Here's a bombshell, out of the COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION THREE. Great win!
3/30/2011 - Certified for Publication
Case: B228409, (Los Angeles County
Super. Ct. No. A624068
ISSUE: Why the Board of Parole Hearings‘ decision to deny petitioner parole did not violate Penal Code section 5011, subdivision (b), and California Code of Regulations, title 15, section 2236, by relying, either directly or indirectly, on petitioner‘s refusal to admit guilt!
BACKGROUND: The present case is analogous to Palermo and McDonald. The Board did not directly state that Jackson was unsuitable for parole due to his refusal to admit he was 16
guilty of the commitment offense—indeed, the Board stressed that Jackson was not required to admit guilt. Instead, the Board denied Jackson parole based on its findings that Jackson lacked insight into the crime, failed to take responsibility for it, and did not have remorse. But the only evidence to support these findings was Jackson‘s refusal to admit he shot and killed Sharon Wade!
CONCLUSION: Because the only basis for the Board to conclude Jackson lacked insight, failed to take responsibility, and lacked remorse was his refusal to admit guilt for the commitment offense, the Board indirectly relied on that refusal to deny Jackson parole.
By doing so, the Board violated section 5011, subdivision (b) and California Code of Regulations, title 15, section 2236. It is also important to recognize that like Palermo and McDonald, this is not a case where the inmate‘s version of the crime was physically impossible or strained credulity. While there was certainly substantial evidence to support the trial court‘s finding that Jackson murdered Wade, Jackson‘s denial of that allegation is not necessarily inconsistent with the evidence.
Further, like the inmates in Palermo and McDonald, Jackson accepted responsibility for the death of his victim, behaved well in prison, successfully engaged in self-improvement activity while there, and received positive reports regarding his potential dangerousness by prison psychologists.
Under these circumstances, Jackson‘s continuing insistence that he did not shoot and kill Wade does not support the Board‘s finding that he remains a danger to public safety.
Attorney Diane T. Letarte: LIFER Parole Hearings CALL *** 619-233-3688 ***. BLOG Focuses on the Law/News that impacts inmates with LIFE, long-term DSL (SB260 & 261, AB1308, 3X'er, LWOP) Suitability Hearings are governed mostly by Penal Code 3041, et seq. LAWRENCE and SHAPUTIS CA Supreme Court cases are 2008 Landmark cases. 3/4/13, In Re Vicks Reversed by CA Supreme. 2/22/16, Gilman v. Brown was reversed by the 9th Cir. Marsy's Law aka (prop 9, 89) remains Law. Butler reversed
Thursday, April 7, 2011
In re Loveless : win some, lose some: Looser for Lifers
The Court of Appeal vacated the trial court order, finding there was "some evidence" supporting the board's decision.
Case Name: In re Loveless , District: 3 DCA , Case #: C062354
Opinion Date: 1/7/2011 , DAR #: 1739
Case Holding:
The standard of review for reviewing a parole decision is whether there is some evidence that an inmate poses a current risk to public safety, not merely whether there is some evidence to support the findings on the suitability or unsuitability factors.
Loveless was convicted of second degree murder based on the killing of a homeowner in front of his teenage son during the course of a home invasion robbery. At the time of the crime he was unemployed and an alcoholic. When Loveless came up for a parole hearing 22 years later, the board denied parole because the crime was "especially callous" and because he lacked insight and remorse, and had inadequate post-release plans.
The trial court reversed the denial of parole, and the warden appealed. The Court of Appeal vacated the trial court order, finding there was "some evidence" supporting the board's decision.
The evidence supports the board's findings regarding unsuitability factors, and there is a rational nexus between these findings and current dangerousness. Loveless did not adequately address post-release job prospects and stopped participating in AA, when unemployment and alcoholism were contributing factors to the crime.
Case Name: In re Loveless , District: 3 DCA , Case #: C062354
Opinion Date: 1/7/2011 , DAR #: 1739
Case Holding:
The standard of review for reviewing a parole decision is whether there is some evidence that an inmate poses a current risk to public safety, not merely whether there is some evidence to support the findings on the suitability or unsuitability factors.
Loveless was convicted of second degree murder based on the killing of a homeowner in front of his teenage son during the course of a home invasion robbery. At the time of the crime he was unemployed and an alcoholic. When Loveless came up for a parole hearing 22 years later, the board denied parole because the crime was "especially callous" and because he lacked insight and remorse, and had inadequate post-release plans.
The trial court reversed the denial of parole, and the warden appealed. The Court of Appeal vacated the trial court order, finding there was "some evidence" supporting the board's decision.
The evidence supports the board's findings regarding unsuitability factors, and there is a rational nexus between these findings and current dangerousness. Loveless did not adequately address post-release job prospects and stopped participating in AA, when unemployment and alcoholism were contributing factors to the crime.
Friday, February 4, 2011
Swarthout v. Cooke 1/24/11: No federal habeas relief for errors of state law
A major disappointing case by the US Supreme Court for Lifers!
The federal review will only be available if the Inmate is not allowed an opportunity to be heard and provided a reasons why his parole was denied.
All defense attorney should now make a point of making a "record" at the Parole hearing when the inmates are "cut-off" by the Commissioners and not given the proper opportunity to speak!!!
Case Name: Swarthout v. Cooke & Cate v. Clay ,
District: USSup , Case #: 10-333
Opinion Date: 1/24/2011 , DAR #:1230
Case Holding:
In the context of California's parole statute, there is no federal habeas relief for errors of state law, and the federal review available is limited to whether the applicant was allowed an opportunity to be heard and advised of the reasons why parole was denied.
Cooke, convicted of attempted first-degree murder, was denied parole by the Board of Prison Terms, which found that he was not suitable because of the nature of the offense, his prison adjustment, failure to participate in rehabilitative programs, and failure to develop marketable skills. Clay was found suitable by the board but the Governor reversed the finding.
The Ninth Circuit granted relief, finding that the parole statute created a liberty interest protected by the due process clause and, in Cooke's case, the state made an unreasonable determination. The Ninth Circuit found that in Clay's case, the Governor's decision was an unreasonable application of the "some evidence rule."
The U.S. Supreme Court reversed, holding that federal habeas corpus relief does not lie for errors of state law. Further, the liberty interest in parole is a state interest created by California law. There is no right under the federal Constitution to be conditionally released before expiration of sentence, and the states are under no duty to offer parole. If a state does offer parole, thereby creating a state liberty interest, the due process clause requires fair procedures for its implementation.
These State procedures are minimal, however, requiring only that the applicant has an opportunity to be heard and is advised of the reasons for parole denial. (Greenholtz v. Inmates of Neb. Penal and Correctional Complex (1979) 442 U.S. 1.) Here, both Cooke and Clay were offered the opportunity to speak at the parole hearing and were advised of the denial.
Thanks for the Summary from CCAP weekly news.
The federal review will only be available if the Inmate is not allowed an opportunity to be heard and provided a reasons why his parole was denied.
All defense attorney should now make a point of making a "record" at the Parole hearing when the inmates are "cut-off" by the Commissioners and not given the proper opportunity to speak!!!
Case Name: Swarthout v. Cooke & Cate v. Clay ,
District: USSup , Case #: 10-333
Opinion Date: 1/24/2011 , DAR #:1230
Case Holding:
In the context of California's parole statute, there is no federal habeas relief for errors of state law, and the federal review available is limited to whether the applicant was allowed an opportunity to be heard and advised of the reasons why parole was denied.
Cooke, convicted of attempted first-degree murder, was denied parole by the Board of Prison Terms, which found that he was not suitable because of the nature of the offense, his prison adjustment, failure to participate in rehabilitative programs, and failure to develop marketable skills. Clay was found suitable by the board but the Governor reversed the finding.
The Ninth Circuit granted relief, finding that the parole statute created a liberty interest protected by the due process clause and, in Cooke's case, the state made an unreasonable determination. The Ninth Circuit found that in Clay's case, the Governor's decision was an unreasonable application of the "some evidence rule."
The U.S. Supreme Court reversed, holding that federal habeas corpus relief does not lie for errors of state law. Further, the liberty interest in parole is a state interest created by California law. There is no right under the federal Constitution to be conditionally released before expiration of sentence, and the states are under no duty to offer parole. If a state does offer parole, thereby creating a state liberty interest, the due process clause requires fair procedures for its implementation.
These State procedures are minimal, however, requiring only that the applicant has an opportunity to be heard and is advised of the reasons for parole denial. (Greenholtz v. Inmates of Neb. Penal and Correctional Complex (1979) 442 U.S. 1.) Here, both Cooke and Clay were offered the opportunity to speak at the parole hearing and were advised of the denial.
Thanks for the Summary from CCAP weekly news.
Subscribe to:
Posts (Atom)