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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RONALD ROSENBURG,

Petitioner, No. CIV S-04-2668 GEB GGH P

vs.

THOMAS L. CAREY, et al., 

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 1997 petitioner was convicted of second degree murder

with a firearm enhancement to which he was sentenced to fifteen years to life. The instant

petition challenges the 2002 decision by the Board of Prison Terms (BPT) finding petitioner

unsuitable for parole. This was petitioner’s first suitability hearing. After carefully reviewing

the record, the court recommends that the petition be denied.

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

The Antiterrorism 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

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“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.

“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).

/////

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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

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

2003).

The Solano County Superior was the last court to issue a reasoned decision

addressing petitioner’s claims but for the claim that he was denied parole pursuant to a no-parole

policy. Respondent’s Answer, Exhibit D. Accordingly, the court “looks through” the summary

dispositions of the California Court of Appeal and California Supreme Court 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 claims but

for the claim challenging the no-parole policy. 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)). As

for the no-parole policy claim, the court will independently review the record.

/////

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III. Discussion

This action is proceeding on the original petition filed December 20, 2004. The

petition contains four claims which implicate the same claim: the BPT did not have sufficient

evidence on which to find petitioner unsuitable for parole. Also stapled to the petition is what

appears to be a copy of the petition filed by petitioner in the California Supreme Court. 

However, petitioner has whited-out “California Supreme Court” and written in “U.S. District

Court Eastern District” in the caption of this petition. This petition contains the following 

additional claims: 1) petitioner was entitled to have his release date set pursuant to Cal. Penal

Code § 1170.2; 2) the BPT’s decision to hold his second suitability hearing in two years violated

his right to due process; 3) the BPT improperly characterized his offense as a first rather than a

second degree murder; and 4) the BPT has an unconstitutional “no parole policy.” Although

respondent has not addressed these claims in the answer, the court will address them below.

A. Insufficient Evidence

Legal Standard

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.

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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. 

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.

*****

(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. 

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

or tumultuous relationships with others.

*****

(5) Psychological Factors. The prisoner has a lengthy history of severe mental 

problems related to the offense.

(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.

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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:

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. 

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 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

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

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 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

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

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

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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. 

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

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 The undersigned must follow Biggs, not simply because the decision makes sense, but

because the undersigned is bound to follow it as well. While it might be possible for the

undersigned to deviate from Biggs if a higher federal authority had repudiated the case holding

directly or in principle, i.e., either the Ninth Circuit en banc, or the Supreme Court, the

undersigned does not have that ability to ignore it simply because the California Supreme Court

has issued a decision seemingly contrary to one it issued a few years ago. The Ninth Circuit must

inform its lower court judges whether it is willing to depart from Biggs.

11

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.

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. The court

makes this determination on a case by case basis.2

The undersigned must relate that a district judge of this court believes that the

California parole scheme for indeterminate sentences does not create a federal liberty interest. 

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Sass v. Cal. Board of Prision Terms, __F. Supp. 2d __, 2005 WL 1406100 (E.D. Cal. 2005)

(Honorable Morrison England). 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).

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

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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

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)3

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.

Analysis

As stated above, in addition to his claims directly challenging the sufficiency of

the evidence on which the BPT found him unsuitable, petitioner is also raising a claim that the

BPT improperly characterized his offense as first rather than second degree murder in finding

him unsuitable. This claim is encompassed by the claim alleging insufficient evidence to find

him unsuitable.

\\\\\

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In order to put the BPT’s decision in context, the court will describe the

circumstances of petitioner’s commitment offense:

On January 21st, 1994, Inmate Rosenburg surrendered to police

after a victim Clifton Allbritton had been murdered on the 9600

block of Ebes, E-B-E-S, in Oakland, California. The victim was

killed at about 11:00 p.m. Rosenburg told officers at the Oakland

Police Department that he had shot the victim. He stated that he

had been the victim of a robbery of his car at gunpoint the night

before. He stated that a friend let him use his semi-automatic

handgun for protection. He put the gun in his waistband and then

went to 98th Street to get some beer. As he was standing near the

corner of 98th, the victim came up on Rosenburg. Rosenburg stated

that he saw the victim make a move like he was going for a gun. 

Rosenburg, out of fear, pulled out his gun and shot the victim. He

claimed that he had tried to shoot the victim in the leg. The victim

died of one gunshot wound to the heart. Witnesses interviewed by

the police indicate that they had seen the victim being chased by

another man who was armed with a handgun. As the victim fled,

the person in pursuit pulled out a gun and fired, striking the victim.

Respondent’s Exhibit B, p. 9-10.

At the hearing, petitioner told the panel that the shooting was in self defense. 

Exhibit B, p. 14. Petitioner told his correctional counselor that the victim came up behind him

and shouted, “brake yourself,” meaning that petitioner should submit to a robbery. Id., pp. 11-12. 

In fear for his safety, petitioner pulled out his gun and shot the victim. Id., p. 12. At the hearing, 

petitioner told the BPT that the person who testified at his trial that they had seen petitioner

chasing the victim before he shot him was an accomplice to the attempted robbery. Id., p. 12. 

Petitioner told the BPT that someone in the District Attorney’s Office told the accomplice to

falsely testify that petitioner had chased the victim before he shot him. Id., p. 13.

Petitioner told the BPT that less than 24 hours before he committed the crime, he

had been carjacked. Id., p. 14. The carjackers took petitioner’s driver’s license and keys. Id., p.

14. Petitioner had obtained the gun he used to shoot the victim from a friend after the carjacking. 

Id., p. 11. Petitioner was afraid that the carjackers would come to his house because they had his

housekeys. Id., p. 11. He obtained the gun from a friend to protect his wife and two children in

case the carjackers came to his house. Id., p. 11. At the time of the shooting, he was being

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driven home by the friend who had just given him the gun. Id., p. 58. The incident with the

victim occurred when the friend dropped petitioner off at a store where he planned to buy beer. 

Id., p. 58. 

The panel found petitioner unsuitable on the following grounds:

The Panel reviewed all the 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. One, the offense was carried out in an 

especially cruel and callous manner. The offense was carried out

in a dispassionate manner. The motive for the crime was

inexplicable or very trivial in relationship to the offense that was

committed. The conclusion is drawn from the Statement of Facts

wherein on January 21st, 1994, the prisoner did surrender himself to

the Oakland Police. The circumstances surrounding the offense is

that the prisoner shot and killed the victim, Allbritton. The

prisoner does not have much of a criminal history. However, he

did have some criminal history. It does not appear that it was an

escalating kind of criminal conduct. However, the prisoner did fail

previous grants of probation. So the prisoner failed to profit from

society’s previous attempts to correct his criminality. And those

attempts included adult probation. He had no juvenile history. 

There’s nothing in the prisoner’s records to indicate that he had an

unstable social history. It appears that the prisoner has a stable

social history. Prior criminality included inflicting corporal injury

on a spouse, vandalism, and battery on a police officer. That was

reduced to (inaudible) noise or offensive words. And his sentence

was suspended on that. And the only other arrest was for petty

theft, (inaudible) offense. Recent psychiatric report by Dr.

VanCouvering, that’s capital V-A-N capital C-O-U-V-E-R-I-N-G,

appears to be a supportive report. It shows that the prisoner is

making progress, and he’s on the right track in terms of his risk of

dangerousness to the community if released from prison. The

prisoner does have some parole plans. He appears to have viable

residential plans, although he’s wanting to not specifically

(inaudible). The prisoner lacks realistic employment plans. He

does not have a job offer–or a specific job offer. However, the

prisoner does have some marketable skills that could be put to use

upon his release. The Hearing Panel notes that in response to

Penal Code 3042 notices indicate an opposition to a finding of

suitability. That there was one from the District Attorney’s office

from Alameda County. We did not use that letter. (Inaudible) was

not received in a timely manner. There was one also from the

Oakland Police Department. And in that letter the department

voiced their opposition to a finding of suitability at this time. The

Hearing Panel makes the following findings: The prisoner needs

to continue in his quest to fine-tune his ability to be able to cope

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with stress in a nondestructive manner. Until enough progress is

made, the prisoner continues to be unpredictable or a threat to

others. And certainly we encourage him to continue his self-help

programs in that area. Nevertheless, there are things that the

prisoner should be commended for. First and foremost is that the

prisoner has been–since the prisoner has been incarcerated, he has

not received any disciplinaries. He’s been involved in the

vocational/educational programs such as electrical and graphic. He

also have [sic] a vocation from the vocational education which

indicates that there’s some expertise or learning that he received in

the area of computers. And certainly we want to commend the

prisoner for the letters that he received from staff. He received

positive accolades from staff, especially in the area of vocation and

work. He had several letters from supervisors attesting that he is a

very good worker. However, these positive aspects of his behavior

does not outweigh the factors of unsuitability. Parole will be

denied for two years.

Exhibit B, pp. 63-66.

The court now considers whether “some evidence” supported the decision by the

BPT. At the outset the court notes that the BPT relied on several unchanging factors related to

the circumstances of the commitment offense to find petitioner unsuitable. Because only eight

years had passed since petitioner committed his offense and because this was his first suitability

hearing, the court finds that these factors still had predictive value without regard to petitioner’s

post-conviction conduct. Biggs, supra. Accordingly, the court must consider whether “some

evidence” supported the panel’s finding regarding these factors. 

The court also observes that in considering the circumstances of the offense, the

BPT relied on the version of events contained in the probation report which supported a second

degree murder conviction: a witness observed petitioner chasing the victim and then shooting

him. At the hearing, petitioner testified that he shot the victim in self defense after the victim

tried to rob him. Petitioner denied chasing the victim. 

According to the record, petitioner was found guilty after a court trial. The trial

court obviously rejected the version of events testified to by petitioner at the hearing. Had the

trial court adopted petitioner’s version of events, petitioner would most likely have been

convicted of manslaughter. People v. Barton, 12 Cal.4th 186, 200-201 (1995) (“‘Unreasonable

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self-defense’ is a shorthand description of one form of voluntary manslaughter. It exists when a

person harbors an honest, good faith belief in the necessity of using deadly force in self-defense

but that belief is objectively unreasonable.”) Accordingly, in evaluating the factors related to the

circumstances of the commitment offense, the court considers the version of events supporting

petitioner’s second degree murder conviction. 

First, the BPT stated that offense was carried out in a cruel and callous manner

and in a dispassionate manner. In making these findings, the BPT was apparently relying on §

2402(c)(1)(B) (offense carried out in a dispassionate and calculated manner) and § 

2402(c)(1)(D) (offense carried out in a manner which demonstrates an exceptionally callous

disregard for human suffering). 

In In re Smith, 114 Cal. App. 4th 343, 7 Cal. Rptr. 3d 655 (2003), the California

Court of Appeal described factors which would characterize § 2402(c)(1)(D), i.e. an offense 

carried out in a manner demonstrating an exceptionally callous disregard for human suffering:

“There is no evidence that Smith acted with cold, calculated dispassion; or that he tormented,

terrorized, or injured Garner before deciding to shoot her; or that he gratuitously increased or

unnecessarily prolonged her pain and suffering.” 114 Cal. App. 4th at 367, 7 Cal. Rptr. 3d at

673. 

According to the version of the offense described by the BPT, petitioner chased

the victim then shot him. These facts do no indicate that petitioner acted with cold, calculated

dispassion, that he terrorized the victim or gratuitously increased or prolonged the victim’s pain. 

For these reasons, the court finds that the BPT’s finding that petitioner carried out the offense in

a manner that demonstrated an exceptionally callous disregard for human suffering is not

supported by some evidence.

The BPT also found that the offense was carried out in a dispassionate and

calculated manner, such as an execution-style murder. § 2402(c)(1)(B). The facts do not indicate

that the murder was calculated in any way. Nothing in record indicates, for example, that

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petitioner sought the victim out then shot him from point blank range. For this reason, the court

does not find that this factor is 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). According to the probation report, a witness saw

petitioner chase the victim and then shoot him. The record contains no explanation as to why

petitioner shot the victim as he ran away. Even if the victim had attempted to rob petitioner, as 

petitioner claimed, the fact that he was running away from petitioner did not justify this use of

force. Under these circumstances, petitioner’s motive for shooting the victim was trivial if not

inexplicable in relation to the offense. Accordingly, the court finds that this factor was supported

by some evidence.

Moreover, assuming the correctness of the trial court’s decision, petitioner has yet

to come to grips with the magnitude of his crime. He still views the events through the prism of

a victim—hardly reassuring in terms of his actions if released.

The panel next found that petitioner’s criminal history made him unsuitable. In

1982 petitioner was convicted of misdemeanor corporal injury on his spouse. Answer, Exhibit

B, p. 19-20. In 1986 petitioner was convicted of public fighting, a misdemeanor. Id., p. 20. 

Section 2402(c)(2) permits the BPT to find a prisoner unsuitable if he has on

previous occasions inflicted or attempted to inflict serious injury on a victim. A misdemeanor

conviction for corporal injury on a spouse does not suggest that petitioner inflicted or attempted

to inflict serious injury. The discussion of this conviction at the hearing does not shed light on

the facts surrounding this conviction and the injury petitioner inflicted or attempted to inflict. 

Petitioner’s conviction for the misdemeanor public fighting also does not necessarily indicate

that petitioner inflicted or attempted to inflict serious injury. That these convictions were

misdemeanors suggests that serious injury was not involved. For these reasons, the court finds

that there was not some evidence to support the BPT’s finding that petitioner’s criminal record

demonstrated unsuitability. In fact, a lack of any significant history of violent crime tends to

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show suitability. § 2402(d)(6).

The BPT also found that petitioner was unsuitable because he needed more

therapy. § 2402(c)(5) (prisoner unsuitable if he has a lengthy history of severe mental problems

related to the offense). In particular, the BPT noted that while the recent psychiatric report was

supportive, petitioner “need[ed] to continue in his quest to fine-tune his ability to be able to cope

with stress in a non-destructive manner. Until enough progress is made, the prisoner continues to

be unpredictable threat to others.” Respondent’s Exhibit B, p. 65. 

Attached to the traverse is a copy of the psychological report prepared by Dr. Van

Couvering. In the section of the report titled “Assessment of Dangerousness,” Dr. Van

Couvering states, 

The inmate has a minimal criminal history. On May 8, 1982, he was charged with

misdemeanor Corporal Injury on a Spouse and given court probation. January 18,

1986, he was charged with fighting and given a suspended sentence. The next 

incident was the life crime on January 21, 1994, where he was charged with 2nd

Degree Murder with a Firearm. The records show that while in prison he received

a chrono clearing him for placement in Administrative Segregation on October 

1999, however there is no indication he was actually put in administrative 

segregation, and the inmates denies that he ever was. There is a 128A from 2000. 

There are no 115s in his 8 years of incarceration. In the community, he has a low 

number of risk factors. There are no prior convictions for violent crime. He was 

in his forties when this incident occurred, and is now at an age where violence is 

less likely. 

*****

There is no history of opiate or alcohol abuse. He reports a good family 

environment. Weapons would be available if he to return to the community, but 

he would be prohibited from owning one. He expresses a strong attachment to his

wife and child, which would motivate him not to recidivate. The most significant 

risk factor would be whether he felt he or his family was in physical danger. It is 

my professional opinion that the estimated dangerousness, were he to return to the

community, would be low. 

The BPT also relied on the report prepared by Correctional Counselor McNeil for

the hearing. In this report, Counselor McNeil concluded that “[c]onsidering the commitment

offense, prior record and prison adjustment, this writer believes the prisoner would pose a

moderate to low degree of threat to the public at this time if released from prison.” Respondent’s

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Exhibit G. He also found that prior to release, petitioner could benefit from maintaining a

disciplinary free record, participating in a work assignment and participating in self-help and

therapy programs. Id.

Counselor McNeil described petitioner’s post-conviction factors as follows:

Rosenburg was received at San Quentin on June 23, 1997 for Reception Center 

processing. On August 19, 1997, he was transferred to Substance Abuse 

Treatment Facility (SATF) Level III. While at SATF, he was placed in the 

Graphic-Arts/Priting Vocation, where he received satisfactory work reports from 

his supervisors. He remained disciplinary-free while at SATF until August 1, 

2000, when he received a CDC 115 for Being in an Unauthorized Area. This 

CDC 115 was subsequently reduced to a CDC 128-A. On October 4, 1999, 

Inmate Rosenburg’s custody was reduced from Close B to Medium A custody. At 

his Annual Review on September 3, 1999, Rosenburg was transferred to CSPSOL, Level III. After his Initial Classification, he was subsequently placed in the 

Electrical Vocational Trade receiving above average to exceptional work reports

from his supervisors. At his Annual Review on August 1, 2000, he was referred 

to the CSR. Due to his Classification Score being reduced to Level II, he was 

subsequently transferred to CSP-SOL-II. On July 20, 2000, Rosenburg appeared 

before the Board of Prison Terms (BPT) for a Documentation Hearing. At this 

time, the Deputy Commissioner recommended that he participate in self-help 

groups and remain disciplinary-free. On November 3, 2000, Rosenburg began his

assignment as Porter in Building # 13, receiving satisfactory work reports from his

supervisors during this time. He has remained disciplinary free while on Level II 

and received a certificate for his participation in a Human Development Seminar 

0n February 7, 2001 (see attached Post Conviction Progress Report for details).

Id.

Counselor McNeil concluded that petitioner would pose a low to moderate risk of

dangerousness if released and that he would benefit from participation in therapy programs. In

contrast, Dr. Van Couvering found that petitioner would post a low degree risk of dangerousness

if released and did not find that petitioner required additional therapy. Dr. Van Couvering is a

trained mental health professional. Therefore, as to the issue of whether petitioner required

additional therapy, Dr. Van Couvering’s opinion carried more weight than that of Counselor

McNeil. In any event, neither Dr. Van Couvering nor Counselor McNeil found that petitioner

had a lengthy history of severe mental problems related to the offense. While Counselor McNeil

stated that petitioner would benefit from therapy, he did not find that petitioner needed therapy. 

Accordingly, the panel’s finding that petitioner required additional therapy was not supported by

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some evidence.

With respect to other factors demonstrating unsuitability, the BPT found that

nothing in petitioner’s record indicated that he had an unstable social history. § 2402(c)(3)

(unstable social history tends to show unsuitability); Respondent’s Exhibit B, p. 64. The BPT

found that petitioner had parole plans. Id., p. 64. While petitioner did not have a job offer, he

had marketable skills that could be used on his release. Id., p. 64. Based on these comments, the

court does not find that the BPT found petitioner unsuitable because he did not have an

understanding and plan for his future. § 2402(d)(9). 

In conclusion, because the BPT’s finding that the motive for the crime was

inexplicable or trivial was supported by sufficient evidence, the court finds that there was some

evidence to support the decision finding petitioner unsuitable for parole. Because the denial of

this claim by the Solano County Superior Court was not an unreasonable application of clearly

established Supreme Court authority, this claim should be denied.

B. No-Parole Policy

Petitioner contends that he was denied parole pursuant to a no-parole policy. 

Because the BPT’s decision finding him unsuitable was supported by some evidence, whether

petitioner was denied parole pursuant to a no-parole policy is not material. In other words, even

if petitioner were found unsuitable pursuant to such a policy, the decision of the BPT would still

be upheld because some evidence supported its decision.

After independently reviewing the record, the court finds that the denial of this

claim by the California courts was not an unreasonable application of clearly established

Supreme Court authority. Accordingly, this claim should be denied.

C. Cal. Penal Code § 1170

Petitioner appears to contend that Cal. Penal Code § 1170.2 requires the BPT to

establish his release date, which it has not done. Petitioner also appears to contend that Cal.

Penal Code § 3041 also requires the BPT to set a release date.

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Prior to July 1, 1977, California operated under a indeterminate sentencing law

(ISL) system. Guzman v. Morris, 644 F.2d 1295, 1296 (9th Cir. 1981). On July 1, 1977,

California’s Determinate Sentencing Law (DSL) went into effect. Id. As part of the conversion

from the ISL to DSL, certain indeterminate sentences were to be “reset.” Id. The provisions of

Cal. Penal Code § 1170.2 apply to the resetting of sentences imposed for felonies committed

prior to July 1, 1977. The DSL contains some provisions for indeterminate sentences. See In re

Dannenberg, 34 Cal. 4th 1061, 1078, 23 Cal. Rptr. 3d 417 (2005). 

Petitioner’s commitment offense and sentence occurred after July 1, 1977, under

indeterminate sentencing provisions of the determinate sentencing law. Petitioner’s life sentence

is an indeterminate sentence. See Danneberg, at 1078, 23 Cal. Rptr. 3d 417. As such, petitioner

“becomes eligible for parole after serving [a] minimum term [] of confinement,” but the

determination of his actual term of confinement rests with the Board of Prison Terms. Id.

Petitioner’s contention that, absent notice and hearing, he was entitled to release on a date set

pursuant to the provisions of Cal. Penal Code § 1170.2 is without merit; that section has no

application to petitioner.

Petitioner is correct that his eligibility for parole is governed by the provisions of

Cal. Penal Code § 3041. This section provides, 

(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 

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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. See Cal. Code Regs. tit. 15, § 2402. 

Section 3041 requires the BPT to find a prisoner eligible for parole if the prisoner

meets the criteria set forth in the established regulations. As discussed above, applying the

criteria set forth in § 2402, the BPT found petitioner unsuitable for parole, and this decision was

supported by some evidence. Petitioner’s claim challenging application of § 3041 fails for that

reason.

The denial of this claim by the Solano County Superior Court was not an

unreasonable application of clearly established Supreme Court authority. Accordingly, this claim

should be denied.

D. Delay of Second Suitability Hearing

Petitioner contends that the decision by the BPT following the 2002 hearing to

hold his next suitability hearing in two years was “excessive.” 

In California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S. Ct. 1597

(1995), the Supreme Court held that California’s retrospective increase in the time between

parole hearings for serious offenders did not violate the Ex Post Facto clause. Therefore,

petitioner’s claim is foreclosed by Morales. The denial of this claim by the Solano County

Superior Court was not an unreasonable application of clearly established Supreme Court

authority. Accordingly, this claim should be denied.

Conclusion

In the petition and traverse, petitioner suggests that his failure to obtain a release

date violates his plea agreement. According to the record, petitioner was found guilty of murder

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after a trial. Therefore, the basis of petitioner’s claim for violation of a plea agreement is unclear. 

In any event, petitioner was convicted in Alameda County which is located in the jurisdiction of

the United States District Court for the Northern District of California. 

While both this Court and the United States District Court in the district where

petitioner was convicted have jurisdiction, see Braden v. 30th Judicial Circuit Court, 410 U.S.

484 (1973), any and all witnesses and evidence necessary for the resolution of petitioner’s claim

alleging breach of his plea agreement are more readily available in Alameda County. Id. at 499

n.15; 28 U.S.C. § 2241(d). Therefore, petitioner’s claim alleging violation of his plea agreement

should be raised in a habeas corpus petition filed in the United States District Court for the

Northern District of California. However, because it is not entirely clear that petitioner intends to

raise such a claim, the court will not order this action transferred to the Northern District for

adjudication of the breach of plea claim. 

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: 8/10/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

ros2668.157

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