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Wallach v. Hernandez

August 29, 2008


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


Petitioner filed his petition for writ of habeas corpus ("Petition") seeking relief from denial of parole by the Board of Parole Hearings (the "Board"). The Board found him unsuitable for parole and scheduled his next hearing in three years. The Petition was referred to Magistrate Judge Leo S. Papas for report and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. Judge Papas issued his report and recommendation (the "R&R") concluding the Petition did not support issuance of the writ and recommending denial of the writ. Petitioner filed written objections.

I. Legal Standards

A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." (en banc).

Petitioner has had his day in state court. In determining whether to issue the writ of habeas corpus, the Court is examining whether the state court's decision and ultimately, the Board's should be set aside for the limited grounds on which the writ is available. The Court's role is not to make its own factual determination regarding the nature of the commitment offense, but to determine whether Plaintiff's claim, which was adjudicated on the merits in state court:

(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.

Irons, 505 F.3d at 852--53.

The R&R pointed this out, citing Locker v. Andrade, 538 U.S. 63, 75--76 (2003). (R&R at 5:2--7.)

II. Discussion

Petitioner objected only to the R&R's recommendation that his denial of parole or the Board's decision to hold a hearing in three years rather than one was based on "some evidence," and concluded that the denial of parole was impermissibly based solely on the bare fact of his commitment offense. (Obj. to R&R, ¶¶ 2--9). Petitioner points specifically to the determination that he posed a low likelihood of becoming involved in a violent offense if he were released into the community. (Id. ¶¶ 5--6.)

Petitioner did not object to the R&R's findings of facts, which the Court therefore ADOPTS. The following facts are taken from those findings. Petitioner pleaded guilty in 1984 to first degree murder and was sentenced to 25 years to life with the possibility of parole, plus a two-year weapon enhancement. He was awarded 318 days of pre-sentencing term credit and was committed to prison on May 2, 1984.*fn1 His indeterminate sentence commenced on December 25, 1984. He reached his minimum eligible parole date on May 25, 2000. The details of the crime were as follows:

Wallach had been in a longstanding dispute with victim Richard Wescott, the president of a printing shop. Wescott held property that belonged to Wallach which he had not returned. The dispute resulted in a civil action. Around that time, someone*fn2 damaged Wallach's car with a water balloon. Kenneth House witnessed the act but when House refused to reveal who threw the balloon, Wallach shot House in the foot. House ran and Wallach shot him in the back. Wallach then drove to the printing shop and confronted Wescott with a gun. The police were called to the scene and had telephone contact with Wallach. However, contact was lost and Wallach shot Wescott twice in the face, killing him. . . .

[H]e confronted and held Westcott against his will, demanded Westcott return property that was the subject of civil litigation pending between them, and ultimately shot Westcott twice in the face after the property had been delivered to Petitioner's home as demanded. (R&R at 3:9--13, 10:10--12.) The forensic psychological report includes more details showing Petitioner's ...

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