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Perkins v. Sisto

June 26, 2009

ERIC PERKINS, PETITIONER,
v.
D.K. SISTO, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Eric Perkins is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. He is currently serving a sentence of 10 years and four months, plus life with the possibility for parole, following convictions in the Alameda County Superior Court for various offenses relating to the kidnaping and assault of a drug debtor. Petitioner does not challenge the propriety of his conviction; rather, he challenges the 2007 decision of the Board of Parole Hearings ("Board") finding him unsuitable for parole. For the reasons that follow, petitioner is not entitled to relief. The Board's decision finding him unsuitable for parole was supported by some evidence in the record. Petitioner has not suffered a violation of his due process rights, nor a breach of his negotiated plea agreement, as alleged in his petition.

II. BACKGROUND

Petitioner's offense was summarized at his 2007 Board hearing as follows: In the week preceding March 18, 1988, Camille Johnson, the victim, entered into a drug deal on credit with Devonne Johnson, co-defendant, and his girlfriend for purchase of three cocaine rocks worth $10.00 each, in exchange for $50.00 to be paid on March 18, 1988.

Because the victim was late in payment, Devonne Johnson assembled a group called the Wrecking Crew to collect the debt and to burn the victim's hair. After learning the victim was at home, Devonne Johnson and four other men, including [petitioner] and two juveniles, went to the victim's residence. On arriving at the victim's residence, the five men entered and brutally beat the victim with their fists, sticks, and bats, and demanded the money.

After not finding any money in the victim's purse, the five men abducted the victim and forced her into the trunk of Perkins' car.

They drove around Oakland in [petitioner's] car for between ten and thirty minutes, threatening to kill the victim all the while before returning to the victim's residence. While she was in the trunk of the car, the victim begged the men for more time to pay off the debt. On returning to the victim's residence, the victim was released from the trunk. However, as she started to walk away from the car, the men brutally knocked her to the ground and one fo the men broke her leg with a bat while the others beat her with fists and sticks. Following the beating, one of the men poured gasoline on the victim's head and set it ablaze. One of the men prevented the victim from removing her blouse which was on fire.

All five men then fled. Neighbors ran to the victim's aid and extinguished the fire. The victim was severely burned from her waist to her head and in addition, suffered a broken leg and finger.

After leaving the victim's residence, three of the five men, including Perkins, went to a female associate's apartment. While there, Perkins admitted to "burning the bitch", stating "she deserved to burn." The victim subsequently gave a description of the man who burned her which matched that of [petitioner].

(Exhibit A at 159-60.*fn1

Petitioner was charged with five felony counts including burglary, attempted robbery, kidnap for ransom, kidnap for robbery, and attempted murder. He was sentenced pursuant to a negotiated plea agreement whereby he received a total determinate term of ten years, four months, plus a consecutive sentence of life with the possibility of parole. (Id. at 8-10.) Petitioner completed serving his determinate sentence on January 19, 1994 and began serving his indeterminate life term the next day, on January 20, 1994. His minimum eligible parole date passed on February 22, 2001.

On March 1, 2007, the Board held petitioner's third subsequent parole hearing. At the hearing, petitioner admitted all facts as set forth above, except that he denied being the one who poured gasoline on the victim. (Id. at 160.) Otherwise, he admitted full responsibility for the crime, stating that he was a willful and active participant. (Id. at 161.) The Board found petitioner unsuitable for parole.

Petitioner challenged the Board's decision in a petition for habeas corpus filed in the Alameda County Superior Court. In a brief reasoned decision, the superior court concluded that some evidence supported the Board's decision. (Exhibit B.) Petitioner subsequently filed petitions in the California Court of Appeal and California Supreme Court; both were summarily denied. (Exhibits D & F.)

In his application for writ of habeas corpus, petitioner asserts that the Board's decision finding him unsuitable for parole violated his due process rights. He also asserts that his contractual plea agreement has been breached by the Board's refusal to ...


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