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Evans v. Mendoza-Powers

January 29, 2009

FLENORD EVANS, PETITIONER,
v.
KATHY MENDOZA-POWERS, 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 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by Marc E. Grossman, Esq.

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 Los Angeles, following his conviction on November 6, 1992, by jury trial of aggravated mayhem with use of a shotgun for which he received a sentence of life with the possibility of parole plus three years. See Exhibits attached to Petition. His sentence commenced on June 9, 1994, and his minimum eligible parole date was March 10, 2001. Id.

On August 9, 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.

Petitioner then sought relief in the state courts. On March 9, 2007, he filed a petition for writ of habeas corpus in the Los Angeles County Superior Court. See Answer, Exhibit 1. The superior court denied the petition on September 6, 2007, in a reasoned decision. See Answer, Exhibit 2. He then filed a habeas petition in the California Court of Appeal, Second Appellate District, on October 2, 2007. See Answer, Exhibit 3. The petition was denied on January 22, 2008. Id. On January 28, 2008, Petitioner filed a petition for review in the California Supreme Court. See Answer, Exhibits 4-5. The petition was denied on March 19, 2008. See Answer, Exhibit 5.

Petitioner filed the instant petition for writ of habeas corpus in the United States District Court for the Central District of California on April 23, 2008. The petition was ordered transferred to this district on April 28, 2008. Respondent filed a motion to dismiss several claims on July 18, 2008, which the District Court granted in part on September 30, 2008. Grounds four and five of the petition were dismissed. Respondent then filed an answer to the petition on January 6, 2009, and Petitioner filed a traverse on January 12, 2009.

FACTUAL BACKGROUND*fn1

On July 2, 1992, Petitioner engaged in a conversation with the victim, Derek Brown. Petitioner then walked to his truck and returned with a shotgun. He shot Brown once, causing Brown to fall to the ground. He then shot Brown a second time. The blast from the shotgun was directed to the victim's right knee. Using the barrel of the gun, Petitioner lifted the victim's legs. The victim then called to Petitioner, stating, "That is enough," and Petitioner returned to his truck and drove off. Brown was taken to the hospital where his left leg was amputated due to multiple gunshot wounds. Later that evening, Petitioner was arrested by LAPD for attempted murder.

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 state prisoner in custody pursuant to a state court judgment, even when the petition is not challenging his underlying state court conviction.'").

The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "resulted in a decision that was based on an unreasonable determination of the facts in light ...


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