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Saepharn v. Marshall

September 15, 2008

LOWLIN SAEPHARN, PETITIONER,
v.
JOHN MARSHALL, WARDEN, 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

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

PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Sacramento, following his conviction on March 28, 1985, by guilty plea to two counts of second degree murder in violation of Cal. Penal Code § 187. See Respondent's Answer to Petition (hereinafter "Answer"), Exhibit 1. The allegation that Petitioner had used a deadly weapon during commission of the offense was found to be true. Id. On April 25, 1985, he was sentenced to serve an indeterminate term of 16 years to life with the possibility of parole. Id. His minimum eligible parole date was September 27, 1994. See Answer, Exhibit 2 at 2.

On April 25, 2006, a subsequent parole suitability hearing was held before the California Board of Parole Hearings (hereinafter "Board"). Id. Petitioner participated in the hearing and was represented by counsel. Id. At the conclusion of the hearing, the Board denied parole and deferred rehearing for two years. Id. at 58.

Petitioner then sought relief in the state courts. He filed a petition for writ of habeas corpus in the Sacramento County Superior Court. See Answer, Exhibit 6. The superior court denied the petition on October 11, 2006, in a reasoned decision. Id. He then filed a habeas petition in the California Court of Appeal, Third Appellate District. See Answer, Exhibit 7. The petition was summarily denied on November 9, 2006. Id. On November 20, 2006, Petitioner filed a petition for review in the California Supreme Court. See Answer, Exhibit 8. The petition was denied without comment on January 24, 2007. Id.

Petitioner filed a petition for writ of habeas corpus in this Court on February 16, 2007. On July 13, 2007, he filed a first amended petition challenging the 2006 decision of the Board denying parole. He contends he was denied his due process rights when the Board arbitrarily, capriciously, and without any evidentiary support, deemed Petitioner posed an unreasonable risk of danger to the public when all relevant and reliable evidence showed he posed no risk if released. Respondent filed an answer to the petition on October 11, 2007, and Petitioner filed a traverse on November 1, 2007.

FACTUAL BACKGROUND*fn1

On January 31, 1985, officers of the Sacramento Police Department responded to 2940 38th Street in Sacramento, regarding the homicide of a 15 year old girl. They were informed that Petitioner had spent the night there with his pregnant girlfriend, the victim. They were told Petitioner had fled after stabbing her that morning during an argument. The victim's parents told police that their daughter had awakened them by knocking on their bedroom door and saying that Petitioner had killed her. Shortly thereafter, she died.

At 2:00 p.m. that day, Petitioner called a family friend and told him he had killed the victim and was going to the river to commit suicide by hanging himself. Officers subsequently located him walking on the levee and apprehended him, whereupon he admitted the offense. He had reddish marks around his neck, very similar to rope burns, but denied any attempt to hang himself, stating the marks were caused by his jacket. The victim's mother told police Petitioner had choked the victim during an argument two days before the offense, during an argument over laundry, and that later that day, they had another argument over an accusation that Petitioner had pulled out hair from the head of the victim's 14 month old child. She also reported that Petitioner had beaten the victim on many occasions, though not in front of the family.

The autopsy revealed that the victim died of a stab wound to the right chest and lung. Also, her viable fetus, which was of 27 to 30 weeks gestation, died in utero due to maternal demise.

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 ...


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