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Wells v. Mendoza-Powers

August 25, 2008

GEORGE WESLEY WELLS, PETITIONER,
v.
K. MENDOZA-POWERS, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder 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.

RELEVANT HISTORY

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR), serving a conviction from the Los Angeles County Superior Court for second degree murder with a firearm enhancement. He was sentenced to life with the possibility for parole. (Exhibit 1, attached to Answer.)

In the instant petition, Petitioner does not challenge the constitutional validity of his conviction and/or sentence; rather, he challenges the Board of Parole Hearings' (BPH), June 15, 2005, decision finding him unsuitable for parole.*fn1

Petitioner filed a state petition for writ of habeas corpus in the Los Angeles County Superior Court on March 21, 2006, which was denied in a reasoned decision on February 5, 2007. (Exhibits 4 & 5, attached to Answer.)

On February 28, 2007, Petitioner filed a petition in the California Court of Appeal, which was summarily denied with a citation to In re Rosenkrantz, 29 Cal.4th 616, 658 (2002), on March 16, 2007. (Exhibits 6 & 7, attached to Answer.)

On March 28, 2007, Petitioner filed a petition for review in the California Supreme Court. (Exhibit 8, attached to Answer.) The petition was summarily denied on June 13, 2007. (Exhibit 9, attached to Answer.)

Petitioner filed the instant federal petition for writ of habeas corpus on June 27, 2007. (Court Doc. 1.) Respondent filed an answer to the petition on March 24, 2008, and Petitioner filed a traverse on April 28, 2008. (Court Docs. 16, 17, 19.)

STATEMENT OF FACTS*fn2

At the time of the commitment offense, Petitioner and his wife, Cherly Wells (the victim), were separated as they had been on numerous occasions in the past and had endured marital difficulties during their seven-year relationship. On September 17, 1991, the victim visited Petitioner at his home with their young son, and after having been there approximately one hour the two became involved in an argument. During the argument, Petitioner obtained a handgun and shot the victim twice in the abdomen and chest. Petitioner stated that their 15-month-old son was in the home at the time but was in another room during the shooting. Later that evening, Petitioner took his wife's body by car to an alley behind 2207 West Florence and left it there. The following afternoon, Petitioner went to the Homicide Division and confessed to the murder. Petitioner provided the location of the gun used during the shooting, and police discovered it from the trash receptacle where he had thrown it.

DISCUSSION

I. Standard of ...


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