summarily so that they need not be considered on remand: (1) The mere fact that Universal entrusted Talbot with the forms is not a proper basis for imputation of agency between him and Universal. The premium financing agreement specifically disclaims such a relationship and there is no evidence of apparent authority in this record.
(2) Universal is incorrect in characterizing the direction "pay and deposit only" on the face of the drafts as an "indorsement." (3) The parties' discussion about ratification of the forged endorsements is not pertinent at this point. Pennsylvania does not permit ratification of a forgery on a non-negotiable item. See Funds for Business Growth, Inc. v. Woodland Marble & Tile Co., 278 A.2d 922, 925 (Pa. 1971).
The test for negotiability of drafts and checks is the same, and therefore, to this point there has been no need to discuss the differences between the two types of instruments. On remand, however, the distinctions may be important in resolving the issues remaining. A brief discussion on the nature of drafts therefore may be helpful.
The parties have correctly designated the items in question as drafts, but at times have treated them as checks. A check may be described in general terms as an order to a bank by a person having an account there to pay on demand a specified amount of money to a designated payee. Although all checks are drafts, not all drafts are checks. Drafts may take other forms as well. For example, if the order to pay is directed to a third party other than a bank or to a bank where the drawer does not have an account, the item is a draft, but not a check.
Drafts are sometimes used in sales transactions when the seller initiates the payment process rather than having the buyer issue a check. In what is to some extent a reversal of roles, the seller, as drawer, writes a draft on the buyer as drawee. Often the draft will provide that it is "payable through" a specified bank in which the buyer has an account. That bank then pays the seller.
Drafts can also be used to implement a three-party transaction involving a buyer, seller and financing entity. As an illustration, a buyer of an automobile signs a draft drawn on a finance company but payable to an automobile dealer through a specified bank. The dealer deposits the draft in its own bank, which sends it to the finance company's bank. After it approves the transaction, the finance company directs its bank to pay the draft to the automobile dealer. Thereafter, the buyer makes periodic payments to the finance company.
In other instances, the arrangements between the buyer-drawee and his bank may provide that the bank is to receive bills of lading or other documentation as a pre-condition to honoring the drafts. These are called "documentary drafts." Casualty insurance companies frequently use drafts for the payment of claims. Adjusters sign the drafts payable through a named bank and deliver them to the claimant. Copies of the draft and executed releases are sent to the home office, which can review those documents before authorizing its bank to pay the draft. This procedure gives the home office some control over the payment of claims. It also enables an insurance company to place funds with the bank only when needed to honor drafts, rather than having the money remain idle in a checking account.
Another use of drafts is the withdrawal of funds from savings banks. That practice is described in Pennsylvania Banker's Assoc. v. Secretary of Banking, 392 A.2d 1319 (Pa. 1978). For a general discussion of various types of drafts, see Barkley Clark & Barbara Clark, The Law of Bank Deposits, Collections and Credit Cards Para(s) 1.05, 13.01 (Rev. ed. 1995); Brady on Bank Checks Para(s) 1.13 (7th ed. 1992); Daniel E. Murray, Drafts "Payable Through" Banks, 77 Com. L.J. 389 (1972). Steven B. Dow, Determining Bank Status in Article Four Check Collections, 49 U. Pitt. L. Rev. 43 (1987).
Universal uses drafts as a means of providing financing for policyholders to pay premiums due their insurance carriers. The arrangements are made through the insurance agents who sell the policies. The customary procedure is for the insurance agent, acting on behalf of the policyholder, to sign the draft form supplied by Universal, fill in the amount desired and insert the name of the insurance company issuing the policy. A copy of the draft, together with a Premium Finance Agreement executed by the policy holder, is sent to Universal.
The original draft is delivered directly to the insurance company, which deposits it in its bank. The original draft is then transmitted to Universal's bank, Landmark. On receipt, Landmark advises Universal, which is then required to instruct the bank within twenty-four or forty-eight hours whether to pay the draft. In that interim, Universal calls the insurance company to verify that a policy had been issued and that the financing transaction is apparently in good order.
With this understanding of the business practices followed in this case, we note briefly the various claims asserted by Universal. Preliminarily, we point out that Talbot, as agent for the policyholder, was the drawer of the drafts. Universal was the drawee, not the "maker" as it was labeled by York employees. Great American was the payee. Landmark's status will be discussed infra.
In addition to, or in the alternative to Article 3, Universal based its claims on Article 4 of the Commercial Code, governing bank deposits and collections. Article 4's scope is not limited to negotiable instruments, but includes "items" that are defined as "any instrument for the payment of money even though it is not negotiable but does not include money." 13 Pa. Cons. Stat. Ann. Section(s) 4104. The drafts here come within that definition.
Universal relies on 13 Pa. Cons. Stat. Ann. Section(s) 4207(a), which provides for warranties that are applicable upon payment or acceptance of an item. That section provides in pertinent part that "[e]ach . . . collecting bank who obtains payment or acceptance of an item and each prior . . . collecting bank warrants to the payor bank or other payor who in good faith pays or accepts the item that: (1) he has good title to the item or is authorized to obtain payment or acceptance on behalf of one who has a good title." See Continental Bank & Trust Co. v. Peoples Nat'l Bank & Trust Co. of Norristown, 274 A.2d 549 (Pa. Super. Ct. 1970) (per curiam) (Hoffman, J., concurring) (explaining operation of section 4207).
The liabilities for breach of warranty by banks in the collection process is affected by their status. As we view the record before us, York Bank is the depository bank because it was "the first bank to which an item is transferred for collection." 13 Pa. Cons. Stat. Ann. Section(s) 4105. It probably is also a collecting bank.
Landmark may be a collecting bank. 13 Pa. Cons. Stat. Ann. 3120 provides that "[a]n instrument which states that it is `payable through' a bank or the like designates that bank as a collecting bank to make presentment but does not of itself authorize the bank to pay the instrument." See also 13 Pa. Cons. Stat. Ann. Section(s) 4105 cmt. 3. ("Items are sometimes drawn or accepted `payable through' a particular bank. . . . [T]he `payable through' bank will be a collecting (and often a presenting) bank; it is not a `payor bank.'" York, however, contends that Landmark was a payor bank, and as such had more responsibilities than a collecting bank. It appears that determination of Landmark's status will be a significant factor in the resolution of Universal's claims under Article 4 and may require further development on remand.
Landmark's name, appearing as it does in the lower right-hand corner of the draft, creates an ambiguity. Although that location usually identifies a party as the drawer or maker, see Mitchultka v. Grapin, 340 A.2d 576 (Pa. Super. Ct. 1975), it is clear enough that Landmark was not intended to be such. It may be that the uncertainty as to Landmark's status came about because the draft form was prepared by Universal and not the bank.
From our review of the record, including a scrutiny of the face of the items, we conclude that they are, to a substantial degree, akin to "payable through" drafts. Although on their face the drafts do not contain the words "payable through," that lack is not determinative here for two reasons. First, the drafts are not negotiable and, thus, not within the term "instrument" as used in section 3120. *fn3 Second, at this juncture, the evidence on the practice followed in issuing and paying the drafts corresponds to the "payable through" procedure.The determination of whether a draft is of the "payable through" variety can be important in determining whether a bank that honors the item is a "payor" or a "collecting" bank. Although some courts have concluded that "payable through" status is determined by examining the face of the draft, they have nonetheless considered evidence on the function that the bank actually performed. See Berman v. United States Nat'l Bank, 249 N.W.2d 187 (Nebr. 1976); Engine Parts, Inc. v. Citizens Bank of Clovis, 582 P.2d 809 (N.M. 1978). The net result is that extrinsic evidence has been used to determine whether a relationship similar to a "payable through" arrangement existed in fixing a bank's liability. See Branch Banking & Trust Co. v. Bank of Washington, 120 S.E.2d 830 (N. C. 1961); Phelan v. University Nat'l Bank, 229 N.E.2d 374 (Ill. App. Ct. 1967); Wilhelm Foods, Inc. v. National Bank, 382 F. Supp. 605 (S.D.N.Y. 1974) (distinguished by Horney v. Covington Cty. Bank, 716 F.2d 335 (5th Cir. 1983)).
The argument against the use of extrinsic evidence rests on its possible adverse impact on negotiability. Whatever may be the merits of restricting review to the face of the drafts to determine the status of the affected parties, that limitation has less weight here because the items are not negotiable. See Dow, 49 U. Pitt. L. Rev. at 63, 66-81. Moreover, there is some significance to the fact that before a draft would be honored by Landmark, it had to be accepted by Universal.
On remand, therefore, in determining the status of the parties to the drafts under Article 4, the district court will not be restricted to the face of the items. Instead, it will be free to consider whatever further evidence it deems necessary.
In addition to its breach of warranty count, Universal insists that York is liable in conversion. We note that this claim must be resolved on remand and observe that D & G Equipment Co. v. First Nat'l Bank of Greencastle, 764 F.2d 950 (3d Cir. 1985), discussed a claim for conversion of checks. We commented that under 13 Pa. Cons. Stat. Ann. 3419, an instrument is converted when it is paid on a forged indorsement.
However, it appears that common law conversion in Pennsylvania may be somewhat broader in scope. Id. at 957 n.4. In Cenna v. United States, 402 F.2d 168, 170 (3d Cir. 1968), we said that under Pennsylvania law, conversion is the "deprivation of another's right of property, or use or possession of a chattel, or other interference therewith, without the owner's consent and without legal justification."
Finally, Universal seeks a recovery based on negligence. As York points out, when 13 Pa. Cons. Stat. Ann. Section(s) 3405 applies, some courts have held that the drafters of Code intended to displace common law negligence actions. See Law of Bank Deposits 8.04[8][c]; Brady on Bank Checks, Section(s) 31.17 (collecting cases).
In the absence of a holding by an appellate court, we may assume, without deciding, that Pennsylvania would adopt that viewpoint. *fn4 However, since we have concluded that section 3405 does not apply here, Universal is free to establish, if it can, a case of negligence against York.
In that connection, York's action in depositing drafts made payable to one company in the account of another should be subject to scrutiny. See, e.g., Commonwealth Fed. Savings & Loan v. First National Bank of New Jersey, 513 F. Supp. 296, 304 (E.D. Pa. 1979) ("established banking practice mandates that any check payable to a designated business entity can be accepted for deposit only into the account of such named payee"). Further development of this claim must await the remand.
Accordingly, the judgment of the district court will be reversed and the case will be remanded for further proceedings consistent with this Opinion.
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Liberty routs West Virginia Wesleyan 45-7
LYNCHBURG, Va. (AP)—Aldreakis Allen ran for two touchdowns and Liberty ran over West Virginia Wesleyan 45-7 on Saturday.
Allen rushed for 112 yards and was one of four Flames who ran for touchdowns. The Flames (3-2) broke a 7-7 tie with 38 unanswered points largely on the strength of 264 yards rushing. Mike Brown scored on two of his three carries for Liberty.
B.J. Hayes scored on a 1-yard run and Danny Broggin scored on a 13-yard run for the Flames.
Tommy Beecher was 16-for-21 for 209 yards and one interception.
After Brown scored on a 27-yard run in the first quarter to give the Flames a 7-0 lead, the Bobcats (1-4) tied the score on a 6-yard pass from Zane Zebrasky to Jon Meadows.
Zebrasky was 13-for-23 for 157 yards and an interception.
Updated Sunday, Oct 4, 2009


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Cabanas de S. Jorge Village
Select your stay dates to check availability at Cabanas de S. Jorge Village
Cabanas de S. Jorge Village
About the Hotel
Property Location
With a stay at Cabanas de S. Jorge Village in Santana (Northern Madeira), you'll be within the vicinity of Madeira Theme Park and Pico Ruivo. This hotel is within the region of Faial Beach and Pico do Ariero.
Make yourself at home in one of the 35 air-conditioned guestrooms. Satellite television is provided for your entertainment. Private bathrooms with showers feature complimentary toiletries and hair dryers. Conveniences include desks and separate sitting areas, and housekeeping is provided daily.
Take advantage of recreation opportunities including an outdoor pool and an indoor pool. Additional features at this hotel include complimentary wireless Internet access, an arcade/game room, and gift shops/newsstands.
Satisfy your appetite at the hotel's restaurant, which serves breakfast, lunch, and dinner, or stay in and take advantage of room service (during limited hours). Quench your thirst with your favorite drink at a bar/lounge.
Business, Other Amenities
Featured amenities include dry cleaning/laundry services and a safe deposit box at the front desk. Free self parking is available onsite.
Hotel Facilities
- Dry cleaning/laundry service
- Free WiFi
- Television in common areas
- Number of buildings/towers - 16
- Fireplace in lobby
- Gift shops or newsstand
- Number of floors - 1
- Designated smoking areas
- Snack bar/deli
- Garden
- Total number of rooms - 35
- Bar/lounge
- Free self parking
- Safe-deposit box at front desk
- Terrace
- Picnic area
- Outdoor pool
- Breakfast available (surcharge)
- Barbecue grill(s)
- Indoor pool
- Restaurant
- Arcade/game room
Room Facilities
- Access via exterior corridors
- Hair dryer
- Separate living room
- Room service (limited hours)
- Private bathroom
- Air conditioning
- Desk
- Shower only
- Free toiletries
- Satellite TV service
- Separate dining area
- Daily housekeeping
- In-room climate control (air conditioning)
- Television
- Separate sitting area
Hotel Policy
The following fees and deposits are charged by the property at time of service, check-in, or check-out.
- Fee for in-room wireless Internet: EUR free per stay (rates may vary)
- Fee for in-room high-speed Internet (wired): EUR free per stay (rates may vary)
- Crib (infant bed) fee: EUR 15 per night
- Rollaway bed fee: EUR 20 per night
The above list may not be comprehensive. Fees and deposits may not include tax and are subject to change.Show all hotel policy Show less hotel policy


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Strip Clubs in Los Angeles. Reviews of Strip Clubs with Details of Dancers, Dancer's Lap Dance Reviews and Ratings on Hotness and Lap Dance Performance, Top 10 Strip Clubs Daily Real Time Roll Calls (RTRC's), info and more...
Be informed. Read our User Tips and Policies. Know how to navigate through the site with ease and enjoyment. Click or tap on the image below.
Formulation of The 3rd Annual Boned In Award 2016 catergories process currently at hand!


text: I just downloaded some apps off itunes coughnotcough... and i dragged them into itunes then plugged in my ipod touch, it began to sync, then at the top it said "Backing up ipod touch" and the progress bar is going extremely slow. Can anyone tell me what backing up ipod touch means or what exactly itunes is doing? i'm just confused thats all.


text:
Rs. 2,490.00 Is our price too high?
We will notify you when this product becomes available.
The V-MODA CoilPro Cable is the Professional Grade Coiled Cable perfect use with the V-MODA Crossfade Headphones. The CoilPro cable locks in and extends listening reach for DJs and audio professionals tremendously increasing the versatility of your headphones.
"A quality coiled cable makes a world of difference in the studio and on the stage" - Paul Oakenfold
Extended Play Cable
The CoilPro Cable stretches from 47inches to 12 feet in length. Perfect for the DJ Booth, Music Instruments or Home use.
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The V-MODA CoilPro cable features the unique TwistLock technology allowing you to Twist and Secure the notched plug to ensure that it never untethers.(only locks with V-MODA M-100)
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The V-MODA CoilPro Cable works perfectly with all Smartphones, Tablets, PCs and Notebooks which feature a 3.5mm jack output.
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The V-MODA CoilPro Cable not only works with the Crossfade Series Headphones but also fits some other Headphones with a 3.5mm (1/8") inputs such as Beats Solo, Studio and Mixr.
I got these from Headphone zone for my V-modas both my XS as well as M-100. The cable is of superior quality and comes nicely packaged with its literature. You get excellent connectors made of metal at both ends having a little bit of spring collar to avoid damage to the cable. These cable has kalavar induced which gives it extra protection and makes its stronger. I always wanted to have a longer cable so that I can move about with my headphones on my head while doing my work at the same time and even slouching on a rotatable chair listening to my music in ease.
The cable is coiled and can stretch to about 12 ft which is more than enough to stretch out and do your thing besides listening and enjoying your music.
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Magical Mondays at the Art Museum.
Reid, Kathleen.
• Terms • Ask a Question
Richmond, VA: Cockadoodledoo Creations, 2000. First edition 4to. 26 pp. Warmly inscribed to former owners. Rooster and hen statues come to life and become docents, introducing children to the wonders of art. Fine in Fine dj Cloth 0970265301 (Item ID: 17064)
- More: CHILDREN'S
- By This Author: Reid, Kathleen.


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Acting, Modeling, Promo / Events, Theater, Band Gigs, Singing
I'm a recording Artist for over 30 years and I write and produce songs.
My biggest recording was a song called High Energy which was released in 1984 and sold over 11 million copies and still selling today. I have done quite a bit of TV Shows everything from comedy to talk shows and Theater. I have a new CD that will be released soon, and I'm also a Fashion Designer working on a line of clothing.
Disclaimer: Casting360 is not a talent agency, employer or a talent scout; the site is only a venue. Casting360 does not promise or facilitate employment. The number of casting calls available varies by location, roles available and the level of experience required. As with any business, results may vary, and will be based on individual capacity, experience, expertise, and level of desire. There are no guarantees concerning the level of income the user may experience.
Casting Dynamics, LLC / Casting Dynamics, Ltd.
© 2016 Casting360.com


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text:
- 32 years old
- Date of birth: Nov 29, 1983
- Place of birth:
baltimore, Maryland, United States
- Date of passing: Jan 13, 2016
- Place of passing:
Maryland, United States
|Let the memory of Michael be with us forever
"I still can't believe this is true I remember when me and you first met at Stefano and mills BABY shower we became so cool at that baby shower and from that moment on me u and Stefano had some good times together and then I find out that you are my baby mother brother so we became even more tighter big Mike you were a very loyal friend, brother. And you will be truly missed rest easy in Paradise big homie"
"I love you babe i cant believe this. Wrap your arms around me and our kids. Until we meet again you will forever be in my heart and memory. Please help me and the kids get through this. Love you punk xoxo"
"Ima miss ya brother I've known u since we were kids and i have so many good memories with u. I hope u and baby boy are up there partying and shining down on us and u will always be in my heart. I love u brother miss u already"
"Big mike your loyalty and your heart will always stay with me you are now in a better place and Will never be forgotten love u big bro"
"Can believe you are gone big homie you were a cool dude u always made everybody laugh no matter what kind of mood people were in . Fly high big Mike we all are going to miss u gone but never forgotten"
"still can not believe you are gone . now you are up in heaven with your dad ,your aunt darlene , and your great grand mother and great grandfather and your cousin terry we all know you will be watching over your family and guide themin the right path R.I.P"
"Still at a loss of words over ur passing,you were loved by so man people mike and we all are going to miss you dearly...fly high cousin till we meet again"
"love you cuz! gonna miss you everyday! watch over Lucy and them babies!!! until we meet again cuz! R.I.P"
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Generations of a tormented human-alien people, caged on a toxic planet, are conditioned by constant hunger and war. They are subjects of the Dosadi Experiment, which has succeeded too well. For the Dosadi have bred for vengeance as well as cunning, and they have learned how to pass through the God Wall to exact revenge on the Universe that created them. From the author of the classic Dune series.
About Frank HerbertFrank Herbert (1920-1986) created the most beloved novel in the annals of science fiction, "Dune." He was a man of many facets, of countless passageways that ran through an intricate mind. His magnum opus is a reflection of this, a classic work that stands as one of the most complex, multi-layered novels ever written in any genre. Today the novel is more popular than ever, with new readers continually discovering it and telling their friends to pick up a copy. It has been translated into dozens of languages and has sold almost 20 million copies.As a child growing up in Washington State, Frank Herbert was curious about everything. He carried around a Boy Scout pack with books in it, and he was always reading. He loved Rover Boys adventures, as well as the stories of H.G. Wells, Jules Verne, and the science fiction of Edgar Rice Burroughs. On his eighth birthday, Frank stood on top of the breakfast table at his family home and announced, "I wanna be a author." His maternal grandfather, John McCarthy, said of the boy, "It's frightening. A kid that small shouldn't be so smart." Young Frank was not unlike Alia in "Dune," a person having adult comprehension in a child's body. In grade school he was the acknowledged authority on everything. If his classmates wanted to know the answer to something, such as about sexual functions or how to make a carbide cannon, they would invariably say, "Let's ask Herbert. He'll know."His curiosity and independent spirit got him into trouble more than once when he was growing up, and caused him difficulties as an adult as well. He did not graduate from college because he refused to take the required courses for a major- he only wanted to study what interested him. For years he had a hard time making a living, bouncing from job to job and from town to town. He was so independent that he refused to write for a particular market- he wrote what he felt like writing. It took him six years of research and writing to complete "Dune," and after all that struggle and sacrifice, 23 publishers rejected it in book form before it was finally accepted. He received an advance of only $7,500.His loving wife of 37 years, Beverly, was the breadwinner much of the time, as an underpaid advertising writer for department stores. Having been divorced from his first wife, Flora Parkinson, Frank Herbert met Beverly Stuart at a University of Washington creative writing class in 1946. At the time, they were the only students in the class who had sold their work for publication. Frank had sold two pulp adventure stories to magazines, one to "Esquire" and the other to "Doc Savage." Beverly had sold a story to "Modern Romance" magazine. These genres reflected the interests of the two young lovers- he the adventurer, the strong, machismo man, and she the romantic, exceedingly feminine and soft-spoken.Their marriage would produce two sons, Brian, born in 1947, and Bruce, born in 1951. Frank also had a daughter, Penny, born in 1942 from his first marriage. For more than two decades Frank and Beverly would struggle to make ends meet, and there were many hard times. In order to pay the bills and to allow her husband the freedom he needed in order to create, Beverly gave up her own creative writing career in order to support his. They were in fact a writing team, as he discussed every aspect of his stories with her, and she edited his work. Theirs was a remarkable, though tragic, love story-which Brian would poignantly describe one day in "Dreamer of Dune" (Tor Books- April 2003). After Beverly passed away, Frank married Theresa Shackelford. In all, Frank Herbert wrote nearly 30 popular books and collections of short stories, including six novels set in the "Dune" universe: "Dune," "Dune Messiah, Children of Dune, God Emperor of Dune," "Heretics of Dune," and "Chapterhouse: Dune." All were international bestsellers, as were a number of his other science fiction novels, which include "The White Plague" and "The Dosadi Experiment." His major novels included "The Dragon in the Sea," "Soul Catcher" (his only non-science fiction novel), "Destination: " "Void," "The Santaroga Barrier," "The Green Brain," "Hellstorm's Hive," "Whipping Star," "The Eyes of" "Heisenberg," "The Godmakers," "Direct Descent," and "The Heaven Makers." He also collaborated with Bill Ransom to write "The Jesus Incident," "The Lazarus Effect," and "The Ascension Factor." Frank Herbert's last published novel, "Man of Two Worlds," was a collaboration with his son, Brian.
Details Book
|Frank Herbert
|Tor Books
|Data Published
|01 September 2002
|Format Book
|PDF, Epub, DOCx, TXT
|Number of Pages
|320 pages
|Age +
|15 years
Reviews The Dosadi Experiment
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I was suspicious at first when i got redirected to the membership site. Now I'm really excited i found this online library....many thanks Kisses
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text:
- 85 years old
- Date of birth: Sep 22, 1929
- Date of passing: Feb 21, 2015
|She was a blessing to all who knew her.
This memorial website was created in memory of our loved one, Bonnie Porch, 85, born on September 22, 1929 and passed away on February 21, 2015.
"I will always celebrate your birthday and on this day acknowledge (September 22nd) the extraordinary mother I was blessed with."
""Anyone who has lost something they thought was theirs forever finally comes to realize that nothing really belongs to them" - Paulo Coelho
Always in my thoughts, love you Momma!"
I miss you so much!"
"Well, I wish I had been able to spend more time with Bonnie Marie, but I can say that she was always, always kind to me, to my sister, Ginger Windsor, and to my Mother, Ruth Ellis. I remember her as smiling, always positive, and truly a beautiful person. To her loved ones, I hope you know that I remember her very fondly. Love, Cherie"
"My thoughts and prayers go out to Uncle Bill and the kids - I know she will be missed greatly by you all the most. She was always so kind and gentle when I'm sure I was pestering her or the other adults as a kid :-)
Look forward to seeing y'all in Oak Ridge in a few weeks.
"Aunt Bonnie Marie was a beautiful person inside and out and I will miss her. She had such a loving nature and was always so interested in others, she just drew people to her with her sweetness. She was also one to be sure and pray for you, as she did for me, and I love her for that. I am looking forward to heaven when we can sit together again and hear all the antics from her youth, this time without a recorder but with no time constraints as we will have forever! Love to all the family and so sorry you have had to tell her goodbye for now."
"I was saddened to learn of Bonnie Marie's passing. I didn't get to see her near as much as I would have liked. I remember being a flower girl in her wedding. I wish I had known her better. I always thought of her fondly when I was growing up. Her presence will be missed greatly."
"There is really no way to sum up the life of someone who lived it as fully as our Mom did.
She loved people, and could light up a room with her smile. She touched every person she met with her graciousness, and she lived a life full of gratitude. She loved music — all kinds. She marveled at nature — she loved the sea and the mountains, and the small things weren't small to her — little birds and tiny shells were miracles to our Mom. She believed all things were possible — it really didn't matter if they were or not, she would tell you "it was so."
She believed in us, and if we heard the words "Honey, you can do it" one time, we heard it a thousand times.
She was a one person little freight train of faith that seldom stopped to take on water, and never ran out of steam… until now.
She loved the Episcopal Church, and she loved St. Clement's. We're blessed that she passed on her faith to us, a faith of magnitude and substance. Her eyes would literally sparkle as she shared a new revelation she had about Christ, or something beautiful she'd read or heard. And when she said she was praying for you, she meant it. I would joke with her often about having a direct line to Jesus, and would ask her to keep praying hard for one or the other of us, knowing we'd have a much better shot of being heard if it came from her.
I loved our conversations, especially about faith or the world situation, and would often try to turn them into little debates — just to get her going, knowing she was probably right. And in the end, if there was no resolution, she'd often say, "You just need to hand this over to the Lord." Very recently we were having one of those debates, and I was a bit put out with the conversation when she said, "Bill, hand it over to the Lord." Well, I said, I didn't know if I'd be talking to Jesus that day and wasn't sure when I would be — so we left it at that.
Little did I know it would be the last full conversation we'd have.
About a week later I received a box from Amazon. I hadn't ordered anything, so I was really curious what it contained. I opened the box — it was a book. And the title? "Jesus Calling." I guess she thought if I wasn't going to call on Jesus, she'd have him call on me. But how appropriate for what was about to unfold in her life.
Within weeks he finally called her to him — to his arms where she always knew she would find everlasting peace and light... as she chose to have sung at her service "…a joy like none others have known."
I love you and miss you Mom."
"My sweet Granny,
My heart hurts so much. I wish I could have one more talk with you. You gave the best advice and always found the good in any situitaion. Our lives will not be the same without you. I found this letter and as I was reading it I could hear you saying this to me.
Letter From Heaven
When tomorrow starts without me
and I'm not here to see
If the sunshould rise and find your
eyes filled with tears for me.
I wish so much you wouldn't cry
the way you did today
While thinking of the many things
we didn't get to say.
I know how much you love me
as much as I love you
And each time you think of me
I know you will miss me too.
When tomorrow starts without me
don't think we're far apart
for every time you think of me
I am right there in your heart.
I will forever carry a piece of you with me in my heart. I am so grateful God made you my Granny. Love you forever beautiful angel."
"I am devastated by Teenie's transition as she was more like a sister than a cousin, so very close from early childhood----sharing so many fun times and a few very scary ones. I am just thankful that we had so many wonderful years to share our love and great memories. To all the family Dan and I send our deepest sympathy and hope the many happy memories of years past will help overcome the present grief. As you wake eadh morning, think of a happy time you spent with her----it will help you and will honor her. She loved those happy times! What a GREAT lady!!!!"
"I regret to learn that Bonnie Marie passed away last Saturday and I will miss her. My sympathy and condolences go to her children and grandchildren--my cousins. I recall loaning her my geology course notes at NLU when she was taking one of the classes.
Joe R. White, Jr.
Haughton, LA"
"We loved Bonnie and knew her for years through David and Ginny. She was always so friendly and warm and interested in everyone and what they were doing. Her love for her family and friends was so obvious whenever we were with her. Just one recent example, I loved seeing her comments on Facebook whenever I would post a photo of our daughter. She cared about us and loved us even though we were two steps removed in-laws. She was so special! She will be missed so much by so many, and that is the best tribute of all to a life lived well. Much love and sympathy to everyone, Linda, Andy, and Aina Claire"
"Saying that my Granny will be missed is an understatement. Over the past few days I have tried to put a grasp on what has really happened and I cannot even begin to fathom it. However I am truly grateful to have known my Granny for 28 years. Many of my friends have not been lucky enough to have their grandmother around for that long. In situations like this you can't possibly write enough to explain just how much Granny has left an impact on my life as well as others. My heart is truly broken and I am truly depressed but I know that my Granny would want me to live my life to the fullest just like she did. She was the sweetest and caring lady I have ever met. I know she will be smiling down on me every day for the rest of my life. God has truly gained an angel. In life you can never truly get over a death, you just learn how to live with it. A part of Granny will always live within me for the rest of my life. Granny I love you so much and will miss all of our talks. I hope to see you again someday."
"Bonnie Marie was such a wonderful and gracious lady - forever to be missed indeed. My thoughts are with you all. With love from Wendy & Chris's Aunt Toade."
"I miss my dear Aunt Teenie. What a lovely, thoughtful, and kind woman! We will love you always, always."
"It hurt to see her go, to say goodbye for now to the one person who always, always shared nothing but true unqualified love, good times and bad. Mom fought hard her whole life, just like she fought the many recent health issues to continue to have time with those she loved. Oh what a beautiful soul! My whole family and I have been lucky to have had the opportunity to call her our Mother, our Granny and for Dad his wife of sixty-five years. My hope is her future journeys bring her nothing but peace, joy & love just as she brought to many others. Until we meet again, I will always love you and have you in my heart."
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"A trip to the beach" Tacna Things to Do Tip by Cyreni
Tacna Things to Do: 4 reviews and 5 photos
You can take a bus or taxi to a beach near Tacna. The closest beach is Boca del Rio which has lots of bars and restaurants and lots of people in the summer months when large concerts are held here. If you want a more peaceful setting I recommend to take the bus a bit further north where you can find the small town of Vila Vila and the more remote Punta Colorada beach which is in a fabulous location along the Panamerican highway. Here you can put up your own tent and enjoy an amazing scenery with impressive hills that make you think that you are on the moon or on another planet. When night falls and you sit at a bonfire under the stars you feel like a million miles away from home.
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text:
Imroving Your Reach
I have noticed a lot of guitar players in my guitar class have a lot of problems with reaching larger spans on their guitar. So I have come up with some exercises that have helped them improve, so I thought I would post it and hope it helps some of you.
Than replay Ex. 1, and add this afterward, and adding the following exercises in order, and continue increasing in tempo. Ex. 2: Use your index and ring finger, and if you need more of a challenge try your index and middle, or your middle and pinky.
e|-------------------------------0-1-2-| B|-------------------------0-1-2-------| G|-------------------0-1-2-------------| D|-------------0-1-2-------------------| A|-------0-1-2-------------------------| E|-0-1-2-------------------------------|
Ex. 3: Use your index and pinky or your index and ring.
e|-------------------------------0-1-3-| B|-------------------------0-1-3-------| G|-------------------0-1-3-------------| D|-------------0-1-3-------------------| A|-------0-1-3-------------------------| E|-0-1-3-------------------------------|
Ex. 4: Use your index and pinky.
e|-------------------------------0-1-4-| B|-------------------------0-1-4-------| G|-------------------0-1-4-------------| D|-------------0-1-4-------------------| A|-------0-1-4-------------------------| E|-0-1-4-------------------------------|
Now this is more of a challenge, don't worry if you have trouble with this. It can be a real challenge to bar and stretch, but with practice this exercise will increase your span a ton. Ex. 5: Bar the third fret with your index and do not remove your index finger from the fretboard.
e|-------------------------------0-1-5-| B|-------------------------0-1-5-------| G|-------------------0-1-5-------------| D|-------------0-1-5-------------------| A|-------0-1-5-------------------------| E|-0-1-5-------------------------------|
I hope this helps, I practice it frequenly and it seems to be a great warm up. Drop me a line, best of luck!
e|-------------------------------3-7-3-| B|-------------------------3-7-3-------| G|-------------------3-7-3-------------| D|-------------3-7-3-------------------| A|-------3-7-3-------------------------| E|-3-7-3-------------------------------| <-----<-----<-----<-----<-----<----|Bar the 3rd fret.
Trending lessons
14 comments sorted by best / new / date
great tutorial works great
great lesson
wow, this has really helped! thanks a lot!!
cfh0636 wrote: i've been working on 016 with my index and ringThats a Killer 4 Begginers u know!
Thnx helped alot!
this was very helpful for a warm up and improving basic finger movements, thanks
i've been working on 016 with my index and ring
very nice...the last one helps with anyone havin difficulty in the bridge of john mayer's "waiting on the world to change"
Nice tutorial will definitely remember to practise this one.
wow trying to bar 3rd fret and reaching to 7 first time killed. good practice
really helped a lot.thnxx a ton!!!
Good Lesson
this is pretty kewl...but you should just use scale to practice reaching...way more easier.


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Thanks to all the BRPG's fans. We still can't believe she won Red Clouds last month, and placed 2nd in Private Shots. She loves taking Kate's money. We still have not done "PA" or a private site. ALL her photos have been posted here at VW. Maybe we should try and negotiate an "exclusive" contract with Kate?? Kate, are you watching? Listening? Anyways, as promised, here is Leigh in her new orange set of Victoria's Secret lingerie...well, some "in" and some "out". Hope you enjoy. Look for future contris in her new Wicked Weasels we just rec'd!!
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General enquiries
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Orthopaedic Surgery
Spinal surgery, lumbar and cervical disc degeneration, sciatica, adult and childhood deformities
Mr Khai Lam is a Consultant Orthopaedic Surgeon and first qualified in 1990 in Nottingham. He works at Guy's and St Thomas' Spinal Unit and at The London Bridge Hospital. He has specialist interests in spinal surgery, lumbar and cervical disc degeneration, sciatica, adult and childhood deformities / scoliosis, tumours, infections, fractures, inflammatory disorders injection therapies (facet injections, nerve root blocks, discography) lumbar and cervical.Mr Lam is active in both clinical and laboratory research into low back pain secondary to lumbar disc degeneration. He is a leader in the field of spinal arthroplasty, minimal invasive spine surgery and belongs to the AO Expert TK Group for atraumatic spinal access surgery. Mr Lam was the first British recipient of the Gold 'La Medaille d'Honneur' from L'Etiole Europeenne du Devouement Civil et Militaire for his work in helping children with serious spinal conditions, treating aircraft ejectee pilots with spinal injuries, and his involvement with developing novel spinal implants and technologies.Mr Lam is in constant demand on the international training circuit. He has published widely and is highly regarded as one of the UK's pioneers in innovative spinal surgery procedures.
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Related Resources:
French Broad NeighborWoods Tree Planting Kickoff


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May 17, 2007
STEPHEN JOSEPH KOBE, PETITIONER,v.A. KANE, RESPONDENT.
Stephen Joseph Kobe ("petitioner") is a California prisoner incarcerated in Soledad, California, who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a 2004 decision by the California Board of Parole Hearings ("Board")*fn1 to deny him parole. Respondent has filed an answer, and petitioner has filed a traverse.
In 1980, petitioner pled guilty to first degree murder in San Diego County Superior Court, and sentenced to a term of 27 years to life in state prison. In 2004, petitioner appeared pro se at a parole hearing before the Board; at which time, petitioner had served approximately 24 years in prison. The Board found petitioner unsuitable for parole, and petitioner unsuccessfully challenged this decision in habeas petitions to all three levels of the California courts. Petitioner raised the same claims in his state habeas petitions as those raised herein, namely: (1) that the Board's finding petitioner unsuitable for parole violated his right to due process because it was not based on sufficient evidence; (2) the Board has an "anti-parole" policy; and (3) the Board's denial of parole violates the "spirit and terms" of his plea agreement, in violation of his right to due process.*fn2
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or the laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Under AEDPA, this Court may grant a petition challenging a state conviction or sentence on the basis of a claim that was "adjudicated on the merits" in state court only if the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court decision is "contrary to" clearly established United States Supreme Court precedent "if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases, 'or if it confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams, 529 U.S. at 405-06). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court may also grant the writ if it concludes that the state court's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); Rice v. Collins, 126 S. Ct. 969, 975 (2006).
B. Legal Claims
1. The Board's Decision Was Based on "Some Evidence"
Petitioner argues that the Board's denial of parole violated his due process rights because the decision finding him unsuitable was not supported by the evidence. A parole board's decision satisfies the requirements of due process if "some evidence" supports the decision. Sass v. California Board of Prison Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006) (adopting some evidence standard for disciplinary hearings outlined in Superintendent v. Hill, 472 U.S. 445, 454-55 (1985)); see also Irons v. Carey, 479 F.3d 658 (9th Cir. 2007). The standard of "some evidence" is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced. See Hill, 472 U.S. at 455. An examination of the entire record is not required nor is an independent assessment of the credibility of witnesses or weighing of the evidence. Id. The relevant question is whether there is any evidence in the record that could support the conclusion reached by the [administrative] board. See id. Additionally, the evidence underlying the Board's decision must have some indicia of reliability. McQuillion, 306 F.3d at 904.
In assessing whether or not there is "some evidence" supporting the Board's denial of parole, this Court must consider the regulations which guide the Board in making its parole suitability determinations. California Code of Regulations, title 15, section 2402(a) states that "[t]he panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." The regulations direct the Board to consider "all relevant, reliable information available." Cal. Code of Regs., tit. 15, § 2402(b). Further, they list sets of circumstances tending to indicate whether or not an inmate is suitable for parole. Cal. Code of Regs., tit. 15, § 2402(c)-(d).*fn3 However, these circumstances are meant to serve as "general guidelines," giving the Board latitude in the weighing of the importance of the combination of factors present in each particular case. Cal. Code of Regs., tit. 15, § 2404(c).
The regulations also contain a matrix of suggested base terms depending on the murder degree and the circumstances surrounding the murder. The matrix provides three choices of suggested base terms for several categories of crimes. See 15 Cal. Code Regs. § 2403. For second degree murders, the matrix of base terms ranges from the low of 15, 16, or 17 years, to a high of 19, 20 or 21 years, depending on certain facts of the crime.*fn4 Although the matrix is to be used to establish a base term, this occurs only once the prisoner has been found suitable for parole. Id. § 2403(a). The statutory scheme places individual suitability for parole above a prisoner's expectancy in early setting of a fixed date designed to ensure term uniformity. Dannenberg, 34 Cal. 4th at 1070-71.
While subdivision (a) of section 3041 states that indeterminate life (i.e., life-maximum) sentences should "normally" receive "uniform" parole dates for similar crimes, subdivision (b) provides that this policy applies "unless [theBoard] determines" that a release date cannot presently be set because theparticular offender's crime and/or criminal history raises "public safety" concerns requiring further indefinite incarceration. (Italics added.) Nothing in the statute states or suggests that the Board must evaluate the case under standards of term uniformity before exercising its authority to deny a paroledate on the grounds the particular offender's criminality presents a continuing public danger.
Id. at 1070 (emphasis, brackets, and parentheses as in original). In sum, "the Board, exercising its traditional broad discretion, may protect public safety in each discrete case by considering the dangerous implications of a life-maximum prisoner's crime individually." Id. at 1071. The California Supreme Court's determination of state law is binding in this federal habeas action. Hicks v. Feiock, 485 U.S. 624, 629 (1988).
In this case, the Board found that Petitioner was not suitable for parole because the commitment offense "demonstrates a disregard for human suffering" and had a trivial motivation, petitioner needed additional therapy, and petitioner needed to improve his parole plans. (Resp. Ex. B at 38-42.)
(i) Commitment Offense
Under state law, the Board may consider the gravity of the commitment offense in assessing an inmate's suitability for parole. Cal. Penal Code § 3041(b); 15 Cal. Code Regs, § 2402(c). The California Supreme Court also has determined that the facts of the crime can alone support a sentence longer than the statutory minimum even if everything else about the prisoner is laudable. "While the board must point to factors beyond the minimum elements of the crime for which the inmate was committed, it need engage in no further comparative analysis before concluding that the particular facts of the offense make it unsafe, at that time, to fix a date for the prisoner's release." Dannenberg, 34 Cal. 4th at 1071; see also In re Rosenkrantz, 29 Cal. 4th 616, 682-83 (2002) ("The nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole" but might violate due process "where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense."). Moreover, the federal constitutional guarantee of due process does not preclude the parole board from relying on unchanging factors such as the circumstances of the commitment offense or the parole applicant's pre-offense behavior in determining parole suitability. Sass, 491 F.3d at 1129 (commitment offenses in combination with prior offenses provided some evidence to support denial of parole at subsequent parole consideration hearing); Irons, 479 F.3d at 660, 665 (finding commitment offense and prior offenses amounted to some evidence to deny parole).
The facts of petitioner's crime were summarized in a report to the Board as follows:*fn5
[O]n the night of 11/15/79, victim Wendell Le Blanc [], a Marine stationed at Camp Pendleton, and Kenneth Belliveau [], a fellow Marine, traveled to Oceanside to purchase some liquor and were waiting at a bus stop to return to the base. Kobe drove up to the pair and offered them a ride. The owner of the car, Michael A. Nicholson [] was the passenger. The pair of Marines accepted the offer and entered the car. Kobe drove off the freeway and parked near a Mobil station. Kobe and Nicholson got out to urinate, leaving the two Marines in the car. When they returned, Kobe went to the driver's side and flipped the seat forward. He demanded money and LeBlanc said he had the wrong people, as they had none. As he began to get out of the seat, Kobe drew a revolver and pointed it at him. LeBlanc said, ["]you're not going to shoot us[."] LeBlanc called for Belliveau to ["] get out of here[."] Kobe cocked the weapon and fired it into the victim's face. Fearing for himself, Belliveau dropped his body to he floor. As he did a second shot was fired, the bullet going over his head and through the right rear window.
(Resp. Ex. 2 at 21-22; see also Resp. Ex. 3 at 2-4.) Kobe did not speak about the crime at the parole hearing, but the Board considered the following statements by petitioner about the crime at a recent psychological evaluation:
Inmate Kobe stated that he decided to travel to California to see his childhood friend, Michael Nicholson. While staying with Mr. Nicholson, theinmate realized that Mr. Nicholson was AWOL from the Marine Corps. Mr. Nicholson had a wife and a new baby and was falling behind on his bills. He stated at the time they were both broke and as a result, they were not using drugs. They decided to commit robberies of servicemen because Mr. Nicholson knew when they would be paid.
Mr. Nicholson and inmate Kobe picked up the two servicemen and in the process of attempting to rob them, one of the servicemen pushed the seat forward and tried to get out of the backseat. Inmate Kobe stated that his action frightened him and he shot. He stated he has no memory of the second shot at th other victim but that . . . this occurred, he simply can't remember doing that. He stated that he was very frightened during this offense and that he was extremely stupid at that point in his life. (Resp. Ex. 2 at 52-53.) Petitioner also expressed remorse at having committed the murder. (Id.)
The foregoing facts of the offense provided sufficient evidence that petitioner demonstrated a disregard for human suffering, see Cal. Code of Regs., tit. 15, § 2402(c)(1), (1)(B). Petitioner shot the victim in the face and at close range without provocation, and then shot at the other Marine, only barely missing him. Petitioner also admitted that the murder weapon had been stolen, that he "just went on about life" after the murder, and that he "didn't think about" whether he might kill the victim when he shot at him. Furthermore, murdering the victim in order to rob him was certainly a trivial motive compared to the gravity of the offense, see Cal. Code of Regs., tit. 15, § 2402(c)(1)(E). Consequently, there was "some evidence" that the facts of the commitment offense met the factors set forth in the state's regulations for indicating that petitioner was not suitable for parole.*fn6
(ii) Unstable Social History
Under the pertinent regulations, the Board may consider whether the inmate had an "unstable social history" in reaching its parole decision. See 15 Cal. Code Regs. §§ 2402(c)(3); 2402(d)(6). Here there was undisputed evidence that petitioner had been using drugs from the age of 14 to the time of the murder, including, marijuana, cocaine, LSD, and methamphetamine. This constituted "some evidence" that petitioner's social history was unstable.
(iii) Additional Factors
The Board also cited several other factors in reaching its decision. First, although petitioner received a positive evaluation by a psychologist, the Board concluded petitioner had not succeeded in self-help programs insofar as petitioner had characterized himself as "stubborn" and not needing to participate in such programs. See 15 Cal. Code Regs. §§ 2402(b), (c)(5) (allowing consideration of prisoner's mental state and mental history). The Board further noted that petitioner had received nine disciplinary rules violations reports between 1980 and 1998, and concluded that his progress in remaining discipline-free was only relatively recent. See 15 Cal. Code Regs. § 2402(c)(6) (prison misconduct factor in parole decision). The Board further found petitioner needed to improve his "plans for future including development of marketable skills." 15 Cal. Code of Regs. § 2402(d)(8). Although petitioner had plans for housing and he had some marketable skills, he did not have a job offer as a means to support himself after his release. Finally, the Board noted the prosecution's opposition to parole as a factor in its decision. See 15 Cal. Code Regs. § 2402.
Under these circumstances, there was "some evidence" to support the Board's findings that petitioner needed to improve his self-help participation, his prison disciplinary record, and his parole plans. Especially when these matters are combined with the nature of the commitment offense and petitioner's history of drug use, there was certainly "some evidence" to support the denial of parole in this case, and thus the Board's decision did not violate Petitioner's due process rights. Consequently, neither the Board's decision nor the state court opinions upholding the Board's denial of parole are "contrary to" or an "unreasonable application of "clearly established Federal law." 28 U.S.C. § 2254(d)(1). Further, the decision was not based on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," because there was "some evidence" in the record to support the finding of Petitioner's unsuitability for parole. 28 U.S.C. § 2254(d)(2).
2. Petitioner Was Not Denied Parole Based on an "Anti-Parole" Policy
Petitioner argues that his parole denial was pursuant to an alleged "anti-parole" policy held by the Board. He maintains that parole is routinely denied to convicted murderers serving indeterminate sentences. Even if petitioner could show the existence of such a policy, the transcript of the proceeding and the decision show that the Board considered Petitioner's suitability on an individual basis and in considerable detail. (Resp. Ex. 2.) The decision reflects this individualized treatment of the Petitioner's case. As described above, the decision was based on more than Petitioner's commitment offense and his status as a convicted murder serving an indeterminate sentence. Based on the records presented to the Court, there is no indication that the Board's decision was based on an "Anti-Parole Policy," as opposed to the particular factors of petitioner's case.
3. Plea Agreement
Finally, petitioner claims the Board's denial of parole violated the terms of his plea agreement. "Plea agreements are contractual in nature and are measured by contract law standards." United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993). And, if a guilty plea was "induced by promises, the essence of those promises must in some way be made known." Santobello v. New York, 404 U.S. 257, 261-62 (1971). Here, as a result of his plea agreement, petitioner is serving a term of 27 years to life, rather than facing a possible charge of "special circumstances" which could result in the death penalty. To begin with, the Board was not a party to the plea agreement, so its denial of parole cannot be characterized as a "breach" of such agreement. In any event, there is no indication or allegation that the plea agreement included any promise that petitioner would serve less than the maximum life term or that the Board would grant petitioner parole, let alone that he would be granted parole 24 years into his term of 27 years to life. Consequently, the Board's denial of parole in 2004, when petitioner had served the less cannot be said to have "breached" petitioner's plea agreement.
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
The Clerk shall close the file.
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