December 23, 2009- A case to Watch! : Magistrate Order - Release on Parole immediately

The Judge has not adopted the Magistrate's Recommendation, at this time.
*** This is a preliminary CASE to WATCH! ***
NOTE: The AG has objected and petitioner's reply is due 02-05-10.

Martinez v. Hartley, 2009 U.S. Dist. LEXIS 119255
December 23, 2009

BACKGROUND

Petitioner was sentenced to 15 years to life in prison after being convicted of second-degree murder in the Los Angeles Superior Court. Petitioner was committed to prison on September 8, 1987 with a minimum eligible parole date of September 7, 1997. The Board of Parole Hearings (the Board) granted Petitioner parole but the Governor of California reversed the grant.

Petitioner filed a petition for writ of habeas corpus in the Superior Court challenging the Governor's reversal on February 17, 2006. The court denied the petition on the basis that Petitioner's commitment offense alone was sufficient evidence on which the Governor could rely to reverse the grant. Petitioner filed petitions for writ of habeas corpus with the California Court of Appeal and the California Supreme Court. The appellate court denied the petition holding that there was "more than a 'modicum of evidence' to support the Governor's decision". The California Supreme Court denied the petition without comment.

Petitioner filed the instant petition with the Federal - United States District Court claiming that his due process rights were violated when the Governor relied solely on the commitment offense to reverse Petitioner's grant of parole.

The Governor's reversal does mention the fact that Petitioner claimed that the killing was done in self defense until the 1990's but then goes on to note that Petitioner "has since then maintained that he accepts full responsibility and has remorse for [victim]'s murder." There is no evidence to support an inference that Petitioner is currently dangerous because he has not admitted the severity of or taken full responsibility for the murder. While the underlying offense may indeed have been grave, the standard by which the Governor must review the parole grant is whether Petitioner poses a current risk of danger to society, not whether he was dangerous at some point in the past--the Governor points to no evidence of the former.

Accordingly, because the Superior Court did not cite to a single fact in the record demonstrating Petitioner's current dangerousness, we find that the court unreasonably applied the clearly established "some evidence" standard. Furthermore, even if the Superior Court had articulated the correct standard, this Court finds no evidence in the record to support the Governor's finding that Petitioner poses a current risk of danger to society.

CONCLUSION

For the reasons set forth above, we find that the Petitioner is being held in violation of the Constitution and that the Superior Court's application of the "some evidence" standard is objectionably unreasonable.

RECOMMENDATION

Accordingly, the Court HEREBY RECOMMENDS that:

1) Petitioner's petition for writ of habeas corpus be GRANTED;

2) Petitioner should be released on parole immediately; and

3) The CDCR should be DIRECTED to credit the number of days from the date of the Governor's reversal (July 19, 2005) to the day Petitioner is released towards Petitioner's parole sentence.


MAIN ISSUE by the Magistrate: THE CRIME ALONE CAN NOT DENY PAROLE TO AN INMATE!