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

1

 Attached as an exhibit to the petition is a copy of a minute order dated May 30, 1985. 

According to this minute order, petitioner was resentenced to a term of 35 year, 4 months to life. 

If this were true, petitioner would have to serve his determine term of 35 years 4 months before

the life term began to run. Cal. Penal Code § 669 (“Whenever a person is committed to prison

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VINCENT RODNEY HATCHER,

Petitioner, No. CIV S-04-2596 MCE GGH P

vs.

TOM L. CAREY, et al., ORDER AND

Respondent. FINDINGS AND RECOMMENDATIONS

 /

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

corpus. In 1985 petitioner was convicted of kidnapping for the purpose of committing robbery

(Cal. Penal Code § 209), five counts of forcible rape (Cal. Penal Code § 261(2)), during which

petitioner acted in concert by means of force or violence (Cal. Penal Code § 264.1), two counts

of oral copulation while acting in concert (Cal. Penal Code § 288a(d)), and oral copulation by

means of force, violence, duress, menace and threat of immediate bodily injury (Cal. Penal Code

§ 288a(c). Answer, Exhibit E, pp. 2-3. According to respondent and the transcript from the atissue parole suitability hearing, petitioner was sentenced to life plus five years.

1

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 1 of 19
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

on a life sentence which is ordered to run consecutive to any determinate term of imprisonment,

the determinate term of imprisonment shall be served first and no part thereof shall be credited

toward the person’s eligibility for parole as calculated pursuant to Section 3046 or pursuant to

any other section of law that establishes a minimum period of confinement under the life

sentence before eligibility for parole.”) Because petitioner received parole hearings well before

he served the determine 35 year 4 month term reflected in the minute order, the court accepts

respondent’s representation that petitioner is serving a term of life plus 5 years. In that case,

petitioner would have to first serve his 5 year determinate term and then at least 7 years before

being entitled to release on parole. Cal. Penal § 669; Cal. Penal 3046(a)(no prisoner imprisoned

under a life sentence may be paroled until he has served a term of at least seven calendar years). 

2

In the instant action, petitioner challenges the June 12, 2003, decision by the

Board of Prison Terms (BPT) finding him unsuitable for parole. Petitioner contends that the

2003 decision was not supported by sufficient evidence. This was petitioner’s fifth suitability

hearing. For the following reasons, the court recommends that the petition be denied.

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

The Anti-Terrorism and Effective Death Penalty Act (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.

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 2 of 19
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

3

“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

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 3 of 19
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

2

 Respondent filed an Application to File a Supplemental Answer on August 8, 2005, in

order to raise the Sass case. Although the undersigned does not believe that the answer need be

amended to cite a case not previously available, the undersigned will order the answer

supplemented.

4

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

2003).

III. Discussion

Legal Standard

In Sass v. Cal. Board of Prison Terms, ___ F. Supp. 2d ___, 2005 WL 1406100

(E.D.Cal. 2005), The Honorable Morrison England found that the California parole scheme for

indeterminate sentences does not create a federal liberty interest. Pursuant to Sass, petitioner’s

claim that the BPT did not have sufficient evidence on which to base the 

finding of unsuitability must fail because petitioner does not have a protectable liberty interest

encompassing “some reliable evidence.”2

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

be reconsidered and that petitioner’s application be granted.

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 

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 4 of 19
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

5

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. 

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.

*****

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 5 of 19
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

6

*****

(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.

(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.

According to the Ninth Circuit, 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. 

\\\\\

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 6 of 19
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

7

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:

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

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 7 of 19
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

8

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

 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

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 8 of 19
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

3

 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).

9

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

suitability hearings arises from a liberty interest created by state law,3 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

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 9 of 19
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

10

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. 

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

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 10 of 19
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

11

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.

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. 

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 11 of 19
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

4

 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.

12

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).

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)4

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

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 12 of 19
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

13

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.

Analysis

In order to put the decision by the BPT in context the court will set forth the factual

background of petitioner’s offenses as described by the California Court of Appeal. The

description of the offenses is not disputed.

At approximately 6:00 p.m. on February 12, 1983, Miss W. had approached her 

automobile and was putting the key into the front door when a vehicle containing 

two men drove up beside her. Someone opened the door of a Lincoln Continental, 

at which point Miss W. thought the person intended to ask her a question. 

Defendant Hatcher snatched her keys, grabbed her and forced her into the vehicle. 

She was placed in the front seat between defendant Hatcher and defendant Earl, 

who was driving.

As defendant Earl drove away, defendant Hatcher asked whether she had any 

money; when she said she did not, he searched her pockets. Defendant Earl drove 

on to the Santa Monica Freeway and then onto the southbound Harbor Freeway. 

At this point, she was told to get into the back seat, lie down and keep her eyes 

closed. Defendant Hatcher followed her into the back seat and lay on top of her.

The automobile left the Harbor Freeway at 51 Street and ultimately stopped at a 

garage; Miss W. was told to keep her eyes closed and, after defendant Earl opened 

the garage, defendant Hatcher led her inside. The defendants left her alone for 

approximately five minutes, during which she sat on a couch in a state of shock. 

Defendant Hatcher then entered the garage and made her remove her clothing, after

which he committed an act of sexual intercourse. When Miss W. asked him why 

he was doing this to her, why they had brought her there, defendant Hatcher replied

it would not have happened had she had some money. He then walked out of the 

garage.

Shortly thereafter, defendant Earl entered the garage; Miss W. asked him to take 

her home. Defendant Earl forced her to engage in oral copulation. He then 

engaged her in an act of sexual intercourse, after which he left and defendant 

Hatcher reentered the garage. Miss W. kept asking him to take her home or leave 

her alone. During this period, defendant Earl drove away returning shortly with 

one Glenn Turner (Turner) and several other young men. After both defendants 

talked to Turner, defendant Hatcher walked Miss W. back to defendant Earl’s 

automobile, which defendant Earl drove to a vacant house about five blocks away; 

Turner accompanied them.

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 13 of 19
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

14

When they reached the house, defendant appeared to argue, after which defendant 

Hatcher took Miss W. into the house through a back entrance near the kitchen. He 

took her into the living room and engaged in an act of sexual intercourse. He then 

walked out and Turner entered. Following an abortive effort to engage Miss W. in 

acts of oral copulation and sodomy, Turner completed an act of sexual intercourse. 

Thereafter, he walked outside and drove away with defendant Earl.

At this point, Miss W. and defendant Hatcher went outside where defendant 

Hatcher told her they were waiting for defendant Earl to return. After some time 

had passed, defendant Hatcher walked her back to the garage; she did not want to 

return and though of calling out for help, but she was afraid he would hurt her. At 

some point she realized she was not far from her sister’s home.

Once they reached the garage, defendant Hatcher again made Miss W. remove her 

clothing. He orally copulated her and then engaged in an act of sexual intercourse. 

A woman knocked at the garage door; defendant Hatcher told Miss W. to sit there 

and not say anything. He then went to talk to the woman. 

Shortly thereafter, the woman left and defendant Hatcher reentered the garage. 

Some of the young men Miss W. had seen earlier in the evening returned; they 

remained approximately 30 minutes, drinking beer. Defendant Hatcher told them

she was his girlfriend. She asked one of the young men for help, but he did not 

want to become involved. Miss W. asked defendant Hatcher to let her go; she said 

she would not say anything about what had happened, but defendant Hatcher 

refused, saying he could not trust that.

Defendant Hatcher then made her lie down on the couch against the back; he lay in

front of her, stating he intended to take a nap and decide later what to do with her. 

They both fell asleep, but Miss. W. awoke some time later as defendant Hatcher 

continued to sleep. She climbed over him, crawled under the garage door and ran. 

When she realized exactly where she was, she ran to her sister’s home; it was then 

2:30 a.m. She telephoned her mother from her sister’s, after which her mother 

took her home. Her mother wanted her to go directly to a hospital and telephone 

the police, but she wanted to go home.

When Miss W. arrived home at approximately 2:50 a.m., she took a bath and went 

to bed. When she awoke later that day, she telephoned the police; they came to her

house and interviewed her, after which they took her to a hospital. She had given 

the officers full descriptions of both defendants and Turner; she mentioned 

defendant Hatcher had one earring and was wearing a silver digital watch. After 

she was examined at the hospital, she took the police officer to the garage and 

vacant house. When the officers drove up to the vacant house, she remained in the 

patrol vehicle. Los Angeles Police Officer Karen Owens and her partner entered 

the house, after which they heard a noise. In response, they entered another room, 

where they saw defendant Hatcher. They escorted him outside, where Miss W. 

immediately identified him. He was wearing one earring and a digital watch; he 

was placed under arrest.

Respondent’s Answer, Exhibit E, pp. 3-7.

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 14 of 19
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

15

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

The Panel 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. The commitment offense was carried out in an 

especially cruel manner. The victim was defiled during the offense. It was carried 

out in a manner that demonstrates a callous disregard for human suffering. These 

conclusions are drawn from the Statement of Facts, wherein the prisoner and his 

crime partners kidnapped for robbery, Heidi Watson, an 18 year old girl. She was 

abducted by Hatcher while she was getting into her car. He walked up behind her, 

asked her for her money, and then forced her into her vehicle–the co-defendant’s 

vehicle.

*****

Okay. She was taken to a second location, where she was raped twice by the

prisoner and orally copulated. And then a third associate also committed a rape on 

the 18-year-old-victim. The–Mr. Hatcher stayed at the same location while two of 

the crime partners left. They fell asleep and she escaped and went to–I believe it 

was her sister’s house that was nearby. The prisoner has a record of violence and 

assaultive behavior. Has failed to profit from society’s previous attempts to correct

his criminality. Such attempts include CYA commitment and adult probation, 

county jail, and parole. The prisoner has an unstable social history and prior 

criminality that includes arrests and convictions for assault with intent to 

commit murder, attempted robbery, and possession of PCP. Drug abuse began at 

the approximate age of 15, and continued until the commitment offense. The drug 

abuse was so severe that during the commitment offense, he claims now that he is 

unable to remember what happened at all. The prisoner has not sufficiently 

participated in beneficial self-help. He’s only participated in beneficial self-help. 

He’s only participated in self-help, according to his C-File, since 2001. The

psychiatric report of March 19th, 2003, authored by Charles Taylor, PhD., is 

inconclusive. The psychologist does not address the prisoner’s prior violent 

criminal history nor does he address his prior history of drug abuse. The 

psychiatrist or psychologist also does not support, with facts, his conclusion that 

the prisoner is a low risk of dangerousness. The District Attorney from Los 

Angeles County sent a representative who participated in the hearing, and was 

opposed to parole at this time. The Panel makes the following findings: 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. The 

prisoner should be commended for receiving no 115's since 1996, for participating 

in self-help such as AA, NA for (indiscernible) and Life Skills, Parenting for 

(indiscernible) Parents, and substance abuse. Also Victims of–Victim Offender 

Reconciliation Group. We were–These were all done since 2001. He also has a 

vocational certificate in sewing machine repair and is currently in vocational office

services. However, these positive aspects of his behavior do not outweigh the 

factors of unsuitability. 

Respondent’s Answer, Exhibit C, pp. 59-61.

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 15 of 19
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

16

In finding petitioner unsuitable, the panel relied on several unchanging factors: 1)

the offense demonstrated a callous disregard for suffering (§ 2402(c)(1)(D)); 2) the victim was

abused during the offense (§ 2402(c)(1)(C); 3) petitioner’s previous record of violence based on

petitioner’s prior conviction for assault with intent to commit murder, see Answer, Exhibit C, p.

12 (§ 2402(c)(2)); 4) petitioner’s unstable social history based on his history of drug abuse

(petitioner began using marijuana at age 13 and PCP at age 15. Id., p. 15; prior to his arrest for

the incident involving Miss W., petitioner had used cocaine heavily for five months and had been

consuming excessive amounts of alcohol. Id., p. 16; wen he committed these offenses, petitioner 

was high on crack, cocaine, PCP and alcohol. Id., p. 9) (§ 2402(c)(3)). 

No one can doubt that petitioner’s actions were cruel and callous or that the victim

was terribly abused. These actions would have justified a denial of parole eligibility on the first,

second or even third attempt. But because of the length of time that had passed since petitioner’s

commitment offense (over 20 years as of the 2003 hearing) and because this was petitioner’s fifth

suitability hearing, the court finds that these factors standing alone had lost any predictive value,

i.e. whether the unchanging factors constitute “some evidence.” If the rule were otherwise, the

callousness of the 1985 conduct would result in a life without parole sentence, i.e., the

callousness, indeed the depravity of the conduct, will never change. Pursuant to Biggs, this court

must consider whether these factors still had any predictive value based on petitioner’s postconviction conduct. Otherwise, the BPT has transformed petitioner’s sentence to one of life

without the possibility of parole.

Petitioner’s conduct in prison was non-problematic. The BPT did not discuss

petitioner’s prison disciplinary history in detail. The psychologist’s report prepared for the

hearing stated that petitioner had had “some” 115's (rules violations) and 128's (counseling

chronos), with the last one in 1996. Exhibit, Traverse. Because the BPT did not rely on

petitioner’s disciplinary record to find him unsuitable, the court presumes that his convictions

were in the past and relatively minor.

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 16 of 19
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

5

 In its decision, the BPT panel discounted Dr. Taylor’s report on grounds that he had

failed to address petitioner’s history of violent crime and drug abuse. However, Dr. Taylor’s

report discussed petitioner’s criminal and substance abuse history. Therefore, Dr. Taylor was

well aware of these factors when making his assessment. 

17

Dr. Charles Taylor prepared a psychological report for petitioner’s 2003 suitability

hearing and concluded that petitioner would pose a low risk of dangerousness if released:

The inmate suffered from personality characteristics, but no psychopathology was 

or is present according to the information available. He has no impulses to hurt 

others and does not want to “inflict any more pain on the planet.” No one is after 

him that he knows of. He appears quite connected to family members on the 

outside, has an admirable disciplinary history, has upgraded himself educationally 

and vocationally, admits responsibility for the crime with remorse and empathy, 

has participated in self help groups and appears to have marketable skills, albeit 

without a specific job offer. He evidences no particular mood, attitude, impulse or 

anger dyscontrol related to dangerousness at this time. He tends to talk in some 

generality about the crime, but his behavior and attitude seem to include the 

necessary controls of behavior. He is considered to have a low risk of 

dangerousness upon release, provided he remains free from substance abuse.

Traverse, Exhibit.

With respect to petitioner’s history of drug abuse, the BPT did not dispute that

petitioner had attended NA and AA for the previous two years. Respondent’s Answer, Exhibit C,

pp. 22-23. Petitioner also had a certificate from the Men’s Violence Prevention program and the

Anger Management Program. Id., p. 24. 

Petitioner’s prison record demonstrated a lack of violent conduct and Dr. Taylor

found that petitioner would pose a low risk of dangerousness upon release.5 Based on these facts,

the court finds that the unchanging factors regarding the circumstances of the commitment offense

and petitioner’s prior criminal record no longer had predictive value based on petitioner’s postconviction conduct.

With respect to petitioner’s substance abuse problems, Dr. Taylor did not find that

petitioner required additional participation in drug treatment prior to parole. Petitioner testified

that he had regularly attended NA and AA for the two years preceding the 2003 hearing. Based

on these facts, the court finds that the unchanging factor of petitioner’s long ago substance abuse

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 17 of 19
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

18

problem no longer had predictive value based on petitioner’s post-conviction conduct. 

Because the unchanging factors relied on by the BPT no longer had predictive

value based on petitioner’s post-conviction conduct, they did not constitute “some evidence” on

which to find petitioner unsuitable for parole. Therefore, the BPT’s reliance on these factors

violated petitioner’s right to due process. 

The only factor relied on by the panel in finding petitioner unsuitable not based on

an unchanging factor was petitioner’s failure to participate in beneficial self-help programs since

his incarceration. § 2402(d)(9)(institutional activities indicate an enhanced ability to function

within the law upon release). At the hearing, petitioner told the panel that the previous panel in

2001 had recommended that he attend NA. Respondent’s Answer, Exhibit C, p. 22. Petitioner

told the panel that he had attended all of the NA and AA classes available to him since his

previous hearing. Id., p. 23. As discussed above, petitioner had also obtained certificates in

Men’s Violence Prevention and Anger Management since his previous hearing. Id., p. 24. 

Petitioner told the panel that he had participated in all the programs that were available to him. Id.

In his report, Dr. Taylor did not find that petitioner required psychiatric treatment. Nor did he

recommend that petitioner obtain additional therapy for drug and alcohol abuse prior to being

paroled. 

Based on petitioner’s consistent participation in drug treatment and Dr. Taylor’s

report, the court finds that the BPT’s finding that petitioner had failed to participate in sufficient

self-help programs was not supported by some evidence.

For the reasons discussed above, this court finds that the BPT’s 2003 decision that

petitioner was not suitable for parole was not supported by some evidence. The court respectfully

requests that the district court reconsider its decision in Sass, supra, and grant petitioner’s habeas

petition. However, the court will recommend that the petition be denied pursuant to Sass as this

case contains the district court’s view regarding the issues raised in this action.

\\\\\

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 18 of 19
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

19

Accordingly, IT IS HEREBY ORDERED that:

1. The Federal Defender is appointed to represent petitioner;

2. The Clerk of the Court shall serve a copy of this findings and recommendations

and order on David Porter, Assistant Federal Defender;

3. Respondent’s August 8, 2005 Application to File a Supplemental Answer is

granted.

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: 8/10/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

hatch2596.157

Case 2:04-cv-02596-MCE -GGH Document 13 Filed 08/10/05 Page 19 of 19