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Evans v. Sisto

May 15, 2009

TOBY EVANS, PETITIONER,
v.
D.K. SISTO, WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge

REPORT AND RECOMMENDATION

I. SUMMARY

Petitioner Toby Evans is currently incarcerated at the California State Prison -- Solano, in Vacaville, California. He was convicted by a jury of "kidnapping for robbery" in Contra Costa County Superior Court on August 25, 1997, and sentenced to life with the possibility of parole. He has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2006 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1

Respondent has filed an answer to the petition together with relevant portions of the state court record, and petitioner has filed a traverse in reply to the answer. The briefing is now complete and this matter is ripe for review. The Court, having thoroughly considered the record and briefing of the parties, recommends the petition be denied and this action be dismissed with prejudice.

II. BACKGROUND

The Contra Costa County Superior Court has set forth the following relevant facts: Petitioner along with several accomplices met at a series of meetings and planned the crime in detail. The plan was to kidnap Mr. Mayer and steal jewelry from his store. Petitioner purchased equipment to recover the ransom money and during the course of carrying out the plan gave instructions to his accomplices. On December [21], 1993, Petitioner drove his accomplices to the victims' residence and waited outside the car. Armed with firearms, the accomplices gained entry into the home where . Mr. and Mrs. Mayer were then bound with duct tape. Money, jewelry, and a safe were taken from the residence. Two of the victims' vehicles were taken as well.

Mrs. Mayer was kidnapped. She was taken in her own car and later transferred to Petitioner's car. The kidnappers left a ransom note demanding $2 million from Mr. Mayer. Petitioner transported Mrs. Mayer to a garage located in another residence. There she was held captive under guard.

Petitioner then went to another residence where he met up with his accomplices and divided up $150,000 worth of stolen jewelry. Three days later Petitioner instructed his accomplice to release Mrs. Mayer. She was taken to another neighborhood and released.

(Docket 1, Ex. T at 1.) Petitioner turned himself in to the police approximately a week later. (See id. at 6.) He was subsequently released. (See id., Ex. B at 4-5; Ex. F at 12.) Approximately five months later, he committed a first degree burglary, with ten victims, three of whom were children. (See id., Ex. T at 6.)

Petitioner pled guilty to first degree burglary on May 1, 1995, and served five years in prison. (See id., Ex. B at 14.) On August 25, 1997, prior to his release, he was convicted of kidnapping for robbery in Contra Costa County Superior Court and sentenced to life with the possibility of parole. (See id., Ex. D.) His minimum eligible parole date was set for August 12, 2003. (See id., Ex. F at 1.) Petitioner has been incarcerated for approximately twelve years for this offense.

The parole denial which is the subject of this petition followed a parole hearing held on September 6, 2006. This was petitioner's third application, including his initial parole consideration hearing. His previous applications were also denied.*fn2 After denial of his 2006 application, petitioner filed habeas corpus petitions in the Contra Costa County Superior Court, California Court of Appeal, and California Supreme Court. Those petitions were unsuccessful. This federal habeas petition followed. Petitioner contends the 2006 denial by the Board violated his Fifth and Fourteenth Amendment Due Process rights. Thus, the habeas petition before this Court does not attack the propriety of the conviction or sentence, but solely challenges the Board's decision that petitioner is unsuitable for parole.

III. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in the custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive basis for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. denied, 543 U.S. 991 (2004) (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction."). Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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)(1) and (2).

As a threshold matter, this Court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

The Court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply ...


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