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Overdue California Lifer Entitled To Immediate Parole Release After Prevailing At Rescission Hearing

by John E. Dannenberg

The Marin County, California Superior Court ruled that a lifer who was twelve years overdue for release when he was finally granted parole, but who was then referred back to the Board of Prison Terms (BPT) by the Governor to have a pre-release rescission hearing, was entitled to immediate release upon having prevailed at the rescission hearing. The court further ordered credit against his parole term retroactive to the date of the rescission hearing.

Edward Lee was convicted of kidnap-for-robbery with use of a gun and sentenced to seven years to life in 1982. On February 26, 2003, the BPT granted parole and fixed his term at 100 months, net of behavior credits. Five months later, then-Governor Davis recommended a rescission hearing. (California Penal Code § 3041.1.) On August 12, 2003, the en banc BPT ordered the hearing, citing seven charges" as to why the grant of parole had been improvident."

Defending himself at the December 17, 2003 rescission hearing, Lee prevailed against all seven charges" and the BPT reaffirmed his parole grant. Per BPT regulation 15 CCR § 2468, he should have been released immediately" but he was not. Then San Quentin State Prison Warden Jeanne Woodford told him that Penal Code § 3042(b) and 15 CCR § 2041(h) required him to stay another 60 120 days.

Lee filed a Form 602 administrative appeal to the warden demanding immediate release, which the warden refused to even screen or process, saying Lee's remedies lay instead with the BPT. Lee disagreed, and having thus exhausted his prison administrative remedies to the extent he was able, filed a petition for writ of habeas corpus the same day seeking an order to the warden to immediately release him and to credit his excess incarceration against his parole term.

In answer to the court's Order to Show Cause, the BPT argued that § 2468 applied only to rescission hearings stemming from an in-prison disciplinary event, and would not apply to a rescission grounded in BPT error in the original grant. The BPT thus inferred that there were two types of rescission hearings. The flaw in this novel theory was that it was inconsistent with their own rules, which provide only for a unitary rescission procedure, i.e., regardless of cause.

In granting the writ, the court relied upon the plain language of § 2468 as seemingly clear" requiring immediate release. Rejecting the BPT's argument, the court found that the pre-release legal review required in § 2041(h) had already been performed after the initial grant of parole, and therefore held [r]espondents cannot now contend that a new legal review should commence in the face of the language mandating immediate release." Although Lee had been suddenly released on February 14, 2004 after 59 days of over incarceration thus mooting any custodial relief by the court the court ruled however, the period of delay from December 17, 2003 until February 14, 2004 shall be deducted from his parole. See: In re Ballard, 115 Cal.App.3d 647, 650 (1981) and Penal Code section 2932(g).
Lee appeared in pro per with the aid of a jailhouse lawyer. Counsel was not appointed; no evidentiary hearing was held; the BPT did not appeal. This appears to be a case of first impression regarding interpretation of § 2468 and, although unpublished, could be cited as persuasive" in future similar litigation. See: In re Edward Lee, Marin Superior Court No. SC 133116A, Order Granting Petition For Writ of Habeas Corpus, April 5, 2004.

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Related legal case

In re Edward Lee