The Petition to Advance (PTA, BPH form 1045(a)) the next Parole hearing is not adversarial in nature and does not require attendance by the inmate or the Attorney. The Court found that the protections which are in place for parole revocation hearings (Morrissey v. Brewer, 408 U.S. 471) are NOT applicable to the PTA!
Case Name: In re Thompkins , District: 4 DCA , Division: 1 , Case #: D060171
Opinion Date: 2/15/2012 , DAR #: 2072
Prison inmate has no due process right to attend hearing on his request to advance his next parole hearing date. In 1988, a jury found petitioner guilty of murder for the shooting death of his wife and wounding of her boyfriend. In 2009, BPH found petitioner unsuitable for parole, rescheduling his next parole hearing for 2012, pursuant to the 2008 amendments to Penal Code section 3041.5 (Marsy's Law).
In 2010 petitioner asked to advance his next parole date, asserting changed circumstances warranted an earlier hearing. Neither petitioner nor his attorney were allowed to be present when his request was considered and denied. In his habeas petition, he claimed the procedure BPH employed denied him due process and was an abuse of discretion. The Court of Appeal affirmed the procedure used.
An inmate's ability to seek advanced parole review requires a showing of changed circumstances or new information which establishes a reasonable likelihood that considerations of public safety do not require an additional period of incarceration. There is nothing in section 3041.5, subdivision (d)(2) which requires the BPH to hold an adversarial hearing to rule on an inmate’s request to advance his next parole hearing date. The denial of such an application does not implicate a federally protected liberty interest, so the inmate has no due process right to demand an adversarial hearing.
The protections which apply at parole revocation hearings are inapplicable to proceedings to decide whether parole should be granted in the first instance. Further, there was no abuse of discretion in denying an advanced hearing date, as there was some evidence supporting it.