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Kane v. Moore

February 23, 2009



Petitioner, a state prisoner at Deuel Vocational Institution, is proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, petitioner challenges the accuracy of a psychologist's report prepared in connection with his November 2007 hearing before the Board of Parole Hearings. (Pet. at 4-5.) Petitioner also argues that the Fresno County Superior Court erred in failing to prohibit the Board from relying on the challenged report and in not ordering that a new hearing be held untainted by the inaccurate report. (Id.) Petitioner seeks an order requiring that a new parole hearing be conducted and that the Board find him suitable for parole absent evidence of a current threat to public safety posed by his release. (Id.)

Before the court is respondents' motion to dismiss the pending federal petition for failure to exhaust these claims in state court. Petitioner has filed opposition to the motion. For the reasons discussed below, the court will somewhat reluctantly recommend that the motion to dismiss be granted.


In 1984, petitioner was sentenced in the Fresno County Superior Court to a term of twenty-five years to life in prison for first degree murder plus two years for forgery and attempted forgery. (Pet. at 1.)

In anticipation of petitioner's then-upcoming parole hearing, psychologist Dr. Steven Walker prepared a mental health evaluation of petitioner which was dated October 10, 2007. (Pet. at 9, Ex. 5(a)(1).) According to petitioner, on October 25, 2007, he mailed his state habeas petition in which he challenged Dr. Walker's evaluation to the San Joaquin County Superior Court. (Opp'n to Mot. to Dismiss at 1.) On November 9, 2007, the Board of Parole Hearings denied petitioner parole. (Id.) On December 17, 2007, the San Joaquin County Superior Court issued an order denying petitioner's habeas petition, stating as follows:

Petitioner seeks "injunctive relief" in excluding an assessment prepared by Dr. Steven Walker, Ph.D., from his parole hearing to be held on November 9, 2007. As noted above, Petitioner's petition was not filed with this court until December 17, 2007, rendering it moot as to any hearing held in November 2007. Furthermore, Habeas Corpus is an extraordinary and collateral action that lies to review a claim of denial of substantial constitutional rights that may have affected the integrity of the fact finding process. (In re Reed (1983) 33 C3d 914, 918 n2, overruled on other grounds in In re Alva (2004) 33 C 4th 254, 292.) It is not a means to prospectively seek exclusion of evidence. (Pet. at 19, Ex. 5(a)(11).)

On February 14, 2008, the California Court of Appeal for the Third Appellate District denied petitioner's habeas petition that had apparently been filed with that court, stating as follows:

The petition for writ of habeas corpus is denied pursuant to rule 8.380(d) of the California Rules of Court, without prejudice for filing with the California Court of Appeal, Fifth Appellate District. (Pet. at 22, Ex. 5(a)(14).)

On March 26, 2008, the California Supreme Court summarily denied a petition for review, as opposed to a habeas petition, filed before it by petitioner. (Id. at 23, Ex. 5(a)(15).)

On April 30, 2008, petitioner filed his federal habeas petition with this court, describing the two claims presented therein as follows:

Ground one: A Board of Parole Hearings Psychologist submitted a Mental Health Evaluation containing information and a prognosis not support on record. For [sic] the purposes of attaching a label so that BPH will have the evidence to find me unsuitable; this is because the previous CDC Psychologist were not providing evidence the BPH needs to deny suitability.

Ground two: The Superior Court Clerk delayed in filing the Petition and the Judge did not issue injunctive relief preventing the use of the report In [sic] the BPH process. When the Judge discovered that the hearing had already been held, the Justice did not, as would be reasonable in light of the facts, order that another evaluation be made and that the BPH conduct another parole hearing.

(Pet. at 5-5a.) In support of his claims for relief, petitioner contends that the mental health evaluation prepared by Dr. Walker was "fraudulent" and that the doctor "reviewed and interpreted" a prior mental health evaluation and other records and attempted to "portray ...

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