Petition for Writ of Certiorari — Sirhan B. Sirhan, Petitioner v. California

Supreme Court briefDec 18, 2024

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No. ________________

________________________________________________________________________________

THE SUPREME COURT OF THE UNITED STATES

SIRHAN B. SIRHAN,

PETITIONER IN FORMA PAUPERIS,

V.

STATE OF CALIFORNIA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

Angela Berry, Esq.

Bar No. 323577

Attorney of Record

75-5660 Kopiko Str., Suite C-7, #399

Kailua-Kona, HI 96740

Ph.: 866 285-1529

Email: angela@guardingyourrights.com

Denise F. Bohdan, Esq.

Bar No. 323579

P.O. Box 383

Cardiff, CA 92007

Ph.: 619-851-5227

Email: denise@bohdanlaw.com

Attorneys for Petitioner

Sirhan B. Sirhan

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QUESTIONS PRESENTED

California Constitution Article V, Section 8(b), grants a California Governor the

authority to reverse parole decisions of the Board of Parole Commissioners. It is a de

novo review, with the limitation that the Governor must consider the same statutory

factors and record of the Board below.

1. DOES CALIFORNIA CONSTITUTION ARTICLE V, SECTION 8(b)

VIOLATE THE U.S. CONSTITUTION’S DUE PROCESS CLAUSE

BECAUSE OF THE INTOLERABLE RISK THAT PUBLICLY ELECTED

GOVERNORS LACK NECESSARY NEUTRALITY?

2. WAS PETITIONER’S FUNDAMENTAL RIGHT TO A FAIR AND

NEUTRAL ARBITER VIOLATED WHEN THE GOVERNOR WHO

REVIEWED THE PAROLE BOARD DECISION HAD A WELLPUBLISHED AFFINITY AND PERSONAL CONNECTION TO THE

VICTIM?

3. DOES CALIFORNIA CONSTITUTION ARTICLE V, SECTION 8(b)

IMPROPERLY IMPACT YOUTH OFFENDERS BECAUSE OF THEIR

UNIQUE CONSTITUTIONAL PENOLOGICAL PROTECTIONS AND

THEREBY VIOLATE THE EIGHTH AMENDMENT RIGHT AGAINST

CRUEL AND UNUSUAL PUNISHMENT?

4. DOES CALIFORNIA CONSTITUTION ARTICLE V, SECTION 8(b)

VIOLATE THE U.S. CONSTITUTION’S DUE PROCESS CLAUSE

BECAUSE DUE PROCESS SAFEGUARDS, SUCH AS THE RIGHT TO BE

HEARD, RIGHT TO REVIEW THE RECORD, AND TO HAVE COUNSEL

ATTEND THE HEARING, ARE NOT AVAILABLE DURING THE

GOVERNOR’S REVIEW PROCESS, EVEN WHEN NEW EVIDENCE IS

IMPROPERLY CONSIDERED BY THE GOVERNOR?

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PARTIES TO THE PROCEEDINGS AND RELATED CASES

In re Sirhan B. Sirhan, Petitioner; CA Attorney General, Los Angeles County

District Attorney, Respondents. Superior Ct. No. BH014184 / Underlying Case

No. A233421, Superior Court of California, County of Los Angeles.

Memorandum of Decision on Petition for Writ of Habeas Corpus entered

October 2, 2023

In re Sirhan B. Sirhan, Petition for Writ of Habeas Corpus, Appeal No. B338429

California Court of Appeal, Second Appellate District, Div. 5. Decision denying

Petition entered July 22, 2024. This filing invoked the Appellate Court’s

original jurisdiction. See Robinson v. Lewis, 9 Cal. 5th 883, 895; 469 P.3d 414,

419 (2020).

In re Sirhan B. Sirhan on Habeas Corpus, Supreme Court of California, No.

S286234. Decision denying Petition entered September 25, 2024.

28 U.S.C. Section 2403(b) may apply. (Pursuant to Rule 29(c) of the Rules of

the Supreme Court of the United States, the Attorney General has been

served.)

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TABLE OF CONTENTS

QUESTIONS PRESENTED ………………………………………………………………..…..i

PARTIES TO THE PROCEEDINGS AND RELATED CASES …………………...…..…ii

TABLE OF CONTENTS ……………………………………………………………….……....iii

TABLE OF AUTHORITIES ……………………………………………………………………ix

PETITION FOR CERTIORARI ………………………………………………………………..1

OPINIONS BELOW ……………………………………………………………………………..1

BASIS FOR JURISDICTION …………………………………………………………….…….2

CONSTITUTIONAL, STATUTORY AND CASE LAW INVOLVED …………………….3

STATEMENT OF THE CASE………………………………………………………..…….…..5

A. Procedural ………………………………………………………………….….5

B. Facts……………………………………………………………………..……...5

REASONS FOR GRANTING PETITION………………………………….………………….8

INTRODUCTION………………………………….…………….………………………..8

I. CAL. CONST., ART. V SEC. 8, SUBD. (b) IS AN OUTLIER AMONG THE

STATES, IS STRUCTURALLY FLAWED AS IT LACKS NEUTRALITY,

AND THE BIAS CANNOT BE CURED; IT IS THEREFORE

UNCONSTITUTIONAL ……………………………………………….…………10

A. History of Passage of Art. 1, Sec. 8(b)……………………..……………10

B. A Neutral Arbiter is a Fundamental Right, and a Law that

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Infringes Upon that Right is Structurally Defective under

Constitutional Standards…………………………………………...……..13

1. Parolee Applicants have a Liberty Interest in Parole and The

Fundamental Right to an Impartial Decision-Making Body…….13

2. Most Matters of Bias are Left to the States Unless the Bias Rises

to a Constitutional Level, and Here, State Laws Fail to Address

the Bias. ………………………………………………………….….….14

3. Federal Due Process Claims Of Bias Cannot Be Easily Defined,

Involve Determination of Whether an Arbiter is “Likely To Be

Neutral” or Whether There is “Potential For Bias,” and Actual Bias

Need Not Be Found………………………………………………..…..17

4. Art. V., Sec. 8(b) Impermissibly Creates a Lack of Neutrality in

That A Governor is Answerable To His Constituents, Political

Factors and His/Her Own Career Goals, Thereby Rendering the

Law Structurally Flawed …………………………………….….…..21

5. Art. V, Sec. 8(b) Impermissibly Creates a Lack of Neutrality in

That a Governor is The Head of All Law Enforcement in the

State………………………………………………………………….….23

6. A Structural Defect of Lack of Neutrality Is a Constitutional

Violation and Therefore a Harmless-Error Analysis Does Not

Apply………………………………………………………………..…..25

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C. Youth Offenders Are Particularly Impacted by Art. V, Sec. 8(b),

Because of Their Unique Constitutional Penological Protections in

Violation of the 8th Amendment to the U.S. Constitution….……..27

II.

THE RISK OF ACTUAL BIAS CAME TO FRUITION IN PETITIONER’S

CASE DUE TO THE GOVERNOR’S STATED AFFINITY AND

PERSONAL CONNECTION WITH THE VICTIM AND HIS FAILURE TO

RECUSE HIMSELF……………………………………………………..……….29

III.

PAROLE APPLICANTS ARE DENIED DUE PROCESS AT THE

GUBERNATORIAL REVIEW, THUS RENDERING MOOT THE

PREVIOUS PROTECTIONS PROVIDED DURING THE PAROLE

PROCESS ……………………………………………………………………..…31

A. Penal Code section 3041 et. seq. Provides Multiple Procedural

Safeguards That Do Not Exist at the Governor’s Review Level….….32

B. A Reversal of a Parole Decision by the Governor in California is Not

Dissimilar to a Revocation of Parole in Other Jurisdictions Yet Lacks

Procedural Safeguards……………………………………………………...35

C. Fundamental Rights Guaranteed by the U.S. Constitutional are

Superior to State Law When a State Law Violates Those Federal

Rights. …………………………………………………………………….….37

CONCLUSION ……………………………………………………………………………...38

CERTIFICATE OF COMPLIANCE……………………………………………………....39

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APPENDICES ……………………………………………………………Bates No.

App. A

Memorandum of Decision, In re Sirhan B. Sirhan, Pet. on

Habeas Corpus, BH014184, October 2, 2023….BN0005

App. B

Decision, In re Sirhan B. Sirhan, Court of Appeal of the

State of California, B338429, July 22, 2024……BN0038

App. C

Decision, In re Sirhan B. Sirhan, California Supreme

Court, S28634, September 25, 2024……………..BN0041

App. D

Petition for Writ of Habeas Corpus, In re Sirhan B.

Sirhan, Pet. on Habeas Corpus, BH014184, filed on

September 29, 2022 ………………………………BN0043

App. E

Chronology of Governor’s Statements……………..BN0098

1. Tad Friend, Gavin Newsom, the Next Head of the

California Resistance, October 29, 2018, The New

Yorker Magazine, October 29, 2018 …………BN0104

2. Transcript of KTUV, Governor’s Speech After Recall,

September 14, 2021 URL:

https://www.youtube.com/watch?v=Ia-ZOTZLz3A

……………………………………………………… BN0131

3. White, Jeremy, “Newsom: RFK Admiration Shows

‘where I might be Leaning’ on Sirhan Parole”, Politico,

September 15, 2021 On-line.

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URL:https://www.politico.com/states/california/story/20

21/09/15/newsom-rfk-admiration-shows……………………………………………………….BN0133

4. Transcript of October 21, 2021, NBC News, Meet the

Press. URL: https://www.nbcnews.com/meet-thepress/video/gov-newsom-ethel-kennedy-s-opinion-hasweight-on-sirhan-decision-release-124271174002

............………………………………………………..BN0137

5. Thompson, D., “California Governor Mulls RFK

assassin Sirhan Sirhan Parole”, AP On-line, December

28, 2021. URL:https://apnews.com/article/sirhansirhan-middle-east-california-gavin-newsom08ab1b7dc92f58c78c2645c436311ba4

…………………………………………….………..BN0141

6. Newsom, G., Los Angeles Times, Op. Ed., January

13, 2022. URL:

https://www.latimes.com/opinion/story/2022-0113/sirhan-gavin-newsom-parole-decision:

……………………………………………………….BN0146

App. F

Letter to Governor Newsom from BGR Law Firm, dated

Dec. 9, 2021……………………………………………BN0151

App. G

California Ballot Pamphlet, Nov. 1988, Secretary of State

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of CA, Prop. 89, pp. 44-47. ………………………..BN9179

App. H

Declaration of Angela Berry filed August 4, 2023, in Writ

of Habeas Corpus proceedings, Los Angeles County

Superior Court …………………………………….BN0187

App. I

Wiggins, O and Tan, T: “Maryland revokes Governor’s

authority to overturn parole decisions involving people

serving life terms”, Washington Post, December 7, 2021

URL: https://www.washingtonpost.com/dc-mdva/2021/12/07/maryland-parole-governor-criminal-justiceprison/ …………………………………………….BN0193

App. J

Hurst, J., “Prop. 89, Plan to Give Governor Parole Veto

Power”, LA Times, October 28, 1988,

URL: https://www.latimes.com/archives/la-xpm-1988-1028-mn-340-story.html ........................................BN0197

App. K

Life in Limbo: An Examination of Parole Release for

Prisoners Serving Life Sentences with the Possibility of

Parole in California (2011) Stanford Criminal Justice

Ctr., 13 (Appendix 17) at PA_0285 pp. 11-15) …..BN0205

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TABLE OF AUTHORITIES

Constitutional Provisions, Rules and State Statutes

U.S. Constitution Art. VI, Sec. 10 ..………………………………………….………………3

U.S. Constitution, Amend. 8………………………………………………………………8, 26

U.S. Const. Amendment XIV.....................................................................................3, 38

28 U.S.C. Sec. 1257……………………………………………………………………………..1

Rules of U.S. Supreme Court, Rule 10……………………………………………………….1

California Constitution, Art. V, Sec. 8(b)……………………………………3,8,9,10,14,15,16

17, 20, 22, 24,25,29,32,33,34,36,37,38

Cal. Code of Civil Procedure 170.1 ……………………………………………………...15,17

Cal. Code of Regs., Title 15, Sec. 3321.................................................................. ..........6

Cal. Code of Reg., Title 15, Sec. 2247 …..…………………………………………………..32

Cal. Pen. Code section 3040 .…………………………….…………………………………..32

Cal. Pen. Code section 3041…………………………………………………………. 11,31,32

Cal. Pen. Code section 3041.2……………………………..……………………………3,16,31

Cal. Penal Code section 3041.5(a)………………………….……………………..32,33,35,37

Cal. Pen. Code section 3041.7……………………………………………………………33,36

Cal. Pen. Code section 3044(b) ................................................................................. .…11

Cal. Pen. Code section 3051 ................................................................ …………...24,27,28

Cal. Pen. Code section 4801(c). ………………………………………………………..24,27,28

Fla. Stat. Sec. 922.07 …………………………………………………………………………23

OK Const. Art. VI, Section 10………………………………………………………………..10

Cases

Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 (1986) ….……………………….14,15,17,18

Arizona v. Fulminante, 499 U.S. 279 (1991)…………..……………….………….25,29,31

California v. Greenwood, 486 U.S. 35 (1988)…..………………………………………….38

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) ………………….15,16,17,18,19

Chisom v. Roemer, 501 U.S. 380 (1991) …….……...…………………………………..….21

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Ford v. Wainwright, 477 U.S. 399 (1986) ………………………..……………………….23

Gibson v. Berryhill, 411 U.S. 564 (1973)……………………………………….…….........14

Gideon v. Wainright (1963) 372 U.S. 335 (1963)…… …….………………………….14,25

Gilman v. Brown,110 F. Supp. 3rd 989 (E.D. Cal. 2014) ……………………………..….13

Gilman v. Brown, 814 F.3d 1007 (2016)……………………………………………………13

Graham v. Florida, 56 U.S. 48 (2010) ...………………………………………………..27,28

In re Arafiles, 6 Cal. App. 4th 1467 (1992)……………………………………..……………11

In re Copley, 196 Cal. App. 4th 427 (2011)…….……………………………………………11

In re Fain,139 Cal. App. 3d 295 (1983) …………………………………………………….12

In re Lawrence, 44 Cal.4th 1181 (2008) ............................. .............................10,11,13,33

In re McDonald, 189 Cal.App.4th 1008 (2010)………………………….8,10,31,33, 34, 35

In re Murchison, 349 U.S. 133 (1955)…..…………………………………..…….……18, 19

In re Powell, 45 Cal.3d 894 (1988) ..….………………………………………………….….11

In re Rosenkrantz, 29 Cal. 4th 616 (2002)………………....…….............4,8,11,13,22,31,33,34

In re Shaputis, 53 Cal.4th 192 (2011)……. ..……………………………….…….………..26

In re Smith, 109 Cal.App.4th 489 (2003)…………….……………………..……………….11

In re Twinn, 190 Cal.App.4th 447 (2010) …….…………………………………………….34

In re Van Houten, 92 Cal.App.5th 1 (2023)….. …………………………….………………10

Lisenba v. California, 314 U. S. 219, 236 (1941)………………………….………………14

Miller v. Alabama, 567 U.S. U.S 460 (2010) ………………………..….……………9,27,28

Montgomery v. Louisiana, 577 U.S. 190 (2016)……. ……………………….…….…......28

Morrissey v. Brewer, 408 U.S. 471 (1972)……. …………………. 8,14,26,27,32,35,36,37

McCutcheon v. FEC, 572 U.S. 185 (2014) …………………………………………...…….20

North American Title Co., Inc. v. Superior Court, 17 Cal. 5th 155 (2024)…….……….16

Oliver v. United States, 466 U.S. 170 (1984)……. …………………………….………....38

Patterson v. New York, 432 U.S. 197 (1977)……………………………………………….16

People v. Contreras, 4 Cal. 5th 349 (2018) .……………………………………………..24,29

People v. Franklin, 63 Cal. 4th 261 (2016) ……………………………………….…….24,27

People v. Powell, 24 Cal. LEXIS 3149 (2024) ………………………………………..……28

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People v. Ramirez, 25 Cal.3d 260 (1979)…………. ………………………………………..13

Roper v. Simmons, 543 U.S. 551 (2005) ….……………………………………………..…27

Rose v. Clark, 478 U.S. 570 (1986) …………..……………………………………………..26

Swarthout v. Cooke, 562 U.S. 216, 219 (2011) .………………….….…………..4,13,14,26

Taylor v. Hayes, 418 U.S. 488 (1974) ……………………………….…………….….........19

Tumey v. Ohio, 273 U.S. 510 (1927)…….. ………………………………………….20,25,29

Ungar v. Sarafite, 376 U.S. 575 (1964)……...……………………………………………..19

Ward v. Village of Monroeville, 409 U.S. 57 (1972). …..…………………………………18

Williams v. Pennsylvania, 579 U.S. 1 (2016)….. ….……………………….….13,18,21,26

Williams-Yulee v. Fla. Bar 575 U.S. 433 (2015)…… ………………………………..21,26

Withrow v. Larkin, 421 U.S. 35 (1975) ..…………………………………………14,19,26,31

Other Sources and Authority

Ballot Pamph., Gen. Elec., at p. 46 (Nov. 8, 1988), Prop. 89…………………..…….12,22

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IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully requests that a writ of certiorari issue reviewing the

decision of the Supreme Court of California.

OPINIONS BELOW

None of the previous rulings or decisions of the courts below resulted in

published opinions. Opinions and / or Decisions below:

Unpublished: In re Sirhan B. Sirhan, Petitioner; CA Attorney General, Los

Angeles County District Attorney, Respondents. Superior Ct. No. BH014184,

Appendix A.

Unpublished: In re Sirhan B. Sirhan, Petition for Writ of Habeas Corpus,

Appeal No. B338429 California Court of Appeal, Second Appellate District, Div.

5, Appendix B.

Unpublished: In re Sirhan B. Sirhan on Habeas Corpus, Supreme Court of

California, No. S286234. Appendix C.

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BASIS OF JURISDICTION

The date on which the Supreme Court of California issued its decision was

September 25, 2024.

Jurisdiction of this Court is established under the following:

28 U.S. Code, Section 1257:

Final judgments or decrees rendered by the highest court of a State in which a

decision could be had, may be reviewed by the Supreme Court by writ of certiorari

where the validity of a treaty or statute of the United States is drawn in question or

where the validity of a statute of any State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or laws of the United States, or where

any title, right, privilege, or immunity is specially set up or claimed under the

Constitution or the treaties or statutes of, or any commission held or authority

exercised under, the United States.

Rules of the Supreme Court of the United States, Rule 10(c):

[A] state court or a United States court of appeals has decided an important question

of federal law that has not been, but should be, settled by this Court, or has decided an

important federal question in a way that conflicts with relevant decisions of this

Court.

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CONSTITUTIONAL, STATUTORY AND CASE LAW INVOLVED

U.S. Constitution, Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defense.”

U.S. Constitution, Fourteenth Amendment

“No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

California Constitution, Article V, Section 8

“(b) No decision of the parole authority of this state with respect to the granting,

denial, revocation, or suspension of parole of a person sentenced to an indeterminate

term upon conviction of murder shall become effective for a period of 30 days, during

which the Governor may review the decision subject to procedures provided by statute.

The Governor may only affirm, modify, or reverse the decision of the parole authority

on the basis of the same factors which the parole authority is required to consider. The

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Governor shall report to the Legislature each parole decision affirmed, modified, or

reversed, stating the pertinent facts and reasons for the action.”

California Penal Code Section 3041.2

“(a) During the 30 days following the granting, denial, revocation, or suspension

by the board of the parole of an inmate sentenced to an indeterminate prison term

based upon a conviction of murder, the Governor, when reviewing the board's decision

pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review

materials provided by the board.

(b) If the Governor decides to reverse or modify a parole decision of the board pursuant

to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a

written statement to the inmate specifying the reasons for his or her decision.”

Swarthout v. Cooke, 562 U.S. 216, 219 (2011): A State’s procedure is subject to due

process review by the U.S. Supreme Court if the State has created a liberty interest in

the subject matter.

In re Rosenkrantz, 29 Cal. 4th 616, 661 (2002): California has created a due process

liberty interest in parole for California prisoners.

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STATEMENT OF THE CASE

A. Procedural

Mr. Sirhan is currently serving a life sentence for first degree murder. Mr.

Sirhan has been eligible for parole since May 30, 1975. Petitioner was found suitable

for release on August 27, 2021. On January 13, 2022, Governor Newsom reversed the

decision of the Board of Parole Commissioners under the authority of California

Const. Art. V, Sec. 8(b) (see also Penal Code 3041.2). Petitioner challenged the

Governor’s reversal in the California Superior Court through habeas corpus

proceeding. (In re Sirhan B. Sirhan, Case No. BH014184, Appendix D; Bates

Number, hereinafter “BN”, BN0043). After the superior court issued an order to

show cause, the Los Angeles County District Attorney’s Office and the California

Attorney General’s Office filed Returns. On October 2, 2023, the Los Angeles County

Superior Court denied Petitioner’s Petition for Writ of Habeas Corpus. (Appendix A;

BN0005). Petitioner filed a writ of habeas corpus in the appellate court. Therein, he

challenged the constitutionality of the law. On July 22, 2024, the Court of Appeals

denied the petition. (Appendix B; BN0038) Petitioner timely sought review of the

California Supreme Court, which denied his request for review after briefing on

September 25, 2024. (Appendix C; BN0041).

B. Facts

Prior to Petitioner’s grant of parole on August 27, 2021, he was denied parole

many times, since the mid-1980’s, despite receiving consistent standardized risk

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assessments placing him in the lowest category for risk. Subsequent to the Board’s

grant of parole, the Governor made statements indicating a preference towards

reversing his Board’s decision. 1 (Appendix E; BN0098.) Moreover, Governor Newsom

received a 361-page ex-parte packet of materials from the victim’s family, including an

inflammatory hearsay statement from a former prison guard and an opinion letter

from a former District Attorney. 2 (Appendix F; BN0151.) The hearsay statement from

the ex-guard alleged that he caused to be created a confidential “chrono” 3 alleging

Petitioner made a highly inflammatory statement that was tantamount to a tacit

admission. This inflammatory hearsay was improperly before Governor Newsom

because none of the large packet of ex-parte items were before the Board below, were

never served on Petitioner, and were items which Art. V, Sec. 8(b) does not permit the

1

In an October 24, 2021 interview on NBC’s Meet the Press, the Governor acknowledged that

Petitioner’s case had not yet been brought to him. Yet, on September 14, 2021, he stated he was

“resolved in the spirit of [his] political hero Robert Kennedy” (9/14/2021, KTUV,

www.youtube.com/watch?v=Ia-ZOTZLz3A). In the Meet the Press Interview he reiterates “Robert

Kennedy is my political hero. You look at my house, it’s like a shrine to the Kennedy family and Bobby

in particular”. (www.nbcnews.com/meet-the-press/video/gov-newsom 10/21/2021). Appendix E 4;

BN0137).

2

It is unclear exactly how many ex-parte communications were served on the Governor, as the cover

letter for the packet references other anticipated to be sent to him.

3 A CDCR incident report, Ca Code of Regs, Title 15, §3321.

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parolee to rebut. 4 After receipt of the ex-parte packet, Governor Newsom reversed his

Board’s decision on January 13, 2022.

Petitioner seeks certiorari on the issue of the constitutionality of California

Constitution Article V, Section 8(b) because it does not allow parolees an opportunity

to rebut improperly received information, which in his case was received, and because

it allows a biased arbiter to determine liberty interests. In this case, the bias was clear

and distinct.

4 At a subsequent Board Hearing, where Petitioner does enjoy the right to rebut hearsay allegations,

the ex-guard was proven to have lied about the existence of “chrono” at all.

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REASONS FOR GRANTING THE PETITION

INTRODUCTION

In briefest form, pursuant to Supreme Ct. Rule 10(c), certiorari should be granted

because the Supreme Court of California has decided an important question of Federal

Law that has not been, but should be, settled by this Court, in that:

1. Art. V, Sec. 8(b) subjects every inmate granted parole to review by an arbiter

subject to political influence, which flies in the face of fundamental concepts of

due process before a neutral arbiter.

2. Art. V, Sec. 8(b) fails to provide fundamental due process to every inmate when,

as occurred here, they are denied notice of the record and right to be heard,

when the arbiter violates the statute implementing the law, by receiving and

considering outside prejudicial evidence and information. It is unrealistic to

presume that any given Governor will not receive outside information provided

by constituents that was not part of the record reviewed by the Board, which is

contrary to California case law interpreting the statute. In re Rosenkrantz 29

Cal. 4th 616, 638 (2002) and In re Mc Donald 189 Cal. App. 4th 1008, 1024

(2010). See also Morrissey v. Brewer 408 U.S. 471, (1972) holding a due process

right to notice of the record and to rebut in the parole context.

3. Art. V, Sec. 8(b) subjects juvenile and youthful offenders to a lack of reasonable

opportunity for release in violation of the Eighth Amendment to the U.S.

Constitution, in that it undermines the laws mandating specific consideration of

the “distinctive attributes of youth” designed to recognize the hallmark features

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of youth and the “possibility of rehabilitation” (Miller v. Alabama, 567 U.S. 460,

472, 477 (2010)). By allowing a political figure to reverse a finding of suitability

by the Parole Board, a young offender may never have a real chance of release

despite rehabilitation and appropriate suitability for release. For those inmates

committed before age 18, and never sentenced to life without the possibility of

parole (“LWOP”), Art. V, Sec. 8(b) if used to reverse parole grants, is essentially

an LWOP sentence in violation of mandates of Miller v. Alabama, id.

4. Art. V, Sec. 8(b) does not articulate any mechanism for recusal by a Governor

who actually harbors bias towards the particular inmate being reviewed. The

lack of appropriate recusal procedure for the arbiter creates fertile ground for a

Governor to proceed with review despite having actual bias. Here, Governor

Newsom’s long-standing, demonstrable affinity for the victim, and personal

family association with the victim, would have required any other arbiter to

step aside. Certiorari should be granted to determine whether a violation of due

process occurs when a Governor publicly favoring the particular victim in a case

sits in judgment of the inmate’s parole review, pursuant Art. V, Sec. 8(b), and

there is no recusal mechanism applicable under the law to address such bias.

5. The constitutionality of California Constitution, Art. V, Sec. 8(b) has not been

decided by this Court.

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I.

CAL. CONST., ART. V SEC. 8, SUBD. (b) IS AN OUTLIER

AMONG THE STATES, IS STRUCTURALLY FLAWED

AS IT LACKS NEUTRALITY, AND THE BIAS CANNOT BE CURED;

IT IS THEREFORE UNCONSTITUTIONAL

A. History of Passage of Art. V, Sec 8(b)

In 1988, California voters approved Proposition 89, adding Section 8(b) to

Article V, granting the Governor the power to review parole decisions specifically for

those serving indeterminate sentences for murder of up to life in prison with the

possibility of parole. California is one of only two states 5 in the country where the

governor has the right to review and reverse grants of parole to inmates in the class.

As a balance to unfettered decision-making by the Governor, Art. V, section 8(b)

requires that the Governor’s decision be based upon the same factors the California

Department of Corrections and Rehabilitation’s Board of Parole Hearings is required

to consider. Pen. Code, sec. 3041.2(b), In re Lawrence 44 Cal. 4th 1181, 1204 (2008) ; In

re Van Houten, 92 Cal.App.5th 1, 32 (2023). Further, the Governor may not review

materials that were not before the Board. (In re McDonald, 189 Cal.App.4th 1008,

1024 (2010): “Unlike the Board, which has the obligation and ability to take evidence,

5

Oklahoma is the only other state with a similar law, See OK Constitution Art. VI, Sec. 10. In 2021,

Maryland passed SB 202 returning the ultimate authority on parole decisions to parole officials, and

divesting the governor of such power due to the perception of bias. (Appendix I; BN0193)

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consistent with due process protections, the Governor cannot create an

evidentiary record”; See also In re Copley, 196 Cal. App. 4th 427, 433 (2011):

“Governor's constitutional authority is limited to a review of the materials presented by

the Board.” See also In re Arafiles, 6 Cal.App.4th 1467, 1477, 1478 (1992) In re

Rosenkrantz, 29 Cal.4th 616, 660-661 (2002); In re Smith 109 Cal.App.4 489, 507

(2003) .

Finally, there is judicial review, albeit limited review, of a Governor’s decision

to ensure that certain factors be considered and that parole decisions are supported by

at least “some evidence of current dangerousness” and are not arbitrary or capricious.

In re Rosenkrantz, supra, 29 Cal.4th at 625-626; In re Powell, 45 Cal.3d 894, 904

(1988). Thus, the law provides that a Governor shall have, in one person, the power

otherwise vested in many experienced Board members.

Generally, Parole Boards consist of former prosecutors, sheriffs, police officers

and probation officers. Together they comprise a body of hundreds of years of

experience in public safety and law enforcement. Their primary function is to protect

the public. (Cal. Pen. Code section 3044(b).) A decision in favor of parole is based upon

a decision of the panel and review of the entire Board. (Cal. Pen. Code section

3041(b)(2)). The competency of the Board cannot be doubted based on their collective

experience. Parole is a right unless there is evidence of current dangerousness. (In re

Lawrence, supra, 44 Cal.4th at 1210.) The challenged constitutional provision

essentially added another “parole board”, in the Governor. He wields the same power,

but with none of the collective experience of the Board, and through the Governor’s

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review, the prospective parolee has fewer procedural rights 6. Under this law, a

Governor’s decision is deemed “better than” that of the experienced Board. Because

the Governor historically lacks the law enforcement experience of the Board and is, in

theory, deciding on the same material and factors before the Board below, the only

plausible reason for Gubernatorial veto power is to override a politically unpopular

decision.

The impetus for the law was the “widespread and unprecedented public outcry”

after the parole of Archie Fain, convicted of multiple rapes and murders (In re Fain,

139 Cal.App.3d 295 (1983)). Then Governor Deukmejian attempted to block Fain’s

release but failed in court. He then launched a “tough on crime” ballot initiative,

Proposition 89, which passed. Underscoring the political nature of the measure,

Petitioner was specifically named in the official California Ballot Pamphlet, General

Election (1988) issued by the California Secretary of State. (See Appendix G; BN0179),

from “Arguments in Favor of Proposition 89” and “Rebuttal to Argument Against

Proposition 89”, signed by then Governor George Deukmejian.) Naming notorious

murderers in the public materials is a nod to the fact that unpopular or notorious

persons will be denied parole, as a Governor sacrifices justice for votes or other

politicized reasons.

Thus, from its inception, the goal of the Art, V, sec, 8(b) parole reversal power

6

Such as the right to be heard before the decision maker and the right to be represented by counsel in a

case of parole rescission.

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has been to provide an outlet for political sentiment against grants of parole which

were otherwise deemed appropriate by the Board. (See Gilman v. Brown 110

F.Supp.3d 989, 1016 (E.D. Cal. 2014), wherein the Court stated [Proposition 89] sent

“an instruction that the Governor should put his finger on the scale” against release.)

(Gilman, id, reversed on other grounds at Gilman v. Brown 814 F.3d 1007 (2016)).

B. A Neutral Arbiter is a Fundamental Right, and a Law that Infringes

Upon that Right is Structurally Defective under Constitutional

Standards.

1. Parolee Applicants have a Liberty Interest in Parole and The

Fundamental Right to an Impartial Decision-Making Body.

In the criminal proceeding context, the Due Process Clause requires States to

adopt laws that are fundamental to liberty and justice. Williams v. Pennsylvania, 579

U.S. 1, 20 (2016). In California, this liberty interest extends to parole applicants

where they have been deemed to “ ‘have a due process liberty interest in parole (In re

Rosenkrantz, supra, 29 Cal.4th at 664) and “‘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’.

[Citation.]” (In re Lawrence, supra, 44 Cal. 4th at 1203, quoting Rosenkrantz, supra, 29

Cal.4th at 654; see also People v. Ramirez, 25 Cal.3d 260 (1979).) In Swarthout v.

Cooke, 562 U.S. 216, 219 (2011), this Court acknowledged California’s granting of a

due process liberty interest in the parole process. Once a due process liberty interest

is established and an individual alleges a violation of it, due process analysis looks at

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whether the procedures followed by the State were constitutionally sufficient.

Swarthout v. Cooke, supra, 562 U.S. at 219.

Basic fundamental rights include, among others, the right to a fair hearing in

front of an impartial arbiter. Lisenba v. California, 314 U. S. 219, 236 (1941); Aetna

Life Ins. Co. v. Lavoie, 475 U. S. 813, 825 (1986); Gideon v. Wainright 372 U.S. 335,

344 (1963); Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).

This Court has also determined that administrative agencies, not just judges,

must likewise be impartial. In Withrow v. Larkin, 421 U.S. 35 (1975), this Court stated

“‘a fair trial in a fair tribunal is a basic requirement of due process.’ In re

Murchison, 349 U.S. 133, 136 (1955). This applies to administrative agencies which

adjudicate as well as to courts.” (Withrow v. Larkin, supra, at 46-47, citing

Gibson v. Berryhill, 411 U.S. 564, 579 (1973). See also Morrissey v. Brewer, supra, 408

U.S. at 489 (due process requires “neutral and detached” hearing body for parole

revocation hearing).

Art. V, Sec. 8(b) is constitutionally flawed in that it creates an inherent bias on

the part of a decision maker, thereby violating the due process right of the parolee.

Additionally, there exists no State law to cure such bias.

2. Most Matters of Bias are Left to the States Unless the Bias Rises to a

Constitutional Level, and Here, State Laws Fail to Address the Bias.

Most cases of bias do not rise to a constitutional level. Normally, a State enacts

codes of judicial conduct and legislation addressing bias. Further, most states have

strict laws addressing bias and recusal of judicial officers upon the “appearance of”

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bias. “Because the codes of judicial conduct provide more protection than due process

requires, most disputes over disqualification will be resolved without resort to the

Constitution. Application of the constitutional standard implicated in this case will

thus be confined to rare instances.” (Caperton v. A.T. Massey Coal Co., 556 U.S. 868,

890 (2009).)

In California, for example, Cal. Code of Civil Procedure 170.1(a)7

unambiguously requires disqualification of a judge where only the appearance of

impartiality exists. C.C.P. 170.1 (a)(6) reads: “(a) A judge shall be disqualified if. . . [a]

person aware of the facts might reasonably entertain a doubt that the judge would be

able to be impartial.” In October 2024, the California Supreme Court stated the

statutory disqualification laws should be broadly construed to instill public confidence

7

In lock-step alignment with the Federal and State Constitutional guarantees of impartial decision

making, the American Bar Association Model Code of Judicial Conduct (Canon 2, Rule 2.2) and the

Supreme Court of California via the California Code of Judicial Ethics (Canon 3) have promulgated

rules and law to ensure impartiality. ABA Model Code of Judicial Conduct, Canon Rule 2.2 states: “A

judge shall perform the duties of judicial office impartially, competently and diligently. Cal. Code of

Judicial Ethics, Canon 2(B)(1) states “…a judge shall not allow nor shall a judge convey or permit

others to convey the impression that any individual is in a special position to influence the judge.”.

CCJE, Canon 2. CCJE Canon 3(B)(2) states: “(2) A judge shall be faithful to the law regardless of

partisan interests, public clamor, or fear of criticism, and shall maintain professional competence in the

law.” (CCJE Canon 3.)

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in the judiciary. North American Title Co., Inc. v. Superior Court, 17 Cal. 5th 155, 186

(2024).

Because a Governor is not a judge, a “tribunal”, or an administrative agency,

Art. V, Sec. 8(b) has, in essence, slipped through the cracks of the basic due process

requirement for neutrality and a concurrent mandate to recuse oneself.

However, when a state’s laws infringe upon a fundamental interest, such as the

right to a neutral arbiter when adjudicating a liberty interest, as here, and where

there is no mechanism in that state law to remove a non-impartial arbiter, federal due

process is implicated as the law “‘offends some principle of justice so rooted in the

traditions and conscience of our people as to be ranked as fundamental.’” Aetna Life

Ins. Co. v. Lavoie, supra, 475 U.S. at 820-821 quoting Patterson v. New York, 432 U.S.

197, 201-202 (1977).

In this case, this Court cannot rely upon the existence of California’s strong

recusal statutes to cure any bias that may exist when a Governor reviews parole

decisions because none of the existing laws addressing bias apply to a Governor. Nor

does Article V, Sec. 8(b) (or the statute implementing it, Penal Code Sec. 3041.2)

address biased behaviors and actions of a Governor. This dearth of legislation leaves

inmates with no recourse to challenge the Governor’s bias. Because of the uniqueness

of this law, a Governor is outside of state statutes that address the fundamental

fairness of a neutral arbiter.

As carefully as the Caperton Court was to warn that the facts of constitutional

disqualifications are rare and limited to extreme cases, explaining that States have

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enacted “standards more rigorous than due process requires” (Caperton, supra, 556

U.S. at 889), Caperton did not account for the rare circumstance where the state’s

neutrality statutes do not cover the judicial-like (or tribunal-like) decisions of a

Governor affecting a prospective parolee’s fundamental right to a neutral arbiter in

deciding a liberty interest.

The outlier law embodied in California Constitution, Article V, Sec. 8(b), which

exists only in two jurisdictions, empowers an arbiter who is not a judge, tribunal nor

administrative agency to make decisions of no less significance than those made by a

Judge, tribunal, Parole Board, or administrative agency, all of which are subject to a

mandate of neutrality. A Governor, for lack of being defined in the aforementioned

categories, must not be allowed to skirt the rules of neutrality to which all other

arbiters are held.

3. Federal Due Process Claims Of Bias Cannot Be Easily Defined, Involve

Determination of Whether an Arbiter is “Likely to Be Neutral” or Whether

There is “Potential For Bias”, and Actual Bias Need Not Be Found.

Indeed, the failure of California to account for a violation of a Governor’s lack of

impartiality in their laws raises a due process question. The standard to determine if

a due process violation exists at the federal constitutional level is more stringent than

the “appearance of” bias required by California Statute 8. This Court has previously

articulated a formula to determine constitutional bias. In Aetna Life, supra, 475 U.S.,

this Court stated: “[A] reasonable formulation of the issue is whether the situation is

8 Ca. Code of Civil Procedure Section 170.1 et seq.

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one ‘which would offer a possible temptation to the average . . . judge to . . . lead him

not to hold the balance nice, clear and true.’” (Id., at 822, quoting Ward v. Village of

Monroeville, 409 U.S. 57, 60 (1972).) The Aetna Life Court noted: “what degree or

kind of interest is sufficient to disqualify a judge from sitting ‘cannot be defined with

precision.’” (Aetna Life, at p. 822, quoting Justice Black In re Murchison, 349 U.S. 133

(1955). Then, in Williams v. Pennsylvania, 579 U.S. 1 (2016), this Court further

defined constitutional bias:

“Due process guarantees ‘an absence of actual bias on the part of a

judge. In re Murchison, 349 U. S. 133, 136, [alt. citations omitted]. Bias is

easy to attribute to others and difficult to discern in oneself. To establish

an enforceable and workable framework, the Court’s precedents apply an

objective standard that, in the usual case, avoids having to determine

whether actual bias is present. The Court asks not whether a judge

harbors an actual, subjective bias, but instead whether, as an

objective matter, ‘the average judge in his position is “likely” to

be neutral, or whether there is an unconstitutional ‘potential for

bias.’ Caperton, 556 U. S., at 881, [citations omitted].”

Williams v. Pennsylvania, 579 U.S. at 8. (emphasis added)

In Caperton v. A.T. Massey, supra, 556 U.S. 868, this Court has required a

showing of risk of actual bias or prejudgment. In Caperton, this Court reviewed

whether a recently elected appellate judge could be impartial when the case before

him involved a significant donor to his campaign. His loyalties of “gratitude” to the

donor were at issue in reference to his ability to judge impartially. While the judge in

question undertook a careful self-assessment of his biases and concluded he was not

biased, the Caperton Court found he must nonetheless be disqualified, and it reversed

the lower Court’s ruling. The Caperton Court stated that actual bias need not be

shown, stating:

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“…this Court does not question Justice Benjamin’s subjective findings of

impartiality and propriety and need not determine whether there

was actual bias. Rather, the question is whether, ‘under a realistic

appraisal of psychological tendencies and human weakness,’ the interest

‘poses such a risk of actual bias or prejudgment that the practice must be

forbidden if the guarantee of due process is to be adequately

implemented.’ Withrow v. Larkin 421 U.S. 35 at 47. 95 S. Ct. 1456, 43 L.

Ed. 2d 712.”

Caperton, Id., at 869-870. (emphasis added).

In the case of Taylor v. Hayes, 418 U.S. 488 (1974) a judge held an attorney in

contempt during a contentious criminal trial and sentenced him to four years of

confinement. On reversal and remand, this Court determined the trial judge should

not hear any retrial of the contempt charges, stating the “inquiry must not be only

whether there was actual bias on Respondent’s [the Judge’s] part, but also whether

there was ‘such likelihood of bias or an appearance of bias that the judge was unable

to hold the balance between vindicating the interests of the court and the interests of

the accused. Ungar v. Sarafite, 376 U.S. 575, 588 (1964).’ ” ( Taylor, supra at 501.)

“ ‘Such a stringent rule may sometimes bar trial by judges who have no actual bias

and who would do their very best to weigh the scales of justice equally between

contending parties,’ but due process of law requires no less. In re Murchison, 349 U.S.

133, 136 (1995)”. (Taylor, Id., 418 U.S. at 501).

In each of the cases above, this Court identified circumstances where the

probability of actual bias on the part of a decision-maker was too high to be

constitutionally tolerable, including when the arbiter has a financial interest in the

dispute, or has been the target of abuse by a party before him or her. Withrow v.

Larkin, supra, 421 U.S. 35, 47.

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Here, the alleged genesis for the bias is not similar to previous cases due to the

uniqueness of the law. Can an elected official, who normally is presumed to be

executing his duties neutrally, hold the balance “nice, clear and true” (Tumey v. Ohio,

273 U.S. 510, 532 (1927)) when he is faced with the conflict of releasing a murderer,

despite rehabilitation and the lowest risk assessments for danger, knowing full well

that his constituents will not likely approve, thus risking his own personal political

popularity? The conflict presented is that of the inmates’ rights versus the decisionmaker’s own personal political aspirations.

The conflict is more pronounced and nuanced in the case at bar, where not only

was the Governor faced with freeing an unpopular inmate, but also the man convicted

of killing his “personal hero” and the colleague of his own father. Such a conflict is

beyond what can be expected of any person, taking into account human weakness and

psychological tendencies.

Because a Governor does not neatly fall into the category of “judge” or

“tribunal”, the judicial and administrative laws regarding disqualification for bias

have failed to address the Governor-as-arbiter scenario created by Article V, Sec. 8(b).

A constitutional violation exists because a Governor in the executive branch is the

only adjudicating branch in our system of tribunals to escape the promise of an

impartial arbiter. This is an incurable structural defect rendering it impossible to

remedy the Gubernatorial parole review process from politics and inherent bias.

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4. Art. V., Sec. 8(b) Impermissibly Creates a Lack of Neutrality in That

A Governor is Answerable to His Constituents, Political Factors and

His/Her Own Career Goals, Thereby Rendering the Law Structurally

Flawed.

Applying the standards articulated above, politicians are biased in a manner

that cannot be cured. By the nature inherent in popular elections, politicians are

beholden to their constituents and have a vested interest in their own electability.

This Court has articulated the obvious truth that politicians are beholden to votes and

popularity. “Unlike politicians, judges are not ‘expected to be responsive to [the]

concerns’ of constituents.” (Williams-Yulee v. Fla. Bar 575 U.S. 433, 459 (2015) (conc.

Opn), quoting McCutcheon v. FEC 572 U.S. 185 (2014), (plurality opinion). “Instead, ‘it

is the business of judges to be indifferent to popularity.’ ” (Williams-Yulee, Ibid.,

quoting Chisom v. Roemer, 501 U. S. 380, 401, n. 29 (1991)). Notwithstanding the

checks to ward against unfettered power, (for example judicial review of the

Governor’s decision) Art. V, sec. 8(b) cannot be cured of its inherent bias because it

cannot be separated from political factors that a Governor necessarily faces.

Additionally, the California law is silent on addressing Gubernatorial bias. Inmates

are deprived due process when popular sentiment or generalized fear of crime, to

which a Governor necessarily responds, overrides the laws of the State regarding a

fair and deliberative analysis of a particular inmate’s parole release factors performed

by neutral decision makers. If pressure subverts the proper application of the state’s

parole laws, the inmates’ due process rights are violated.

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The historical application of Art. V, Sec. 8(b) demonstrates decisions are tied to

the political agenda of the particular Governor’s office. In 1982, when John Van De

Kamp campaigned for Attorney General, while still District Attorney for Los Angeles

County, he led a campaign to keep Petitioner Sirhan Sirhan in prison. In 1990, Van de

Kamp ran for Governor, but lost. 9 When Governor Deukmejian put the law on the

ballot, his public campaign pitch was to put the power to “block the parole of convicted

murderers” in the hands of the Governor for the first time. (In re Rosenkrantz, supra,

29 Cal.4th at p. 691 (dis. Opn. of Chin, J.) [quoting Ballot Pamp., Gen. Elec., at 46

(Nov. 8, 1988)]). 10 Further underscoring the inseparability of politics from the reversal

power, are the extremely divergent reversal rates across different Governors’

administrations: Pete Wilson reversed approximately 27% of parole grants 11; Gray

Davis reversed 98%; Arnold Schwarzenegger reversed 60%; and Jerry Brown reversed

20% 12. This lack of consistency strongly hints at an empirical showing that non-

9 Had he been seated, the inherent bias with exclusive executive power to reverse parole would have

come into stark relief.

10

Hurst, J., “Prop. 89, Plan to Give Governor Parole Veto Power”, LA Times, October 28, 1988,

https://www.latimes.com/archives/la-xpm-1988-10-28-mn-340-story.html (Appendix J; BN0197).

11 Though Wilson reversed a relatively small percentage of cases, the Board only granted parole in “a

handful of cases” over his tenure. (Weisberg et al., Life in Limbo: An Examination of Parole Release for

Prisoners Serving Life Sentences with the Possibility of Parole in California (2011) Stanford Criminal

Justice Ctr., 13 (Appendix K; BN0205) at PA_0285, pp. 11-15.)

12 Gov. Newsom has reversed 190 parole grants between 2019 and 2022. Executive Report on Parole,

issued by the Governor’s office for 2019-2023.

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statutory factors are driving parole reversals, rather than the uniformly applied

parole factors mandated under the law.

5. Art. V, Sec. 8(b) Impermissibly Creates a Lack of Neutrality in That a

Governor is The Head of All Law Enforcement in The State.

Beyond political factors, as the head of all California law enforcement agencies,

a Governor is on the prosecution “side” of the case from inception to incarceration. It

can be reasonably asserted that the Governor is no less an “interested party” than the

prosecuting agency 13 In Ford v. Wainwright, 477 U.S. 399 (1986), this Court held that

Florida’s procedure for determining post-trial claims of insanity had a “striking defect”

because it vested the sanity determination – the factfinding decision – entirely within

the executive branch.

“Perhaps the most striking defect in the procedures of Fla. Stat. § 922.07

(1985 and Supp. 1986), as noted earlier, is the State’s placement of the

decision wholly within the executive branch. Under this procedure, the

person who appoints the experts and ultimately decides whether the State

will be able to carry out the sentence that it has long sought is the

Governor, whose subordinates have been responsible for initiating every

stage of the prosecution of the condemned from arrest through sentencing.

The commander of the State’s corps of prosecutors cannot be said

to have the neutrality that is necessary for reliability in the

factfinding proceeding.”

Ford v. Wainwright, Id, at 416 (emphasis added).

13 While the Board of Parole is part of the Executive Branch, the substantive protections governing

their mandate serve to minimize any potential bias issues, in that they are a multiple-person panel,

comprised of experts in law enforcement and rehabilitation, are mandated to be a neutral panel, and

the procedural guarantees to the inmate of P.C. 3041.5 apply. None of which apply to the Governor.

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The Florida law in Ford, supra, had eerily parallel characteristics as are

presented here. Like here, the Florida law allowed an in camera review by the

Governor. The Florida law handed power to the Governor to make the ultimate

factual determination (sanity), as does Art. V, Sec. 8(b) (current dangerousness).

Both laws have “experts” providing information to the Governor, however, the

Governor ultimately has power to reject that expert opinion and make a unilateral

decision affecting liberty (CA) or death (FL).

In this particular case, as in Ford, supra, the “striking defect” of incurable bias

in Art. V, Sec. 8(b) is put to the test. Here, the Petitioner was a youthful offender 14

(aged 24), has a nearly pristine record in prison, with no prior or subsequent

convictions. He was granted parole and was repeatedly found to be at the lowest risk

in California’s Risk Assessment evaluation by experts employed by the prison system

over a period of decades. The Board therefore granted parole. However, the Governor

lacked neutrality, both as the head of the law enforcement agencies and due to the

conflict inherent in a politician’s need to be answerable to his constituents and to his

own career ambitions. Article V, Sec. 8(b) permits an executive who lacks impartiality

to be the sole factfinder on the ultimate issue of suitability for release on parole or

continued incarceration. This presents an incurable conflict of interest resulting in a

14 In California, a “youth offender” is anyone committing his life crime when aged 25 years or younger.

California has extended the U.S. Supreme Court’s laws that treat juveniles differently for purposes of

sentencing. See Ca. Penal Code Sections 3051 and 4801(c); People v. Franklin, 63 Cal. 4th 261 (2016);

People v. Contreras, 4 Cal. 5th 349 (2018)

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lack of neutrality, which is a due process violation.

As the head of the State’s law enforcement apparatus, one would be hard

pressed to say that a Governor is not unduly influenced by his role as chief law enforcer

of the state when adjudicating release of notorious or unpopular prisoners.

6. A Structural Defect of Lack of Neutrality Is a Constitutional Violation

and Therefore a Harmless-Error Analysis Does Not Apply.

The inherent bias built-in to the constitutional amendment, which allows bias

or the likelihood and potential thereof, creates a structural defect making it

unconstitutional. A structural defect exists when a violation affects the entire

conduct of the proceedings from beginning to end (Arizona v. Fulminante, 499 U.S.

279, 309, 310 (1991)), such as when a judge is not impartial, as in Tumey v. Ohio,

273 U.S. 510 (1927), or when a litigant is deprived the right to counsel as in Gideon

v. Wainright, 372 U.S. 335 (1963). Drawing a distinction from a “trial error”, the

Fulminante Court described structural defects as errors in the “mechanism” of the

proceedings as opposed to just a bad ruling within an otherwise fair proceeding.

Fulminante stated such errors “defy analysis by ‘harmless-error’ standards. The

entire conduct of the trial from beginning to end is obviously affected by the

absence of counsel for a criminal defendant, just as it is by the presence on the

bench of a judge who is not impartial.” (Fulminante, Id., at 309-310.)

Here, Cal. Art. V, Sec. 8(b) presents a structural flaw that affects the entire

review process by the Governor. An analysis of Art. V, Sec. 8(b) under the case law

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reveals that “psychological tendencies and human weaknesses” (Withrow v. Larkin,

supra, 421 U.S. 35, 47) of the Governor, who is a politician not bound by neutrality

as judges are (Williams-Yulee v. Fla. Bar, supra, 575 U.S. 433, 459 Con. Op.), with

a personal and/or political agenda necessarily in conflict with an inmate’s right to

release, leads to a conclusion that the mechanism of Governor-as-Arbiter presents a

serious risk of bias, even if inadvertent. This is especially true given that it is

impossible to ascertain what improper or inadvertent motive forms the Governor’s

decision (Williams v. Pennsylvania, 579 U.S. 1, 11 (2016)), because only a “modicum

of evidence” is needed to uphold their decision. (In re Shaputis, 53 Cal. 4th 192, 214

(2011), stating that only a modicum of evidence is required to uphold a Governor’s

reversal).

Due to the structural flaw, the harmless-error analysis is not appropriate here.

The deprivation of a neutral arbiter affects the framework within which the review

proceeds, and is thus not simply a trial error. “‘Without these basic protections, a

criminal trial cannot reliably serve its function as a vehicle for determination of guilt

or innocence, and no criminal punishment may be regarded as fundamentally fair’”.

(Fulminante, supra, 499 U.S. at 309-310, quoting Rose v. Clark, 478 U.S. 570, 577-578

(1986).

While parole review is not a trial, it is clear from prior rulings that prospective

parolees and current parolees have a fundamental liberty interest warranting due

process when those rights are infringed. Swarthout v. Cooke, supra, 562 U.S. 216;

Morrissey v. Brewer, supra, 408 U.S. at 489. This due process includes the right to a

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neutral and detached hearing body at revocation hearings. (Morrissey, supra, at 489).

The same should be provided to a new parolee, who is at risk of being denied the

parole he was recently granted, by a one-person arbiter who is subject to political

pressures.

C. Youth Offenders Are Particularly Impacted by Art. V., Sec.

8(b), Because Of Their Unique Constitutional Penological

Protections, in Violation of the 8th Amendment to the U.S.

Constitution

This Court, as well as the California Supreme Court and the California

legislature have established limitations on the punishment of young people. (Miller

v. Alabama, 567 U.S. U.S 460 (2010): prohibition on imposition of automatic lifewithout-the-possibility-of-parole sentence (LWOP) for juvenile offenders upon special

circumstance findings; Graham v. Florida, 56 U.S. 48 (2010): prohibition of LWOP

for non-homicide juvenile offenders; Roper v. Simmons, 543 U.S. 551 (2005):

prohibition of death sentence on juveniles; Calif. Penal Code §§4801(c) and 3051;

People v. Franklin, 63 Cal.4th 261 (2016); People v. Contreras, 4 Cal.5th 349 (2018)).

These limitations are grounded in scientific consensus that children are

“constitutionally different from adults” due to “distinctive attributes of youth” that

“diminish the penological justifications for imposing the harshest sentences on

[them].” (Miller v. Alabama, supra, 567 U.S. at 472.) The “hallmark features” of

youth include “immaturity, impetuosity, and failure to appreciate risks and

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consequences,” as well as the “possibility of rehabilitation”. (Miller, Id., at p. 477; 8th

Amendment.)

Given this scientific evidence, this Court held that the Eighth Amendment

guarantees juveniles—those under 18 at the time of their offense—a “meaningful

opportunity” to be released if they demonstrate rehabilitation. (Graham, supra, 560

U.S. at p. 75; see also Miller, supra, 567 U.S. at pp. 472–73.) An opportunity for

parole can satisfy this standard only if it “ensures that juveniles whose crimes

reflected only transient immaturity—and who have since matured—will [be

released.]” (Montgomery v. Louisiana, 577 U.S. 190, 212 (2016), italics added.)

Because release must be “realistic” to be meaningful, this Court has held that

executive clemency is too “remote” to provide a meaningful opportunity. (Graham,

supra, 560 U.S. at pp. 70, 82.)

California extended the same “meaningful opportunity” guaranteed by the

Eighth Amendment to all “young people”—those aged 25 and younger at the time of

their offense. (Pen. Code, § 3051: Parole Board must conduct “youth offender parole

hearing[s]” that “provide for a meaningful opportunity to obtain release . . . consistent

with relevant case law.”]; See also Calif. Penal Code §4801, subd. (c).) In enacting the

law, the Legislature's rationale was “that research shows that cognitive brain

development continues into the early 20s or later”. Sen. Rules Com., Off. of Sen. Floor

Analyses, 3d reading analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as

amended Mar. 30, 2017, pp. 4-5; see also People v. Powell (2024) 24 Cal. LEXIS 3149.

Pp. 4-5.)

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Since the Governor’s veto power created by Art. V, Sec. 8(b) is subject to outside

influences and perceived political whims, as discussed herein above at Section I, B, 4

and 5, the Governor’s minimally restrained power can hinder the unique

constitutional guarantees young offenders enjoy. This then leads to gubernatorial

vetoes that are derived not after giving “great weight to the diminished culpability of

youth as compared to adults, the hallmark features of youth and any subsequent

growth and increased maturity of the prisoner”, but on improper considerations such

as reelection, constituent pressure, or political career advancement. Hence, Art. V,

Sec. 8(b) is fundamentally incompatible with young people’s rights to be a meaningful

opportunity for release upon demonstration of rehabilitation. As such, it should be

found unconstitutional.

II.

THE RISK OF ACTUAL BIAS CAME TO FRUITION IN PETITIONER’S

CASE DUE TO THE GOVERNOR’S STATED AFFINITY AND

PERSONAL CONNECTION WITH THE VICTIM AND HIS FAILURE TO

RECUSE HIMSELF

Article V, Sec. 8(b)as applied to this particular Petitioner and this particular

Governor resulted in a due process violation requiring vacatur of the Governor’s

decision and the reinstatement of the parole decision. Fulminante, supra, 499 U.S. at

309-310; Tumey, supra, 273 U.S. 510.

Petitioner asserts that the Governor demonstrated personal bias in favor of

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the victim (See Appendix E; BN0098) and was obligated to recuse himself,

notwithstanding the fact that there is no mechanism to do so in the law -another of

the law’s flaws. The Governor openly avowed reverence for the victim, had publicly

invited comment from the victim’s widow (Appendix E, items 1 (BN0105, 0112), 2.a

(BN0131), 3.a-b (BN0133), 4.a, 4.c, 4.f (BN0137), 5.a (BN0141), has accepted ex-parte

communications from the next of kin, and failed to provide those communications to

Petitioner’s counsel, who only learned of them after the Governor’s decision and

during habeas proceedings in the lower court. (See Appendix H, BN0187) The

Governor made statements indicating his prejudgment about his impending decision

before even receiving the Parole Hearing transcript. (Appendix E 3.b BN0133)

The Governor-decision-maker has a photo displayed in his home of his own

father with the victim and signed to his own mother, naming it “the most valuable

thing he owns in his life” (Appendix E 1.b (BN0112), 4.a (BN0138), 4.f BN0140);

quoted the victim after his recall victory (Appendix E 2.a, BN0132); and choked up

when he spoke of his “political hero” in September of 2021, just months before

making his reversal decision. (Appendix E 2.a BN1032) He professes to have more

photos of the victim at his office; in 2021 he stated the victim is his “political hero”

and he has a “shrine” to him in his home. (Appendix E 4.a, 4.f (BN0138,139).

Additionally, the Governor perused the California State Archive records 15. The

archives contain such highly prejudicial items as the autopsy photos of Senator

15 See Governor’s Op Ed to Los Angeles Times, Dated January 13, 2022, (See Appendix E 6 BN0146)).

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Kennedy, the gun allegedly used in the crime, and thousands of untested, hearsay

statements from witnesses which were never part of the trial record. Such a viewing

is not only outside of the procedures articulated by the statute (P.C. 3041.2; In re

Rosenkrantz, supra, 29 Cal.4th 616; In re McDonald, supra, 189 Cal.App.4th at 1024),

but the potential to taint the Governor’s opinion is overwhelming given his publicly

avowed and long-time affection for the victim.

Any objective reading of the facts above would lead a reasonable person to

conclude there was a distinct potential for bias, even if inadvertent, by this Governor

against this Petitioner which likely influenced his decision. Likewise, the Governor’s

partiality toward the victim is palpable from his conduct as evidenced by his public

statements. (See Appendix E, BN0098). Despite any denial of bias by the Governor, or

assertions he gave an impartial assessment, this Court must apply a more focused lens

to consider the circumstances and relationships and the “psychological tendencies and

human weaknesses” (Withrow, supra, at 47) and find that the Governor had a bias

against Petitioner and/or “for” the victim. As such, the Governor’s decision should be

vacated because the review process was affected by his bias from start to finish. (See

Fulminante, supra, 499 U.S. at 309-310.)

III.

PAROLE APPLICANTS ARE DENIED DUE PROCESS AT THE

GUBERNATORIAL REVIEW, THUS RENDERING

MOOT THE PREVIOUS PROTECTIONS PROVIDED

DURING THE PAROLE PROCESS

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A. Penal Code section 3041 et. seq. Provides Multiple Procedural

Safeguards That Do Not Exist at the Governor’s Review Level.

In the most simple terms, procedural protections provided throughout the

Board Hearing process, such as the right to have counsel present at Board hearings

(Cal. Penal Code §3041.5 (a)(2)), the right to review the material the Board will

consider at the hearing (P.C. 3041.5(a)(1); Cal. Code of Regs., Tit. 15, §2247), and the

opportunity to be heard and rebut (P.C. 3041.5 (a)(2)), are rendered useless if at the

last instance parole can be reversed with no semblance of due process provided at the

Governor’s review level. By doing so, the statute implementing Article V, Sec. 8(b),

Penal Code 3041.2, unreasonably infringes upon inmates’ rights to liberty without due

process of law, and in doing so, renders the statutory protections meaningless.

This Court acknowledged that, although limited, parolees have a liberty

interest protected by due process. (Morrissey v. Brewer, supra, 408 U.S. at 482.)

California’s parole procedures are governed by Penal Code Section 3040, et. seq, which

provide that parole “shall be granted” “unless [the Board] 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 the public safety

requires a lengthier period of incarceration for this individual.” (Cal. Pen. Code

§3041(b)(1).) A two to three-member panel makes a preliminary finding. The panel’s

decision becomes final after 120 days, unless it is reversed by the full Board due to an

error of law, error of fact or if new information arises that has a “substantial

likelihood of resulting in a substantially different decision upon a rehearing.” (Cal.

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Pen. Code §3041(b)(2).)

The due process safeguards at a Parole Hearing include the right to review

Board materials prior to the hearing (P.C. §3041.5(a)(1)), an opportunity to enter a

written response to any material contained in the file (P.C. §3041.5(a)(1), the right to

be present, to ask and answer questions, and to speak on his or her own behalf (P.C.

§3041.5(a)(2)), the right to a record of the proceedings (P.C. §3041.5(a)(4), allowance of

counsel at the hearing (P.C. §3041.5 (a)(2)16, and the right to counsel at hearings “for

the purpose of setting, postponing, or rescinding a parole release date of an inmate

under a life sentence”. (Pen. Code §3041.7).

Pertinent here, Section 3041.2(a) permits the governor to affirm, modify or

reverse a Board’s parole decision for “an inmate sentenced to an indeterminate prison

term based upon a conviction of murder”. This right derives from Article V, Sec. 8 (b)

of the California Constitution. The Governor conducts a de novo review (In re

Lawrence, supra, 44 Cal. 4th at 1204) and may only “review materials provided by the

Board”. (§3041.2 (a)) and In re McDonald, supra, 189 Cal.App.4th at 1024.) The

California Supreme Court has ruled that it will uphold a Governor’s decision if there

exists “some evidence,” the lowest bar possible, of current dangerousness. (In re

Lawrence, supra, at 1210; In re Rosenkrantz, supra, 29 Cal. 4th at 677.)

16 The right to counsel at a Parole Hearing is not specified in the statute, however the statute

references attendance by counsel and the Board of Parole Directive 2014-02, states that prior to “every

parole suitability hearing” an inmate will be asked if they need appointed counsel or will waive appointed

counsel.

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The California Supreme Court described the Art. V, Sec. 8(b) power as simply

creating “a new level of review, within the executive branch” amounting to just a

“change in identity” of the decider. (In re Rosenkrantz, Id. at 638). If it is only a change

in the identity of the decider, then the rules of procedure for each decider ought to be

the same.

In Petitioner’s case, the Governor created a new body of evidence that was not

before the Board below. This is not only disallowed by established law, but it would

have necessitated the same procedural rights provided at the Board level. 17

Here, Petitioner was not given notice that the Governor received materials

beyond the Board record below. Petitioner had no notice of hundreds of pages of

material received by the Governor from some of the victim’s family including hearsay

statements and an opinion from a former District Attorney unrelated to the case; nor

did he have knowledge that the Governor would view extraneous material at the State

Archives, including hundreds of witness statements. Petitioner was certainly not

provided information regarding what (and, importantly, from whom) the content of

the “emails and texts” the Governor publicly admitted receiving. (Appendix 4.e,

BN0137) In most cases any Governor will necessarily always receive information and

pressure from constituents that is outside of what the Board reviewed below, which is

contrary to California law. (In re Twinn, 190 Cal.App.4th 447, 472 (2010); In re Mc

17 In a typical legal case, any review by a higher court, regardless of whether it is a review de novo or

another standard of review, a litigant is aware of the materials being considered and given a chance to

rebut.

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Donald, supra, 189 Cal App. 4th at 1024.)

The rationale behind a parolee’s right to review what the decision-makers will

have before them is obvious. Fundamental fairness dictates that a person must know

what information is being used against him/her and must be allowed to respond.

(Morrissey v. Brewer, supra, 408 U.S. at 489) The parole process in Penal Code

§3041.5 provides for such, but Art. V., Sec. 8(b) does not. As happened here,

Petitioner received a “review” by the Governor which was supplemented with

extraneous input, both given to the Governor and sought out by him, of which

Petitioner was wholly unaware of and had no ability to rebut. It is unknown who

called the Governor to influence his decision, although Petitioner is aware that the

Governor publicly solicited a call from the late Mrs. Ethel Kennedy before her passing.

(Appendix 4.c, d, BN0139).

Thus, this Governor’s review was not merely a “change in identity”, but rather a

change in the evidence and therefore a denial of due process as well. By the absence of

these rights at the Governor’s review level, the process unreasonably infringes upon

inmates’ rights to liberty without due process of law, and in doing so renders the

statutory protections, so carefully implemented below, meaningless.

B. A Reversal of a Parole Decision By the Governor in California is

Not Dissimilar to a Revocation of Parole in Other Jurisdictions

Yet Lacks Procedural Safeguards.

The majority of states utilize Parole Boards, or similar bodies, to make parole

decisions. Once the Board grants parole, a parolee is released to the community.

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Often, if not most times, there are conditions set on parole and, if violated, parole may

be revoked. Based upon this Court’s ruling in Morrissey, supra, revocation of parole

must be conducted with a minimum of due process which includes, among other

things, the written notice of claimed violations, disclosure of the evidence against him,

and right to be heard, and the right to an impartial decision-maker. Morrissey, supra,

408 U.S. at 489.

Conversely, in California, due entirely to the fever and fear that fueled Prop. 89

and the passage of Art. V, Sec. 8(b), a parolee can be granted parole yet never get

beyond the prison walls due to the almost immediate revocation by the Governor; a

revocation, without the due process required by Morrissey and Penal Code §§3041.5

and 3041.7. The “grievous loss” (Morrissey, supra p. 482) of liberty felt by a California

parolee whose parole is revoked by the Governor is felt no less acutely than by a

parolee of another jurisdiction. But, the California parolee whose parole is “revoked”

by the Governor is not afforded similar procedural rights. His long-anticipated hope to

return to family and society, to become self-reliant, form attachments and fulfil his

promise to live up to conditions of parole are at once taken from him. And they are

taken summarily by a procedure blatantly subject to political influence, and by a

politician who is placed in the untenable position of making a politically unpopular

decision or risking his political career. The California Supreme Court’s adoption of

extreme deference to Governors in making the decision by using a “some evidence”

standard does not balance against the fact that a Governor can pick and choose just

“some evidence”, from an often voluminous record, to support his/her political aims.

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If Art. V, Sec. 8(b) passes constitutional mandates at all, then parolees, who are

granted parole by the Board, should have the same due process rights at the

Governor’s review when that parole is essentially revoked.

C. Fundamental Rights Guaranteed by the U.S. Constitutional are

Superior to State Law When a State Law Violates Those Federal

Rights.

While this Court has to be cautious in infringing on a State’s right to legislate

laws as it sees fit, those laws must at least not infringe on the superior guarantees of

the U.S. Constitution. In addressing a Fourth Amendment issue not relevant here,

this Court did nonetheless comment that the analysis of whether a right is infringed is

based on “our societal understanding that certain areas deserve the most scrupulous

protection from government invasion”. (California v. Greenwood, 486 U.S. 35, 43

(1988); Oliver v. United States, 466 U.S. 170, 178 (1984)). See also, U.S. Const. Amend.

XIV.

Here, society understands that anyone who has worked hard enough in prison

to gain the support of the Panel of Parole Commissioners, and then the full Board, to

be suitable for parole, should not, at the last goal-post have that liberty revoked due to

the decision made within a politicized process, by a non-neutral arbiter, and without

the minimum due process of law available below in the Board hearing and revocation

hearings. (P.C. 3041.5 et seq and Morrissey, supra.)

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CONCLUSION

Art., V, Sec. 8(b) is structurally defective in all its applications to all and must

be invalidated. Petitioner’s grant of parole must be reinstated because the bias

inherent in Art. V, Sec. 8(b) as applied came to pass in that the Governor was

personally biased and lacked neutrality yet still decided his case.

Dated:

Respectfully Submitted,

1/13/2025

__________________________

Angela Berry, for Petitioner

1/13/2025

_____________________________

Denise F. Bohdan, for Petitioner

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CERTIFICATE OF COMPLIANCE

This brief was prepared using 12-pt Century Schoolbook and is double-spaced.

Further, the petition is 38 pages in compliance with Rules of the Supreme Court of

the United States, Rules 33 and 39.

Dated:

1/13/2025

Angela Berry

39

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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