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McCoy v. Sisto

June 10, 2009

ROBERT MCCOY, PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.



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

REPORT AND RECOMMENDATION

I. SUMMARY

Petitioner Robert McCoy is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted by a jury of second degree murder with a firearm enhancement in San Mateo County Superior Court on January 7, 1993, and sentenced to 16-years-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 2005 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Docket 1, Exhibits A-L.) 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. (See Dkt. 6; Dkt. 7.) The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends the Court deny the petition, and dismiss this action with prejudice.

II. BACKGROUND

On June 14, 1991, petitioner engaged in a verbal dispute with the victim over a five-dollar debt. (See Dkt. 1, Ex. H at 1.) Petitioner took a swing at the victim with his fist, but missed. In response, the victim punched petitioner, knocking him to the ground. (See id. at 1-2.) Two bystanders broke up the fight, and petitioner told the victim, "I'll be back to fix you up real good." (Id. at 2.) He went home and retrieved a 12-inch knife from the kitchen, and hid it in the front of his pants. (See id.) While at home, he also told his 16-year old grandson that he was going "looking for Blue," which was the victim's street name. (Id.) McCoy returned to the victim, who was still standing on the street. (Id.) Despite efforts by his grandson to stop him, petitioner walked up to the victim and said, "I am going to stab you." (Id.) Petitioner drew his knife and swung it at the victim, and when the victim attempted to retreat, petitioner chased him. (See id.) The victim picked up a stick and swung it at petitioner, breaking it on petitioner's face and hand, but petitioner simultaneously stabbed him in the chest. (See id.) The victim attempted to flee once more, but staggered and fell face-first on the sidewalk. (See id. at 2-3.) As the victim fell, petitioner yelled, "I got you now and I'm going to kill you." (Id. at 3.) Petitioner then jumped on the victim's back and stabbed him ten times, killing him. (See id., Ex. A at 3.) When police located petitioner near his house shortly after the murder, petitioner told them, "I'm the guy you want." (See id., Ex. H at 3.) Both petitioner and the victim had been drinking prior to the fight, and had high blood alcohol levels. (See id., Ex. A at 3.)

The commitment offense occurred in 1991, when petitioner was fifty-one-years-old. Petitioner was originally convicted by a jury of second degree murder with a prior murder conviction and weapons enhancement, and sentenced to life without the possibility of parole. (See Dkt. 1, Ex. A at 1; Dkt. 6, Ex. 2 at 1.) In the sanity phase of petitioner's 1993 murder trial, the jury heard testimony regarding a prior head injury suffered by petitioner during an automobile accident. (See Dkt. 1 at 5-4.) Despite petitioner's injury, the jury found that petitioner was sane at the time of the instant offense. (See id.)

Petitioner also had an earlier, entirely separate conviction for murder, following a trial in 1972. (See id.) In a federal habeas challenge to his 1993 murder conviction, petitioner claimed that his trial counsel in his 1972 murder trial was ineffective because he failed to inform him of the viability of a diminished capacity defense before he entered a guilty plea. (See id. at 5-5.) Petitioner argued that his 1972 murder conviction was therefore improperly used to enhance his sentence in his 1993 murder conviction. (See id.) The U.S. District Court for the Northern District of California granted his habeas petition, and the United States Court of Appeals for the Ninth Circuit affirmed. See McCoy v. Hubbard, 232 F.3d 895, 2000 WL 1023208, at *2 (9th Cir. 2000) (unpublished disposition). (See also Dkt. 6, Ex. 3 at 1-2.) Accordingly, petitioner was resentenced for his 1993 murder conviction to 16-years-to-life with the possibility of parole for second degree murder with a firearm enhancement. (See id., Ex. 1 at 1-2; Dkt. 1, Ex. H at 1.) His minimum eligible parole date was set for February 13, 2002. (See Dkt. 1, Ex. H at 1.)

The parole denial which is the subject of this petition took place after a parole hearing held on December 5, 2005. (See id.) This was petitioner's first subsequent parole consideration hearing, as his initial application for parole in 2001 was denied for four years.

(See id., Ex. F at 1.) As of the date of the 2005 parole hearing, petitioner was sixty-five-years-old, and had been in custody for approximately twelve years.

After denial of his 2005 application, petitioner filed habeas corpus petitions in the San Mateo County Superior Court, California Court of Appeal, and California Supreme Court. (See id., Exs. I; Dkt. 6, Exs. 8 and 10.) Those petitions were unsuccessful. (See Dkt. 1, Exs. I, K, and L.) This federal habeas petition followed. Petitioner contends his 2005 denial by the Board violated his Fifth and Fourteenth Amendment Due Process rights. Thus, petitioner does not challenge the validity of his conviction, but instead challenges the Board's 2005 decision finding him 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 custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle 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 because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be [objectively] unreasonable." Id. at 411.

In each case, the petitioner has the burden of establishing that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).

Finally, AEDPA requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. Woodford, 255 F.3d 926, 964 ...


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