United States District Court

For the Northern District of California

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No. C 09-2029 RS (PR)

ORDER DENYING PETITION

*E-Filed 7/9/10*

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

ROBERT P. KASER,

Petitioner,

v.

ROBERT K. WONG, Warden,

Respondent. /

No. C 09-2029 RS (PR)

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS 

INTRODUCTION

This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 28

U.S.C. § 2254. For the reasons set forth below, the petition is DENIED. 

BACKGROUND

In 1989, petitioner pleaded guilty to second degree murder and assault with a deadly

weapon. The El Dorado County Superior Court sentenced petitioner to fifteen years to life,

plus a six-year enhancement. In 2007, the Board of Parole Hearings (“Board”) found

petitioner unsuitable for parole on grounds that he “would pose an unreasonable risk of

danger to society and or a threat to public safety if released from prison.” (Ans., Ex. 1 at

156.) In response to the Board’s decision, petitioner sought, though was denied, relief on

state collateral review. (Pet. at 4–5.) This federal habeas petition followed. 

Case 3:09-cv-02029-RS Document 15 Filed 07/09/10 Page 1 of 6
United States District Court

For the Northern District of California

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No. C 09-2029 RS (PR)

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In reaching its decision, the Board considered the facts of the commitment offense. In

1985, petitioner shot and killed his stepson, Ehren Dixon, and inflicted gunshot wounds on

another stepson, Myles Dixon, and his estranged wife, Priscilla. The details of the crime are

that in August 1985, petitioner went to the house in Placerville, California he once shared

with Priscilla in order to retrieve property. Priscilla told Ehren and Myles to put on their

shoes and help petitioner. As the boys began to do so, petitioner appeared at the door of their

room and fired a .45 caliber handgun at them. Myles was shot first and reported that he

observed petitioner then shoot Ehren. Petitioner proceeded to walk to the kitchen where he

shot once at Priscilla, wounding her in the arm. Priscilla claimed that he tried to shoot her

again, but that the weapon malfunctioned, allowing her to flee the house, following her sons,

who had run to a neighbor’s house for help. Upon arriving, the police saw Ehren and Myles

lying on the porch facing the opposite direction from each other, while Priscilla was

attending to them, petitioner having fled the scene. Thirty minutes after the victims were

moved by ambulance, investigating officers observed petitioner drive up to the house. 

Officers arrested petitioner, who had a blood alcohol content of .31 percent. Fourteen year

old Ehren succumbed to his gunshot wound a few days later. (Ans., Ex. 1 at 16–17.) 

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

in its decision petitioner’s social history, and his psychological report. Petitioner’s social

history includes a record of violence and the heavy use of alcohol. In fact, petitioner’s

“significant” alcoholism, and his repeated failures in stopping drinking, figured largely in the

Board’s discussion of his social history, not least because he was very intoxicated on the day

of the murder. (Id. at 158–59.) Petitioner admitted at the hearing that he drank heavily and

often over twenty years, consuming at times at least a quart of vodka a day, including the

hours just before the murder. (Id. at 20.) His initial attempts at treatment were failures,

petitioner admitted. (Id. at 24–25.) These admissions were corroborated by surviving

victims Myles Dixon and Priscilla who spoke at the parole hearing. Myles asserted that

petitioner repeatedly failed in his attempts to stop drinking, recalling that “[w]hile accepting

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his one-year sobriety chip he was drunk.” (Id. at 147.) According to Myles, petitioner was

emotionally and physically abusive, often striking Myles and threatening to strike Priscilla,

who also stated at the hearing that petitioner was a violent and abusive alcoholic. (Id. at

147–48, 151–55.) Myles’s description of his childhood household is at odds with that given

by petitioner, who stated that there was never any violence in the household, and never any

serious verbal abuse. (Id. at 27, 35.) The Board also noted that petitioner’s latest

psychological report rated petitioner’s risk for future violence as low provided that he kept

away from alcohol, id. at 87, 89, and that his last serious disciplinary infraction occurred in

1987, id. at 63–64. If petitioner were to drink again, his “risk of violence would be high,”

according to one psychological report. (Id. at 82.) In light of all these factors, the Board

concluded that petitioner posed an unreasonable threat to public safety and denied him

parole. (Id. at 32.) 

As grounds for federal habeas relief, petitioner alleges that the Board’s decision

denying parole (1) violated his right to due process because the decision was not supported

by “some evidence” and is based on the unchangeable facts of the commitment offense; 

(2) failed “to state sep[a]rate reason [in imposing a multi-year denial] as required by law in

violation of the state and case law”; and (3) the state court “abused its discretion in denying

the writ in that the court found true the conclusion reached by the Board which was in direct

contraction [sic] with the evidence” and in so doing “deprived Petitioner of a fair and

impartial determination of the facts.”

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,

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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. 

DISCUSSION

Petitioner claims that the Board’s decision violated his right to due process because it

was not based on “some evidence” that he currently poses an unreasonable risk to public

safety. Due process requires that the Board’s decision to deny a California prisoner parole be

supported by “some evidence” of current dangerousness. Hayward v. Marshall, 603 F.3d

546 (9th Cir. 2010); see also Pearson v. Muntz, No. 08-55728, 2010 WL -- (9th Cir. May 24,

2010) (per curium). Accordingly, in reviewing federal habeas claims that a California

prisoner was denied parole in violation of due process, courts must “decide whether the

California judicial decision approving the governor’s [or the parole board’s] decision

rejecting parole was an “unreasonable application” of the California “some evidence”

requirement, or was “based on an unreasonable determination of the facts in light of the

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evidence.” Hayward, 604 F.3d at 562–63. 

The commitment offense alone does not always provide evidence that a petitioner

poses a current threat to public safety. Id. at 562. The offense does not establish current

dangerousness “unless the record also establishes that something in the prisoner’s pre- or

post-incarceration history, or his or her current demeanor and mental state” supports an

inference of dangerousness. Id., citing In re Lawrence, 44 Cal. 4th 1181, 1214 (Cal. 2008). 

Here, the record shows that there was “some evidence” to support the state court’s

approval of the Board’s parole denial. First, the circumstances surrounding the commitment

offense suggest that petitioner lacks sufficient self-control, which can result in violence and

abuse. Second, the record establishes that petitioner’s pre- and post-conviction history

supports an inference of current dangerousness — in particular his turbulent marriage to

Priscilla, his physical and emotional abuse of his stepsons, his admitted extensive history of

alcohol abuse, and rating of having a low risk for violence. While a rating of “low” is not

conclusively prohibitive, it does constitute some evidence of current dangerousness in

addition to the commitment offense. See Hayward, 603 F.3d at 570–71 (Berzon, J.,

concurring). This “low” risk would become “high” if petitioner were to drink again, a

reasonable possibility considering his previous failures at staying alcohol-free. 

Turning to the instant matter, it is reasonable to infer from this record of past violence

and misbehavior that, if released, petitioner currently poses an unreasonable risk of danger to

society, or a threat to public safety. Because the Board’s decision is supported by sufficient

evidence in the record, including circumstances other than those of the commitment offense,

petitioner’s claim that the Board’s decision was unsupported by “some evidence,” or was

based solely on the circumstances of the commitment offense, or otherwise violated his right

to due process, is without merit. Accordingly, petitioner’s claims that the Board’s decision

was not supported by some evidence, that the Board relied solely on the unchanging

circumstances of the commitment offense, and that the state court’s denial of the writ was

unconstitutional are DENIED. 

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Petitioner’s claim that the four-year denial of a parole hearing violates state law is

DENIED. Petitioner has not shown that this is a cognizable federal habeas claim, or that the

state court’s denial of this claim was contrary to clearly established federal law. Rather,

petitioner asserts only that it is unreasonable for the Board to use the same reasons to deny

parole and to delay petitioner’s next parole hearing for four years. Petitioner points to no

supporting authority for his assertion. 

In sum, the state court’s approval of the Board’s decision, therefore, was not an

“unreasonable application” of the California “some evidence” requirement, nor was it “based

on an unreasonable determination of the facts in light of the evidence.” 

CONCLUSION

The state court’s denial of petitioner’s claims did not result in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law, nor

did it result in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding. Accordingly, the petition is

DENIED. 

A certificate of appealability will not issue. Petitioner has not shown “that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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

IT IS SO ORDERED.

DATED: July 9, 2010 RICHARD SEEBORG

United States District Judge

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