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Ibarra v. Sisto

June 30, 2009

FRANCISCO IBARRA, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Francisco Ibarra 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 August 15, 2007, 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 SHELTON: I'm referring to the appellate ruling that was filed on December 21st, 1989, starts on page two, second paragraph.

"It says the record reveals that shortly after 11:00 a.m. on March - - on Saturday, March something." This is a very poor print of this record, but I'm going to assume it's a 28th, 1987, or close to it. "Defendant, driving a late model van near the intersection of Hyperion (phonetic) Boulevard and Fountain Avenue, at speeds exceeding 70 miles per hour, violently collided with another vehicle traveling in the opposite direction. The driver of that car was killed upon impact. Only minutes before the accident, defendant's van attracted the attention of one witness, Allen Wexler, as it approached the intersection of Hyperion and Griffith Park Boulevard in the Silver Lake Section of Los Angeles. While Wexler slowed for a traffic signal changing to red, he noticed the van pass him on his left at approximately 70 miles per hour and speed through the intersection without stopping." I want to note at the bottom of this page, there is one footnote. "Defendant also was convicted of vehicular manslaughter while intoxicated, driving under the influence of alcohol and or drugs so as to cause bodily injury to another, and causing injury while giving (sic) or driving with a blood alcohol level of .1 or above." Continuing onto page three. "Driving on the wrong side of the street and heading into oncoming traffic, the van swerved back into the correct lane and stopped for a red light at the intersection of Hyperion and Tracy. When the signal changed to green, Wexler again saw the van accelerate at a high rate of speed into the wrong lane of traffic as it neared a curve in the road. Although he briefly lost sight of the van, Wexler arrived at the accident scene within moments of the collision. After seeing that the driver of the other vehicle involved in the accident was severely injured, he summoned help and remained at the scene until the police and paramedics arrived. Another witness, Amitai, A-M-I-T-A-I, Talmor, T-A-L-M-O-R, while working at his auto repair shop on Hyperion, observed the van as it passed by him traveling at 70 to 80 miles per hour on the wrong side of the road. Immediately following the crash, he retrieved his camera and photographed the occupants of the van after they had exited the vehicle. At or about the same time, Talmor noticed the Defendant, who had been sitting behind the wheel after the accident, attempting to remove some beer bottles from the van. Los Angeles Police Officers Michael Hagan (phonetic) and Robert Henshaw (phonetic), both traffic collision experts, arrived at the scene approximately 20 minutes after the accident and began their investigation to determine the cause of the crash. Based upon the position and length of the skid marks, they estimated that the van was traveling on the wrong side of the roadway at a minimum speed of 59 miles per hour at the time of the impact. After inspecting the interior of the van, Hagan determined that the location of several blood stains on the driver's side of the vehicle corresponded to abrasions and blood on the defendant's head, left arm and left knee. He also noticed two empty beer cans and numerous marijuana cigarette butts on the floor of the van. In speaking with the Defendant, both officers noted that the defendant's eyes were glazed and that his breath smelled of alcohol. His eyes also exhibited horizontal and vertical nystagmus, NY-S-T-A-G-M-U-S, which is a jerky eye movement, which is indicative of a blood alcohol level of at least .15 percent. Although he admitted to being the driver of the van, the Defendant denied being intoxicated. He later acknowledged, however, that sometime prior to the accident he had smoked marijuana and consumed both beer and wine. Other officers who arrived at the scene sometime later also opined that the Defendant was under the influence of alcohol and/or drugs. Having failed a series of filed sobriety tests, the Defendant was transported to a jail facility where he was admonished pursuant to Vehicle Code Section 13353, the implied consent law. Test results of a blood sample withdrawn approximately two hours after the collision revealed the blood alcohol level of .2 percent. The subsequently administered breath test indicated blood alcohol levels of .17 and .18 percent. Forensic analyst testified at trial that these figures were equivalent to a blood alcohol level of .24 percent at the time of the collision. Testifying in his own defense, Defendant claimed that he could not recall the events leading up to the accident or whether he was the driver of the van. He admitted, however, that he began drinking at approximately 5:30 a.m. on the morning of the collision and probably consumed three to four beers and an unknown quantity of wine."

All right. I'm going to take a look at the board report as well with regards to the commitment offense and to the prisoner's version since he's not speaking about it. And basically, the offense summary on the board report dated April 9th, 2007, indicates that:

"On March, 28th, 1987, around 12:00 p.m., Ibarra was driving a 1970 Ford van on Fountain Avenue without a driver's license. And as indicated from the appellate ruling, he was driving on the wrong side of the road, speeding, et cetera, and collided with a red Nissan Sentra. The victim, Jaime Angola (phonetic), was seatbelted into the driver's side of the Nissan Sentra and he died at the scene from receiving a large laceration to his forehead and an impression in his skull around the same area. On page two, Mr. Ibarra's version is as follows. 'I didn't remember much about the accident. Some friends and I had been drinking beer and smoking marijuana prior to the accident. I only remember walking up and checking on the victim, but he appeared dead. I then returned to my vehicle to check on my passengers. At that point all I could do was wait for the police.'"

Answer, Exhibit 1 at 70-76.

Petitioner was convicted of second degree murder and began serving a sentence of 15 years to life on April 7, 1988. Id. at 62. His minimum eligible parole date was May 23, 1998. Id.

On August 15, 2007, the Board held a life parole consideration hearing for petitioner. Id. At the conclusion of that hearing the Board found petitioner unsuitable for parole. Id. at 123-33.

B. State Habeas Review

Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court on December 7, 2007. Id. at 2. That petition was denied in a reasoned opinion on February 26, 2008. Answer, Ex. 2 at 3.

Petitioner then filed a petition with the California Court of Appeal on March 25, 2008. Answer, Ex. 3 at 2. That petition was summarily denied on April 3, 2008. Answer, Ex. 5. Petitioner finally petitioned the California Supreme Court on May 28, 2008. Answer, Ex. 4 at 2. That petition was summarily denied on November 12, 2008. Answer, Ex. 6. Petitioner filed this federal petition on December 1, 2008.

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 ...


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