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Gonzales v. Sisto

April 3, 2009

RICHARD GONZALES, PETITIONER,
v.
D. K. SISTO, WARDEN, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Richard Gonzales is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the January 24, 2006, decision by the Board of Parole Hearings (hereinafter Board) finding him unsuitable for parole. Petitioner claims that the Board's decision violated his right to due process by finding him unsuitable for parole and by delaying his hearing. Upon careful consideration of the record and the applicable law, the undersigned will recommend that this petition for habeas corpus relief be denied.

II. PROCEDURAL AND FACTUAL BACKGROUND

A. Facts

Petitioner was convicted of second degree murder and sentenced to a term of 15-years to life on September 7, 1988. The Board recited the facts of petitioner's commitment offense as follows:

PRESIDING COMMISSIONER FARMER: Thank you. As I indicated, we will first start by discussing your commitment offense and I'm going to enter into the record the description of that offense as is contained in the 2005 board report which reads as follows. On June 10th, 1987 at approximately 10:30 P.M. California Highway Patrol officers responded to a call of an injury traffic collision on Interstate 405 north of Sam Kenyon (phonetic) Avenue. Upon arrival, they were informed by paramedics that the victim, Christopher Spurney, spelled S-P-U-R-N-E-Y, was still pinned in the over turned vehicle and was deceased. The other driver, Richard Gonzales, was being attended by the paramedics and was noted bleeding from his face and leg. Gonzales was later transported to Western Medical Center where he [was] placed under arrest. A blood sample drawn one hour after the collision resulted in a .14 blood alcohol level. Subsequent investigation revealed that inmate Gonzales drove from his place of employment to a co-workers, Lyle Glantz, spelled G-L-A-N-T-Z, house around one P.M. where he ate a sandwich and drank a couple of beers. He went back to work and returned to his co-worker's residence at [about] seven P.M. Witnesses estimated that [he] had consumed at least a six pack of beer. A report stated at one point during the party at Glantz' house, Gonzales produced two lines of cocaine which he and several individuals consumed. Witnesses to the accident related that Gonzales was traveling south bound when suddenly he veered onto the shoulder, over corrected and went out of control and crossed all lanes of south bound traffic. He veered into the center median and continued across the median directly into the north bound oncoming traffic colliding with Mr. Spurney's vehicle. Mr. Spurney was killed instantly due to massive head and internal injuries. That same report recites [petitioner's] version of what occurred as follows. Inmate Gonzales stated that his statement to the probation officer is an accurate version of what happened. On June 10th, 1987 Gonzales brought a six pack to his friend's house for a birthday celebration. He admitted consuming the latter within three hours and snorted one half of a line of cocaine which one of the guys bought. He also took part of a joint of marijuana being passed around. At around 9:30 he left for home. Other than feeling very tired he felt fine. He thought of not driving due to - - thought of not driving due to - - and the thought of not driving due to intoxication did not even enter his mind. He has no recollection of the actual collision but remembers waking up in his car just after the accident.

Answer, Exhibit B at 14-16.

On January 24, 2006, the Board held a life parole consideration hearing for petitioner. Id. at 4. At the conclusion of that hearing the Board found petitioner unsuitable for parole due primarily to his failure to address his alcoholism. Id. at 74-83.

B. State Habeas Review

On May 31, 2006, petitioner petitioned the Orange County Superior Court for a writ of habeas corpus. Answer, Ex. E at 5. That petition was denied on June 22, 2006, in a reasoned opinion. Id. at 2-4. Petitioner then petitioned the California Court of Appeal, Fourth Appellate District, which summarily denied that petition on July 28, 2006. Answer, Ex. F at 2. Petitioner sought the review of the California Supreme Court on August 4, 2006. Answer, Ex. G at 3. That petition was denied on September 20, 2006. Id. at 2. Mr. Gonzales filed this federal petition on October 3, 2006.

III. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. SeePeltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. SeeEstelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues denovo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). SeeLindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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). SeealsoPenry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

IV. DISCUSSION OF PETITIONER'S CLAIMS

A. Due Process

1) Description of ...


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