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D'Agostin v. Hernandez

August 29, 2007

HARRY D'AGOSTIN, PETITIONER,
v.
ROBERT HERNANDEZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING SECOND REPORT AND RECOMMENDATION; AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner was convicted in California state court on April 18, 1974 of two counts of first-degree murder and one count of attempted murder. He was sentenced to seven years to life in prison with the possibility of parole. On September 6, 2002, he was denied parole at a parole suitability hearing. After pursuing his state habeas remedies, Petitioner filed his petition in federal court for writ of habeas corpus on June 1, 2004. In addition to other bases for issuance of the writ, Petitioner contended that denial of parole was a violation of the U.S. Constitution's prohibition of ex post facto laws. The matter was referred to Magistrate Judge Jan Adler for a report and recommendation pursuant to 28 U.S.C. § 636. Judge Adler recommended that the petition be denied, and Petitioner objected.

After this, the Court granted Petitioner's request to stay further proceedings pending the Ninth Circuit's decision in Irons v. Warden, on appeal from the Eastern District of California's decision published at 358 F. Supp.2d 936 (E.D.Cal. 2004). Irons dealt with the issue of repeated denials of parole on the basis of an inmate's commitment offense, an issue Petitioner also raised. On January 23, 2006, the Court, noting that Irons had been referred for settlement and concluding that a decision by the Ninth Circuit was unlikely, lifted the stay. The Court then overruled Petitioner's objections to the first report and recommendations, except as to Petitioner's ex post facto argument. The Court remanded the matter to Judge Adler for a second report and recommendation so that the ex post facto issues could be more fully addressed. All theories of relief have been ruled on except Petitioner's ex post facto argument.

On May 3, 2006, Judge Adler issued his second report and recommendation (the "R&R"), addressing the ex post facto issue. Petitioner filed objections. Respondent filed no reply. Thereafter, it became apparent the Ninth Circuit would after all issue an opinion in Irons. Its initial opinion was issued on March 6, 2007 and published at 479 F.3d 658, but was then amended on denial of rehearing by ___ F.3d ____, 2007 WL 2027359 (July 13, 2007). The newly-issued opinion in Irons does not counsel reconsideration of the Court's earlier ruling. See id., slip op. at *6 (reversing the district court's order granting petitioner's habeas corpus petition).

I. Legal Standards

In reviewing a Magistrate Judge's report and recommendation, the Court "shall make a de novo determination of those portions of the report . . . to which objection is made." 28 U.S.C. § 636(b)(1). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Because Petitioner filed his petition after April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") applies. AEDPA permits a federal court to grant a petition of a state prisoner whose claims were adjudicated on the merits in state court, only if the state court decision was contrary to clearly established federal law, or involved an unreasonable application of the facts to such law. Specifically, the Court may grant habeas relief where a state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A state court's decision can be "contrary to" federal law if it fails to apply the correct controlling Supreme Court authority or comes to a different conclusion when presented with a case involving materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). The Court may grant habeas relief under AEDPA's "clearly erroneous" provision only if the state court's application of federal law is objectively unreasonable. Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003). An "unreasonable application of federal law is different from an incorrect application of federal law," and the Court may not substitute its own judgment for that of the state court. Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (citations omitted).

Alleged errors in the application of state law are not cognizable in federal habeas corpus proceedings. Little v. Crawford, 449 F.3d 1075, 1082 n.6 (9th Cir. 2006). Under AEDPA, only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. Clark, 331 F.3d at 1069 (9th Cir. 2003).

"[N]ot every retroactive procedural change creating a risk of affecting an inmate's terms or conditions of confinement is prohibited." Garner v. Jones, 529 U.S. 244, 250 (2000) (quoting California Dept. of Corrections v. Morales, 514 U.S. 499, 508--9 (1995)). "The question is a matter of degree." Garner at 250 (citing Morales at 509) (internal quotation marks and further citations omitted). In determining whether the retroactive application of a state law constitutes an ex post facto violation, the controlling inquiry is "whether retroactive application of the change in state law created a sufficient risk of increasing the measure of punishment attached to the covered crimes." Garner at 250 (quoting Morales at 509) (internal quotation marks omitted).

II. Request for Judicial Notice

Petitioner requests that the Court take judicial notice of certain published case authorities. (Request for Judicial Notice, filed Aug. 30, 2006; see also Notice of Further Proceedings and Decisions, filed Oct. 20, 2006 (updating citations and references to cases where judicial notice was requested)). In addition, Petitioner has drawn the Court's attention to other legal rulings in other cases by filing notices bringing ...


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