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September 30, 1992
SARAH E. WILLIAMS, APPELLANTv.DISTRICT OF COLUMBIA, APPELLEE
Appeal from the Superior Court of the District of Columbia; (Hon. Harold L. Cushenberry, Trial Judge)
The Publication Status of the Document has been Changed by the Court from Unpublished to Published.
Before Ferren, Terry and Wagner, Associate Judges.
PER CURIAM: Appellant, Sarah E. Williams, filed this action against the District of Columbia, seeking damages for injuries she sustained in a fall at Seventh and D Streets, S.W. in the District of Columbia. According to appellant, she was on the median strip waiting for traffic to clear when her heels became lodged between the brick portion of the strip and the surrounding curb, causing her to fall when she attempted to walk. The District moved for summary judgment, supporting its motion with appellant's deposition and the affidavit of Kevin Lynch, the Acting Chief of the Street Maintenance Division of the Department of Public Works for the District of Columbia. In his affidavit, Lynch averred that he is responsible for the repair and paving of the District's streets and the abutting appurtenances; that his duties include taking all complaints of defective conditions of the sidewalks and roadways, inspecting them and making repairs; that search of the log of complaints, which are kept in his office, revealed no complaints for the street where appellant fell nor any subsequent repairs; and that the median strip was made of brick separated "from the concrete by one-half inch of expansion material, always, cork which is put in between to the full depth of 2 1/2 inches." He also swore that "the cork, by its nature, is somewhat pliable under pressure. A one-half inch gap is, therefore, not considered a defect." Appellant acknowledged that the space in which she caught her heels was approximately one-half inch. The trial court also had before it photographs, which appellant had provided appellee, showing the condition of the street where appellant fell.
Appellant argues that the trial court erred in granting summary judgment because genuine issues of material fact are in dispute and appellee is not entitled to judgment as a matter of law. The moving party has the burden of showing the absence of genuine issues of material fact and entitlement to summary judgment as a matter of law. Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198 (D.C. 1991). If the moving party makes this prima facie showing, then the burden shifts to the non-moving party to show that material factual disputes exist. Id. We look to the substantive law to determine which issues are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
In order for appellant to succeed on her claim of negligence against the District, she must prove that her injuries were caused by an unsafe or defective condition of the street, of which the District had timely notice, either actual or constructive. District of Columbia v. Fowler, 497 A.2d 456, 461 (D.C. 1985); Hackett v. District of Columbia, 264 A.2d 298, 299 (D.C. 1970). In this case, appellant failed to offer evidence sufficient to rebut the assertions in Mr. Lynch's affidavit regarding the District's lack of actual or constructive notice of a defective condition. This is fatal to appellant's claim. Furthermore, the record, including the photographs, contains no evidence that the condition of the street was defective. Appellant's conclusory allegation to that effect is insufficient to establish a genuine issue of material fact which will defeat summary judgment in the face of evidence of the actual condition of the street showing the contrary. See Graff v. Malawer, 592 A.2d 1038, 1040 (D.C. 1991) (citing Beard, supra, 587 A.2d at 198).
Appellant also challenges for the first time on appeal Mr. Lynch's affidavit on the ground that he failed to offer evidence supporting his qualifications as an expert or what constitutes a defective condition. We have declined to consider a challenge to the expertise of a witness in evaluating the question of summary judgment where, as here, it was not challenged in the trial court. Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515, 521 n.10 (D.C. 1985); Williamson v. United States Dep't of Agriculture, 815 F.2d 368, 383 (5th Cir. 1987).
Absent a genuine issue of material fact on whether or not the condition of the street was defective and whether or not the District had notice, the trial court properly granted summary judgment for appellee. See District of Columbia v. Woodbury, 136 U.S. 450, 463, 34 L. Ed. 472, 10 S. Ct. 990 (1890); see also Proctor v. District of Columbia, 273 A.2d 656, 659 (D.C. 1971). Even if a genuine issue of fact remained, as a matter of law appellant could not recover because any defect was de minimis. Proctor, 273 A.2d at 659.
Accordingly, the judgment appealed from hereby is
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decided: March 7, 1979.
UNITED STATES OF AMERICA, APPELLEE,v.FRANK RICHARD DELPIANO, APPELLANT.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 63-21591-01)
Before Adams and Weis, Circuit Judges, and Kunzig, Judge.*fn*
Opinion OF THE COURT
This case has previously been before the court in Del Piano v. United States, 575 F.2d 1066 (3rd Cir. 1978), wherein we remanded defendant's case for a De novo sentencing hearing to the district judge who had previously denied, without a hearing, Del Piano's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. The questions now presented us for decision are (1) whether the district court erred in failing to transfer the case to another judge upon remand, and (2) whether the failure of the district judge to state his reasons for his sentence constituted error as a matter of law.
Because we find the procedures employed by the district judge upon remand to be appropriate, we affirm.
The first contention urged by defendant is that the district judge upon remand erred in failing to transfer the case for re-sentencing. The argument is without merit. This court has, in the past, sanctioned re-sentencing by the district judge who originally entertained a defendant's § 2255 motion. United States ex rel. Fletcher v. Walters, 526 F.2d 359 (3rd Cir. 1975); United States v. Radowitz, 507 F.2d 109 (3rd Cir. 1974). In light of the district judge's careful and thorough handling of the sentencing hearing on remand, we are not persuaded to deviate from our prior approval of such a practice.
Appellant further argues that the district judge's sentence is defective as a matter of law since no reasons were articulated to support the imposition of the sentence. While we are mindful of the substantial benefit that a statement of reasons for a sentence may have, See, e. g., United States v. Bazzano, 570 F.2d 1120, 1130 (3rd Cir. 1977) (Adams, J., concurring), it is clear there is no affirmative requirement, in this circuit, that every district judge give an explanation for each sentence imposed. United States v. Lee, 532 F.2d 911, 916 (3rd Cir. 1976); Government of Virgin Islands v. Richardson, 498 F.2d 892, 894 (3rd Cir. 1974). Thus, since the sentence imposed was within the statutory limitation and there is no defect in the sentencing procedure, this court will not interfere with the trial judge's discretion as to the sentence imposed. United States v. Lee, supra at 916; Government of Virgin Islands v. Richardson, supra at 894.
Accordingly, after consideration of all submissions of the parties, the sentence of the district court is affirmed.
ADAMS, Circuit Judge, concurring.
I concur in the judgment of the Court because the law as it now stands does not as a general matter require the sentencing judge to transfer a case to a different judge when it is remanded to him for resentencing, nor require the judge to give an explanation for the sentence imposed. But, as Justice Cardozo put it, "(W)hat really matters is this, that the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience."*fn1 Accordingly, I write separately to urge my colleagues, once again, to adopt a rule, pursuant to our supervisory power, that would require trial judges to explain the reasons for the sentence being imposed, at least when the circumstances are such that one might justifiably expect the defendant to receive a substantially lighter or substantially heavier sentence. For important as it is that people should get justice, it is equally important that they should feel and see that they are receiving it.*fn2
The prevailing state of affairs, under which trial judges exercise almost unchecked power in fashioning sentences, is an anomaly in our safeguard-steeped system of administering the criminal law. Although this system affords the defendant a panoply of procedural and evidentiary protections at trial as well as an opportunity to seek meaningful review of the legal issues upon which a finding of guilt was based, it leaves an issue of prime concern to the defendant his fate over the next few years to the discretion of a single judge. As a general rule, "a federal appellate tribunal will not review a judgment of sentence that is within the statutory maximum unless there be a showing of illegality or abuse of discretion."*fn3 The injustices that may result from such a situation have been explored elsewhere, and several proposals, varying in scope from the modest to the far-reaching, have been put forward.*fn4
Among the suggestions that have received widespread support is that trial judges be required to advance reasons for the sentences they impose. In United States v. Bazzano, 570 F.2d 1120, 1130-38 (3d Cir. 1977) (Adams, J., concurring), I canvassed the arguments mustered in favor of and in opposition to this procedural requirement, and concluded that:
such a rule would help to assure that sentences are grounded on the facts of a particular case, and would serve the broader aims of promoting the defendant's rehabilitation as well as the fairness and rationality of sentencing procedures. It would also eliminate the undue delay that frequently results when the sentencing process is questioned in an appellate court, and the trial judge has not given his reasons for the sentence. These gains would obtain without overly burdening trial judges, and without invading the realm of their discretion to set sentences on the basis of their knowledge of the defendant and the circumstances surrounding the crime.*fn5
The present case further highlights the importance of a statement of reasons, as a brief recital of the pertinent facts demonstrates.
Frank Del Piano, after pleading guilty to charges of bank robbery and conspiracy, was sentenced by Judge Wood, on January 27, 1964, to a total of twenty-five years imprisonment. When he had completed serving twelve years, Del Piano petitioned the district court pursuant to 28 U.S.C. § 2255 to have his sentence vacated on the ground that Judge Wood had considered six juvenile adjudications of delinquency at which Del Piano was not represented by counsel, thereby warranting resentencing under the rule of United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). Since Judge Wood was by then deceased, Del Piano's petition to vacate the sentence was referred to another judge. Although adopting a magistrate's proposed findings of fact to the effect that the original sentencing procedure was constitutionally infirm, the district court initially declined to conduct a De novo sentencing proceeding, ruling that "a resentencing of petitioner is unnecessary since, after consideration and review of the entire record without regard to the juvenile adjudications, the Court finds that the original sentence would still be appropriate."*fn6 This Court reversed, and in an opinion by Judge Aldisert ordered that the sentence be vacated and that Del Piano be resentenced following a De novo sentencing proceeding.*fn7 Del Piano then moved in the district court to have the case reassigned to a different judge because the district judge that was now to conduct the De novo hearing had in his earlier ruling expressed an opinion that the original sentence was appropriate. The judge denied the motion, and conducted the De novo sentencing hearing on June 1, 1978. At the conclusion of the hearing, the judge stated that he had reviewed the presentence report, discussed it with a probation officer, considered the sentencing memoranda submitted by defense counsel and the Assistant United States Attorney, and heard the testimony of the witnesses appearing on defendant's behalf. The judge then vacated the sentence and, without explaining his decision, imposed a sentence identical with the prior one.
In essence then, our justice system has conceded to Del Piano that his original, twenty-five year sentence was unconstitutionally imposed because the original sentencing judge had improperly considered certain prior convictions in determining the severity of the sentence. Also, our Court has agreed with the defendant that the resentencing judge erroneously resentenced him without conducting a new hearing. Nevertheless, the edict is pronounced from the bench by the very same judge that had already passed on his sentence and accompanied by "(a) Sphinx-like silence"*fn8 in lieu of an explanation that Del Piano must continue to serve a twenty-five year sentence after all. I cannot but surmise that, so far as the defendant and those members of the public who are acquainted with his case are concerned, Del Piano's persistent resort to the judicial process was unavailing because the result was foreordained.
It is unfortunate that no steps were taken to counter such an impression when the defendant was resentenced, since it would appear that much was thereby lost but little gained. Undoubtedly the district judge had valid reasons to conclude at the end of the De novo resentencing proceeding that Del Piano deserves the same severe sentence notwithstanding the original sentence's illegal reliance on prior uncounselled convictions. And it cannot be said on the record before us that the judge abused his discretion or showed any bias against Del Piano. Quite to the contrary, upon reading the transcript of the resentencing proceeding, one is struck by the judge's concern that the defense be permitted to introduce any mitigating evidence it deems appropriate. Still, for the criminal justice system to work effectively, it not only must dispense justice, it must be perceived to do so. As I observed in Bazzano :
More and more, we are coming to realize that for our system of criminal justice to be respected by the participants in it as well as by the public, it must be observed to be fair. It is not enough for it to be technically correct, although that, too, is a fundamental aim. Requiring that the basis of a sentence be set forth by a trial judge would promote the principle that "to perform its high function in the best way "justice must satisfy the appearance of justice.' "*fn9
In the present case, a statement of reasons for the sentence would have served as an opportunity to demonstrate to the defendant, his well-wishers, and the public, what undoubtedly was the fact, that the judge was not swayed by the first sentence or by his own earlier impression; that, as characteristic of the judiciary, he regards the state-sanctioned deprivation of liberty to be a weighty matter; and that the criminal process is basically fair and legitimate. Inasmuch as the judiciary, an undemocratic institution in a democratic government, can retain its legitimacy only so long as it is seen to be guided by a sense of justice, the importance of such an explanation should not be underestimated.
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Cream Cheese Chocolate Pudding Dessert
julie langevin
I have spent my hole married life trying to cook as good as my mother-in-law and now 30 years later her meals still taste better.
This recipe is one of our family favorites.
This recipe is one of our family favorites.
Featured Pinch Tips Video
- 1 c
- flour
- 1/2 c
- butter, room temperature
- 1 c
- nuts
- 2 / 8oz
- cream cheese, room temperature
- 2 c
- powdered sugar
- 2 c
- cool whip
- 1 / 6oz
- instant vanilla pudding
- 1 / 6oz
- instant chocolate pudding
- 2 pkg
- dream whip
- 5 c
- milk
- grated chocolate & nuts to top
Directions Step-By-Step
1Crust: Blend 1cup flour and 1/2 cup butter add 1cup chopped nuts. put into ungreased 9x13 pan. Bake at 360 for 20 minutes. cool
22nd layer: mix and spread on crust 2 8oz cream cheese, 2cups powder sugar, 2 cups cool whip.
33rd layer:1 6oz instant vanilla pudding, 1 6oz instant chocolate pudding, 2 envelopes dream whip, 5 cups milk.
Mix dream whip according to directions. add both dry puddings and the remainder of milk (after making dream whip) mix and pour over 2nd layer. refrigerate 3 to 4 hrs.
4topping: spread cool whip over the top. sprinkle with grated chocolate and chopped nuts. refrigerate. Make 12 to 24 hrs. ahead to set well.
About this Recipe
Course/Dish: Puddings, Other Desserts


text:
Tube Feeding - Puppies or KittensAlthough tube feeding is not preferred, it may be necessary if a baby is too weak to nurse.
- The feeding tube should be bigger than you think they can swallow as a tiny tube can fold up in the lung.
- Measure from the corner of mouth to the last rib and mark the tube. If you do not get to that mark, you are in the lung. The stomach is behind and slightly under the rib.
- Pass the tube across the tongue – right to left or left to right and aim for the opposite side, back of throat.
- Position puppy or kitten with head slightly extended as they nurse, not with their head straight up in the air. Straight up causes a straight shot to the trachea.
- I like to dip the tube in milk replacer – they seem to taste and swallow it better.
- Babies do not have a gag reflex until their eyes are open, so do not plan on them coughing if you are in the lungs!
- Food not mixed well (cold or hot)
- Feeding too rapidly
- Over feeding
(Food should be mom's temperature before feeding. Give slowly.)
Colic, Bloating:
- Contaminated instruments (hygiene)
- Incorrect or poor quality mixture
(Wash all feeding equipment each time and mix only enough for 24 hours.)
- Lack of good bacteria in gut
- Usually occurs after 1 week on bottle
- Probiotic once daily in milk will solve
If you need help, call us at 1-800-786-4751.
-Dr. B
Don Bramlage, DVM, Director of Veterinary Services at Revival Animal Health
The materials, information and answers provided through this website are not intended to replace the medical advice or services of your personal veterinarian or other pet health care professional. Consult your own veterinarian for answers to specific medical questions, including diagnosis, treatment, therapy or medical attention.


text:
Hotel Villa Diana Marina
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My First Trip Abroad
Continuing with my little stress relieving day trips, last weekend I went with a few of my friends to San Marino. Although located in Italy, San Marino is technically a separate country. In fact, it is the oldest surviving sovereign constitutional republic in the world. The city of San Marino is the capital of San Marino and ...
Day 51 - Republica San Marino City/State
... Rocca or the rock. In fact it served as a prison for a couple hundred years until 1975. We walked the spine of the mount towards the North where an aerial tram takes visitors up the mountain. We visited the church as well as several plazas and government buildings along the way.
We enjoyed a lunch in the old town and Kathy got side tracked by a pair of boots in one of the shop windows, we didn't leave empty handed! After about three hours we left San Marino ...
Day 50 - A Bike Ride to the Adriatic
... waters. There were plenty of oil rigs scattered about in the distant water. There was a haze in the distance limiting visibility. After a bit we walked our bikes back to the path and continued on towards the lighthouse on the pier at the marina.
Upon arriving we found the lighthouse was occupied by tenants (used for housing) and the waterfront plaza was like a ghost town. We rode around a bit then headed towards the ferry to check it ...
Day 49 - Ravenna Mosaics March
... of the mosaics look like paintings. The tiles themselves range from a quarter inch to half inch for images of religious figure. Larger tiles for floors. The size and number of mosaics is really impressive and must have taken a long time to complete. Kathy took a lot of photos of the sites we visited.
Once done with the "mosaic March" we visited the tomb of Dante of "Inferno" fame. And of course we strolled most of ...
'Nothing' but an evening beach stroll
You are never doing nothing are you? I just went to write 'during the day today we did nothing' but it really isn't true. We were always doing something, just nothing of any interest.
So I will write 'during the day today we did something all day but that something isn't worth ...
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text:
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text:
A nice studio room is located on Chalong area , best location as its approach from business zone and not quite far from Rawai and Naiharn beach as well.
The property is offers 20 studio rooms .Inside features 1 bedroom with a king size bed , en-suit. At the living area has sofa , coffee table and flat screen TV 28''. THe sliding door is leading to a large terrace which is overlooking to garden tropical style and the pool. Others communal facilities is consist a large communal swimming pool, parking area, sauna&spa , fitness gym center and restaurant.
***please note the rental rates are available from Now until 31 Octorber 2012.
For further information , please contact us at email :


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December 8, 2010
NOEL KEITH WATKINS, PETITIONER,v.MIKE KNOWLES, ET AL., RESPONDENTS.
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for four years following his third parole suitability hearing held on May 3, 2006. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
Petitioner is confined pursuant to a judgment of conviction entered in the Contra Costa County Superior Court in 1985 on a charge of second degree murder. (Pet. at 1.)*fn1
Pursuant to that conviction petitioner was sentenced to twenty years-to-life in state prison. (Id.)
Petitioner's third parole consideration hearing, which is placed at issue by the instant petition, was held on May 3, 2006. (Id. at 73.) At that time, petitioner had served more than twenty-three years in prison. The Board panel found him not suitable for release on parole and denied parole for four years. (Answer, Ex. 1 (Doc. No. 18-1) at 68.)
On September 13, 2007, petitioner challenged the Board's decision in a petition for a writ of habeas corpus filed in the Solano County Superior Court. (Answer, Ex. 1 (Doc. No. 18-1) at 2.) That petition was denied on the procedural ground that petitioner had failed to support his petition with a "necessary exhibit" - the transcript of his 2006 parole suitability hearing. (Answer, Ex. 2 (Doc. No. 18-3 at 2-3).)
Petitioner subsequently challenged the Board's 2006 decision in petitions for writ of habeas corpus filed in the California Court of Appeal and California Supreme Court. (Answer, Exs. 3 (Doc. No. 18-3 at 5) & 5 ((Doc. No. 18-4 at 2).) Those petitions were both summarily denied. (Answer, Exs. 4 (Doc. No. 18-3 at 65) & 6 (Doc. No. 18-6 at 2).)
At the commencement of petitioner's 2006 parole suitability hearing, the presiding commissioner stated that, in the interests of "justice and brevity," the panel would incorporate the facts of petitioner's crime of conviction as set forth in the probation report. (Pet. at 78.) The commissioner did not read the facts into the record and the probation report is not part of the record before this court as presented by the parties. However, with respect to a previous habeas corpus action filed by petitioner in this court challenging the Board's 2002 decision denying him parole, the Board had described the facts of petitioner's crime of conviction as follows:*fn2
[O]n July 31st, 1983, Bob Altes, A-L-T-E-S, and Dana Bennett, BE-N-N-E-T-T, and Greg Garcia went to Noel Watkins house in Oakley at 800 hours to pick up some marijuana. Watkins apparently was a minor drug dealer, was able to readily acquire drugs. When Garcia driving before [sic] made another drug stop where they acquired Valium, they took several Valiums, smoked some weed, and drank a half a pint of Seagram Canadian Whiskey and 7-Up and drove back to Watkins' house to get more weed. Along the way, Garcia was stopped by the Brentwood police for weaving along Highway 4. They later arrived at Watkins' home. Watkins returned to the car with a 25-caliber handgun. Exiting along a dirt road in front of his house, they came upon a pick up truck that flashed his lights for right of way on the road. Garcia's car became stuck in sand at the side of the road. Watkins exited the vehicle, ran towards the vehicle and shot the passenger, David Mosby, -O-S-B-Y, in the face, the bullet driving towards his upper sinus passages into his neck and lodged next to his spinal chord. Mosby's right shoulder suffered nerve damage. He became unconscious and fell out of the truck. Upon seeing Watkins shoot Mosby, Steve Pasley, P-A-S-L-E-Y, exited the truck and took off running. He was shot in the chin at close range. A second bullet caught him in the right shoulder and a third bullet through the lower back penetrating his lung and exiting through his chest. Pasley collapsed and died over a row fence of a neighbor's yard. Watkins then ran home. Altes stated he was unaware that anyone had actually been shot, followed Watkins to his home and found him in the process of re-loading the handgun and his two 22-caliber rifles. Altes tried to convince Watkins not to hurt anyone. Watkins' father took the handgun from him and his mother asked Altes to leave. Police arrived and arrested Watkins without incident. A search of the home revealed a 25-caliber pistol and two loaded rifles, a loaded 10-shot clip, a loaded Winchester 30/30, a photograph album including several photographs of Watkins sporting firearms, including the murder weapon, and a manual entitled the Anarchist's Cookbook. (Case No. CIV S-06-0685 MCE DAD P, Answer, Ex. 2 at 7-9.)
Petitioner admitted at his 2006 parole suitability hearing that he committed these crimes. (Answer, Exhibit 5 Part 2 (Doc. No. 18-5 at 31).) He explained that he had been "involved in alcohol and drugs" and was under the influence at the time of the shootings. (Id. at 31-32.) He stated that he went out for drinks with a friend prior to the shooting incident; that he ingested Valium, marijuana, and alcohol; and that when he was dropped off at home two men approached him and told him he "had a problem and either come down the street and deal with it or might have to deal with it right there at the house." (Id. at 32-33.) At that point, petitioner "went down the street and shot . . . Steven Pasley," even though he "had no hatred or animosity towards Mr. Pasley or family." (Id. at 33.) Petitioner stated it was "a really odd incident." (Id.) He explained to the Board that he fought with Steven Pasley's cousin "three weeks prior" and he believed that was why the two men asked him to come down to the end of the street. (Id.) Petitioner stated that he acted "erratically," and that he should have simply called the "county sheriffs" or "stayed in." (Id.) He explained that when he walked down the street he took a gun with him for safety reasons. (Id. at 36-37.) He stated to the Board that he didn't have "a real reason to . . . randomly just start blasting," but that he "just lost it" and acted irrationally because he was young and heavily under the influence of alcohol and drugs. (Id. at 37.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). See also Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) ("When more than one state court has adjudicated a claim, we analyze the last reasoned decision"). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
II. Petitioner's Due Process Claim
A. Description of Claim
Petitioner claims that the Board's May 3, 2006 decision finding him unsuitable for parole violated his right to due process. He argues he has "met all the criteria necessary for parole" and claims the Board members "had made a decision prior to [the] hearing to deny him a parole date." (Pet. at 4.) He also argues that the Board's 2006 decision was "biased and improper" because it was based mainly on the facts of his crime of conviction. (Id. at 5.)
The last reasoned state court decision addressing petitioner's current claims is the December 18, 2007 order of the Solano County Superior Court denying petitioner habeas relief on his challenge to the Board's 2006 decision. As explained above, the Superior Court's denial of petitioner's habeas application was on procedural grounds. Accordingly, this court will review petitioner's claims de novo. Nulph, 333 F.3d at 1056.
B. Applicable Legal Standards 1. Due Process in the California Parole Context
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).*fn3
A protected liberty interest may arise from either the Due Process Clause of the United States Constitution "by reason of guarantees implicit in the word 'liberty,'" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."); see also Hayward v. Marshall, 603 F.3d 546, 561 (9th Cir. 2010) ("[I]n the absence of state law establishing otherwise, there is no federal constitutional requirement that parole be granted in the absence of 'some evidence' of future dangerousness or anything else.") (en banc). However, "a state's statutory scheme, if it uses mandatory language, 'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." McQuillion, 306 F.3d at 901 (quoting Greenholtz, 442 U.S. at 12). See also Allen, 482 U.S. at 376-78; Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010) ("The principle that state law gives rise to liberty interests that may be enforced as a matter of federal law is long established."); Hayward, 603 F.3d 562-63 ("Although the Due Process Clause does not, by itself, entitle a prisoner to parole in the absence of some evidence of future dangerousness, state law may supply a predicate for that conclusion.")
In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. Hayward, 603 F.3d at 562 (citing In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008) and In re Shaputis, 44 Cal. 4th 1241 (2008)); Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010), pet. for cert. filed (Sept. 2, 2010) (No. 10-333); Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th Cir. 2010) ; In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). Therefore, "California's parole scheme gives rise to a cognizable liberty interest in release on parole." Pirtle, 611 F.3d at 1020 (quoting McQuillion, 306 F.3d at 902). This liberty interest is enforceable under the federal Due Process Clause pursuant to clearly established federal law. Haggard v. Curry, 623 F.3d 1035, 1040-41 (9th Cir. 2010); Cooke, 606 F.3d at 1213 (denial of parole to a California prisoner "in the absence of 'some evidence' of current dangerousness . . . violat[es] . . . his federal right to due process."); Pearson, 606 F.3d at 609 (a state parole system that gives rise to a liberty interest in parole release is enforceable under the federal Due Process Clause); Hayward, 603 F.3d at 563; see also Castelan v. Campbell, No. 2:06-cv-01906-MMM, 2010 WL 3834838, at * 2 (E.D. Cal. Sept. 30, 2010) (McKeown, J.) ("In other words, in requiring [federal] habeas courts to review parole denials for compliance with California's 'some evidence' rule, Hayward holds that California state constitutional law creates a cognizable interest in parole absent 'some evidence' of dangerousness, and that the federal Due Process Clause in turn incorporates that right as a matter of clearly established federal law.")
2. California's Statutes and Regulations on Parole
When a federal court assesses whether a state parole board's suitability determination was supported by "some evidence" in a habeas case, that analysis "is shaped by the state regulatory, statutory, and constitutional law that governs parole suitability determinations in California." Pirtle, 611 F.3d at 1020 (citing Hayward, 603 F.3d at 561-62). The setting of a parole date for a California state prisoner is conditioned on a finding of suitability. Cal. Penal Code § 3041; Cal. Code Regs. tit. 15, §§ 2401 & 2402. The state regulation that governs parole suitability findings for life prisoners states as follows with regard to the statutory requirement of California Penal Code § 3041(b): "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." Cal. Code Regs. tit. 15, § 2281(a). In California, the overriding concern in determining parole suitability is public safety. In re Dannenberg, 34 Cal. 4th 1061, 1086 (2005). This "core determination of 'public safety' . . . involves an assessment of an inmates current dangerousness." In re Lawrence, 44 Cal. 4th at 1205 (emphasis in original). Accordingly, when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.
Id. at 1212 (citing In re Rosenkrantz, 29 Cal. 4th at 658; In re Dannenberg, 34 Cal. 4th at 1071; and In re Lee, 143 Cal. App.4th 1400, 1408 (2006)). "In short, 'some evidence' of future dangerousness is indeed a state sine qua non for denial of parole in California." Pirtle, 611 F.3d at 1021 (quoting Hayward, 603 F.3d at 562). See also Cooke, 606 F.3d at 1214.*fn4
Under California law, prisoners serving indeterminate prison sentences "may serve up to life in prison, but they become eligible for parole consideration after serving minimum terms of confinement." In re Dannenberg, 34 Cal. 4th at 1078. The Board normally sets a parole release date one year prior to the inmate's minimum eligible parole release date, and does so "in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public." In re Lawrence, 44 Cal. 4th at 1202 (citing Cal. Penal Code § 3041(a)). A release date must be set "unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration . . . and that a parole date, therefore, cannot be fixed . . . ." Cal. Penal Code § 3041(b). In determining whether an inmate is suitable for parole, the Board must consider all relevant, reliable information available regarding the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release.
Cal. Code Regs., tit. 15, § 2281(b). However, "there must be more than the crime or its circumstances alone to justify the Board's or the Governor's finding of current dangerousness." Cooke, 606 F.3d at 1214. See also Lawrence, 44 Cal. 4th at 1211 ("But the statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness.")
The regulation identifies circumstances that tend to show suitability or unsuitability for release. Cal. Code Regs., tit. 15, § 2281(c) & (d). The following circumstances are identified as tending to show that a prisoner is suitable for release: the prisoner has no juvenile record of assaulting others or committing crimes with a potential of personal harm to victims; the prisoner has experienced reasonably stable relationships with others; the prisoner has performed acts that tend to indicate the presence of remorse or has given indications that he understands the nature and magnitude of his offense; the prisoner committed his crime as the result of significant stress in his life; the prisoner's criminal behavior resulted from having been victimized by battered women syndrome; the prisoner lacks a significant history of violent crime; the prisoner's present age reduces the probability of recidivism; the prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release; institutional activities indicate an enhanced ability to function within the law upon release. Id., § 2281(d).
The following circumstances are identified as tending to indicate unsuitability for release: the prisoner committed the offense in an especially heinous, atrocious, or cruel manner; the prisoner had a previous record of violence; the prisoner has an unstable social history; the prisoner's crime was a sadistic sexual offense; the prisoner had a lengthy history of severe mental problems related to the offense; the prisoner has engaged in serious misconduct in prison. Id., § 2281(c). Factors to consider in deciding whether the prisoner's offense was committed in an especially heinous, atrocious, or cruel manner include: multiple victims were attacked, injured, or killed in the same or separate incidents; the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; the victim was abused, defiled or mutilated during or after the offense; the offense was carried out in a manner that demonstrated an exceptionally callous disregard for human suffering; the motive for the crime is inexplicable or very trivial in relation to the offense. Id., § 2281(c)(1)(A) - (E).
In the end, under state law as clarified by the California Supreme Court, the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes. (Dannenberg, supra, 34 Cal. 4th at pp 1083-84 [parallel citations omitted].) Nor is it dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense. Rather, the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude. [citations omitted].
In re Lawrence, 44 Cal. 4th at 1221. See also In re Shaputis, 44 Cal. 4th at 154-55. Accordingly, below the court considers whether the Board's decision to deny parole in this case violated petitioner's right to due process.
C. Board Decision
In addressing the factors it considered in reaching its decision that petitioner was unsuitable for parole, the Board in this case stated, in relevant part, as follows:
PRESIDING COMMISSIONER BRYSON: . . . Sir, the panel reviewed all information from the public and relied on the following circumstances in your matter -- in the matter of Noel Watkins, and concluded that you're not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The offense -- offense was carried out in an especially cruel and callous manner in that victims Moseby and Pasley were unarmed, no threat to you, exiting their pickup initially to assist your vehicle. Multiple victims were attacked, injured and killed in the same incident. Moseby was shot once in the face while running away. Pasley was shot three times at close range. The offense was carried out in a dispassionate and calculated manner in that you were armed and did not hesitate to fire upon two individuals who had approached to assist freeing your truck from aggregate on a road shoulder. The offense was carried out in a manner demonstrating exceptionally callous disregard for human suffering. The bullet that hit Moseby knocked out two rear molars, punctured a hole in his sinuses, then became permanently lodged next to his spinal cord, causing substantial nerve damage. He then fell to the ground, losing consciousness. One shot hit Pasley on the right side of his chin, another hit the back of his right shoulder. The third shot entered the lower back, traveled up his upper torso, injuring the right lung, then exiting through the chest. Pasley managed to make it to the front yard of the home, where he collapsed over a rope -- roped fence and died. Sir, you have a -- a record of prior criminality involving weapons and drugs. You were by your own -- your own testimony a heavy boozer on the streets. Alcohol was a factor in this life crime as well as poly-substance abuse --
INMATE WATKINS: Yes, ma'am.
PRESIDING COMMISSIONER BRYSON: -- which you have admitted. As to your institutional behavior, you've programmed in a limited manner, attributed in large part to your medical condition, and we note that you do -- do have a GED which was obtained in '92, and you do have some college work; however, your Classification Score is still very high, it's 101, and you have not sufficiently participated in vocations and self-help therapy, and, sir, with someone of your background, AA would -- or NA would be very important. You've had very limited participation in the self-help groups, and the panel would be recommending that you do participate in these self-help groups. As to your misconduct, you have 18 115s, the last in 2002, for failure to attend, and 15 128a's. So although you do have a clear period from 2002 to the present, it is fairly recent, and you are starting to show a turnaround in your behavior in prison. As to the psychological report dated April 27th, 2006, by Dr. Saunders, the Global Assessment of Functioning is low, it's 60, and Dr. Saunders show -- shows a low to moderate likelihood of your becoming involved in a violent offense if released into the community. We do commend you on your parole plans. They appear to be very solid, in order, and documented, and I would recommend to you that you make sure that you keep updating these as you go --
INMATE WATKINS: Uh-huh.
PRESIDING COMMISSIONER BRYSON: -- and -- because they -- they do appear realistic, both for residential and employment plans in California. As to Penal Code 3042 responses, the Dist -- responses indicate opposition to finding of parole suitability, specifically by the District Attorney of Contra Costa County. In a separate decision, the hearing panel finds it's not reasonable to expect that parole would be granted at a hearing during the following four years. Specific reasons for this finding are as follows: Sir, this was a horri -- horrific crime, and today you appear to still be somewhat shifting the blame to the victims by inferring that you had threats and that they -- previous to your crime, you were claiming that they threatened you and that they probably had weapons. There's no indication of that in any of the evidence that's been presented to this panel. Moreover, the motive for your crime remains inexplicable. It's reportedly aggravated by drugs and alcohol, but, sir, this was your crime. Also, you committed offenses after (indiscernible) while out on bail for the instant offense. You were arrested for DUI driving under the influence -- driving under a revoked or suspended license, carrying a concealed weapon in the vehicle, carrying a loaded firearm in a public place, and possession of controlled substance, where during the search of your vehicle police found a .22 caliber rifle and two zip-lock bags containing a controlled substance, and then in prison you were arrested for possession of inmate-manufactured stabbing device, a dangerous property. Your gains, sir, appear to be recent, and you do need additional time to ensure you maintain those . . . In denying you parole for four years, we're placing you on the 2010 calendar for your next Subsequent Hearing. If this decision is final, you will not get parole. . . The Board recommends no more 115s or 128a's, work to reduce your Classification Score -- INMATE WATKINS: Okay.
PRESIDING COMMISSIONER BRYSON: -- get self-help, learn a trade, get therapy, and earn positive chronos. And sir, I wish you good luck.
INMATE WATKINS: I was --
PRESIDING COMMISSIONER BRYSON: Is -- Commissioner Filangeri, do you have anything to add?
DEPUTY COMMISSIONER FILANGERI: Yes, I'd like to add a couple words, thank you. I agree with most everything Commissioner Bryson said, except for the realistic parole plans. They -- they certainly are organized, but any thought to your working upon release seems unrealistic to me, given -- given your total medically disabled status in prison and your lack of programming over the past -- over a decade.
INMATE WATKINS: Yeah.
DEPUTY COMMISSIONER FILANGERI: One of two things -- two things are -- are going on: either you're going to have to get past this total medically disabled --
DEPUTY COMMISSIONER FILANGERI: -- for your parole plans to become realistic --
INMATE WATKINS: Yes.
DEPUTY COMMISSIONER FILANGERI: -- or you're going to have to give up the idea of working when you're out there, and I'd
-- I'd prefer the -- the former --
INMATE WATKINS: Right.
DEPUTY COMMISSIONER FILANGERI: -- because it means you can participate in more stuff --
DEPUTY COMMISSIONER FILANGERI: -- and -- and you need to participate, because everything you participate in makes a better argument for your suitability; you improve your argument. . .
I want to commend you for getting your GED in '92 and your college units in '92, but that means that you haven't had any educational upgrading in over ten years, and you certainly have the wherewithal to do that based on your academic advancement scores. The psych report was not supportive of release on several -- on several dimensions.
DEPUTY COMMISSIONER FILANGERI: You're going to have to work on that. And I think that's about it. Thanks.
(Answer, Ex. 10 (Doc. No. 18-6 at 20-27).)
D. Discussion
After taking into consideration the applicable legal standards discussed herein, and for the reasons set forth below, this court concludes that petitioner is not entitled to federal habeas relief with respect to his due process challenge to the Board's 2006 decision denying him parole. The Board's decision that petitioner was unsuitable for parole at that time and that his release would unreasonably endanger public safety was supported by "some evidence" that bore "indicia of reliability." Jancsek, 833 F.2d at 1390.
One of the factors relied on by the Board to find petitioner unsuitable for parole in 2006 was the unchanging circumstances of his crime of conviction. According to the decisions discussed above, the commitment offense can constitute "some evidence" to support the Board's unsuitability finding only as long as it is still relevant to a determination of the inmate's current dangerousness. Specifically, "the circumstances of a commitment offense cannot constitute evidentiary support for the denial of parole 'unless the record also establishes that something in the prisoner's pre-or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.'" Cooke, 606 F.3d at 1216 (citing Lawrence, 44 Cal.4th at 1214). In this case, petitioner's prior criminal history, his post-incarceration history, and his demeanor at the suitability hearing all support the Board's finding that his commitment offense remained probative of his current dangerousness.
It appears from the record that two factors contributing to petitioner's offense conduct were substance abuse and poor impulse control. The Board noted that while petitioner was out on bail in connection with the commitment offense, he was arrested for driving under the influence, carrying a concealed weapon in the vehicle and possession of a controlled substance. (Answer, Ex. 10 (Doc. No. 18-6 at 24).) The Board also noted that petitioner had only sporadically participated in Alcoholics Anonymous while in prison, even though alcohol and drug abuse were a highly significant factor in his commitment offense. Under these circumstances, the Board's conclusion that petitioner's problems with substance abuse and poor impulse control had not yet been resolved was supported by the record. Moreover, during the 2006 parole hearing petitioner was largely unable to explain why he had shot the unarmed victims, other than to say it must have been because he was young, impulsive and under the influence of alcohol and drugs. Petitioner was unable to express a motive or a coherent reason for his commission of these crimes. As noted by the Board, he also appeared to place some of the blame for the crimes on the victims despite the lack of evidence to support that view. The Board also noted petitioner's numerous prison disciplinary convictions, including an arrest for possession of an inmate-manufactured stabbing device, with the latest prison disciplinary conviction being in 2002. (Answer, Ex. 10 (Doc. No. 18-6) at 22.) In light of these facts concerning petitioner's pre and post-incarceration history and his demeanor at the hearing, the Board's conclusion that there was a nexus between the unchanging circumstances of petitioner's crime of conviction and his continuing dangerousness in 2006 is supported by the record.
The Board also noted that, while petitioner had made positive strides in prison, his gains appeared to be recent. Petitioner's 2006 psychiatric report confirmed that petitioner had made positive strides in attitude, behavior, and discipline in "the last few years." (Answer, Ex. 1 Part 2 (Doc. No. 18-2) at 12.) The presiding commissioner noted that petitioner had not sufficiently participated in "self-help and therapy," and observed that with petitioner's background, AA and NA "would be very important." (Answer, Ex. 10 (Doc. No. 18-6) at 22.) Petitioner also conceded that he had not attended AA since October 2005, because he "just wanted to give it a break," and that he had attended only sporadically in the years 2002 through 2005 because of problems with his arthritis. (Answer, Ex. 5 Part 2 (Doc. No. 18-5 at 68 and 69- 70).) Petitioner also agreed with the 2006 panel members that he had not engaged in other organized forms of self-help since 2002. (Id. at 69.) All of these factors support the Board's ultimate conclusion that petitioner was not yet suitable for release on parole in 2006 because his personal gains were only recent.
Commissioner Filangeri noted that petitioner's most recent psychological evaluation "was not supportive of release on . . . several dimensions." (Answer, Ex. 10 (Doc. No. 18-6 at 270.) The record supports this conclusion. While the psychologist who interviewed petitioner found that he posed a "low to moderate likelihood to become involved in a violent offense if released to the community," he also noted that:
Mr. Watkins's risk of violence seems to be associated with, one, severe substance dependence history, two, an unrealistic view of the risks associated with relapse, and once placed into the community, showing an inconsistent pattern of using recovery resources that are available to him. He minimizes his substance abuse risk factors. His level of insight about precursors and triggers to violence is moderate and not well organized. (Answer, Ex. 5 Part 2 (Doc. No. 18-5 at 76-77); Ex. 1 Part 2 (Doc. No. 18-2 at 12).) The Board's recommendation that petitioner "get therapy" is also supported by the 2006 psychosocial assessment report, which concluded that petitioner should "focus in therapy and self-improvement groups on coping, abstinence, symptom management and risk management skills."*fn5
(Answer, Ex. 1 Part 2 (Doc. No. 18-2 at 13).)
The factors relied on by the Board to find petitioner unsuitable for parole are supported by the record and constitute "some evidence" supporting that decision. This is true even though petitioner may have a place to live and job prospects upon release from prison, and notwithstanding other factors indicating that he may be suitable for release. Because the Board's 2006 decision that petitioner still posed a current danger to society was supported by "some evidence" in the record, petitioner is not entitled to federal habeas relief on his claim that the Board's failure to find him suitable for parole at the May 3, 2006 suitability hearing violated his right to due process.
Petitioner's claim that the Board had already decided he was unsuitable for parole before the suitability hearing began is based on Commissioner Bryson's statement that "in a separate decision, the hearing Panel finds that the prisoner has been convicted of murder and it's not reasonable to expect that parole would be granted at a hearing during the following four years." (Answer, Ex. 1 (Doc. No. 18-1 at 65).) Petitioner is mistaken as to the import of this statement. It is clear that Commissioner Bryson did not mean the panel had separately, or previously, decided that petitioner was not suitable for parole. Rather, the Commissioner was merely explaining, as required, that the determination that petitioner's next parole suitability hearing would not be held for another four years was a "separate decision" from the Board's decision that petitioner was unsuitable for parole. See Sesma v. Hernandez, No. 07CV0539 WQH (JMA), 2007 WL 3243853, at *14 (S.D. Cal. Oct. 30, 2007) ("[A] BPH panel may issue a [multi-year] denial based on the same factors as it based suitability as long as it is clear from the record that the issue was considered separately."); In re Lugo, 164 Cal. App. 4th 1522, 1537 (2008).*fn6
Finally, to the extent petitioner is arguing the Board's failure to find him suitable for parole in 2006 violated state laws or regulations, his claims lack merit. Any argument that the state court has erred in applying state law are not cognizable in this federal habeas corpus proceeding. See Wilson v. Corcoran, ___ U.S. ___, 131 S. Ct. 13, 16 (2010); Rivera v. Illinois, ___ U.S. ___, 129 S. Ct. 1446, 1454 (2009) ("[A] mere error of state law . . . is not a denial of due process") (quoting Engle v. Isaac, 456 U.S. 107, 121, n. 21 (1982) and Estelle v. McGuire, 502 U.S. 62, 67, 72-73 (1991)).
III. Request for Evidentiary Hearing
Petitioner has also requested an evidentiary hearing on his due process claim.
(Pet. at 52.) Pursuant to 28 U.S.C. § 2254(e)(2), an evidentiary hearing is appropriate under the following circumstances:
(e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(A) the claim relies on(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense[.]
Under this statutory scheme, a district court presented with a request for an evidentiary hearing must first determine whether a factual basis exists in the record to support a petitioner's claims and, if not, whether an evidentiary hearing "might be appropriate." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate that he has presented a "colorable claim for relief." Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670, Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2004) and Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). To show that a claim is "colorable," a petitioner is "required to allege specific facts which, if true, would entitle him to relief." Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted).
The court concludes that no additional factual supplementation is necessary in this case and that an evidentiary hearing is not appropriate with respect to the due process claim raised in the instant petition. The facts alleged in support of these claims, even if established at a hearing, would not entitle petitioner to federal habeas relief. Therefore, petitioner's request for an evidentiary hearing should be denied.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus and request for an evidentiary hearing be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
In any objections he may elect to file petitioner may also address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant); Hayward, 603 F.3d at 554 (prisoners are required to obtain a certificate of appealability to review the denial of a habeas petition challenging an administrative decision such as the denial of parole by the parole board).
DAD:8 watkins363.hc
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...as false twayblade, with about 320 species, is distributed worldwide. Each plant has broad, paired leaves, and most have dull-coloured, purplish flowers borne in a terminal spike. The flowers of the large twayblade ( Liparis lilifolia) of eastern North America have thin, slender side petals and a broad lip. The fen orchid ( Liparis loeselii) is a similar species found in northern...


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March 7, 2012 (Chinavestor) Chinese stocks extended the slide for a third day in a row on Wednesday. Fears that Europe's recession will hurt Chinese exports took a toll on Chinese shares in both key Asian markets. The Shanghai Composite Index (SHA:000001) fell 15.7 points or 0.7% while the Hang Seng Index (INDEXHANGSENG:.HSI) slid 178.5 points or 0.9% for the day.
China Life Insurance (HKG:2628) fell 6.1%, the most among 42 components of the Hang Seng Index (INDEXHANGSENG:.HSI), narrowing a gap between its H-share price and its NYSE listed ADR price. China Life Insurance is listed under the (NYSE:LFC) ticker.


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Chronicle Forums
Discussion Forums
> Just a few hours left for Calvin pictures
View Full Version :
Just a few hours left for Calvin pictures
Lori T
Sep. 30, 2009, 09:49 PM
Authographed photos of Calvin on RA..go to www.specialhorses.org and click on Heart Land. Auction ends at midnight tonight!
Sep. 30, 2009, 10:04 PM
Hey, not that it matters in the grand scheme of things but that picture is of the Preakness at Pimlico not the KY Oaks as stated.
Lori T
Oct. 1, 2009, 11:10 AM
Yeah, just a typo by our wonderful volunteer organizers!


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Getting you more information on this room
The Stay was enjoyable as always (twice a year since 2009). However, I do not like the fact that my debit card shows two transactions--one a "confirmation charge" and the other the actual charge. I am blessed to have sufficient funds in my account to cover the anomaly--but in the past, this could have caused over drawn charges to my...
Everything was good but usually at other super8's more variety breakfast but the main problem is wyndham no points when not booking directly with hotel I used Travelocity so no points
Acceptable hotel to my location. The shared parking lot however often with transient & homeless people. Ok to walk during the daytime..NOT at night however. Staff were receptive to needs, overall not terribly clean, but acceptable.
First impressions are everything and the lobby was a dirty mess. Doesn't look like stairs were vacuumed in a month. Room smells musty. But AC was nice and cold...
Always hot in the lobby. Elevator constantly smelled like stagnant black mold. Staff was ok, but many language and custom barriers which makes the guest feel like they offended the employees in some way unknown. Breakfast was ok, but many people were coming in and out all the time like they just walked in off the street to grab some...
I stayed in the Super 8 off of Beach Rd and 820 stay was average cleanliness could of been better
"We had a first floor handicap room - No Noise at all!"
"Stay Somewhere Else!!!"
"Any would be good, i always get top floor to keep from hearing people walk down hallway at night."
"Lots of construction from I-35 and 820. I missed exit coming from west. But I was able to take next available exit, then make a couple of right turns onto Beach Street. But be careful, I thought Super 8 was on the right side of Beach Street. I did have trouble getting into Super 8, I ended up in back of Super 8, which read Microtel, in back of restraunts. But overall, has a few restraunts within walking distance and a convienient store."
"Stay at the Microtel or another nearby hotel!"


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United States District Court, E.D. California
March 9, 2015
JERRY W. ARMSTRONG, Plaintiff,v.UNITED STATES DISTRICT COURT EASTERN DISTRICT, et al., Defendants.
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff Jerry W. Armstrong, who proceeds in this action without counsel, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)[1] Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.
For the reasons discussed below, the court concludes that plaintiff's complaint fails to state a claim on which relief may be granted. Furthermore, because plaintiff's complaint is frivolous and/or malicious, the court recommends that the action be dismissed with prejudice and that the application to proceed in forma pauperis be denied.
Liberally construed, plaintiff's complaint (ECF No. 1) alleges that the United States District Court for the Eastern District of California, and more specifically certain judges (Judges Craig Kellison, Lawrence Karlton, Garland Burrell, and John Mendez), violated plaintiff's civil and constitutional rights by issuing various improper orders and rulings, failing to follow applicable procedural law, and acting with bias and favoritism in several of plaintiff's previous cases in this court. Plaintiff also names "Kristy Pine, " Judge Kellison's courtroom deputy clerk, as a defendant, although the complaint contains no specific factual allegations regarding Ms. Pine. Plaintiff seeks "full restoration of his record (repellment) under a miscarriage of justice" and $40, 000, 000.00 in damages, with punitive damages to be set by the court.
The judges named as defendants are absolutely immune from liability for damages. "Judges are immune from damage actions for judicial acts taken within the jurisdiction of their courts... Judicial immunity applies however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). A judge can lose his or her immunity when acting in clear absence of jurisdiction, but one must distinguish acts taken in error or acts that are performed in excess of a judge's authority (which remain absolutely immune) from those acts taken in clear absence of jurisdiction. Mireles v. Waco, 502 U.S. 9, 12-13 (1991) ("If judicial immunity means anything, it means that a judge will not be deprived of immunity because the action he took was in error... or was in excess of his authority."). Thus, for example, in a case where a judge actually ordered the seizure of an individual by means of excessive force, an act clearly in excess of his legal authority, he remained immune because the order was given in his capacity as a judge and not with the clear absence of jurisdiction. Id .; see also Ashelman, 793 F.2d at 1075 ("A judge lacks immunity where he acts in the clear absence of all jurisdiction... or performs an act that is not judicial in nature.")
Here, as noted above, plaintiff alleges that the defendant judges issued various improper orders and rulings, failed to follow applicable procedural law, and acted with bias and favoritism in several of plaintiff's previous cases in this court. Defendants' alleged actions were plainly taken in their capacity as judges, and not in the clear absence of all jurisdiction. Even assuming, arguendo, that the judges' actions were erroneous and harmful to plaintiff, plaintiff's remedy is an appeal to the Ninth Circuit Court of Appeals not a civil action for damages against the judges.
Furthermore, Kristy Pine has absolute quasi-judicial immunity from liability for damages. "Court clerks have absolute quasi-judicial immunity from damages for civil rights violations when they perform tasks that are an integral part of the judicial process." Mullis v. U.S. Bankruptcy Court for the District of Nevada, 828 F.2d 1385, 1390 (9th Cir. 1987). Liberally construed, plaintiff's complaint appears to suggest that certain unnamed clerks presumably referring to Ms. Pinetook some erroneous procedural steps in plaintiff's cases, refused to provide him with court records, and generally conspired with the judge defendants to deny plaintiff's constitutional rights. Plaintiff's allegations of a conspiracy are entirely conclusory and frivolous, and the remaining alleged actions by Ms. Pine, however allegedly erroneous they may have been, were all tasks performed as integral parts of the judicial process and not in clear absence of all jurisdiction.
Additionally, to the extent that plaintiff, by virtue of his claim for "full restoration of his record" seeks some type of injunctive or declaratory relief, defendants are also immune from such relief. See Mullis, 828 F.2d at 1394 ("We hold that when a person who is alleged to have caused a deprivation of constitutional rights while acting under color of federal law can successfully assert judicial or quasi-judicial immunity from damages, that immunity also will bar declaratory and injunctive relief."). Moreover, even if such immunity did not apply, plaintiff's claim for "full restoration of his record" would nonetheless fail as an improper attempt to appeal his prior cases by virtue of this new civil action in district court.
Because all defendants are immune from liability for the reasons discussed above, the court concludes that plaintiff is unable to cure his claims by additional factual allegations or improved pleading. As such, granting leave to amend would be futile.
Also, the court notes that in each of the prior cases from this court specifically mentioned in plaintiff's complaint, plaintiff did appeal to the Ninth Circuit Court of Appeals, which either affirmed the district court's judgment or dismissed plaintiff's appeal. See Armstrong v. Siskiyou County, 2:07-cv-1046-GEB-GGH, ECF No. 109 (affirming judgment); Armstrong v. Siskiyou County, 2:09-cv-290-JAM-CMK, ECF No. 15 (finding that "the questions raised in this appeal are so insubstantial as not to require further argument" and summarily affirming the district court's judgment); Armstrong v. Gerald Benito, 2:09-cv-2912-LKK-CMK, ECF No. 25 (finding that "the questions raised in this appeal are so insubstantial as not to require further argument" and summarily affirming the district court's judgment) & 37 (dismissing plaintiff's second appeal in case); and Armstrong v. Redding Parole Department, 2:11-cv-1576-GEB-CMK, ECF No. 23 (appeal dismissed for failure to prosecute). A review of the dockets in these cases confirms the court's suspicion that the instant action is frivolous and/or malicious. As such, the court also recommends that plaintiff's request to proceed in forma pauperis be denied.
Plaintiff is hereby cautioned that if he continues to file frivolous and meritless lawsuits in this district, he may be declared a vexatious litigant, and his ability to file actions in this district may be significantly curtailed.
Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's request to proceed in forma pauperis (ECF No. 2) be denied.
2. The action be dismissed with prejudice.
3. The Clerk of Court be directed to close this case.
In light of the foregoing, IT IS ALSO HEREBY ORDERED that all motion practice in this action is stayed pending resolution of these findings and recommendations by the district judge. With the exception of objections to the findings and recommendations and non-frivolous motions for emergency relief, the court will not entertain or respond to any motions or filings until the findings and recommendations are resolved.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served on all parties and filed with the court within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
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text: Can you remember what life was like before the Internet? I can ... but barely. I remember sending my first e-mail, and putting the entire message in the subject line, not knowing how it worked; the person to whom I was responding kindly phoned me up to explain it to me. I remember using Gopher, burrowing down through files and folders to see what was there. I recall a friend telling me about a new development that he thought would change everything, and it did; he was describing the World Wide Web and the browser that opened the door to just about everything.


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from £0 / night help Price for guests, Nights
- 3 bedrooms
- 9 sleeps
- min stay varies
- 3 bedrooms
- 9 sleeps
- min stay varies
B&B / 3 bedrooms / 9 bathrooms / sleeps 9
Key Info
- Beach / lakeside relaxation
- Child friendly
- Air conditioning
- Ask about pets
Description from owner
More Less
- Great for children of all ages
- Some pets are welcome - please contact the owner
Bed & bathroom
- 2 Double Beds, 4 Single Beds
- 3 Family bathrooms, 3 En suites, 3 Shower rooms
- Wi-Fi available
- Air conditioning
- Balcony or terrace
- Bicycles available
- Internet access
- Central heating
- Safe
- Cooker
- Fridge
- Freezer
- Microwave
- Dishwasher
- Washing machine
- Linen provided
- Towels provided
More Less
- Parking
- Lift access
- Accessible for wheelchair users — please contact the owner for details before booking
- Payment
- This rental can only be paid for online through Holiday Lettings using your credit/debit card or PayPal (never by bank or wire transfer).
- Smoking
- No smoking at this property
- Cancellation policy
View Policy
About the owner
Viola R
- Response rate:
- 83%
- Calendar updated::
- 14 Aug 2015
Languages spoken: English, French, Spanish, Italian
This B and B has 3 bedrooms, 9 bathrooms and sleeps 9. It's been listed on Holiday Lettings since 02 Feb 2014. Located in Province of Pisa, the average weekly rate is £0.
The Owner has a response rate of 83% and the property's calendar was last updated on 14 Aug 2015.
Map and how to get there
Guest reviews
Help other travellers decide where to stay
This holiday home hasn't got any reviews yet. The average rating on Holiday Lettings is four out of five. This place could be newly added or perhaps it's a well kept secret. Either way, it's time to reveal all.
Build your perfect trip, with Holiday Lettings & TripAdvisor
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This advert is created and maintained by the advertiser; we can only publish adverts in good faith as we don't own, manage or inspect any of the properties. We advise you to familiarise yourself with our terms of use.


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NORWALK - An elderly woman is recovering after being hit by a car in Norwalk.
Emergency crews say she was rushed to the hospital yesterday after being struck by a red car at Strawberry Hill Road and Westport Avenue.
They say the driver of the car was not hurt and no charges have been filed at this time.


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