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Adams v. Clark

February 6, 2009

PHILLIP ADAMS, PETITIONER,
v.
KEN CLARK, 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.

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation ("CDCR") following a conviction in the Los Angeles County Superior Court for second degree murder. Petitioner is serving an indeterminate term of fifteen years to life.

In the instant petition, Petitioner does not challenge the validity of the state court judgment; rather, he challenges the Board of Parole Hearings ("Board") denial of parole at the January 4, 2007, hearing.

Petitioner filed a state habeas corpus petition in the Los Angeles County Superior Court alleging that the Board's decision is not supported by the evidence because the denial was based on the immutable factors of his commitment offense, and as a result his sentence has been increased in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). He also claimed the Board relied on unconstitutionally vague terms to deny parole and violated the Eighth Amendment's prohibition against cruel and unusual punishment, and the Board has a pattern and practice of denying parole to almost all life inmates. (Exhibit 1, to Answer, Los Angeles County Superior Court, Petition.)

On October 29, 2007, the Superior Court denied the petition in a reasoned decision. (Id.) The court specifically found that there was some evidence to support the Board's decision to deny parole based on Petitioner's commitment offense, prior criminal history, and prison disciplinary record. (Id.) The court acknowledged Petitioner's accomplishments, but found that he still posed an unreasonable risk of danger to the public if released. (Id.) In addition, the court rejected Petitioner's claim under Apprendi and Blakely. (Id.)

Thereafter, Petitioner filed a petition in the California Supreme Court, which was summarily denied. (Exhibit 2, to Answer.)

Petitioner filed the instant federal petition for writ of habeas corpus on June 30, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on November 10, 2008, and Petitioner filed a traverse on December 17, 2008. (Court Docs. 10, 12.)

STATEMENT OF FACTS*fn1

The record reflects that on January 5, 1980, Petitioner and other crime partners were driving in a van looking to retaliate against an individual named "Mad Eye," who was affiliated with a gang and had allegedly committed acts of violence in the past. The victim, Curtis Young, was walking with "Mad Eye." Petitioner and his crime partners, who were all armed, saw "Mad Eye" and shot at him but instead killed the victim. The victim died as a result of two bullet wounds in the back. One of the bullets that killed the victim was from a revolver that came from the gun Petitioner had used to fire in the direction of the victim. (Exhibit 1, to Answer.)

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 the 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 ...


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