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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CLIFFORD LEE BAIR,

Petitioner, No. CIV S-04-2257 MCE GGH P

vs.

FOLSOM STATE PRISON, et al., AMENDED

Respondent. FINDINGS AND RECOMMENDATIONS

 /

I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. In 1984, petitioner was convicted of first degree murder,

three counts of burglary, two counts of false imprisonment, three counts of grand theft, two

counts of receiving stolen property and one count of destruction of phone lines. Answer, Exhibit

A. He is serving a sentence of 27 years to life. Id.

In the instant action, petitioner challenges the 2003 decision by the California

Board of Prison Terms (BPT) finding him unsuitable for parole. This was petitioner’s second

parole suitability hearing. Answer Exhibit C. Petitioner raises the following claims: 1) Cal.

Penal Code § 3041 creates a liberty interest in a presumptive parole release date; 2) the BPT did

not have sufficient evidence to find that petitioner posed an unreasonable risk of danger to

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society if released on parole; 3) the BPT did not have sufficient evidence to find him unsuitable

for parole; 4) the failure of the BPT to set a term proportionate to petitioner’s offense violates the

Eighth and Fourteenth Amendments. 

On July 7, 2005, the court recommended that the petition be denied. However, on

June 15, 2005, in Sass v. Cal. Board of Prision Terms, __F. Supp. 2d __, 2005 WL 1406100

(E.D. Cal. 2005), Judge England held that the California parole scheme for indeterminate

sentences does not create a federal liberty interest. At the time Judge England decided Sass, the

findings and recommendations in this action had already been prepared. The court now vacates

the July 7, 2005, findings and recommendations and recommends that the petition be denied

pursuant to Sass. However, the court respectfully requests that Judge England reconsider Sass

and deny the petition on the alternative grounds discussed below. 

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The AEDPA applies to this petition for habeas corpus which was filed after the

AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy,

117 S. Ct. 2059 (1997). The AEDPA “worked substantial changes to the law of habeas corpus,”

establishing more deferential standards of review to be used by a federal habeas court in

assessing a state court’s adjudication of a criminal defendant’s claims of constitutional error. 

Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). 

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme

Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion

for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy

between “contrary to” clearly established law as enunciated by the Supreme Court, and an

“unreasonable application of” that law. Id. at 1519. “Contrary to” clearly established law applies

to two situations: (1) where the state court legal conclusion is opposite that of the Supreme

Court on a point of law, or (2) if the state court case is materially indistinguishable from a

Supreme Court case, i.e., on point factually, yet the legal result is opposite.

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“Unreasonable application” of established law, on the other hand, applies to

mixed questions of law and fact, that is, the application of law to fact where there are no factually

on point Supreme Court cases which mandate the result for the precise factual scenario at issue. 

Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the

AEDPA standard of review which directs deference to be paid to state court decisions. While the

deference is not blindly automatic, “the most important point is that an unreasonable application

of federal law is different from an incorrect application of law....[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.” Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at

1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the

objectively unreasonable nature of the state court decision in light of controlling Supreme Court

authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated

awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.

Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is

contrary to, or an unreasonable application of, established Supreme Court authority. Id. An

unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has

occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the

established Supreme Court authority reviewed must be a pronouncement on constitutional

principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules

binding only on federal courts. Early v. Packer, 123 S. Ct. at 366.

However, where the state courts have not addressed the constitutional issue in

dispute in any reasoned opinion, the federal court will independently review the record in

adjudication of that issue. “Independent review of the record is not de novo review of the

constitutional issue, but rather, the only method by which we can determine whether a silent state

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court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

2003). 

The Sonoma County Superior Court issued a reasoned opinion addressing

petitioner’s claim alleging insufficient evidence to support the suitability finding. Answer,

Exhibit E. The California Supreme Court issued a summary denial of petitioner’s habeas petition

challenging the 2003 hearing. Answer, Exhibit D. Accordingly, the court “looks through” the

summary disposition to the last reasoned decision, i.e. the opinion of the Superior Court, in

determining whether the state courts reasonably applied clearly established Supreme Court

authority in denying petitioner’s claim that there was not sufficient evidence to find him

unsuitable. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (citing Ylst v.

Nunnemaker, 501 U.S. 797, 803-04, 111 S. Ct. 2590 (1991)). 

No state court issued a reasoned decision addressing petitioner’s claims that Cal.

Penal Code § 3041 requires the BPT to set a parole date and that his sentence is disproportionate. 

Accordingly, the court will conduct an independent review of these claims. 

III. Discussion

A. Insufficient Evidence

In claim two petitioner alleges that the BPT did not have sufficient evidence on

which to base the finding that petitioner would pose an unreasonable risk of danger if released. 

In claim three, petitioner alleges that there was not sufficient evidence to support the BPT’s

finding of unsuitability. These claims both challenge the sufficiency of the evidence on which

the BPT found him unsuitable. 

1. California Parole Criteria

In Sass v. Cal. Board of Prison Terms, ___ F. Supp. 2d ___, 2005 WL

1406100 (E.D.Cal. 2005), Judge England found that the California parole scheme for

indeterminate sentences does not create a federal liberty interest. Sass v. Cal. Board of Prision

Terms, __F. Supp. 2d __, 2005 WL 1406100 (E.D. Cal. 2005) (Honorable Morrison England). 

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Pursuant to Sass, petitioner’s claim that the BPT did not have sufficient evidence on which to

base the finding of unsuitability must fail. 

For the following reasons, this court respectfully requests that the holding in Sass

be reconsidered and that petitioner’s application be denied on the alternative grounds discussed

below.

Although due process does not require the existence of a parole scheme,

California has established one. Not all of the myriad procedures of the parole setting system are

pertinent here. The court sets forth that part of the statutory section that is pertinent:

(a) In the case of any prisoner sentenced pursuant to any provision of law, other 

than Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, the Board 

of Prison Terms shall meet with each inmate during the third year of 

incarceration for the purposes of reviewing the inmate’s file, making 

recommendations, and documenting activities and conduct pertinent to granting 

or withholding postconviction credit. One year prior to the inmate’s minimum 

eligible parole release date a panel consisting of at least two commissioners of 

the Board of Prison Terms shall again meet with the inmate and shall normally 

set a parole release date as provided in Section 3041.5. The panel shall consist 

solely of commissioners or deputy commissioners from the Board of Prison

Terms.

The release date shall be set in a manner that will provide uniform terms for 

offenses of similar gravity and magnitude in respect to their threat to the public, 

and that will comply with the sentencing rules that the Judicial Council may 

issue and any sentencing information relevant to the setting of parole release 

dates. The board shall establish criteria for the setting of parole release dates and 

in doing so shall consider the number of victims of the crime for which the 

prisoner was sentenced and other factors in mitigation or aggravation of the 

crime. 

Cal. Penal Code § 3041.

In compliance with the statutory mandate, the Board of Prison Terms issued

regulations which guide it in finding prisoners convicted of life offenses with parole eligibility

for parole setting. Cal. Code Regs. tit. 15, § 2402 sets forth the criteria for determining whether

an inmate is suitable for parole. Section 2402(a) provides that regardless of the length of time

served, a 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. 

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Section 2402(c) sets forth the circumstances tending to show unsuitability. The

court lists those of significance here:

(1) Commitment Offense. The prisoner committed the offense in

an especially heinous, atrocious or cruel manner. The factors to be

considered 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 manner.

(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.

(2) Previous Record of Violence. The prisoner on previous occasions inflicted or 

attempted to inflict serious injury on a victim, particularly if the prisoner 

demonstrated serious assaultive behavior at an early age. 

(3) Unstable Social History. The prisoner has a history of unstable

or tumultuous relationships with others.

*****

*****

(6) Institutional Behavior. The prisoner has engaged in serious misconduct in 

prison or jail.

Section 2402(d) sets forth the circumstances tending to indicate suitability:

(1) No Juvenile Record. The prisoner does not have a record of

assaulting others as a juvenile or committing crimes with a

potential of personal harm to the victims.

(2) Stable Social History. The prisoner has experienced reasonably

stable relationships with others.

(3) Signs of Remorse. The prisoner performed acts which tend to

indicate the presence of remorse, such as attempting to repair the

damage, seeking help for or relieving suffering of the victim, or

indicating that he understands the nature and magnitude of the

offense.

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(4) Motivation for the Crime. The prisoner committed his crime as

the result of significant stress in his life, especially if the stress has

built over a long period of time.

(5) Battered Woman Syndrome . . .

(6) Lack of Criminal History. The prisoner lacks any significant

history of violent crime.

(7) Age. The prisoner’s present age reduces the probability of

recidivism.

(8) Understanding and Plans for Future. The prisoner has made

realistic plans for release or has developed marketable skills that

can be put to use upon release.

(9) Institutional Behavior. Institutional activities indicate an

enhanced ability to function within the law upon release.

The Ninth Circuit has held that California’s parole scheme gives rise to a

cognizable liberty interest in release on parole. Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.

2003). Only one aspect of that liberty interest is of pertinence here: “In the parole context, the

requirements of due process are met if ‘some evidence’ supports the decision.” Id. The evidence

underlying the board’s decision must have some indicia of reliability. Id. 

In Biggs, the Ninth Circuit indicated that a continued reliance on an unchanging

factor such as the circumstances of the offense could result in a due process violation. Biggs was

serving a sentence of twenty-five years to life following a 1985 first degree murder conviction. 

In the case before the Ninth Circuit, Biggs challenged the 1999 decision by the BPT finding him

unsuitable for parole despite his record as a model prisoner. 334 F.3d at 913. While the Ninth

Circuit rejected several of the reasons given by the BPT for finding Biggs unsuitable, it upheld

three: 1) petitioner’s commitment offense involved the murder of a witness; 2) the murder was

carried out in a manner exhibiting a callous disregard for the life and suffering of another; 3)

petitioner could benefit from therapy. 334 F.3d at 913.

The Ninth Circuit cautioned the BPT regarding its continued reliance on the

gravity of the offense and petitioner’s conduct prior to the offense:

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As in the present instance, the parole board’s sole supportable

reliance on the gravity of the offense and conduct prior to

imprisonment to justify denial of parole can be initially justified as

fulfilling the requirements set forth by state law. Over time,

however, should Biggs continue to demonstrate exemplary

behavior and evidence of rehabilitation, denying him a parole date

simply because of the nature of his offense would raise serious

questions involving his liberty interest.

334 F.3d at 916.

The Ninth Circuit stated that “[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.” 334 F.3d at 917. 

 Biggs is in conformance with the stated goals of California’s parole establishment

system—that is, the goal is not to release persons who will be a danger to the community if

released. Clearly, when looking at the commitment offense in terms of this goal, one would

attempt to use it for its predictive value. The more violent, thoughtless, and callous the crime,

the more likely it could be said that the perpetrator would exhibit those tendencies again. One

who not only killed, but excessively violated society’s norms, is a person less likely to care about

those norms when released. But, the purpose of prison, aside from punishment, is to determine

for parole eligibility purposes when, if ever, these presumptions have been confirmed or 

rebutted. 

The California Supreme Court, having once seemingly agreed with the Ninth

Circuit, see In re Rosenkrantz, 29 Cal. 4th 616, 683 (2002), stating that in order for the BPT to

put weight on the exceptional nature of the crime (murder), the murder had to be “particularly

egregious,” has now defined that term as simply “that the violence or viciousness of the inmate’s

crime must be more than minimally necessary to convict him of the offense for which he is

confined.” In re Dannenberg, 34 Cal. 4th 1061, 1095, 23 Cal. Rptr. 3d 417, 440 (2005). Of

course, as the dissent in Dannenberg pointed out, this standard is completely unreviewable. 34

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 Cal. 4th at 1102, 23 Cal. Rptr. 3d at 446. The minimal elements of the crime are simply that a

person dies at the hands of another with the perpetrator exhibiting the requisite intent. Any fact

in addition to this could be one viewed as “more than minimally necessary to convict.” For

example, one BPT panel may believe that use of a knife per se causes undue suffering; another

may believe use of any weapon where death is not instantaneous, probably the vast majority of

murders, exhibits callousness. A conclusion can easily be reached by those who want to claim

that the facts of any murder are such that they prove more than those facts minimally necessary

for a conviction.

There can be no doubt that Dannenberg gives carte blanche to the BPT to issue a

mere characterization of the crime to support a denial of parole. For the due process issue, the

question is whether AEDPA insulates this authority from review in habeas corpus. Clearly,

federal due process is not defined by all the intricacies of state law regardless of whether the state

law gives rise to the protectable liberty interest.

Although state laws may in certain circumstances create a

constitutionally protected entitlement to substantive liberty

interests, see, e.g., Sandin v. Conner, 515 U.S. 472, 483-84, 115

S.Ct. 2293, 132 L.Ed.2d 418 (1995); Tracy v. Salamack, 572 F.2d

393, 396 & n. 9 (2d Cir.1978) (per curiam), state statutes do not

create federally protected due process entitlements to specific

state-mandated procedures. “Elevating a state-mandated procedure

to the status of a constitutionally protected liberty or property

interest, would make process an end in itself rather than a

requirement whose constitutional purpose is to protect a

substantive interest in which the individual has a claim of

entitlement.” Sealed v. Sealed, 332 F.3d 51, 57 n. 5 (2d Cir.2003)

(quoting Olim, 461 U.S. at 250-51, 103 S.Ct. 1741, and Doe v.

Milwaukee County, 903 F.2d 499, 503 (7th Cir.1990).

Holcomb v. Lykens, 337 F.3d 217, 224 (2nd Cir. 2003). 

All that federal law requires for parole hearing due process is that the inmate up

for parole consideration be given a hearing with minimal rights and that the decision be

supported by “some evidence.” Biggs, supra. Because the federal due process in parole

\\\\\

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1

 Federal due process does not require that a state have a parole system. Greenholtz v.

Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104 (1979).

10

suitability hearings arises from a liberty interest created by state law,1 state courts are generally

free to define their law in connection with the liberty interests as the final arbiters of their state

law. Thus, in general, if state courts desire to define their state’s parole criteria in a restrictive

fashion, the liberty interest is characterized by those restrictive holdings.

However, state courts may not interpret their law in such an arbitrary manner that

the interpretation is nothing but an evasion of the federal due process requirements, minimal as

they may be. “[W]e are bound by the state’s construction [of state laws] except when it appears

that its interpretation is an obvious subterfuge to evade the consideration of a federal issue.”

Peltier v. Wright, 15 F.3d 860, 862 (9th Cir.1994); see also Oxborrow v. Eikenberry, 877 F.2d

1395, 1399 (9th Cir.1989) (“Our deference to the [state] Court is suspended only upon a finding

that the court’s interpretation [of state law] is untenable or amounts to a subterfuge to avoid

federal review of a constitutional violation.”). The question ultimately to be decided here is

whether the Dannenberg interpretation is so unreviewable, i.e., the facts underlying any murder

can stand as “some evidence” to deny parole suitability, that the federal standard of “some

evidence” is, in essence, completely eviscerated.

The undersigned is mindful that a majority of justices on the California Supreme

Court in Dannenberg (4-3 decision) implicitly answered the question in the affirmative, although

federal due process and liberty interests were not at issue per se in that case. Therefore, it would,

and should, be rare indeed that a lower court federal judge should find the decision of a state

supreme court to be an unreasonable application of clearly established Supreme Court authority. 

The question goes so much further than whether the undersigned believes that the dissent had the

better of the argument. Even clear error is insufficient. That having been said, the undersigned

cannot find a justifiable reason to find that the determination was reasonable. 

\\\\\

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As it stands now, the law in California permits parole to be denied solely on the

basis of the nature of the crime. “The nature of the prisoner’s offense, alone, can constitute a

sufficient basis for denying parole.” In re Rosenkrantz, 29 Cal. 4th 616, 682, 128 Cal. Rptr. 2d

1104 (2002). However, the historical facts of the crime will never change, and all prisoners

having been found to have committed a crime with facts “more than minimally necessary to

convict,” i.e., nearly everyone, can have their life with parole case effectively transmuted to life

without parole—because the facts of the offense will never change. Under present California

law, the BPT does not set the sentence, and therefore due process does not permit the BPT to

change the court imposed sentence either de jure or de facto.

But, one might argue, a later panel may ultimately assess the unchangeable facts

of the case differently than a previous panel, or two, or three, etc. This argument, however, gives

no substance to due process notions. The argument would expressly hinge due process on the

luck of the draw, that is, maybe (but doubtful) a panel will come along that will view the facts as

not more than minimally necessary to convict. Compelling due process to hinge on such an

arbitrary factor is no due process at all.

One final argument could be made to support the Dannenberg standard. The BPT

is not compelled to deny parole solely on the basis of the “aggravated” nature of the crime. But

this argument does not cure the due process defect either. Simply because some inmates may, at 

essentially the sole discretion of the BPT, receive a parole eligibility finding despite the existence

of an unreviewable and standardless “nature of the crime” factor (and not many inmates have) –

does not mean that the factor is therefore constitutional when used to deny parole. The

deficiency in the factor is in its standardless, meaningless application per se when used to deny

parole suitability. Due process in a particular case is adjudged on an individual, not statistical,

basis. In other words, a due process violation against one person is not answered by reference to

another person who suffered no ultimate harm as a result of the violation.

/////

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Thus, the undersigned must continue to follow Biggs. Repeated application of the

severity of the crime factor will violate due process when the crime for which incarceration was

required grows more remote. Although the Ninth Circuit in Biggs did not explicitly state when 

reliance on an unchanging factor would violate due process, it makes sense that reliance on such

a factor becomes unconstitutional when the factor no longer has predictive value. 

In Sass, Judge England found that no federal liberty interest was created because

the wording of the parole statute, Cal. Penal Code 3041(a) (“a panel shall normally set a release

date..) and § 3041(b) (“the panel...shall set a release date....”) was insufficiently mandatory. 

Judge England relied heavily on In re Dannenberg, 34 Cal. 4th 1061, 1098, 23 Cal. Rptr. 3d 417,

443 (2005) which admittedly, and as previously set forth, vested almost unlimited, unreviewable

discretion within the BPT when it came to determining parole eligibility. However, even

assuming that the “old” Supreme Court paradigm regarding creation of a liberty interest

(mandatory act and underlying factual predicates) remains the analytical framework in which to

judge the creation of right-to-parole liberty interests, see e.g., Board of Pardons v. Allen, 482

U.S. 369, 378, 107 S. Ct. 2415, 2421(1987) (mandatory language in a parole statute creates a

“presumption of release” and gives rise to a liberty interest), California law, both before and after

Dannenberg, finds that the California parole scheme for indeterminate offenses does create a

liberty interest. 

In sum, the governing statute provides that the Board must grant

parole unless it determines that public safety requires a lengthier

period of incarceration for the individual because of the gravity of

the offense underlying the conviction. (Pen.Code, § 3041, subd.

(b).) And as set forth in the governing regulations, the Board must

set a parole date for a prisoner unless it finds, in the exercise of its

judgment after considering the circumstances enumerated in section

2402 of the regulations, that the prisoner is unsuitable for parole.

(Cal.Code Regs., tit. 15, § 2401.) Accordingly, parole applicants in

this state have an expectation that they will be granted parole

unless the Board finds, in the exercise of its discretion, that they are

unsuitable for parole in light of the circumstances specified by

statute and by regulation.

In re Rosenkrantz, 29 Cal. 4th 616, 654, 128 Cal. Rptr. 2d 104, 138 (2003) (emphasis added).

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 Dannenberg did find that California prisoners had no liberty interest in a uniform parole

date, 34 Cal. 4th at 1098 (n.18), 23 Cal. Rptr. 3d at 443 (citing Rosenkrantz); however, this is a

far cry from holding that the parole scheme as a whole does not create a conditional liberty

interest.

13

It is difficult to conceive of words which mirror the requirements of the Allen mandatory-act-in

light-of-satisfied-factual-predicates paradigm more than the emphasized words of Rosenkrantz.

Indeed, Allen and Rosenkrantz use the same terminology, i.e. “presumption” of release and

“expectation” of release. These are the words of liberty interest creation. It is not material that

great discretion is vested within the administrative agency granting parole. Allen supra. See also

the post-Dannenberg case of In re DeLuna,126 Cal. App. 4th 585, 591, 24 Cal. Rptr. 3d 643, 647

(2005): 

Penal Code section 3041, subdivision (b) requires the Board to “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

public safety requires a more lengthy period of incarceration for this

individual, and that a parole date, therefore, cannot be fixed at this

meeting.” This statute creates a conditional liberty interest for a

prospective parolee. (Cf. Rosenkrantz, supra, 29 Cal.4th at p. 661,

128 Cal.Rptr.2d 104, 59 P.3d 174; McQuillion v. Duncan (9th

Cir.2002) 306 F.3d 895, 901-902.) (emphasis added)2

The undersigned can only find that California law is in disarray on the subject of

liberty interest created by the California parole statutes. Dannenberg did not overrule

Rosencrantz, and implied overrulings are extremely disfavored. Scheiding v. Gen. Motors, 22

Cal. 4th 471, 478, 93 Cal. Rptr. 2d 342, 346 (2000). Indeed, California cases after Dannenberg

continue to find a liberty interest and cite Rosencrantz. Therefore, Biggs and McQuillion should

not, and cannot, be cast aside based on the ambiguities in California law unless the Ninth Circuit

so holds.

2. Analysis

The court now considers whether there was some evidence to support the panel’s

finding of unsuitability. As stated above, the 2003 hearing was petitioner’s second suitability

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hearing. To put the findings of the panel in context, the court will first set forth the background of

petitioner’s offenses, as summarized in the presentence report:

Clifford Bair was a resident of the Bodega Bay area approximately two or three 

years ago and at that time did some yard work for Theresa Aiken a long-time 

resident of Bodega Bay, and commonly known as “The Mother of Bodega Bay.”

Apparently in more recent times the defendant and his ex-wife, Linda Bair, 

purchased a home in Visalia, California, where his ex-wife Linda was living in 

January of this year. During 1983 the defendant apparently was working in the 

Los Angeles area for a construction company the name of which is in the District 

Attorney’s file if you need it.

On January 20th Linda Bair left Visalia and came to Bodega Bay to visit with 

family members and left the defendant at her home in Visalia without any 

transportation. On Saturday night, January 20th, a very nice pickup truck was 

stolen in Visalia and turned up on January 24th at the Harbor View Motel in 

Bodega Bay in the possession of the defendant. Mr. Bair checked into the Harbor 

View Motel at about noontime on January 24th and registered under a false name, 

address and city. He prepaid for two nights at the motel. This motel is within 

view of Mrs. Aiken’s home and approximately 50-75 yards distance.

On the morning of January 25th the defendant was seen in his motel room and the 

pickup truck was gone. On January 26th the pickup truck was discovered about a 

mile and a half from Bodega Bay down a ravine totally burned up. There were no 

license plates on the pickup when found. Also on the 26th of January the 

defendant “checked out” of the Harbor View Motel and took with him all his trash 

including trash liners from trash cans and all the towels in the room. No known 

reason for this conduct.

Sometime in the afternoon of January 26th the defendant apparently purchased a 

six-pack of beer, a Dragger sandwich, a package of Peanuts and some potato chips 

at the Dry Dock Café in Bodega Bay. The Dry Dock is within 75 yards of Mrs. 

Aiken’s house and forms a triangle with Mrs. Aiken’s home and the Harbor View 

Motel. Apparently the defendant then went to Mrs. Aiken’s home on foot where 

he somehow overpowered Mrs. Aiken, took her eyeglasses from her, rendering 

her almost blind, then tied her and gagged her and placed her underneath her 

bedding and mattresses on the floor of her bedroom. He disconnected the 

telephone in the home. At about 4:00 in the afternoon or 4:15, Rosie Formasi 

arrived at Mrs. Aiken’s house to deliver her mail. When she entered the home she 

was ordered by the defendant to lay down on the floor in the bedroom and not to 

look at his face. He then tied up Rosie Formasi with the electrical wire cut from 

Mrs. Aiken’s iron. The defendant then left Mrs. Aiken’s residence taking her 

eyeglasses and almost all of her keys and her car which was garaged in a separate 

detached garage. Unfortunately for the defendant, he left behind at Mrs. Aiken’s 

house two Budweiser beer cans, the wax paper from his sandwich, the paper bag 

for the potato chips, two paper napkins from the Dry Dock and the empty Tom’s 

Peanut sack. Rosie Formasi and Mrs. Aiken were eventually found the following 

morning at approximately 8:30 when a friend of Mrs. Aiken became concerned 

over the fact that her car was gone from the garage and could not get an answer on 

the telephone at the house. Mrs. Aiken was dead when found and Rosie Formasi 

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was found in the living area of the house having crawled there during the night. 

Rose Formasi suffered from severe swelling of her hands as a result of having 

been bound all night long.

Sometime during the night, probably between 10:00 PM and midnight, Mrs. 

Aiken’s car became stuck in the shoulder of the Lakeville Highway across the 

roadway from Gilardi’s Resort. This resort is located to the southeast of the city 

of Petaluma. The defendant, having gotten the car stuck on the shoulder, 

abandoned the car at that point and stole an oceangoing sailboat from the 

Lakeville Marina which is a part of Gilardi’s Resort. The defendant left in Mrs. 

Aiken’s car a Pepsi Cola can with a thumbprint on it, a Budweiser beer can, and 

other items which connect back to Mrs. Aiken’s house. Also in the car were 

found all of the keys taken from Mrs. Aiken’s and on the ground next to the car 

were Mrs. Aiken’s eyeglasses.

Approximately 7:30 on the morning of January 27th, the owner of the sailboat 

arrived at the marina and discovered the sailboat gone from its berth. He 

eventually found the sailboat up the Petaluma River stuck in the mud of the bank. 

As he approached the sailboat, the defendant was observed on deck holding what 

appeared to be a shotgun or a length of pipe and ordered the owner of the boat not 

to come any closer.

The owner retreated to the Lakeville Marina where he watched his boat through a 

monocular until the Sheriff’s Department arrived. During that period of time he 

saw the defendant go over the side of the boat and disappear into the surrounding 

area. The defendant was eventually found a short distance from the boat hiding in 

a floodgate. When he was arrested he was wearing clothing stolen from the boat

and had on his person a flare gun and flare gun shells, also taken from the boat. 

On his person were also shotgun shells. The defendant was arrested and taken to 

Sonoma County Sheriff’s Office. At the Sheriff’s Office, while waiting in an 

interview room, the defendant cut one of his wrists with a piece of plastic in an 

apparent suicide gesture. He was taken to Community Hospital for treatment and 

while there he gave a brief statement to Detective Plass in which he admitted he 

had spent the night on the boat, that he had spent two days at the Harbor View 

Motel, and that he had bought a six-pack of beer and a sandwich on the previous 

afternoon from the Dry Dock Café. When he was asked if he had visited an older

lady on that previous afternoon, he said he could not remember.

Answer, Exhibit E. 

In finding petitioner unsuitable, the BPT made the following findings:

The Panel has reviewed all information received from the public and relied on the 

following circumstances in concluding that the prisoner is not suitable for parole 

and would pose an unreasonable risk of danger to society or a threat to public 

safety if released from prison at this time. The paramount reason would be the 

timing and the gravity of the offense. Mr. Bair, the offense was carried out in an 

especially callous manner. There were multiple victims attacked, injured, or 

killed in the same incident in that Theresa Blanch Aikens, she was 86 years of

age, lost her life in this incident, as well as Rosie Formosie was accosted and tied 

up. And you had a loaded weapon, by the grace of God, more people weren’t 

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hurt. You were going after your wife, you had some marital discord. You 

followed her. You stole a pickup truck and yet today, when we questioned you 

about why, you really couldn’t answer why other than you just lost it and–The 

offense itself was carried out in a manner which demonstrates, let’s see, an 

especially insensitive disregard for human sufferings. This 86-year-old woman, 

she deserved to live out the rest of he[r] life in peace. She was a well-respected 

member of the community–of her community, loved by all, and the motive for this 

crime was inexplicable and very trivial in relationship to the offense because of 

marital discord and distrust. These conclusions are drawn from the Statement of 

Facts wherein the prisoner embarked on–the prisoner embarked on a crime spree

of sorts and all because of marital disputes with his wife or spouse intending to 

follow the–his wife, spy on her. You accosted Theresa Aikens, bound her, took 

her glasses. Another innocent bystander came to deliver mail and you forced her 

on the floor and bound her. And then you not only left there, went off, took her 

vehicle from there, then you got into a boat, took a boat. Nevertheless, these 

conclusions are drawn from the Statement of Facts where the victim–one of the 

victims lost her life. She was left bound and gagged under some bedding and a 

mattress. She died as a result of your actions. Previous record, the prisoner has 

an escalating pattern of criminal conduct, a history of unstable tumultuous 

relationships with others, coming from a dysfunctional family setting, an abusive 

father. The prisoner also has a problem with marriages, he’s been in five different 

marriages. He’s failed to profit from society’s previous attempts to correct his 

criminality, such attempts included probation, county jail time, fines, restitution 

for fines. The prisoner has an unstable social history of prior criminality which 

includes as I mentioned earlier about the use and abuse of substances, illegal 

substances such as alcohol and drugs and possession of a–arrest for possession of 

a sawed-off shotgun. Institutional behavior, the prisoner has programmed in a 

limited manner while incarcerated. He’s not sufficiently participated in beneficial 

self-help and therapy programming at this time. Parole plans, the prisoner lacks 

realistic parole plans in the last county of legal residence of the county of 

commitment, he does not have acceptable employment plans at this time. 3042 

Notices indicate opposition to a finding of suitability, specifically–on, in terms of 

plans, I mean to mention as well, he does have some alternate plans in an alternate 

county. However, the county of commitment or the county of last residency, he 

has none. 3042 Notices, the Hearing Panel notes responses to 3042 Notices 

indicate an opposition to a finding of suitability, specifically the District 

Attorney’s Office of Sonoma County w[h]here representatives here and present

and they’re in opposition to a finding suitability here today. Other information 

bearing on his suitability would be that the prisoner’s counselor, a CC-I D.W. 

Nelson wrote in the current Board report of the prisoner that he would pose a 

moderate degree of threat if released to the public at this time, today. Remarks, 

the Panel makes the following findings: That the prisoner still needs therapy in 

order to face, discuss, understand, and cope with stress in a nondestructive manner 

so that he can better understand the causative factors of why he did what he did, 

why he chased his wife half way across the state, stealing a vehicle, stealing 

several vehicles, and a vessel, and then accosting, causing the disruption of life for 

one of our senior citizens. And until progress is made, the prisoner continues to 

be unpredictable and a threat to others. The prisoner’s gains are recent, and he 

must demonstrate the ability to maintain these gains over an extended period of 

time. Nevertheless, he should be commended for positive work reports, he’s been 

a continuous–positive reports in the PIA metal fab, got a forklift operator’s 

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3

 Whether the facts of the crime of conviction, or other unchanged criteria, affect the

parole eligibility decision can only be predicated on the “predictive value” of the unchanged

circumstance. Otherwise, if the unchanged circumstance per se can be used to deny parole

eligibility, sentencing is taken out of the hands of the judge and totally reposited in the hands of

the BPT. That is, parole eligibility could be indefinitely and forever delayed based on the nature

of the crime even though the sentence given set forth the possibility of parole—a sentence given

with the facts of the crime fresh in the mind of the judge. While it would not be a constitutional

violation to forego parole altogether for certain crimes, what the state cannot constitutionally do

is have a sham system where the judge promises the possibility of parole, but because of the

nature of the crime, the BPT effectively deletes such from the system. Nor can a parole system,

where parole is mandated to be determined on someone’s future potential to harm the

community, constitutionally exist where despite 20 or more years of prison life which indicates

the absence of danger to the community in the future, the BPT commissioners revulsion towards

the crime itself, or some other unchanged circumstance, constitutes the alpha and omega of the

decision. Nobody elected the BPT commissioners as sentencing judges. Rather, in some

realistic way, the facts of the unchanged circumstance must indicate a present danger to the

community if released, and this can only be assessed not in a vacuum, after four or five eligibility

hearings, but counterpoised against the backdrop of prison events. 

17

License, participated in 2002 in the Conflict Resolution, as well as Phases Life 

Skills in 2002 as well. However, these positive aspects of his behavior don’t

outweigh the factors of unsuitability at this time. This is another three-year 

denial, Mr. Bair, and in a separate decision, the Hearing Panel finds that the 

prisoner has been convicted of murder and it is not reasonable to expect that 

parole would be granted at a hearing during the next three years. 

Answer, Exhibit B, pp. 67-71.

The court now considers whether there was some evidence to support the BPT’s

finding of unsuitability. The panel first found petitioner unsuitable based on several unchanging

factors such as the circumstances of his commitment offense and unstable social history. As

discussed above, in Biggs the Ninth Circuit found that a continuing reliance on unchanging factors

could violate due process. The court does not find that the panel’s reliance on these unchanging

factors violated due process because the 2003 hearing was only petitioner’s second suitability

hearing. These factors still had predictive value.3 Accordingly, the court considers whether some

evidence supported the BPT’s finding of unsuitability based on these factors. 

The panel first found that petitioner’s offense involved multiple victims. §

2402(c)(1)(A). This finding was supported by some evidence because petitioner killed Ms. Aiken

and injured Ms. Fomasi. The panel also found that the offense demonstrated an exceptionally

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callous disregard for human suffering. § 2402(c)(1)(D). Petitioner gagged Mrs. Aiken, an elderly

woman, and placed her underneath her mattress. He then bound Ms. Fomasi. Leaving these

women in these conditions, particularly Ms. Aiken, demonstrated an exceptionally callous

disregard for human suffering. This finding was supported by some evidence.

The panel next found that the motive for the crime was inexplicable or trivial in

relation to the offense. § 2402(c)(1)(E). At the hearing, petitioner testified that he went to Bodega

Bay, where his wife was visiting family, because of marital problems. Answer, Exhibit B, pp. 11-

12. He had given up on life. Id., p. 16. When asked why he committed the crime against Ms.

Aikens, petitioner stated that it did not make any sense. Id., p. 15. He testified that Ms. Aikens

just happened to live in Bodega Bay and just happened to be where he was at the time. Id., p. 16. 

Ms. Formosi just stumbled into the situation. Id., p. 16. Based on petitioner’s description of his

motive, the court finds that the BPT’s finding that his motive was inexplicable or trivial was

supported by some evidence.

The panel next found that petitioner had a previous record of violence. § 

2402(c)(2). Petitioner had adult convictions for reckless driving, possession of amphetamines, a

fish and game violation for possession of a sawed off shotgun, loaded shotgun in a vehicle, under

the influence of alcohol or drugs and vandalism. Answer, Exhibit B, p. 18. These offenses did

not involve petitioner inflicting or attempting to inflict serious injury on a victim at least insofar

as the court can tell from this record. Therefore, the BPT’s finding of unsuitability based on §

2402(c)(2) was not supported by some evidence. A finding of suitability can be based on the lack

of any significant history of violent crime. §2402(d)(6). As far as this court can tell, the

convictions listed above do not demonstrate a significant history of violent crime. 

The panel next found that petitioner had an unstable social history. § 2402(c)(3). 

This finding was based on petitioner coming from a dysfunctional family with an abusive father

and his five marriages. That petitioner came from a dysfunctional family and had an abusive

father was not petitioner’s doing. The court does not find that petitioner’s family background

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demonstrates petitioner’s inability to have stable relationships. Having been divorced does not

necessarily demonstrate a history of unstable or tumultuous relationships. However, having been 

divorced five times does indicate an unstable social history particularly when petitioner admitted

that his alcohol and drug abuse contributed to this pattern. Exhibit B, p. 20. Accordingly, the

court finds that this finding was supported by some evidence. 

The panel also found that petitioner’s institutional behavior supported a finding of

unsuitability. § 2402(c) (6). Petitioner’s disciplinary record included four 128(a)’s (chronos) for

failing to report to close count, covering his cell windows, smoking and refusing to perform a job

assignment. Exhibit B, p. 23. Petitioner received a rules violation for smoking on a work site. 

Id., pp. 23-24. This record does not demonstrate that petitioner engaged in serious misconduct

while in prison, as required by § 2402(c)(6). Accordingly, this finding was not supported by some

evidence.

The BPT went on to discuss two of the factors tending to show suitability in §

2402(d) which it found petitioner did not meet. The panel found that petitioner had not

programmed sufficiently (§ 2402(d)(9)) and lacked realistic parole plans (§ 2402(d)(8)). With

respect to programming, the panel stated that petitioner had not sufficiently participated in

beneficial self-help and therapy programming and had programmed in a limited manner. Exhibit

B, p. 69. At the hearing, the BPT noted that petitioner had completed his Alternatives to Violence

and Anger Management Program. Exhibit B, p. 23. Petitioner had also participated in NA/AA

since June 8, 2001. Id. He also enrolled in the Friends Outside Creative Conflict Resolution

Program. Id., p. 24. This program involved three eight hour sessions emphasizing values and

strengths while learning and practicing appropriate anger management and conflict resolution

skills. Id., p. 25. The BPT read into the record portions of the psychological report prepared by

Dr. Macomber:

Mr. Bair related in an outgoing serious and cooperative manner. He was alert and 

well oriented. His thinking was rational and logical. His speech was normal, 

fluent and goal oriented. He is functioning in the high average ranges 

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intellectually. The affect was appropriate. He related to the–in the interview in an 

earnest, sincere, open, non-defensive manner. He spoke at some length about how 

there is no excuse for his behavior in the commitment offense and he appears to 

be very aware of the great seriousness of his criminal behavior. He impresses as 

being a very sincere individual with considerable feelings of remorse and sorrow 

about the commitment offense. There is no indication of any mental or emotional 

problems in the interview.

*****

He is described–has been described as having an antisocial personality disorder in 

the past. However, this diagnosis is not appropriate in that he does not meet the 

criteria for this classification. This man is certainly not criminally oriented in any 

way. He’s also been described as having borderline features in the past. This 

does not appear to be appropriate although he does not have a pattern of unstable 

interpersonal relationships which is typically seen in individuals with borderline 

personality problems. However, these individuals usually continue to act out their 

emotional distress with repetitive self-destructive behavior which we haven’t seen 

throughout the last 15 years of observation. What does appear to be evident is a 

passive aggressive personality disorder in which he tends to repress frustration, 

disappointment and anger, and lets it out in inappropriate and self-destructive as 

well as overtly destructive ways. This personality characteristic seems to be 

improving with the years and with his age. At this point in time he has matured a 

great deal and has shown considerable growth and maturity. It does not appear 

that the prior personality disorder problems are really evident at this point in his 

life.

Exhibit B, pp. 38-39.

A copy of Dr. Macomber’s report, prepared July 26, 1999, is attached as an exhibit

to the petition. In his assessment of petitioner’s dangerousness, Dr. Macomber stated, 

There has been research done where the results have indicated factors indicating 

both a high risk for recidivism as well as a low risk of recidivism. Factors in this 

case associated with a higher risk for recidivism are his history of substance 

abuse, a family history of a father who was a serious alcoholic, as well as the 

history of rather severe physical abuse as a child. Factors indicating a lower risk of

re-offense are this man’s good institutional adjustment over the years, his stable 

work history, before and after his incarceration, his lack of violence before the 

offense as well as since he has been incarcerated and the obvious growth and 

maturity that has occurred since his initial incarceration.

The assessment of dangerousness within the controlled setting of the institution is 

seen as below average in comparison to other inmates. Assessment of 

dangerousness if released to the community is also below average in comparison 

to other inmates. Significant risk factors in this case would be any use of alcohol 

or drugs.

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CLINICIAN OBSERVATION/COMMENTS/RECOMMENDATIONS: There is 

no evidence of mental or emotional problems that would preclude routine release 

planning in this case. There is no evidence of mental problems that would require 

further diagnosis or participation in psychotherapy. This man’s reasons for not 

participating in Alcoholics Anonymous or Narcotics Anonymous appear to be 

legitimate. However, it is recommended that he participate in some kind of 

substance abuse program for educational reasons prior to his release. This man’s 

statements of remorse appear to be quite sincere. The probability of him getting 

into serious trouble in the future is very very small. He is quite happy with his 

current program which keeps his welding skills current. There are no other 

psychological recommendations. 

The only therapy recommended by Dr. Macomber was for petitioner to participate

in a substance abuse program for educational reasons. At the time of the July 25, 2003, suitability

hearing, petitioner had been attending NA/AA since June 8, 2001. Petitioner’s attendance of

NA/AA for two years satisfied Dr. Macomber’s recommendation. The court finds that the BPT’s

finding that petitioner required additional therapy was not supported by some evidence.

The BPT also found that petitioner had not sufficiently programmed, apparently

referring to petitioner’s post-incarceration vocational history. While petitioner had worked

several different jobs since his incarceration, he had not signed up for an actual vocational

program. Id., p. 26. Petitioner told the BPT that he had not signed up for a vocational program

because he was already a journeyman plumber, a certified welder and a heavy equipment operator. 

Id., p. 26. In addition, petitioner kept his job in the Prison Industry Authority because he earned

money in that position. Id., p. 28.

The BPT’s expectation that petitioner participate in a vocational program prior to

his release was not unreasonable. While petitioner was apparently trained in other fields, his

participation in a vocational program would help increase his chances of finding employment

following his release from prison. Accordingly, the court that the BPT’s finding that petitioner

had not adequately programmed was supported by some evidence.

The panel found that petitioner lacked realistic parole plans in Sonoma County, the

county of commitment. Petitioner stated that if paroled, he planned to live with his wife in

Roseville, which is located in Sacramento County. Exhibit B, p. 42-43. Petitioner had no job

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offers. Id., p. 47. Instead, he had offers of interviews. Id. 

Cal. Penal Code § 3003(a) provides that an inmate released on parole shall be

returned to the county that was the last legal residence of the inmate prior to his or her

incarceration. This section also provides that an inmate may be returned to another county if that

would be in the best interests of the public. Cal. Penal Code § 3003(b). In making its decision

regarding whether to parole an inmate to another county, the paroling authority shall consider a

variety of factors including the verified existence of a work offer and the existence of family in

the other county with whom the inmate has maintained strong ties and whose support would

increase the chance that the inmate’s parole would be successfully completed. Cal. Penal Code § 

3003(b)(3), (4).

While petitioner’s wife lived in Sacramento County, petitioner had no verified job

offers from that county or from any other county for that matter. Under these circumstances,

petitioner did not demonstrate that the best interests of the public would be served by return to

Sacramento County rather than to his county of commitment. Because petitioner’s parole plans

were sketchy, the court finds that there was some evidence to support the BPT’s finding that he

lacked realistic plans for the future. 

For the reasons discussed above, the court finds that the 2003 decision by the BPT

was supported by some evidence. The court observes that several additional factors tended to

show petitioner’s suitability such as his lack of a juvenile record (§ 2402(d)(1)), his demonstration

of remorse (§ 2402(d)(3)) and age, 58 (§ 2402(d)(7)). The court need not consider these factors at

this time because some evidence supported the unsuitability finding. 

As discussed above, this claim should be denied pursuant to Sass, supra. The court

respectfully requests that the district court reconsider Sass and deny this claim on the grounds

discussed above. 

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B. Penal Code § 3041

In claim one, petitioner argues that Cal. Penal Code § 3041 requires the BPT to

give him a parole date. This claim is also barred pursuant to Sass, supra. 

The court respectfully requests that Judge England reconsider Sass and deny this

claim on these alternative grounds. Section 3041 provides that one year prior to the inmate’s

minimum eligible parole release date a panel consisting of at least two commissioners of the BPT

shall meet with the inmate and shall normally set a parole release date. Petitioner appears to

argue that because § 3041 provides that the BPT shall normally set parole release dates, the BPT

violated due process by failing to set his parole release date. 

As discussed above, California’s parole scheme gives rise to a cognizable liberty

interest in release on parole. Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003). “In the parole

context, the requirements of due process are met if ‘some evidence’ supports the decision.” Id. If

there is not some evidence to support a decision denying parole, due process is violated. 

Therefore, even though California law states that the BPT shall normally set parole release dates,

due process does not require the BPT to state a date where some evidence exists demonstrating

that petitioner should not be paroled. Accordingly, petitioner’s claim that the BPT was required

to set his parole release date pursuant to Cal. Penal Code § 3041 is without merit.

C. Disproportionate Sentence

Petitioner argues that his sentence is disproportionate to his offense. In essence,

petitioner is arguing that his sentence violates the Eighth Amendment. 

Petitioner’s Eighth Amendment “proportionality” claim is difficult to assess in the

context of the case. To the extent that petitioner is claiming that his original 27 years to life

sentence was excessive, the present petition is not the vehicle to attack that long ago pronounced

sentence. To the extent that petitioner is contending that the BPT has, in effect, given him a life

without the possibility of parole sentence, petitioner’s claim lacks merit at this time. The BPT, of

course, has no actual power to sentence petitioner under California law. Petitioner’s claim here is

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in reality a reprise of his no substantial evidence claim, especially that directed to the nature and

seriousness of the crime factor of parole eligibility. Petitioner is frustrated because he senses what

the court has described—having BPT assess what is “more than minimally necessary to convict”

is a standardless review subject to the arbitrary decisions of BPT commissioners—BPT

commissioners can in effect ignore the possibility of parole forever based on their own view of the

crime, thereby making petitioner’s sentence a de facto life without the possibility of parole. 

However, at this time and for the reasons stated previously, the court cannot find a violation of

petitioner’s liberty interest. Having already adjudicated that claim adverse to petitioner, the court

will not repeat the analysis. 

Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a

writ of habeas corpus be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 9/12/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

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Case 2:04-cv-02257-MCE -GGH Document 19 Filed 09/13/05 Page 24 of 24