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London v. Campbell

May 27, 2009

RICHARD LONDON, PETITIONER,
v.
ROSEANNE CAMPBELL, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Richard London 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 February 2, 2004, decision by the Board of Parole Hearings (hereinafter Board) finding him unsuitable for parole. Upon careful consideration of the record and the applicable law, the undersigned will recommend that this petition for habeas corpus relief be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

The Board recited the facts of petitioner's commitment offense as follows: PRESIDING COMMISSIONER WELCH: All right. Then I'll read it from the Board report that's dated November 2003. It says on June 8th, 1975, at approximately 2:45 p.m., San Francisco Police officers responded to a reported shooting, and discovered Wilbur Jackson, J-A-C-K-S-O-N, and Sally Boye, B-O-Y-E, a schoolteacher, slumped down in the front seat of a 1968 Chevrolet Camaro, which was parked in front of Mr. Jackson's residence. Mr. Jackson and Ms. Boye [were] apparent victims of multiple gunshot wound[s]. Five extended - - expended nine-millimeter cartridges [were] found on the driver's side of the vehicle, and the vehicle driver's window had been smashed out. Responding ambulance attendants pronounced both victims dead. A witness told the police officers he observed a young man with a thin build fire several shots, shattering the driver's window, then approached the vehicle, reached inside and shattered the window and fired more shots. The following day, police investigators found a [heavily] damaged nine millimeter pistol, minus the barrel, which was forwarded to the crime lab. Upon the sub sequential - -subsequent investigation, homicide investigation was able to obtain a nine millimeter, minus the barrel, from a Sacramento gun shop named Walter Handsaker, H-A-N-D - - Handsaker. H-A-ND-S-A-K-E-R, who matched - - to match the barrel discovered at the scene. Mr. Handsaker informed police inspectors that London had brought the damaged pistol to his shop for repair several weeks after the Jackson/Boye shooting. Additional information revealed that London was reported to be a member of a small militant revolutionary group, composed of - - in part of ex-convicts called the Capital Tribal Thumb. In subsequent court testimony, a former member of the - - this group, Mr. Gary Johnson, stated that the Tribal Thumb considered Jackson a snitch and a danger to the movement and a person who should be removed from (indiscernible) movement to the establishment for his own personal gain. Mr. Handsaker, the gunsmith, testified that London told him after the killing that he was now a professional hit man. And an additional witness, Samuel Brooks, who shared a cell with London in Santa Clara Jail, testified that London had bragged to him about the killing. London was subsequently found guilty by a jury, for both murder and possession of a concealed weapon by an ex-felon. The prisoner's version - - [t]he prisoner stated that he shot Jackson, and that his crime partner fired at Boyle - - Boye, and acted - - an act of premeditated first degree murder. He recognized that he was responsible for both murders, although at the time of the offense, he expressed that he did not wish to see Boye killed. London continued to show that he accept[ed] [responsibility] for his action by indicating to his counselor that he did shoot victim Jackson; however, he did not shoot and kill the second victim, Sally Boye.

Answer, Exhibit B at 11-14.

On October 24, 1978, petitioner began serving a sentence of seven years to life. Answer, Ex. A. On February 2, 2004, the Board held a life parole consideration hearing for petitioner. Answer, Ex. B at 2. At the conclusion of that hearing the Board found petitioner unsuitable for parole. Answer, Ex. B at 41.

B. State Habeas Review

On July 21, 2005, petitioner filed a petition for writ of habeas corpus in the San Francisco County Superior Court. Answer, Ex. E at 5. That petition was denied on September 12, 2005, in a reasoned opinion. Id. at 2-4.

Petitioner then filed a petition with the California Court of Appeal on November 16, 2005. Answer, Ex. F at 5. That petition was summarily denied on December 27, 2005. Id. at 2. Petitioner finally petitioned the California Supreme Court for review on January 4, 2006. Answer, Ex. G at 3. That petition was summarily denied on February 22, 2006. Id. at 2. Mr. Williams filed this federal petition on March 14, 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 ...


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