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Walker v. Sisto

June 26, 2009

RICHARD WALKER, PETITIONER,
v.
D. K. SISTO, ET AL., RESPONDENTS.



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

REPORT AND RECOMMENDATION

I. SUMMARY

Petitioner Richard Walker is currently incarcerated at the Folsom State Prison in Represa, California. He pled guilty to one count of second degree murder and one count of possession of methamphetamine for sale in Riverside County Superior Court on August 28, 1989. He is currently serving a sentence of eighteen-years-to-life with the possibility of parole and 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 Dockets 1 and 9.) Specifically, petitioner contends the Board's decision violated his Fifth and Fourteenth Amendments due process rights, his Fourteenth Amendment right to equal protection, his Eighth Amendment right to be free from cruel and unusual punishment, and the terms of his plea agreement. 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. PROCEDURAL HISTORY

Because petitioner's federal habeas petition was difficult to decipher, the court granted respondent's motion for a more definite statement. (See Dkts. 6-8). Respondent filed a document clarifying his claims. (See Dkt. 9.) Respondent then filed an answer to the petition together with relevant portions of the state court record. (See Dkt. 10.) Petitioner filed a traverse in reply to the answer. (See Dkt. 11.) While the briefing is now complete and this matter is ripe for review, on May 30, 2008, the court issued an order to show cause why this case should not be administratively stayed pending the Ninth Circuit Court of Appeals' decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. May 16, 2008). (See Dkt. 12.) The parties did not oppose the court's request for an administrative stay, with the qualification that petitioner did not want his case to be pending for more than six months. (See Dkts. 13-14.)

United States Magistrate Judge Hollows issued a report and recommendation on August 27, 2008, recommending that this case be administratively stayed. (See Dkt. 15.) On November 25, 2008, before the court ruled upon the report and recommendation, it was transferred to Chief Judge Robert S. Lasnik and referred to the undersigned, as visiting judges. (See Dkt. 17.) Because it has been more than one year since oral argument was heard in Hayward and petitioner has had at least one subsequent parole hearing, now the subject of his second federal habeas corpus petition (Case No. 2:09-cv-00525 WBS-JFM), I recommend the Court find that it is in the interests of justice to consider the merits of this case. The August 2008 report and recommendation should therefore be stricken as moot.

III. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition as 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 Williams, 529 U.S.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 normally looks to the last reasoned state court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). Where, as in this case, the state courts issue summary denials without explaining their reasons, see infra, this Court must conduct an independent review of the record to determine whether the state courts' decisions were contrary or involved an unreasonable application of Supreme Court holdings. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000).

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 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir. 1993)).

IV. PRIOR STATE COURT PROCEEDINGS

The petition in this case incorporates claims raised in two separate state habeas petitions. Respondent states that petitioner has properly exhausted his state court remedies, and timely filed the instant petition with regard to all claims, except those challenging petitioner's 2007 parole hearing. (See Dkt. 10 at 3.) Petitioner makes clear in his traverse that he is not challenging his 2007 parole denial in this petition. (See Dkt. 11 at 2.) Although respondent fails to specifically address petitioner's equal protection or cruel and unusual punishment claims, it is clear from the record that these claims were exhausted as they were properly presented to the state's highest court. (See Dkt. 1.) See 28 U.S.C. § 2254(b)(3); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[s]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"); see also Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (holding that California law requires presentation of claims to the California Supreme Court through petition for discretionary review in order to exhaust state court remedies).

Typically, this Court looks to the state court's orders upholding the Board's decision to determine whether they meet the deferential AEDPA standard. See Ylst, 501 U.S. at 803-04. In this case, the Riverside Superior Court issued a one paragraph decision that does not mention any of petitioner's constitutional claims. (See Dkt. 10, Ex. 7.) The second state habeas petition filed in the Riverside Superior Court only raised the issue regarding the terms of petitioner's plea agreement. (See Dkt. 10 at 3-4.) The superior court denied that claim without comment. (See id., Ex. 10.) As discussed supra, when a state court issues a decision on the merits but does not provide a reasoned decision, we review the record independently to determine whether that decision was objectively reasonable. See Delgado, 223 F.3d at 982. Although our review of the record is conducted independently, we continue to show deference to the state court's ultimate decision. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

V. BACKGROUND

The 2005 Life Prisoner Evaluation, upon which the Board's 2005 report relies, summarized the facts of the crime as follows:

On December 20, 1988, Walker along with another unknown male, contacted the victim, David Ringo, to arrange a meeting. Walker suspected Ringo of stealing his radio and wanted to confront Ringo about it. When they arrived at the meeting location, Walker confronted Ringo about his radio. Ringo told Walker he did not steal the radio and that he would not do something like that. Walker then pointed a gun at Ringo and told him to get down on his knees. Ringo pled for Walker not to shoot him. Walker told the other male who was there to kick Ringo. Ringo then stood up and began running. Walker fired one shot from the gun and Ringo fell to his knees collapsing face first on the ground. It appeared that Ringo was not breathing and Walker then told the other male to get his pickup ...


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