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Grafton v. Hornbeak

February 13, 2009

VIRGINIA GRAFTON, PETITIONER,
v.
TINA HORNBEAK, WARDEN, 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. 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. Following a jury trial in the San Bernardino County Superior Court, Petitioner was convicted of: (1) conspiracy to commit murder (Cal. Penal Code §§ 182, 187),*fn1 with three priors; (2) conspiracy to commit arson (§§ 182, 447(a)); (3) conspiracy to prevent or dissuade a witness from testifying (§§ 182, 136b); and (4) two counts of dissuading or preventing a witness from testifying (§ 136b). (Exhibit A, to Answer.) Petitioner was sentenced to a term of twenty-five years to life plus a two year enhancement for a total of 27-years-to-life.

In 1991, Petitioner was convicted of possession of a deadly weapon by a prisoner, and sentenced to an additional three years. (Id.)

In the instant petition, Petitioner does not challenge the validity of the state court judgment; rather, Petitioner contends that the Board of Parole Hearings' (Board) decision finding her unsuitable for parole at her October 26, 2006 parole hearing was not supported by some evidence. Petitioner also challenges the Board's decision to deny parole for two years.

Petitioner filed an original Petition for Writ of Habeas Corpus in the California Supreme Court, which was summarily denied on July 9, 2008. (Exhibit C, to Answer.)

Petitioner filed the instant federal Petition for Writ of Habeas Corpus on July 21, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on December 3, 2008, and Petitioner filed a traverse on January 6, 2009. (Court Docs. 19, 20.)

STATEMENT OF FACTS*fn2

At the time of the commitment offense, Grafton and co-defendant Jean Tate were awaiting retrial in San Bernardino County on attempted murder charges of Jean's husband Jess. Jean Tate decided to turn the state's evidence against Petitioner and testify against her. On April 4, 1979, Jean Tate was released on her own recognizance, and trial was set for June 25, 1979. Petitioner and her current co-defendant, Gerard Weston, began to conspire to murder Jess and Jean Tate to prevent them from testifying. Conversations between Petitioner and Weston were monitored during their visits to the county jail and consisted of death threats sent to the Tate's and possible escape attempts with force from the courtroom. On June 26, 1979, Weston's apartment was searched and homemade "napalm" was found along with manuals on the construction of bombs. (Exhibit B(1), at 8-9.)

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 [her] 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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