WRIT OF HABEAS CORPUS CHALLENGING THE FINDING OF BPH OR THE GOVERNOR AFTER PAROLE HAS BEEN DENIED
If you’ve been denied parole either by the BPH or the Governor’s office, it is possible to challenge that decision through a writ of habeas corpus. The statutory authority for filing a writ of habeas corpus is contained in California Penal Code §1473, et seq.
The traditional use of habeas corpus allows prisoners to challenge their convictions and sentences. Habeas corpus actions were used to review the lawfulness of a person’s imprisonment. When a prisoner filed a “petition” for a writ of habeas corpus, a judge would issue a “writ”, which is an order requiring the jail or prison officials to bring the prisoner before the court and give reasons to justify why the prisoner is being detained. After a court hearing, the judge decided whether the imprisonment was legal, and either permitted continued imprisonment or freed the person. The same basic tool allows prisoners to challenge parole revocations and denials of parole by the Board of Parole Hearings (BPH) or the Governor.
Given that the majority of decisions made by the Board result in denial and the relatively high reversal rate among Governors, the court serves as an effective and default vehicle for lifers seeking parole release through habeas appeals. That’s the good news. The bad news is that most writs are denied. Further, Swarthout v. Cooke (2011) ___ U.S. ____, virtually precludes federal habeas corpus review, state judicial review offers inmates virtually the only opportunity to challenge the decisions of BPH and the Governor.
Through a habeas corpus proceeding, a prisoner can ask a court to order “injunctive relief,” meaning that the court will order prison officials to do something or to stop doing something. Such an order sought by an inmate serving an indeterminate sentence is an order by the Court to vacate a decision by either the Governor or BPH and order a new hearing consistent with due process.
A habeas corpus proceeding starts when a prisoner files a petition for writ of habeas corpus in State Court. Procedurally, the petition must (1) identify the place of confinement and the person with authority over that prison or jail, (2) describe the imprisonment and what makes it illegal, (3) state whether any prior court actions have been filed about this issue and describe those proceedings, and (4) be “verified” (meaning that the statements in the petition are sworn to be true).
The court considering the writ is not empowered to reweigh the evidence. The Supreme Court ruled that the Court of Appeal erred in re-weighing the evidence relied upon by the executive branch when it found petitioner unsuitable for parole. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness.
A court reviewing a parole determination must employ the highly deferential “some evidence” standard, which requires it to uphold the executive branch’s decision as long as there is a “modicum of evidence” to support the parole suitability finding. The question whether the inmate is currently dangerous is reserved to the executive branch. The reviewing court is not authorized to reweigh the evidence—it must uphold the parole suitability finding if “there is a rational nexus between the evidence and the ultimate determination of current dangerousness”. In other words, the issue is whether or not the inmate currently pose an unreasonable risk of harm if released.
In substance, the grounds upon which the relief sought are the heart of the writ upon which the court will base its decision. Each element of the record should be picked apart factor by a factor analysis [i.e. insight, self-help, institutional behavior, etc.]. Consider what the inmate has done to better him/herself in any particular area and if at all, that factor may pose an unreasonable risk to public safety if the inmate is released.
Such factors include includes but not limited to the following issues:
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Relapse prevention plan;
●Viable Parole Plans;
●Self Help/Personal Development;
●Vocational Training;
●Work performance;
●Psychological Report;
●Insight;
●Lack of Notice of prior hearing;
●Lack of impartiality by the hearing panel;
The Board or the Governor could base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history. Some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. The relevant inquiry for a reviewing court and in drafting a writ is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but the issue should be whether the identified facts are probative to the central issue of the inmate’s current dangerousness when considered in light of the full record before the Board or the Governor.
There is no set time limit for filing a state petition for writ of habeas corpus. Still, courts require a person to be diligent in seeking relief when the facts and law supporting the petition are known or should be known. When there has been a long delay before the petition was filed, the petitioner should explain in detail why the case was not filed earlier.
Generally, a habeas petition by a life prisoner challenging a denial, reversal or rescission of parole should be filed in the county where the prisoner was sentenced. Writs filed in State Court are decided fairly quickly, usually in approximately 4 months time.
If the court believes the case may have some merit, but wants more information before taking any formal action, the court may request that the parties submit informal briefing. The Attorney General’s, Health Care Receiver’s or District Attorney’s informal response, which is usually in the form of a letter, will be due 15 days after the court’s request is issued, unless the court sets a different deadline. The opposing party’s attorney must send a copy of the informal response to the petitioner.
AFTER SUPERIOR COURT: THE COURT OF APPEAL
1. If the petition is granted
If the superior court issues an order granting relief to the petitioner, the respondent may appeal. The notice of appeal must be filed within 60 days after the superior court issues its order. While the appeal is pending, the respondent can request that the order be “stayed” so that it does not take effect while the appeal is pending; either the superior court or the Court of Appeal may grant such a stay. If no stay is issued, then the relief ordered by the superior court should be carried out while the appeal is pending. If the state does file a notice of appeal, a petitioner who does not have enough money to hire a lawyer should ask the Court of Appeal to appoint counsel; the appellate courts routinely appoint counsel in these circumstances.
2. If the petition is denied
If the petition is denied in the superior court, the petitioner has no right to appeal. Instead, the petitioner can file a new petition with the Court of Appeal. The new petitioner should contain the same claims as the first petition. The petitioner should attach the superior court’s decision as an exhibit to the new petition and include in the “facts” portion of the petition a statement showing that the petitioner has previously applied to the superior court for relief.
AFTER THE COURT OF APPEAL: THE STATE SUPREME COURT
If the petition is denied in the Court of Appeal and the petitioner still wants to continue, he or she can ask the California Supreme Court to hear the case. This can be done in two ways. One method for presenting the case to the California Supreme Court is to file a petition for review. If a petition for review is filed, the entire record of the Court of Appeal will be sent to the Supreme Court and the petitioner will not have to supply new copies of the exhibits. The petition for review should start with one-sentence descriptions of each of the legal issues and include a discussion of why the issues are important enough for the Supreme Court to hear the case.
