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Bowling v. Hernandez

February 26, 2009

DENNIS P. BOWLING, PETITIONER,
v.
ROBERT J. HERNANDEZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER (1) OVERRULING PETITIONER'S OBJECTIONS, (2) JUDGE'S REPORT AND RECOMMENDATION, (3) DENYING PETITION FOR WRIT OF HABEAS CORPUS; and (4) DENYING CERTIFICATE OF APPEALABILITY ADOPTING THE MAGISTRATE (Doc. Nos. 1 & 28)

Presently before the Court is Dennis P. Bowling's ("Petitioner") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner, a California prisoner proceeding pro se, challenges the finding of unsuitability for parole made at his eleventh parole hearing in 2004, claiming that he has been denied due process and equal protection in violation of the Fourteenth Amendment because the Board of Prison Terms*fn1 (the "Board") lacked the authority to deny him parole or exceeded its statutory authority. (Id.)

The matter was referred to United States Magistrate Judge Nita L. Stormes, pursuant to 28 U.S.C. § 636(b)(1). On November 9, 2007, Magistrate Judge Stormes issued a Report and Recommendation ("R&R"), concluding this Court should deny the habeas petition. On November 27, 2007, Petitioner timely filed objections to the R&R. (Doc. No. 28.) Respondent has not filed a response to Petitioner's objections.

Having considered the R&R, Petitioner's objections, and the Court's record, the Court (1) overrules Petitioner's objections, (2) adopts Magistrate Judge Stormes' Report and Recommendation; (3) denies Petitioner's section 2254 petition; and (4) denies Petitioner a certificate of appealability.

FACTUAL BACKGROUND

Magistrate Judge Stormes' R&Rcontains a quoted statement of facts taken from the opinion of the California Court of Appeal in Petitioner's criminal appeal in 1978. (R&R, at 3--5). This statement of facts was also quoted and relied upon by the parole board at the hearing challenged in the instant case. (Doc. 21, Ex. 1, at 14--18). This Order incorporates by reference the facts as set forth in the R&R.

PROCEDURAL HISTORY

I. State Procedural History

On February 28, 1977, Petitioner was convicted of first degree murder in San Diego Superior Court and sentenced to life imprisonment with the possibility of parole. At his eleventh denial of parole, challenged here, the Board cited the following reasons for unsuitability for parole:

1) that the commitment offense was "callous and . . . carried out in a dispassionate and a calculated manner"; 2) that the motive for the crime was inexplicable; 3) that Petitioner had failed previous grants of probation; 4) that Petitioner had failed to participate in beneficial self-help; 5) that a psychiatric evaluation was "not completely supportive"; and 6) that Petitioner did not have specific parole plans. (Doc. 21, Ex. 1 at 50--54).

Petitioner challenged the Board's decision in a habeas petition filed in state superior court on May 4, 2005. (Doc. 10-3, at 2.) After that petition was denied on the merits, he appealed his case to the California Court of Appeal on August 23, 2005, where his petition was once again denied on the merits. (Doc. 10-5, at 41-43.) He finally filed a petition for review in the state supreme court on October 19, 2005. (Doc. 10-5, at 2.) The petition was summarily denied on September 13, 2006, without citation of authority or statement of reasoning.

II. Federal Procedural History

Having exhausted the remedies available in the state courts, Petitioner filed the instant petition for a writ of habeas corpus in this Court, pursuant to 28 U.S.C. ยง 2254. (Doc. No. 1). Respondent moved to dismiss the petition on the basis it was untimely and failed to state a federal question. After this Court denied the motion to dismiss, Respondent filed an Answer ...


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