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Cooks v. Sisto

April 28, 2009

HARRY COOKS, PETITIONER,
v.
D.K. SISTO, RESPONDENT



The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge Sitting by Designation

ORDER

Harry Cooks (Petitioner) is proceeding pro se with an application for a writ of habeas corpus under 28 U.S.C. § 2254. Pending before the court are Petitioner's "Petition for Habeas Corpus," filed on July 20, 2007 (Doc. 1); Warden D.K. Sisto's (Respondent's) "Answer to Petition for Writ of Habeas Corpus," filed on January 15, 2008 (Doc. 5), and Petitioner's "Notice of Traverse to Respondents Answer," filed on January 31, 2008 (Doc. 6). For the reasons discussed below, Petitioner's application for a writ of habeas corpus pursuant to § 2254 is DENIED.

I.

A.

Petitioner was found guilty of murder of the first degree and robbery by a jury in the Alameda County Superior Court. Petitioner was sentenced to a total state prison term of 25 years to life. Petitioner's statutorily established parole date was October 23, 1999. At his first parole hearing in 1998, he was denied parole on the ground that he posed an unreasonable risk of danger to public safety and rescheduled for the next hearing. His next hearing in 2002 resulted in a denial of parole, primarily on the same grounds. On August 31, 2005, the Board again denied Petitioner a parol date. Petitioner does not challenge the propriety of his convictions; instead, he challenges the Board of Parol Hearings' 2005 denial of parole.

B.

Petitioner timely filed a writ of habeas corpus in Alameda County Superior Court in which he alleged that the Board violated his due process by denying him a parole release date. Petitioner alleged that: (1) the Board's reliance on his commitment offense violated due process; (2) the Board's finding that he had not taken advantage of institutional programs is unsupported by the evidence; and (3) the court denied parole because of his adherence to a religious mandate forbidding him to cut his hair. After briefing by the parties, the court denied his petition on May 11, 2006.

C.

Petitioner timely filed a petition for review of the Superior Court's decision in the California Supreme Court. On April 18, 2007, the California Supreme Court denied the Petition for writ of habeas corpus.

D.

Petitioner timely filed a petition for a writ of habeas corpus before this court on July 20, 2007. On January 15, 2008, Respondent filed its Answer to the Petition. In its answer, Respondent admits that Petitioner has properly exhausted his state judicial remedies regarding the Board's 2005 denial of parole. On January 31, 2008, Petitioner filed a "Notice of Traverse to Respondent's Answer."

II.

The Board of Parole made the following observations when reviewing the commitment offense at the August 2005 hearing:

On August 11, 1983, Harry Cooks and crime partners, which has [sic] never been identified, strangled Edward Akers, age 64 and ransacked his home and person taking a safe, money, marijuana and stereo equipment. Cooks was identified in the home controlling the victim before the murder and later on the steps and the living room. Cooks bragged to two separate witnesses about participating in the robbery/murder. The search warrant was obtained for Cooks' home where a reel-to-reel recorder was recovered [that] was taken in the robbery. Autopsy results showed numerous injuries to the victim consistent with the protracted beating. A sweater was used to strangle the victim ...


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