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Kilgore v. Patrick

August 11, 2008

MOLLY M. KILGORE, PETITIONER,
v.
DEBORAH PATRICK, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) pursuant to a valid judgment of the Santa Clara County Superior Court, after being convicted of first degree murder, robbery, and conspiracy to commit robbery. Petitioner was sentenced to an indeterminate life sentence. (Exhibit A, Abstract of Judgment.)

In the instant petition, Petitioner does not challenge the validity of her underlying conviction; rather, Petitioner challenges a decision of the California Board of Prison Terms (now California Board of Parole Hearings) (hereinafter "BPH") finding her unsuitable for parole following a consideration hearing on October 22, 2003. Petitioner contends that the BPH's decision is not supported by "some evidence" in violation of her due process rights.

Petitioner sought habeas corpus relief in the Santa Clara County Superior Court, California Court of Appeal, and California Supreme Court. Although the Superior Court initially granted relief, the Court of Appeal reversed such finding, and denying the petition for writ of habeas corpus. The California Supreme Court issued a summary denial. (Exhibits D & E.)

STATEMENT OF FACTS*fn1

In October 1978, [Petitioner] and her co-defendant Martina Griffin went to a bar and met the victim, Byron O'Brien and had a drink with him. After having a drink in the bar, O'Brien invited them to his house for a drink. The three got into O'Brien's car, and he drove them to accomplice Ruby Johnson's house, where Griffin was staying, so she could get a coat. When Griffin returned to car, she had a concealed knife that she then gave to [Petitioner] to conceal in her stocking. Griffin then reentered the house, and returned to the car with co-defendant Jack Scott who also got into the car. After driving a short distance, Scott pulled out a gun and ordered O'Brien to pull over. After O'Brien complied, everyone got out of the car, and [Petitioner] pulled out the knife. After the victim handed his money over to the defendants, Scott fired one shot in the air and ordered everyone back into the car. After the victim got back into the car, he was shot and killed.

[Petitioner] claimed that Scott was the one who actually shot and killed the victim. However, as the victim was dying, he said one of the women shot him. There was no evidence that Griffin, the only other woman at the scene, ever held the gun. Moreover, [Petitioner] admitted to Johnson that she was holding the gun when it went off, and Griffin identified [Petitioner] as the shooter. There is also evidence that [Petitioner] hit the victim over the head with a coke bottle.

[Petitioner] pleaded guilty to first degree murder, robbery and conspiracy to commit robbery. She was sentenced to a term of 11 years to life, with the possibility of parole. [Petitioner's] minimum eligibility parole date was set at October 15, 1985. (Exhibit D, Opinion, at 1-2.)

DISCUSSION

I. Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Petitioner is in custody of the California Department of Corrections pursuant to a state court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 U.S.C. § 2254 remains the exclusive vehicle for his habeas petition because he meets the threshold requirement of being in custody pursuant to a state court judgment. Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir.2006), citing White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.2004) ("Section 2254 'is the exclusive vehicle for a habeas petition by a ...


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