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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VINCENT RODNEY HATCHER, No. 2-04-cv-2596-MCE-GGH-P

Petitioner, 

v. ORDER

TOM L. CAREY, ET AL., 

Respondents.

 /

Petitioner, a state prisoner proceeding with counsel, has

filed this Application for a Writ of Habeas Corpus pursuant to 28

U.S.C. § 2254. The matter was referred to a United States

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

General Order No. 262.

On August 10, 2005, the magistrate judge filed Findings and

Recommendations herein which were served on all parties and which

contained notice to all parties that any objections to the

Findings and Recommendations were to be filed within twenty (20)

days.

///

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The parties have filed Objections to the Findings and

Recommendations.

In accordance with the provisions of 28 U.S.C.

§ 636(b)(1)(C) and Local Rule 72-304, this Court has conducted a

de novo review of this case. Having carefully reviewed the

entire file, the Court rejects the reasoning employed by the

magistrate judge in his Findings and Recommendations. While the

Court does adopt the magistrate judge’s ultimate recommendation

that Petitioner’s Application for Writ of Habeas Corpus be

denied, it does so for different reasons as set forth below. 

The magistrate judge’s sole justification for recommending

that habeas relief be denied rests with his deference to this

Court’s decision in Sass v. Cal. Bd. of Prison Terms, 376 F.

Supp. 2d 975 (E.D. Cal. 2005), which found that the California

parole scheme for indeterminate sentences, as set forth in

California Penal Code § 2041, does not give rise to a federally

protected liberty interest. While the magistrate judge requested

that this Court’s Sass decision be reconsidered, the Ninth

Circuit’s recent decision in Sass v. Cal. Bd. of Prison Terms, 

2006 WL 2506393, at *4 (9th Cir. Aug. 31, 2006) makes any

reconsideration unnecessary given its holding that California law

does afford a constitutionally protected liberty interest in a

parole date. Consequently, the Ninth Circuit’s Sass decision

undercuts the magistrate judge’s rationale for recommending that

parole be denied.

The magistrate judge goes on to find the Board of Prison

Terms 2003 decision, which concluded that Petitioner was

unsuitable for parole, to be not supported by “some evidence”. 

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Consequently he recommends not only that this Court’s Sass

decision be reconsidered, but that the Court also proceed to

grant the petition on its merits.

In denying Petitioner parole, the Board cited to several

factors. First, it found that Petitioner’s commitment offense,

for kidnapping for the purpose of robbery and rape, demonstrated

a callous disregard for suffering. Second, the Board referred

not only to the victim’s abuse during the underlying crime, but

also his previous history of violence. Third, Petitioner’s

unstable social history was cited. (See Findings and

Recommendations, p. 15).

While the magistrate judge concedes that Petitioner’s

actions were cruel and callous and that his kidnap victim was

“terribly abused”, he found that “unchanging factors” in

Petitioner’s past history had lost any predictive value as to

whether Petitioner continued to pose an unreasonable risk of

danger to society, or a threat to public safety if released from

prison. (Id. at p. 16). Given his characterization of

Petitioner’s conduct while in prison as “non-problematic”, the

magistrate judge felt that the circumstances of Petitioner’s

commitment offense and his prior criminal record did not

constitute “some evidence” on which to find Petitioner unsuitable

for parole. (Id. at p. 18).

In Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003), the

Ninth Circuit articulated the “some evidence” standard in finding

that the requirements of due process are met in the context of

parole if “some evidence”, with an indicia of reliability,

supports the Board’s decision. 

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 The Biggs court ultimately affirmed the denial of habeas 1

relief on grounds that the Board’s decision in that case was

indeed supported by “some evidence”. Id.

4

While the Biggs decision did note, in dicta, that denying a 1

prisoner parole based only upon the nature of his offense and his

prior conduct would raise “serious questions” involving the

prisoner’s liberty interest in parole, and “could result” in a

due process violation (Id. at 916-17), the Ninth Circuit recently

revisited this issue more definitively in its Sass decision. The

Sass court noted that denial of parole is justified if “there is

any evidence in the record that could support the conclusion

reached by the disciplinary board,” and explained that “the some

evidence standard is minimal.” Id., citing Superintendent v.

Hill, 472 U.S. 445, 455-56 (1985). Sass went on to observe that

the Board based its finding that Sass was unsuitable for parole

on the gravity of his convicted offenses in combination with his

prior offenses, and stated unequivocally that “[t]hese elements

amount to some evidence to support the Board’s determination(to

deny parole).” Id.

As stated above, in determining Petitioner unsuitable for

parole the Board cited the vicious nature of the offense, and

specifically noted that it “was carried out in an especially

cruel manner” during which the victim was repeatedly defiled. 

The Board further considered Petitioner’s record of violence and

assaultive behavior and his unstable social history. In

addition, the Board found that Petitioner had not “sufficiently

participated in beneficial self-help” while in prison, explaining

as follows:

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“The prisoner needs to continue to participate in self-help

in order to face, discuss, understand and cope with stress

in a non-destructive manner. Until progress is made, the

prisoner continues to be unpredictable and a threat to

others.”

(See Findings and Recommendations, p. 15).

Even aside from the potential merit of the Board’s

determination that Petitioner’s rehabilitation through self-help

was not yet sufficient, in the wake of the Ninth Circuit’s Sass

decision this Court cannot agree with the magistrate judge’s

determination discounting Petitioner’s conviction offense, and

his prior criminal and social history, as evidence lacking any

indicia of reliability. Instead, the Board’s reliance on those

factors here is no different than the Board’s reliance on similar

factors in Sass that were found to uphold denial of parole.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed August 10, 2005,

are rejected with respect to the magistrate judge’s deference to

this Court’s prior Sass decision, and with respect to his

conclusion that the Board’s denial of parole to Petitioner

nonetheless violated due process. Said Findings and

Recommendations, however, are otherwise adopted in full.

2. Petitioner’s Application for a Writ of Habeas Corpus is

denied. 

DATED: October 10, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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