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Mills v. Clark

July 30, 2009

CEDRIC MILLS, PETITIONER,
v.
KEN CLARK, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Los Angeles, following his conviction by plea of guilty on October 14, 1987, to second degree murder in violation of Cal. Penal Code § 187. See Petition at 1. Petitioner was sentenced to serve an indeterminate term of fifteen years to life in state prison with the possibility of parole. Id.

On March 7, 2007, a subsequent parole suitability hearing was held before the California Board of Parole Hearings ("BPH" or "Board") to determine Petitioner's eligibility for parole. See Petition, Exhibit 1. Petitioner attended the hearing and was represented by his attorney, Diane Letarte. Id. At the conclusion of the hearing, the BPH denied parole and deferred rehearing for two years. Id. at 61.

On November 29, 2007, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the BPH's decision. See Answer, Exhibit 1. On February 19, 2008, the petition was denied in a reasoned decision. See Answer, Exhibit 2. Petitioner then filed a habeas petition in the California Court of Appeals, Second Appellate District, on March 24, 2008. See Answer, Exhibit 3. The petition was denied on April 15, 2008. See Answer, Exhibit 4. On May 2, 2008, Petitioner filed a petition for review in the California Supreme Court. See Answer, Exhibit 5. On October 1, 2008, the petition was denied. See Answer, Exhibit 6.

On February 2, 2009, Petitioner filed the instant petition for writ of habeas corpus in this Court. The petition for writ of habeas corpus challenges the 2007 decision of the BPH denying parole. Petitioner contends there is no evidence to show he is currently a dangerous risk to society, and the Board's continued reliance on the commitment offense and circumstances surrounding the commitment offense violates the Fifth and Fourteenth Amendments. On May 12, 2009, Respondent filed an answer to the petition. Petitioner filed a traverse to Respondent's answer on June 10, 2009.

FACTUAL BACKGROUND*fn1

Sometime between May 11, 1987, and May 18, 1987, in the City of Long Beach, Petitioner stabbed and killed Eric Pinager. The victim's mother, Jacquelyn Pinager, filed a missing persons report regarding the victim. Jacquelyn had discovered a blood-stained couch which had been in Pinager's residence and taken out and placed in a trash bin. The investigators focused on Petitioner, who was arrested two months later and admitted his guilt.

Petitioner stated he had gotten into a fight with Pinager. During the fight, a glass table broke. Petitioner used a broken piece of glass and stabbed him the victim four times. He then wrapped the victim in a blanket while still alive, and placed him in a closet. The following day, Petitioner placed Pinegar in a trash bin and authorities later determined that the body was not recoverable. About a week after the crime, Petitioner withdrew all the money from Pinager's bank account.

DISCUSSION

I. Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Petitioner is in custody of the California Department of Corrections pursuant to a state court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 U.S.C. § 2254 remains the exclusive vehicle for her habeas petition because she meets the threshold requirement of being in custody pursuant to a state court judgment. Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir.2006), citing White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.2004) ("Section 2254 'is the exclusive vehicle for a habeas petition by a ...


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