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Mousa v. Carey

February 19, 2009

ALBERT MOUSA, PETITIONER,
v.
TOM CAREY, WARDEN, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel*fn1 with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of life in prison plus four years following his 1991 Orange County conviction on charges of attempted murder with premeditation and with a firearm.*fn2 Petitioner challenges the October 18, 2004 decision of the California Board of Prison Terms (Board) to deny him a parole date. Petitioner contends that he suffered a violation of the equal protection clause based on respondents' failure to provide a fair and impartial hearing, and that the continued denial of parole violates his right to due process.

After careful review of the record,*fn3 this court finds that the petition should be granted.

FACTS*fn4

Traci Nelson was a waitress in a Glendale restaurant in the summer of 1990, and [petitioner] visited her there almost every night. They became friends, but not in a romantic way, although [petitioner] wished differently.

In the fall Nelson became friends with another man, Daniel Raducano, the victim. She told [petitioner] Raducano was her boyfriend in order to cool his ardor. [Petitioner's] reaction was to state, "Don't think that [your][goddamn] boyfriend is going to come between us." Previously [petitioner] told Nelson of a friend in his native country, Iraq, who killed his wife and her lover.

Raducano lived with two roommates in Huntington Beach, and [petitioner] obtained his address and phone number from some notes on napkins in plain sight in Nelson's bedroom. In January 1991, one of them fielded a call for Raducano from a male. The victim was not home, and the caller said to tell him "John" had called. Raducano told his roommate he knew no "John." The man called again twice on the evening of February 4, the second time at about 10:30, but refused to leave a number with the same answering roommate and again left the name John.

About 15 minutes later, Raducano returned to his apartment. He noticed a gray Nissan 280Z backing up as he pulled into his driveway. The victim alit with a bag of groceries in his left hand, and [petitioner] rapidly strode up to him to a distance of only five feet. [Petitioner] asked, "Is your name Dan?" And the victim so acknowledged. [Petitioner] had something in his left hand concealed by a rag or towel and raised it towards Raducano's stomach. The victim thought it might be a gun or a knife and slapped the hand to the side. A gun discharged and apparently clattered to the ground.

Raducano decamped with alacrity as [petitioner] bent to retrieve it, the bag of groceries unceremoniously abandoned. As the victim ran, [petitioner] fired three to four more shots at him, one sounded to the Marine veteran as if it passed quite closely. After hiding briefly Raducano peered around a corner and saw the 280Z accelerating away from the scene.

Later the victim noticed fresh and matching holes in his shorts and sweatshirt. He had come very close to being shot in the waist area. The following day Raducano called [petitioner] from the police station, and [petitioner] insisted on calling back from a pay phone. No matter, the victim gave a police phone number. When [petitioner] called, he warned Raducano to stay away from Nelson and said friends of his might have been responsible for the incident. The victim asked if [petitioner] might have shot at him, and he said, "Yes."

Raducano positively identified [petitioner] from a photographic lineup and at trial. He also identified [petitioner's] 280Z. Police investigation at the scene turned up five shell casings and two expended bullets, as well as a freshly cut hole in a chain link fence near the scene of the shooting. The investigating detective was of the view that the new holes in the victim's clothing were indeed bullet holes, as was a criminalist. The handgun used was recovered from [petitioner's] bedroom and a towel with a bullet hole and gunpowder residue was found in his car. A leather jacket with latex gloves in the jacket was also recovered, and the victim said it looked like the one his assailant wore.

[Petitioner's] story to the jury was as follows: He obtained Raducano's phone number and address from the napkin in Nelson's apartment. He tried to reach Raducano several weeks before the incident without success (using his own name) and without receiving a return call. Finally, he did call and leave the name John, perhaps on the day of the shooting. But he decided to visit Raducano to warn him that Nelson was very sensitive and needed to be treated with care and to see if he was "playing games." After noting that the victim's van was not present, he called the roommate again from nearby to ask where Raducano was. The roommate said he did not know.

[Petitioner] drove by the apartment again and was about to leave when Raducano arrived in his van. Nelson told [petitioner] Raducano had a .357 magnum on a camping trip and suspected he might be a drug dealer because he was not employed. Consequently, he approached with his .25 caliber pistol wrapped in a towel in his left hand. If he had wanted to kill the victim, he would have brought his nine-millimeter pistol. He was wearing a different leather jacket from the one containing the gloves.

When [petitioner] approached the victim, he asked if he was Dan and received a positive response. He did not raise his gun at Raducano, but the victim threw his groceries at him and ran. [Petitioner] dropped the pistol, and it discharged. After that [petitioner] returned to his car and fired four shots into the air.

[Petitioner] admitted that he told the victim he might have been involved in the shooting in the returned phone call the next morning. He also admitted lying to the investigating officer after he was arrested, stating he was not in Huntington Beach the night before and had stayed at a friend's house. He said he lied because the officer continued to question him after he asked for an attorney.*fn5

(People v. Mousa, slip op. at 5-7)

ANALYSIS

I. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) 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

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d).*fn6 Himes ...


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