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Wagan v. Powers-Mendoza

September 11, 2008

MANUEL A. WAGAN, PETITIONER,
v.
K. POWERS-MENDOZA, 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. 2]

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 following a conviction for attempted first degree murder and assault with a deadly weapon on July 25, 1985. Petitioner was sentenced to an indeterminate life sentence. (Exhibit A, to Answer.)

In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings ("BPH") finding of unsuitability for parole on August 9, 2006. (Exhibit B, to Answer.) Petitioner specifically contends that there was not "some evidence" to support the BPH's finding.

Petitioner filed a petition for writ of habeas corpus in the San Mateo County Superior Court on August 3, 2006. (Exhibit D, to Answer.) The petition was denied in a reasoned decision on September 14, 2006. (Id.)

Petitioner filed a petition in the California Court of Appeal, First Appellate District, which was summarily denied on December 21, 2006. (Exhibit E, to Answer.)

Petitioner then filed a petition in the California Supreme Court, which was also summarily denied on July 11, 2007. (Exhibit F, to Answer.)

Petitioner initially filed the instant federal petition for writ of habeas corpus in the United States District Court, Northern District of California, which was subsequently transferred to this Court on October 9, 2007. (Court Doc. 2.) Respondent filed an answer to the petition on February 28, 2008, and Petitioner filed a traverse on March 28, 2008. (Court Docs. 12, 13.)

STATEMENT OF FACTS

Petitioner and the victim lived in the same apartment complex. On December 18, 1988, the two engaged in an argument regarding an ongoing dispute about a parking space in the complex. The dispute ended when Petitioner shot at the victim eleven times with a 45-caliber pistol, striking him with seven bullets, including two in the head. Petitioner continued to shoot at the victim even after he was severely injured and was attempting to flee the area. Furthermore, Petitioner continued to shoot even after taking the time to reload his gun. Two of the rounds went into a garage door that was two apartments away from the shooting site. Another round went through a living room window and into a bedroom closet at a house approximately 40 to 50-yards away from the shooting site.

DISCUSSION

I. Standard of ...


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