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California Governor’s Parole Veto Reversed by Federal Court

California Governor's Parole Veto Reversed by Federal Court

by John E. Dannenberg

The U.S. District Court granted a California second degree murderer's 28 U.S.C. § 2254 habeas corpus petition and ordered that he be released on parole unless the Board of Prison Hearings (Board) gave him a new parole suitability hearing within 60 days that comported with due process of law. The prisoner had been granted parole by the Board in April 2003, but the grant was reversed by then-Governor Gray Davis.

Eulogio Martin was convicted of a 1979 double-murder and the gunshot injury of a third victim, and was sentenced to 15-life for the murders plus five years in enhancements. While Martin had excelled in self-improvement in prison, he had also accumulated 20 serious prison disciplinary violations for possession of drugs, weapons material and gambling paraphernalia, and had been stabbed three times by loan sharks over drug debts. However, his last disciplinary incident was in 1995. As a Mexican national, he was subject to automatic deportation upon parole.

Governor Davis, who reversed 98% of all Board grants of parole, cited several reasons for his reversal. He described the crime in the Board's boilerplate language, "callous disregard for human life and a lack of remorse," and observed that Martin could have stopped firing after gunning down his first victim. Davis disagreed with the Board's finding that the crime was committed under great stress because Martin's debt collection problems were the result of a conscious lifestyle choice.

Third, Davis called Martin's parole plans in Mexico unrealistic, since Martin had a history of repeatedly reentering the United States illegally. Davis disputed the Board's finding that Martin had "positive institutional behavior" that supported a suitability finding, given Martin's checkered record. Martin petitioned the California courts for habeas relief unsuccessfully, then proceeded to federal court.

The district court first rebuffed the Board's claim that Martin had no federally protected liberty interest in parole. The Board had relied upon Sass v. Board of Prison Terms, 376 F.Supp.2d 975 (E.D. Cal. 2005) for the proposition that the California Supreme Court had so decided in In re Dannenberg, 34 Ca1.4th 1061 (2005). The court vigorously disagreed, noting that all U.S. courts in the Northern District of California had expressly declined to follow Sass, and that Dannenberg stood for nothing of the sort.

Next, the court set the standard for the Governor's decision as having to be based upon "some evidence." Reviewing the Board's codified unsuitability factors, the court found no evidence to support any such findings, and affirmed the state Superior Court's similar ruling below as "objectively reasonable." The court next proceeded to review compliance, vel non, with the Board's codified suitability factors. As a threshold matter, the court rejected Martin's argument that the absence of a particular factor indicating suitability does not ipso facto constitute some evidence of unsuitability for parole. Accordingly, the court proceeded to analyze the suitability factors.

As to parole plans, the Board's regulations do not require plans limited to the United States. Indeed, the court found untenable the Governor's insistence that Martin have California parole plans, because to be required to consummate stateside plans would necessarily require Martin to violate his parole by breaking immigration laws.

The court then rejected the Governor's reliance upon the 25-year-old crime factors on due process grounds, because the unchanging past events were being used to effectively convert Martin's 20-life sentence into life without parole. The court found that Martin's 10-year disciplinary-free recent past, his incarceration beyond that for a first-degree murderer and the unchanging facts of his crime defeated any finding of "some evidence" to justify the Governor's veto. Indeed, the court found that Governor Davis had an unconstitutional "no-parole" policy (see, e.g., PLN, Apr. 2000, p.1, "California's No-Parole Policy"), and that his denial reasons were so thin as to be "pretextual."

Accordingly, the court granted the writ subject to a new parole hearing. See: Martin v. Marshall, 431 F.Supp.2d 1038 (N.D. Cal. 2006).

Upon a motion for reconsideration, the court took note that Martin had since received another parole review, and the Board this time had reversed its earlier recommendation and found him ?unsuitable? for release. Martin argued that remanding his case to the Board and Governor would therefore be futile. The district court agreed, finding that ?the Board appears to have capitulated to the blanket no-parole policy described by this court in its previous order, abandoning its role as an independent assessor of petitioner?s eligibility.?

The district court therefore amended its previous order, holding that Martin be immediately released on parole; further, the court ordered that the time that Martin had served in prison beyond his original parole date be deducted from his post-release parole term. See: Martin v. Marshall, 448 F.Supp.2d 1143 (N.D. Cal. 2006).

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Related legal case

Martin v. Marshall

EULOGIO MARTIN, Petitioner, v. JOHN MARSHALL, Warden, Respondent.

No. C 05-3486 MHP


448 F. Supp. 2d 1143

July 21, 2006, Decided

COUNSEL: [**1] For Eulogio Martin, Petitioner: Joseph Vincent Camarata, Law Offices of Joseph V. Camarata, Vallejo, CA.

For John Marshall, Warden, Respondent: Brian G. Walsh, Office of the Attorney General for the State of California, San Francisco, CA; Scott Colin Mather, CA State Attorney General's Office, San Francisco, CA.




Re: Request for Modification of Judgment

Eulogio Martin, an inmate at the California Men's Colony in San Luis Obispo, California, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. section 2254. On May 17, 2006 the court issued a memorandum and order concluding that Governor Gray Davis's reversal of the Board of Prison Terms's ("Board's") decision to grant petitioner parole was unsupported by any evidence. As a remedy, the court ordered that respondent either release petitioner or grant him a new parole review within sixty days of the order.

Petitioner subsequently filed a motion for reconsideration or modification of judgment, requesting that the court amend its May 17 order to require petitioner's immediate and unconditional [**2] release. In support of his request, petitioner argues that remand to the Board and Governor would [*1144] be futile given the court's finding that no evidence supported the Governor's previous reversal. Respondent objects that petitioner has not established any valid basis for seeking reconsideration under Local Rule 7-9. Respondent also disagrees with the merits of petitioner's request, arguing that it is within this court's discretion to remand to the Board-particularly because Governor Davis is no longer in office, and that if the Board again grants parole, a review of petitioner's suitability by current Governor Arnold Schwarzenegger might not be futile.

Complicating the current posture of the petition is the fact that subsequent to the reversal by Governor Davis which gave rise to this petition, on June 23, 2004 the Board conducted another parole review for petitioner and reversed its previous position, finding petitioner unsuitable for release. The Board based its finding of unsuitability on three factors. First, the Board noted the seriousness of petitioner's crime. Pet'r's Exh. M at 85. Second, the Board noted that one of petitioner's disciplinary violations, which the Board previously [**3] categorized as minor, was originally charged as a more serious offense. Id. at 87. Third, the Board found that the psychological report issued on February 28, 2003 was "not totally supportive of release," classifying petitioner in the "low to moderate" category for risk of future violence. Id.

The Board's denial is striking in a number of respects. First, in focusing on the severity of the original crime, the Board appears to have adopted Governor Davis's reasoning in reversing the previous grant of parole. This court has already found that factor to be insufficient to support a denial. Second, the other two facts considered by the Board -- the disciplinary violation and the 2003 psychological report -- were already before the Board when it granted petitioner parole in 2003. In the 2003 opinion, the psychologist's evaluation was found to support release; in 2004, the same opinion was found to weigh against release. Similarly, the fact that petitioner had committed no severe violations of prison rules was found to support release in 2003, while one of the same non-severe offenses was found to weigh against release in 2004.

In sum, the Board appears to have capitulated to the [**4] blanket no-parole policy described by this court in its previous order, abandoning its role as an independent assessor of petitioner's eligibility. This capitulation is particularly troubling in light of the Board's vigorous assertions of independence during the 2003 hearing. See Pet'r's Exh. B at 10 ("I'm a Deputy Commissioner. I'm a civil servant. I am not a Governor appointee."); id. at 11 ("I do not know the Governor. I have never gotten direction from the Governor."); id. ("We're a different body and we do what we -- what we do based upon the law. So obviously, I'll have to overrule your objection [that the Governor has imposed a no-parole policy].").

In light of the Board's apparent abandonment of its independent role-which occurred after Governor Schwarzenegger took office-the court finds that a remand would indeed be futile. The Board denied parole in 2004 on the basis of the same record which this court found to be insufficient. Cf. McQuillion v. Duncan, 342 F.3d 1012, 1015 (9th Cir. 2003) ("Since we have reviewed the materials that were before the Board and found no evidence to support a decision other than the one reached by the Board, a remand [**5] to the Governor in this case would amount to an idle act."). The court also notes that remand to the Board in this case would be unfair, because if the Governor had properly upheld the Board's 2003 finding of suitability for parole, petitioner would have [*1145] been released-foreclosing the possibility of a subsequent denial of parole by the Board.

As for respondent's contention that there are no proper grounds for reconsidering the remedial portion of the court's May 17 order, the court notes that it did not consider the substance of the Board's 2004 denial in issuing its May 17 order. See Martin v. Marshall, 431 F. Supp. 2d 1038, 2006 WL 1344584, at *11 n.2 (N.D. Cal. 2006) (Patel, J.). Upon reconsideration, the 2004 denial is highly material to the appropriateness of the remedy. See Civil L.R. 7-9(b)(3) (allowing for reconsideration upon a failure to consider material facts which were previously before the court).

Petitioner also requests that time served beyond the original parole date be deducted from petitioner's post-release parole period. Respondent objects that petitioner did not request this relief in his petition, and further objects [**6] that "credits" cannot be applied to reduce the length of a parole period. With respect to respondent's first objection, respondent cites no authority for the proposition that petitioner is required to spell out the precise details of the remedy requested in his petition. With respect to the second objection, the cases cited by respondent are inapplicable, as they pertain to the use of "good time" credits to reduce the length of parole. See, e.g., People v. Jefferson, 21 Cal. 4th 86, 95-96, 86 Cal. Rptr. 2d 893, 980 P.2d 441 (1999). Here, in contrast, petitioner seeks to have the actual surplus time served in prison deducted from his parole period. See McQuillion, 342 F.3d at 1015.

In sum, given the facts and law previously omitted from consideration, the court therefore amends its May 17 order as follows: the petition for habeas corpus is GRANTED. Petitioner is ordered to be released on parole forthwith.


Dated: July 21, 2006


District Judge

United States District Court

Northern District of California