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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MIGUEL AMARO,

Petitioner,

 v.

BEN CURRY, Warden,

Respondent.

 /

No. C-08-2338 TEH (PR)

ORDER GRANTING PETITION FOR

WRIT OF HABEAS CORPUS

Pro se Petitioner Miguel Amaro, a state prisoner

incarcerated at the Correctional Training Facility (“CTF”) in

Soledad, California, seeks a writ of habeas corpus under 28 U.S.C. §

2254 challenging the California Board of Parole Hearings’ (“BPH”)

March 20, 2007 en banc summary decision denying him parole. Doc.

#1; see Doc. #4-2 at 72. Petitioner’s parole suitability

determination went en banc after a February 14, 2007 split decision,

with one commissioner finding Petitioner unsuitable for parole and

another finding him suitable. See Doc. #1-1 at 39–48. This was the

second time Petitioner received a split decision regarding his

parole suitability; the first was in 2004. Doc. #1. 

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1

 To date, Petitioner has been in prison for his commitment

offense for almost twenty-six years. 

2

On June 27, 1984, Petitioner was sentenced to fifteenyears-to-life in state prison following his convictions of second

degree felony-murder arising from the death of Eric Collier and of

kidnapping Collier’s two friends. Doc. #4-1 at 46–47. Petitioner’s

life term began on or around July 3, 1984; his minimum eligible

parole date was December 15, 1992. Id. at 46. At the time of his

2007 parole denial, Petitioner had served twenty-three years in

prison for his commitment offense, fifteen years past his minimum

eligible parole date.1

 

The state superior court determined that BPH’s decision

denying Petitioner parole was supported by “some evidence.” Doc. 

#4-5 at 2. The court explained that BPH’s decision “was based . . .

primarily on the commitment offense and on the Petitioner’s previous

criminal history.” Id. The state appellate court agreed that there

was “some evidence” to support BPH’s decision. Doc. #4-7 at 2. The

California Supreme Court summarily denied Petitioner’s request for

review, although Justice Moreno would have granted Petitioner’s

request. Doc. #4-9 at 2. This federal Petition for a Writ of

Habeas Corpus followed. Doc. #1.

For the reasons set forth below, the Court finds that at

the time of Petitioner’s 2007 parole suitability hearing, there was

no evidence to support BPH’s decision that he currently would pose

an unreasonable risk of danger to society or a threat to public

safety if released from prison. The Petition will be granted. 

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I

At Petitioner’s February 14, 2007 parole suitability

hearing, BPH read two factual summaries of Petitioner’s commitment

offense. Doc. #4-1 at 61–67. The first was submitted by a

correctional counselor at Petitioner’s 2003 hearing. Id. at 61. 

The second was Petitioner’s version. Id. at 64. Each is set forth

below. 

On December 5, 1982 at approximately 9:35

p.m., victim Eric Collier along with Russell

Walker and James Tokumoto were visiting with

Daniel Almarez, Jeff Sagmeister and [Petitioner]

in an apartment located at 14724 Chadron Avenue

in Lennos. Tokumoto and Daniel Almarez were in

the kitchen talking when the fight started. 

Daniel Almarez produced a gun [with] which he

struck Tokumoto several times in the head. 

Sagmeister saw the gun in Daniel’s hand and took

it away. The fight resumed and Daniel Almarez

called to Robert Almarez for help. Robert shot

and killed James Tokumoto. Daniel told

Sagmeister to close the drapes and clean up the

blood. At gunpoint Daniel then taped the mouths

and hands of the victims Russell Walker and

[Eric] Collier and took their wallets.

[Petitioner] assisted in taping up Collier. 

Daniel told [Petitioner] to get some rope.

[Petitioner] left and returned with a white bag. 

Daniel gave [Petitioner] some keys and told him

to get the car. The two victims Walker and

Collier with their hands tied [were] taken to a

(inaudible) by Daniel and Robert Almarez.

[Petitioner] was the driver of the vehicle.

[Petitioner] eventually stopped the car on

Marine Avenue in Manhattan Beach. Robert

Almarez, the victims Walker and Collier got out

of the vehicle. Walker was able to free his

hand and escaped. Daniel threw Collier back

into the car and told Robert to go after Walker. 

While running from his captors, Walker could

hear two gunshots. Walker was able to hide and

then at one of the residences in the area call

the police. The police arrived, observed Robert

Almarez, recovered the gun and took Almarez into

custody. Meanwhile, Daniel told [Petitioner] to

go look for Robert and he drove down two

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streets. Daniel told [Petitioner] to drive out

of the area and eventually had him stop the car. 

Daniel took Collier out to a grassy area.

[Petitioner] told Daniel to let Collier go but

after hesitating, Daniel said, “Fuck, no,”

grabbed Collier, shot him three times.

[Petitioner] and Daniel Almarez drove the victim

Collier from the area and early the following

morning Collier’s body was found in the 1900

block of El Segundo Boulevard. Collier had been

shot in the head. [Petitioner] and Daniel

Almarez then returned to the apartment and

carried Tokumoto’s body into the station wagon

and dumped it at an area near Gardenia. 

[Petitioner’s] version. 

[Petitioner] stated that he had moved in

with Daniel Almarez for only a few days before

the homicide as he was looking for a place to

stay and had been visiting with a girlfriend

throughout most of the day of the homicide. 

Danny asked him to sample some cocaine which he

intended to purchase (inaudible), and he sold

the drug but didn’t use it ([Petitioner]

returned to the residence and verified that the

drug was good). [Petitioner] remained at

Almarez’[s] residence drinking beer and eating

pizza with Danny and his friends when he

received a phone call from James Tokumoto. 

Tokumoto was invited to join the group and did

so along with the other victims Russell Walker

and Collier. Almarez learned from Tokumoto that

Tokumoto was responsible for Almarez’[s]

girlfriend moving out and a shouting match

ensued that developed into a fight. The

incident proceeded as described in the offense

summary and [Petitioner] indicated that at no

time was he a willing participant in the

subsequent kidnappings and shootings.

[Petitioner] stated that he was threatened by

gunpoint by Daniel Almarez if he did not

cooperate. [Petitioner] indicated that he

unsuccessfully attempted to convince Almarez to

release Walker and Collier during the course of

the kidnapping. He was outside the immediate

presence of Almarez only once throughout the

incident and was quite fearful that he himself

might be killed since he was aware that Almarez

was heavily involved in gang activity and could

be extremely violent. The one time [Petitioner]

was away from the immediate presence of Almarez

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was when he was ordered to go outside and get

the car. [Petitioner] stated that in hindsight

he realizes he would have been able to flee. At

this point the fear for his own life kept him

from leaving. After dropping off Tokumoto’s

body, he was returning with Almarez to the

residence when he was stopped by a peace officer

at a road block which was set up. He was taken

into custody as a result of having a six pack of

beer open on the front seat. Almarez who was

asleep in the back seat was allowed to remain in

the vehicle. [Petitioner] was afraid to discuss

the matter with anyone and since he had not been

identified at that point[.] [H]e was released

on his own recognizance the following day. He

stayed with his girlfriend for several days

during which he was drinking and using drugs

heavily. He assumed that eventually he would be

arrested in the matter and when this did occur

he continued to maintain his silence. 

Doc. #4-1 at 61–67. 

Following the evidentiary portion of the February 14, 2007

hearing, BPH rendered a decision regarding Petitioner’s parole

suitability, telling Petitioner:

there is a split of opinion in regard to your

suitability for parole. I will read my factors

and findings . . . having reviewed all the

information from the public and rel[ying] upon

the circumstances of your life crime as well as

your progress and programming in state prison

[I] find that you are not suitable for parole

and would pose an unreasonable risk of danger to

society of a threat to public safety if released

from prison on the grounds that this offense was

carried out in an especially cruel and callous

manner in that one victim, Tokumoto was invited

over by Daniel Almarez to the residence. Mr.

Tokumoto brought over two friends at the house. 

The justification for the killing . . .

indicates it was a drug transaction gone bad. 

There is other information that Mr. Tokumoto had

some contact with Mr. Alvarez’[s] girlfriend

that caused Mr. Alvarez to have ill feeling. 

But considering two people were killed that

night the motive for the crime was inexplicable

and very trivial in relationship to the loss of

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two lives. The way that the crimes were carried

out shows a dispassionate, calculated manner in

that it was almost execution style. Mr.

Tokumoto was shot in the kitchen. The two other

people Walker and Collier was [sic] found. 

Their wallets were taken from them at the house. 

They were taken in a car driven by you. The two

Almarez brothers had handguns at the time. They

drove to one location near Manhattan Beach where

Mr. Walker was able to escape. Mr. Collier was

put back in the car and shot three times in the

head. His body was dumped. You were the driver

of the car at the time. After that incident you 

went back over to the Almarez residence and

assisted Daniel in taking Tokumoto’s body and

dumping him in Gardenia in a grassy area. The

crimes indicate there were multiple victims

. . . attack[ed] and for these reasons including

the fact that you have an escalating pattern of

criminal conduct starting off with the incident

in 1971 where you were involved in hitting a

peace officer with a brick after a (inaudible). 

I find that in each instance your explanation

was to blame other people or blame circumstances

that were totally out of your control and yet

you involved yourself voluntarily with

assaultive behavior and it is more than other

people’s fault for the ingestion of alcohol or

drugs that triggers this type of violent

conduct. In addition, I find that you have not

sufficiently participated in beneficial selfhelp. I praise you for participating in

Alcohol[ics] Anonymous. I praise you for the

therapy that you have obtained. However, it’s

clear that [the] manner in which the crime was

committed in regard to having these three people

two of which [sic] were killed taken [to] over

three different locations in the Los Angeles

area clearly involved an extended period in

which you had hostile feelings regarding your

participation or uncontrollable feelings

regarding your participation in those crimes. 

And you need a little more therapy, a little

more insight in regard to why you have this rage

and how you have an easy answer that simply

taking alcohol or drugs can cause you to have

. . . what I [call] an itchy trigger finger

regarding your response and rage towards others. 

The district attorney of Los Angeles County

. . . indicates his opposition [to your release]

. . . as [does] the Los Angeles County Sheriff’s

Department. Further in regard to other factors

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. . . you ingest mind altering substances and

your risk for violence is very high. Simply

telling the Board that you will refrain from

alcohol does not address the underlying issues

that appear to be your problem, and it is a

finding that you could benefit from further

therapy before being released back into society. 

For all of these reasons, I find you not

suitable for parole at this time. 

Doc. #4-2 at 60–63. 

The second commissioner, who heard and reviewed the same

evidence at the February 14, 2007, hearing found that Petitioner

was, in fact, suitable for parole, stating:

I have reviewed all of the information

received from the public and relied on the

following circumstances in concluding that

[Petitioner] is suitable for parole and would

not pose an unreasonable risk of danger to

society or a threat to public safety if released

from prison. [Petitioner] has no juvenile

record of assaulting others, has a stable social

history as exhibited by reasonably stable

relationships with others. In particular, . . .

you’ve mentioned that you keep in contact with

your brothers Joseph and Robert seeing them

every other year, your sister Maria, seeing her

twice a month and your sister Theresa, seeing

her once a year. In addition you mentioned that

you keep in contact with your niece, your

nephew, your daughter, your wife and your

mother. While in prison, [you have] enhanced

[your] ability to function within the law upon

release through participation in educational

programs[,] specifically you have received your

GED back in . . . 1988 and you were close to

getting your AA degree. Additionally you have

provided many [l]audatory chronos indicating

your participation in [Alcoholics Anonymous],

[Narcotics Anonymous] and anger management. In

addition to that, you’ve indicated that you did

receive a certificate in welding, you do have

your forklift license, and I’m incorporating by

reference previous transcripts from previous

hearings wherein it was indicated that you have

vocational training in commercial laundry and

dry cleaning. Prior to the life crime, [you]

lacked a significant criminal history of violent

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crimes. Because of maturation, growth, great

understanding and/or advanced age, [you have]

reduced [the] probability of recidivism. And I

refer to the psychological report of 2006 by Dr.

Marek wherein he indicates that you have been

free of [serious rules violations] for many

years and your behavior has improved and your

judgment has become clear and you have matured. 

If released to the community [your] violence

potential is considered to be about the same as

the average citizen in the community. All

things considered [your] pre-incarceration

record is not that severe. With the gains [you

have] made here, [you] should be able to

generalize those gains to the community. Then

I’ll go on to the report from Dr. Tout

(phonetic) on June 6, 2000 wherein he indicated

that should [you] at this time be given a parole

or release date, [your] prognosis for

maintaining [your] present gains in the

community is excellent as long as [you] 

continue[] to abstain from substance use. And

then finally, I will read into the record a 2000

report from Dr. Koch wherein he indicates that

if released to the community [your] violence

potential is estimated to be no higher than the

average citizen in the community. I have also

found that the prisoner has realistic parole

plans which include a job offer and/or family

support. [Petitioner] indicated that he would

have a job at Gold’s Gym and has other job

opportunities lined up, has maintained close

family ties while in prison via letters and/or

visits and [Petitioner] has provided various

letters from various family members indicating

his close family ties, has maintained positive

institutional behavior which indicates

significant improvement in self control, shows

signs of remorse. [Petitioner] has indicated

that he understands the nature and magnitude of

the offense and accepts responsibility for the

criminal behavior and has a desire to change

towards good citizenship. In reading the

psychological report from Dr. Marek as well as

the Board report from [correctional counselor]

Arnold, it was indicated that you did express

remorse for the crime. 

Id. at 63–66.

On March 27, 2007, approximately six weeks after the

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February 14, 2007 split decision, BPH had an executive meeting. 

Doc. #4-2 at 72. At that meeting, BPH, sitting en banc, by

unanimous vote but without receiving any additional evidence, found

Petitioner unsuitable for parole. Id. Petitioner’s parole was

deferred for one year. Id. 

Petitioner challenged BPH’s en banc decision denying him

parole by filing a petition for a writ of habeas corpus in state

superior court, which the court denied on October 2, 2007. Doc. #4-

3 at 2–3. The court determined BPH’s decision denying Petitioner

parole was supported by “some evidence,” and explained as follows:

[BPH’s] decision was based . . . primarily on

the commitment offense and on . . . Petitioner’s

previous criminal history. 

The Court finds that there is some evidence

to support the Board’s finding that the

commitment offense was carried out in a

dispassionate and calculated manner. Cal. Code

Regs., tit. 15, §2402, subd. (c)(1)(B). The

kidnapping and subsequent murder of Mr. Collier

was essentially an execution of the victim

because he had been present when the killing of

Mr. Takumoto occurred. The Petitioner

participated in nearly every facet of the crime

except for the killing itself. He had numerous

opportunities to flee and call the police and

did not do so. Furthermore, the motive for the

crime was very trivial in relation to the

offense. Cal. Code Regs., tit. 15, §2402, subd.

(c)(1)(E). The committing offenses were

precipitated by an argument and the Petitioner

was not even directly involved in the dispute. 

The Court also finds there is some evidence

to support the Board’s finding that the

Petitioner was previously convicted of assault

for hitting a police officer in the face with a

brick. Cal. Code Regs., tit. 15, §2402, subd.

(c)(2). 

In addition [BPH] noted that the District

Attorney’s Office had opposed the Petitioner’s

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release. While this is also not a factor on

which the Board may rely to deny parole, such

opposition may be properly considered. Penal

Code § 3402. 

Id. 

Petitioner then filed a petition for a writ of habeas

corpus in the state appellate court, which that court denied on

February 21, 2008, in a decision that read, in its entirety:

The petition for writ of habeas corpus has

been read and considered. 

The petition is denied for failure to state

sufficient facts demonstrating entitlement to

the relief requested. There is “some evidence”

to support the findings of the Board of Parole

Hearings. (See In re Dannenberg (2005) 34 Cal.

4th 1061, 1071). 

Doc. #4-7 at 2. The California Supreme Court summarily denied

Petitioner’s request for review, although Justice Moreno would have

granted Petitioner’s request. Doc. #4-9 at 2. This federal

Petition for a Writ of Habeas Corpus followed. Doc. #1. 

 Per order filed on October 9, 2008, this Court found

Petitioner’s claim that BPH violated his due process rights, when

liberally construed, colorable under 28 U.S.C. § 2254, and ordered

Respondent to show cause why a writ of habeas corpus should not be

granted. Doc. #3. Respondent has filed an Answer and Petitioner

has filed a Traverse. Doc. ## 4 & 5.

//

//

//

//

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II

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), codified under 28 U.S.C. § 2254, provides “the exclusive

vehicle for a habeas petition by a state prisoner in custody

pursuant to a state court judgment, even when the petitioner is not

challenging his underlying state court conviction.” White v.

Lambert, 370 F.3d 1002, 1009–10 (9th Cir. 2004). Under AEDPA, this

Court may entertain a petition for habeas relief on behalf of a

California state prisoner “only on the ground that he is in custody

in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a).

The writ may not be granted unless the state court’s

adjudication of any claim on the merits: “(1) resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or (2) resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). Under this deferential standard,

federal habeas relief will not be granted “simply because [this]

[C]ourt concludes in its independent judgment that the relevant

state court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be

unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). 

While circuit law may provide persuasive authority in

determining whether the state court made an unreasonable application

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of Supreme Court precedent, the only definitive source of clearly

established federal law under 28 U.S.C. § 2254(d) rests in the

holdings (as opposed to the dicta) of the Supreme Court as of the

time of the state court decision. Williams, 529 U.S. at 412; Clark

v. Murphy, 331 F3d 1062, 1069 (9th Cir. 2003). 

The state court decision to which 28 U.S.C. § 2254 applies

is the “last reasoned decision” of the state court. See Ylst v.

Nunnemaker, 501 U.S. 797, 803–04 (1991); Barker v. Fleming, 423 F.3d

1085, 1091–92 (9th Cir. 2005). Although Ylst primarily involved the

issue of procedural default, the “look through” rule announced there

has been extended beyond that particular context. Barker, 423 F.3d

at 1092 n.3 (citing Lambert v. Blodgett, 393 F.3d 943, 970 n.17 (9th

Cir. 2004) and Bailey v. Rae, 339 F.3d 1107, 1112–13 (9th Cir.

2003)). The federal court also looks to any lower state court

decision that was examined, and whose reasoning was adopted, by the

highest state court to address the merits of a petitioner’s claim,

as is the case here. See Williams v. Rhoades, 354 F.3d 1101, 1106

(9th Cir. 2004). 

 Where, as here, the state courts cited only state law in

their decisions, the federal court must ask whether state law, as

explained by the state courts, is “contrary to” clearly established

governing federal law. See, e.g., Lockhart v. Terhune, 250 F.3d

1223, 1230 (9th Cir. 2001); Hernandez v. Small, 282 F.3d 1132, 1141

(9th Cir. 2002) (state court applied correct controlling authority

when it relied on state court case that quoted Supreme Court for

proposition squarely in accord with controlling authority). If the

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state court, relying on state law, correctly identified the

governing federal legal rules, the federal court must ask whether

the state court applied them unreasonably to the facts. See

Lockhart, 250 F.3d at 1232.

III

A

The Fifth and Fourteenth Amendments prohibit the

government from depriving a prisoner of life, liberty or property

without due process of law. U.S. Const. Amends. V & XIV. It is now

settled that California’s parole scheme, codified in California

Penal Code section 3041, vests all “prisoners whose sentences

provide for the possibility of parole with a constitutionally

protected liberty interest in the receipt of a parole release date,

a liberty interest that is protected by the procedural safeguards of

the Due Process Clause.” Irons v. Carey, 505 F.3d 846, 850 (9th

Cir. 2007) (citing Sass v. Calif. Bd. of Prison Terms, 461 F.3d

1123, 1128 (9th Cir. 2006)); Biggs v. Terhune, 334 F.3d 910, 914

(9th Cir. 2003); McQuillon v. Duncan, 306 F.3d 895, 903 (9th Cir.

2002). It matters not that a parole release date has not been set

for the prisoner because “[t]he liberty interest is created, not

upon the grant of a parole date, but upon the incarceration of the

inmate.” Biggs, 334 F.3d at 915. Due process accordingly requires

that a parole board premise its decision regarding a petitioner’s

parole suitability on “some evidence in the record” such that the

decision is not arbitrary. Sass, 461 F.3d at 1128–29 (quoting

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Superintendent v. Hill, 472 U.S. 445, 457 (1985)). The “some

evidence” standard is clearly established federal law in the parole

context for purposes of § 2254(d). Id. at 1129.

The Supreme Court set forth the “some evidence” standard

in Hill, which concerned the revocation of “good time” credits

towards parole resulting from prisoner misconduct. Hill, 472 U.S.

at 455. The Court rested its holding upon the procedural due

process foundation it laid in Wolff v. McDonnell, 418 U.S. 539,

563–67 (1974). As the Court noted, Wolff required, among other

things, that a prisoner receive “a written statement by the fact

finder of the evidence relied on and the reasons” for the

deprivation of his good time credits. Hill, 472 U.S. at 454 (citing

Wolff, 418 U.S. at 565). The Court then added to the foundation it

laid in Wolff: “[R]evocation of good time does not comport with

‘the minimum requirements of procedural due process,’ unless the

findings of the prison disciplinary board are supported by some

evidence in the record.” Hill, 472 U.S. at 455 (quoting Wolff, 418

U.S. at 558). 

The “some evidence” standard does not permit this Court to

“reweigh the evidence.” Powell v. Gomez, 33 F.3d 39, 42 (9th Cir.

1994). Instead, the inquiry is “whether there is any evidence in

the record that could support the conclusion reached by the

disciplinary board.” Hill, 472 U.S. at 455–56. While this test is

not stringent, it must at minimum protect a prisoner’s “strong

interest in assuring that the loss of [parole] is not imposed

arbitrarily.” Id. at 454. 

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Due process also requires that the evidence underlying the

parole board’s decision have some indicium of reliability. Biggs,

334 F.3d at 915; McQuillion, 306 F.3d at 904. Relevant to this

inquiry is whether the prisoner was afforded an opportunity to

appear before, and present evidence to, the board. See Pedro v.

Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987). If BPH’s

determination of parole unsuitability is to satisfy due process,

there must be some reliable evidence to support the decision. Rosas

v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005).

B

When assessing whether a state parole board’s suitability

determination was supported by “some evidence,” the Court’s analysis

is framed by the statutes and regulations governing parole

suitability determinations in the relevant state. Irons, 505 F.3d

at 850. Under California law, prisoners serving indeterminate life

sentences, like Petitioner, become eligible for parole after serving

minimum terms of confinement required by statute. In re Dannenberg,

34 Cal. 4th 1061, 1069–70 (2005). At that point, California’s

parole scheme provides that BPH “shall set a release date unless it

determines that the gravity of the current convicted offense or

offenses, or the timing and gravity of current or past convicted

offense or offenses, is such that consideration of the public safety

requires a more lengthy period of incarceration.” Cal. Pen. Code

§ 3041(b). Regardless of the length of the time served, “a life

prisoner shall be found unsuitable for and denied parole if in the

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judgment of the panel the prisoner will pose an unreasonable risk of

danger to society if released from prison.” Cal. Code Regs. tit.

xv, § 2402(a). In making this determination, BPH must consider

various factors, including the prisoner’s social history, past and

present mental state, past criminal history, the base and other

commitment offenses, including behavior before, during and after the

crime, past and present attitude toward the crime and any other

information that bears on the prisoner’s suitability for release. 

See Cal. Code Regs. tit. xv, § 2402(b)–(d).

In considering the commitment offense, BPH must determine

whether “the prisoner committed the offense in an especially

heinous, atrocious or cruel manner.” Cal. Code Regs. tit. xv, §

2402(c)(1). The factors to be considered in making that

determination include: “(A) Multiple victims were attacked, injured

or killed in the same or separate incidents; (B) The offense was

carried out in a dispassionate and calculated manner, such as an

execution-style murder; (C) The victim was abused, defiled or

mutilated during or after the offense; (D) The offense was carried

out in a manner which demonstrates an exceptionally callous

disregard for human suffering; (E) The motive for the crime is

inexplicable or very trivial in relation to the offense.” Id. 

Under California law, the “core determination” regarding a

prisoner’s threat to public safety “involves an assessment of an

inmate’s current dangerousness.” See In re Lawrence, 44 Cal. 4th

1181, 1205 (2008) (emphasis in original) (citing In re Rosenkrantz,

29 Cal. 4th 616 (2002) and In re Dannenberg, 34 Cal. 4th 1061

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(2005)). According to the court:

to the extent our decisions in Rosenkrantz and

Dannenberg have been read to imply that a

particularly egregious commitment offense always

will provide the requisite modicum of evidence

supporting the Board’s or the Governor’s

decision, this assumption is inconsistent with

the statutory mandate that the Board and the

Governor consider all relevant statutory factors

when evaluating an inmate’s suitability for

parole, and inconsistent with the inmate’s due

process liberty interest in parole that we

recognized in Rosenkrantz.

Lawrence, 44 Cal. 4th at 1191 (emphasis in original). The court

continued:

In some cases, such as this one, in which

evidence of the inmate’s rehabilitation and

suitability for parole under the governing

statutes and regulations is overwhelming, the

only evidence related to unsuitability is the

gravity of the commitment offense, and that

offense is both temporally remote and mitigated

by circumstances indicating the conduct is

unlikely to recur, the immutable circumstance

that the commitment offense involved aggravated

conduct does not provide “some evidence”

inevitably supporting the ultimate decision that

the inmate remains a threat to public safety.

Id. (emphasis in original). 

C

A critical issue in parole denial cases concerns BPH’s use

of evidence about the crime that led to the conviction. A trio of

Ninth Circuit cases guide the application of the Superintendent v.

Hill “some evidence” standard in determining whether a particular

prisoner would pose an unreasonable risk of danger to society or a

threat to public safety if released from prison, taking into account

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the circumstances of the commitment offense: Biggs, 334 F.3d 910,

Sass, 461 F.3d 1123 and Irons, 505 F.3d 846. The first case, Biggs,

explained that the value of the criminal offense fades over time as

a predictor of parole suitability: 

The Parole Board’s decision is one of ‘equity’

and requires a careful balancing and assessment

of the factors considered. . . . A continued

reliance in the future on an unchanging factor,

the circumstance of the offense and conduct

prior to imprisonment, runs contrary to the

rehabilitative goals espoused by the prison

system and could result in a due process

violation.

Biggs, 334 F.3d at 916–17. Although the court in Biggs upheld the

initial denial of a parole date based solely on the nature of the

crime and the prisoner’s conduct before incarceration, it cautioned

that “[o]ver time . . ., should Biggs continue to demonstrate

exemplary behavior and evidence of rehabilitation, denying him a

parole date simply because of the nature of Biggs’ offense and prior

conduct would raise serious questions involving his liberty interest

in parole.” Id. at 916. 

Next came Sass, which criticized the court’s statements in 

Biggs as improper and beyond the scope of the dispute before the

court. Sass determined that the parole board is not precluded from

relying on unchanging factors such as the circumstances of the

commitment offense or the parole applicant’s pre-offense behavior in

determining parole suitability. See Sass, 461 F.3d at 1129

(commitment offenses in combination with prior offenses provided

some evidence to support denial of parole at subsequent parole

consideration hearing). 

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The last of the three cases, Irons, determined that due

process was not violated by the use of the commitment offense and

pre-offense criminality to deny parole for a prisoner sixteen years

into his seventeen-to-life sentence. Irons emphasized, however,

that in all three cases (Irons, Sass and Biggs) in which the court

had “held that a parole board’s decision to deem a prisoner

unsuitable for parole solely on the basis of his commitment offense

comports with due process, the decision was made before the inmate

had served the minimum number of years required by his sentence.” 

Irons, 505 F.3d at 853. The court, citing Biggs, then expressed

“hope that the Board will come to recognize that in some cases,

indefinite detention based solely on an inmate’s commitment offense,

regardless of the extent of his rehabilitation, will at some point

violate due process, given the liberty interest in parole that flows

from the relevant California statutes.” Id. at 854. 

IV

Petitioner seeks federal habeas corpus relief from BPH’s

March 27, 2007 en banc decision finding him unsuitable for parole

and denying him a subsequent hearing for one year on the ground that

the decision does not comport with due process. 

After a careful review of the record, and as explained

below, the Court finds that at the time of Petitioner’s 2007 parole

suitability hearing, there simply was no reliable evidence to

suggest that he would pose an unreasonable risk of danger to society

or a threat to public safety if released from prison. See Cal. Code

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Regs. tit. xv, § 2402(a). Rather, the Court finds the record was

“so devoid of evidence that the findings of [BPH] were without

support or otherwise arbitrary.” Hill, 472 U.S. at 457, such that

the state courts’ determinations that there was “some evidence” in

the record to support BPH’s decision to deny Petitioner parole were

objectively unreasonable applications of Hill. See 28 U.S.C. §

2254(d); Williams v. Taylor, 529 U.S. at 411; Williams v. Rhoades,

354 F.3d at 1106. 

At his February 14, 2007 parole suitability hearing, one

BPH commissioner found Petitioner was not suitable for parole and

would pose an unreasonable risk to society or threat to public

safety if released from prison; a second commissioner, who heard and

reviewed the same evidence, reached the opposite conclusion. Doc.

#4-2 at 60–66. The commissioner who found Petitioner unsuitable for

parole relied heavily on the circumstances of the commitment

offense, describing them in great detail. Doc. #4-2 at 60–62. This

commissioner also concluded that Petitioner’s “risk for violence is

very high” and that he had an “itchy trigger finger regarding [his]

response with rage and anger towards others.” Id. at 63. 

But according to the psychologist who evaluated Petitioner

prior to his 2007 hearing, under the heading “ASSESSMENT OF

DANGEROUSNESS”: 

As compared to the other Level II inmates,

[Petitioner’s] violence potential is regarded as

lower. It has been many years since he has

received a [serious rules violation] and his

behavior has improved as has, apparently, his

judgment and maturity. If released to the

community, his violence potential is considered

to be about the same as the average citizen in

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the community. All things considered, his preincarceration record is not that severe. With

the gains he has made here, he should be able to

generalize those gains to the community. 

Significant risk factors and precursors to

violence for him would be a return to

drug/alcohol use and a return to an

irresponsible lifestyle. He says, however, that

he “has changed and won’t ever do that again. 

You can have fun without [drugs and alcohol].” 

Doc. #4-2 at 76. The psychologist concluded his evaluation of

Petitioner by noting: 

[Petitioner] is competent and responsible for

his behavior. He has the capacity to abide by

institutional rules and has generally done so

during his incarceration. He does not have a

mental health disorder that would necessitate

treatment either during his incarceration or on

parole. If paroled, he should have mandatory

drug/alcohol testing and mandatory attendance at

a drug treatment program. Parole decisions

should be based on custody factors. 

Id. at 76–77. 

In light of the conclusion reached by a licensed

psychologist, i.e., someone with the educational background and

practical training that qualifies him to make these precise types of

assessments, the Court dismisses the statements of the commissioner

who found Petitioner unsuitable for parole, i.e., that Petitioner

had an “itchy trigger finger regarding [his] response with rage and

anger towards others” and that Petitioner’s “risk for violence [was]

very high,” Doc. #4-2 at 60–63, as based on sheer speculation,

rather than on reliable evidence, as due process requires. See

Rosas, 428 F.3d at 1232 (if BPH’s determination of parole

unsuitability is to satisfy due process, there must be some reliable

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evidence to support the decision).

Indeed, the second commissioner relied heavily on the

psychologist’s conclusions regarding whether Petitioner would pose

an unreasonable risk of danger to society if released from prison,

and quoted extensively from that evaluation in explaining his

reasons for finding that Petitioner would not. Doc. #4-2 at 65. 

Further, during the evidentiary portion of the hearing, this

commissioner read the following laudatory chrono into the record: 

We have a laudatory chrono here dated 9/30/06

and it’s from Dave Rodriguez and he indicates

you’ve been an active participant in [Alcoholics

Anonymous (“AA”) and Narcotics Anonymous (“NA”)]

at CTF and he says that you’ve been a

contributing member of the group since May of

[19]88 and you positively participated and

[have] shown ability to understand and

comprehend all aspects of the 12-step programs

through [your] own self-improvement techniques.

[Petitioner] is to be lauded for his continued

participation and positive contributions to AA

and NA at CTF. 

Doc. #4-2 at 10. The commissioner than noted that Petitioner had

received similar laudatory chronos from Rodriguez regarding his

participation in AA and NA on March 31, 2005, April 1, 2005, June

30, 2005, October 6, 2005, December 27, 2005, December 30, 2005,

March 31, 2006, April 1, 2006, June 30, 2006 and December 29, 2006. 

Id. at 10–13. 

Petitioner’s attorney then read into the record two 

laudatory chronos Petitioner had received from CTF staff the day

before his hearing. Doc. #4-2 at 13–14. The first was from

Correctional Officer A. Salazar, who stated: 

[Petitioner] has been housed in the east dorm

facility for approximately 11 years now. The

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east dorm is a privileged facility that requires

inmates to remain disciplinary free, follow

housing regulations as they pertain to

security/safety concerns and to program

productively in a working environment. As a

facility second watch dorm officer, I’ve had the

opportunity to observe [Petitioner] throughout

his daily activities during the past seven

years. He’s always respectful to his peers and

staff alike by remaining disciplinary free in a

sensitive environment such as east dorm

facility[.] [H]e demonstrates a mature level of

responsibility, tactfulness and concern for

himself, staff and inmates who live with him. 

He has earned the respect of many who know him. 

He has definitely earned mine.

Doc. #4-2 at 13. The second was from M. Eucina, Industries Patrol

Officer, who stated: 

During the previous 11 years, [Petitioner]

has been housed at the central facility east

dorm. Having worked as an east dorm patrol

officer, I have had the opportunity to observe

the overall demeanor of countless inmates. 

While at work I ha[ve] observed [Petitioner]

interact positively with both inmate and staff

alike. Though living in a prison setting often

makes inmate/staff (as well as inmate/inmate)

interactions difficult, [Petitioner] has never

allowed such difficulties to stop him from

communicating in a positive fashion with

everyone. His overall attitude is one of

respect and his willingness to . . . “Reach out”

. . . to others in this manner should be

commended. He is conscientious and respectful

in his dealing with staff and does not have any

disciplinary problem. These are attributes

deserving of recognition. It is my professional

opinion that [Petitioner’s] willingness to do

well in this prison community is indicative of

what is expected of a paroling inmate. These

are attributes deserving of recognition. This

[chrono] was written as a character reference of

the person [Petitioner] is today and I believe

[Petitioner] will continue to maintain his

positive attitude upon release. 

Doc. #4-2 at 14–15. Petitioner’s attorney also read into the record

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a February 7, 2007 memorandum from Correctional Officer P.K.

Sterling, who stated: 

On November 21, 2005, I wrote and submitted

a memorandum to [BPH] on behalf of [Petitioner]. 

As I don’t want to take up too much of your time

nor repeat myself unnecessarily I ask that you

refer once again to said memorandum which I’ve

attached for your convenience. My reason for

submitting the second memorandum is simple yet

sincere. I wish to impress upon this Panel my

continued belief in [Petitioner] and the fact

that he would be a productive member of society

if given the opportunity. In closing, I must

reiterate the fact that I am not in the habit of

writing Laudatory chronos/memos on behalf of

inmates. Despite the various disappointments

and struggles [Petitioner] has had to

continually face in prison, he continues to

demonstrate an ability to overcome such in a

positive and healthy manner. As such, I believe

[Petitioner] will continue to do so on his

release. Thank you for your time. 

Doc. #4-2 at 15–16. 

Thus, the record before the Court shows that at the time

of his 2007 parole suitability hearing, Petitioner had the support

not only of one BPH commissioner, but the psychologist who evaluated

Petitioner in anticipation of his parole suitability hearing, as

well as three CTF staff members, one of whom noted he was “not in

the habit of writing Laudatory chronos/memos on behalf of inmates”

but did so in Petitioner’s case because of his firm belief

Petitioner would transition successfully into the community. Also

weighing heavily in favor of a finding of suitability were

Petitioner’s realistic parole plans, which included a solid offer of

employment, a variety of vocational skills he could use, and a 

support system that awaited Petitioner upon his release, documented

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by numerous letters from his siblings, who visited Petitioner

regularly throughout the duration of his imprisonment. Doc. #4-2 at

64 & 66. 

Finally, with respect to the commitment offense, the Court

notes that Petitioner was convicted of second degree felony-murder,

due to his limited involvement in the commitment offense – as noted

by the state superior court, see Doc. #4-3 at 2–3, in that he was

not even present when the first victim, James Tokumoto, was killed

by Robert Almarez. The Court further finds the commitment offense

was an isolated aberration in Petitioner’s past, “temporally remote”

– committed some twenty-five years earlier – and certainly mitigated

by various circumstances such as Petitioner’s maturity and

documented model behavior while in prison, indicating the conduct is

unlikely to recur. See Lawrence, 44 Cal. 4th at 1191. At the time

BPH denied Petitioner a parole date in 2007, he had served twentythree years on his seven-to-life sentence, fifteen years past his

minimum eligible parole date. Perhaps in some cases the

circumstances of a prisoner’s commitment offense reasonably may

continue to predict his future even in spite of a prisoner’s

dramatic behavioral improvement while in prison. But, where, as

here, Petitioner’s “not that severe” prior criminal history, his

strong and wide-spread support from one BPH commissioner, three

correctional officers and family and friends, his realistic parole

plans that included a firm employment offer, financial support and a

place to live, his consistently favorable psychological evaluations

and his lack of any recent serious disciplinary violations, his

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continued imprisonment based on the circumstances of his 1982

commitment offense rises to the level of a due process violation the

Ninth Circuit envisioned. See Irons, 505 F.3d at 854 (“in some

cases, indefinite detention based solely on an inmate’s commitment

offense, regardless of the extent of his rehabilitation, will at

some point violate due process, given the liberty interest in parole

that flows from the relevant California statutes”).

After careful review of the law and the factual record now

before the Court, it is difficult, if not impossible, to reconcile

BPH’s decision to deny Petitioner parole with the evidence upon

which it relied to make that decision. The Court finds the record

was “so devoid of evidence that the findings of [BPH] were without

support or otherwise arbitrary.” Hill, 472 U.S. at 457. The state

courts’ determinations that BPH’s finding that Petitioner was

unsuitable for parole and posed an unreasonable danger to society or

threat to public safety if released from prison constituted “some

evidence” of unsuitability were contrary to, and involved an

unreasonable application of, clearly established federal law, and

were based on an unreasonable determination of the facts. See 28

U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. at 411; Williams v.

Rhoades, 354 F.3d at 1106. There simply was no reliable evidence to

suggest that if released on parole, Petitioner would pose an

unreasonable risk of danger to society or a threat to public safety

if released from prison. Cal. Code Regs. tit. xv, § 2402(a). As a

result, Petitioner is entitled to federal habeas relief on his due

process claim.

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V 

For the reasons stated above, the Petition for Writ of

Habeas Corpus is GRANTED. Within twenty (20) days of the date of

this order, BPH must calculate a term for Petitioner and set an

imminent date for his release in accordance with California Penal

Code § 3041(a). See McQuillon v. Duncan, 346 F.3d 1012, 1015 (9th

Cir. 2003). Within ten (10) days of Petitioner’s release,

Respondent must file a notice with the Court confirming the date on

which Petitioner was released. 

IT IS SO ORDERED.

DATED 03/29/10 

THELTON E. HENDERSON

United States District Judge

G:\PRO-SE\TEH\HC.08\Amaro-08-2338-bph grant.wpd

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