United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOHN NEBLETT,

Petitioner,

v.

ROBERT L. AYERS, Warden,

Respondent. /

No. C 08-3545 SI (PR)

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS 

INTRODUCTION

This is a federal habeas corpus action filed by a state prisoner pursuant to 28 U.S.C. 

§ 2254. For the reasons set forth below, the petition is denied. 

BACKGROUND

In 1984, Petitioner pleaded guilty to a single charge of second degree murder, see Cal.

Pen. Code § 187, and was sentenced to fifteen years to life in state prison. In 2007, the Board

of Parole Hearings (“Board”) found Petitioner unsuitable for parole for the sixth time on grounds

that he “would pose an unreasonable risk of danger to society or a threat to public safety if

released from prison.” (Pet., Ex. A at 121.) 

Case 3:08-cv-03545-SI Document 7 Filed 03/15/10 Page 1 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

In reaching its decision, the Board accepted the following facts: 

[In July 1984, Petitioner] and a friend had driven to Fiesta Island at approximately

ten a.m. and saw William Mohrman’s motor home. Mohrman is a friend of

[Petitioner] as they worked together in the Navy. [Petitioner] and his friend had

picked up a quarter keg of beer and they took it over to the motor home. This was

approximately ten a.m. Various people were in and out of the motor home. 

A little while later, Mohrman took out his gun to show some friends that were

parked next to him, next to them. He left and a short time later returned, brought

the gun back unloaded, and left it on the sofa of the motor home. He put the shells

next to the gun. [Petitioner]’s friend, Davilla [ ] picked up the gun and put it in a

rear cabinet as he was afraid someone might get hurt. He put the shells to the gun

on the right side of the cabinet. Mohrman and [Petitioner] subsequently left to go

get some ice for the beer. While they were gone, Davilla was outside throwing a

football around with some friends when Gortarez [the victim] came up and joined

them. 

Gotarez was in and out of the motor home on several occasions drinking beer and

asking for cigarettes. [Petitioner] had given Gortarez another beer and cigarette

and told him to leave. Gotarez did leave but returned in about 15 minutes for

another cigarette and beer. [Petitioner] was the only one there. He told Gortarez

that he was getting on his nerves and wanted him to leave. He said Gortarez was

being obnoxious. 

Gortarez sat down on the step of the motor home and [Petitioner] went to the rear

of the motor home and got the gun and held it at Gorterez’s head, stating ‘We told

you to get the hell out of here. I’m not fucking with you.’ Gortarez told him to

take it easy. [Petitioner] then pointed the gun in an upward angle below the

victim’s ear and pulled the trigger. This resulted in the death of the victim.

[Petitioner] told police that he was feeling very intimidated by Gortarez and that

is why he went and got the gun. He said he didn’t ‘give a goddamn if it was

loaded.’ He knew Mohrman usually kept it loaded but [Petitioner] did not know

whether it was loaded or not. After the shooting, [Petitioner] moved the body to

the back of the motor home. He then began yelling for Bill, and told somebody

to get the cops because he had killed a man.

(Pet., Ex. A at 14–17.) At the parole hearing, Petitioner explained that Gortarez had broken into

the trailer while Petitioner was off purchasing beer. Petitioner said he felt responsible for

removing Gortarez because he (Petitioner) knew him more closely than Mohrman. (Id. at 19.)

In reaching its decision, the Board discussed the circumstances of his commitment

offense, noting that the crime was carried out in a manner that was “very cruel, very cold and

callous” and “calculated.” (Id. at 121.) “[T]he inmate basically chose to go retrieve the weapon

that was inside the motor home. And basically walked up to . . . the victim, who was sitting

down, and basically shot this unarmed victim at very, very close range.” (Id.) The Board also

Case 3:08-cv-03545-SI Document 7 Filed 03/15/10 Page 2 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

found that the motive for the crime — fear and anger — was “rather inexplicable in relation to

this man losing his life just like he did.” (Id. at 121–22.) 

In addition to the circumstances of the commitment offense, the Board cited as a factor

in its decision Petitioner’s criminal history, which is composed of two crimes prior to the

commitment offense, and his behavior while in prison. At sixteen, Petitioner was arrested for

the possession of marijuana. (Id. at 26.) At eighteen, Petitioner was arrested for public

drunkenness. (Id.) At nineteen, Petitioner was fined for possessing alcohol on a city beach. (Id.

at 27–28.) While in prison, Petitioner committed six minor disciplinary infractions, the last one

in 1996, and one serious infraction, for delaying mandatory lock-up, in 1988. (Id. at 49,

123–24.) 

The Board also took into consideration Petitioner’s positive accomplishments. His work

performance was “commendable,” his participation in various inmate programs (e.g., Alcoholics

Anonymous, substance abuse and alternatives to violence classes) was successful, and his prison

academic record includes an AA in general education, as well as plans to finish his BA. (Id. at

42–43, 44–45.) Petitioner had also improved his, and acquired further, electronic technician

skills. (Id. at 46–47.) His 2007 psychological report stated that Petitioner “would rate in the low

range of his likelihood to commit future violent acts when compared to other similar inmates.”

(Id., Ex. B at 7.) 

The Board observed that Petitioner’s parole plans were not well-formed, despite

Petitioner’s investigations into parolee-friendly housing institutions designed to assist former

inmates transition to life outside of prison. (Id. at 66–76.) Petitioner also lacked a firm job offer,

and guaranteed housing. (Id. at 79, 124.) After a full hearing, during which all of the above

evidence was considered, the Board found petitioner unsuitable for parole. (Id. at 121.) 

In response to the Board’s decision, Petitioner sought, and was later denied, state habeas

relief. In 2007, Petitioner filed the instant federal habeas petition, alleging that the Board’s

decision violated his right to due process because it was not supported by some reliable evidence

and was arbitrary and capricious. 

Case 3:08-cv-03545-SI Document 7 Filed 03/15/10 Page 3 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus “in behalf of a person in

custody pursuant to the judgment of a State court 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

petition may not be granted with respect to any claim that was adjudicated on the merits in state

court unless the state court’s adjudication of the claim: “(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 the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court

arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or

if the state court decides a case differently than [the] Court has on a set of materially

indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ

if the state court identifies the correct governing legal principle from [the] Court’s decision but

unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal

habeas court may not issue the writ simply because that court 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.” Id. at 411. 

A federal habeas court making the “unreasonable application” inquiry should ask whether the

state court’s application of clearly established federal law was “objectively unreasonable.” Id.

at 409. 

//

//

//

//

Case 3:08-cv-03545-SI Document 7 Filed 03/15/10 Page 4 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

 The circumstances tending to show unsuitability for parole include: (1) the commitment

offense was committed in an “especially heinous, atrocious or cruel manner;” (2) previous record

of violence; (3) unstable social history; (4) sadistic sexual offenses; (5) psychological factors

such as a “lengthy history of severe mental problems related to the offense;” and (6) prison

5

DISCUSSION

Petitioner claims that the Board’s decision was unsupported by sufficient evidence, and

was arbitrary and capricious. (Pet., P. & A. at 1.) 

In California, prisoners have a federally protected liberty interest in parole. See Sass v.

Calif. Bd. of Prison Terms, 461 F.3d 1123, 1127–28 (9th Cir. 2006) (citing McQuillion v.

Duncan, 306 F.3d 895, 902 (9th Cir. 2002)). According to “clearly established” federal law, a

parole board’s decision to deny an inmate parole complies with due process where there is

“some evidence” to support the Board’s decision. See Superintendent v. Hill, 472 U.S. 445,

454–55(1985); Sass, 461 F.3d at 1128. Under the “some evidence” standard, “the relevant

question is whether there is any evidence in the record that could support the conclusion reached

by the [ ] board.” Hill, 472 U.S. at 455–56. In addition, the evidence underlying the parole

board’s decision must have “some indicia of reliability.” See McQuillion, 306 F.3d at 904.

Accordingly, if a parole board’s determination with respect to parole suitability is to satisfy due

process, such a determination must be supported by “some evidence” having “some indicia of

reliability.” Id.

In assessing whether there is “some evidence” to support a board’s denial of parole, this

Court must examine the record, and consider the regulations that guide the parole board in

making its parole suitability determination. Pursuant to such regulations, “[t]he panel shall first

determine whether the life prisoner is suitable for release on parole[;] [r]egardless of the length

of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment

of the panel the prisoner will pose an unreasonable risk of danger to society if released from

prison.” 15 Cal. Code Regs. § 2402(a); see In re Lawrence, 44 Cal. 4th 1181 (2008). The Board

is to consider the circumstances relevant to the question of parole suitability as enumerated by

the regulations, see id. § 2402(c)–(d),1

 and “all relevant, reliable information available.” Id.

Case 3:08-cv-03545-SI Document 7 Filed 03/15/10 Page 5 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

misconduct. 15 Cal. Code Regs. § 2402(c). Factors to be considered in determining whether

the offense was committed “in an especially heinous, atrocious or cruel manner” 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., § 2402(c)(1)(A)–(E). 

6

§ 2402(b). 

Here, the record shows that the Board had some reliable evidence to support its finding

of unsuitability. The circumstances surrounding the commitment offenses, which suggested an

offense that was carried out in a dispassionate and calculated manner, appropriately were

particularly relevant to the Board’s decision. Specifically, Petitioner, in a sudden drunken fit of

anger, retrieved a gun, walked up to the unarmed victim, and shot him to death. While the

circumstances of the commitment offense can, over time, cease to have probative value and a

parole board’s continued reliance on those circumstances as the basis for denying parole can

raise due process concerns, see Biggs v. Terhune, 334 F.3d 910, 916 (9th Cir. 2003), in the

instant case, the circumstances of the crime — an impulsive, highly violent act from an

otherwise nonviolent person — constitute some evidence of Petitioner’s dangerousness.

Additionally, because the Board’s decision was supported by some evidence in the record, and

was based on an individualized assessment of the particular circumstances of Petitioner’s case,

Petitioner’s claim that the Board’s decision was arbitrary and capricious is without merit. 

However, the circumstances of Petitioner’s commitment offense may soon cease to have

significant probative value in answering the question of Petitioner’s dangerousness. Various

factors, including Petitioner’s age and evidence of rehabilitation, greatly undermine confidence

in a continued reliance solely on the unchanging circumstances of the commitment offense to

deny parole. Petitioner was twenty-one years old when he murdered Gotarez, forty-four at the

time of the 2007 parole hearing, which was his sixth such hearing, and he is now roughly fortyseven years old. As of 2010, Petitioner has been incarcerated for roughly twenty-five years, ten

years beyond his minimum sentence of fifteen years. Petitioner has been disciplinary-free for

Case 3:08-cv-03545-SI Document 7 Filed 03/15/10 Page 6 of 7
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 The Court notes that signs of remorse, age being such that it reduces the possibility of

recidivism, plans for the future including development of marketable skills, and institutional

activities that indicate an ability to function within the law are, under the parole regulations,

circumstances tending to show parole suitability. See 15 Cal. Code of Regs. § 2402(d)(3), (7),

(8) & (9). 

7

fourteen years, his prior criminal history contains no violent offenses, his participation in selfhelp programs has been thorough and successful, his potential for violence has been rated as

quite low, and he has marketable job skills.2

 Taking all these factors into consideration, the

Court concludes that continued reliance solely on the unchanging factors of Petitioner’s

commitment offense may in the future violate Petitioner’s federally-protected liberty interest in

parole. See Biggs, 334 F.3d at 916. 

The petition, however, will be denied. Despite strong evidence of rehabilitation and a

greatly reduced likelihood of dangerousness, the Court, under the highly deferential AEDPA

standard, cannot say that the Board’s 2007 decision that was contrary to, or involved an

unreasonable application of, clearly established federal law, or that such decision was based on

an unreasonable determination of the facts in light of the evidence presented in the state court

proceeding. Accordingly, Petitioner’s claim is DENIED. 

 

CONCLUSION

The petition is DENIED. 

The Clerk shall enter judgment in favor of Respondent, and close the file.

IT IS SO ORDERED.

DATED: March 15, 2010 SUSAN ILLSTON

United States District Judge

Case 3:08-cv-03545-SI Document 7 Filed 03/15/10 Page 7 of 7