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Dun v. Campbell

July 31, 2009

LARRY DUN, PETITIONER,
v.
ROSANNE CAMPBELL, ET AL., RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Larry Dun is a state prisoner proceeding through counsel with a second amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. §§ 2254.*fn1 He is currently serving an indeterminate life sentence for the 1975 murder, rape, and robbery of his next door neighbor. Petitioner does not challenge the propriety of his convictions; rather, he challenges the execution of his sentence, and specifically, the constitutionality of the October 19, 2005 decision of the Board of Parole Hearings ("Board") finding him unsuitable for parole.

II. ClAIMS PRESENTED

The claims presented in the petition are as follows: (A) the 2005 decision of the Board finding petitioner unsuitable for parole was lacking in evidentiary support, in violation of his right to due process of law (claims 1 and 2 in the second amended petition); (B) the Board's decision also violated his right be free from cruel and unusual punishment (claims 4 and 5 in the second amended petition); and (C) the Board failed to engage in individualized decision making at petitioner's hearing, instead implementing an unwritten policy of blanket denial for convicted murderers (claim 3 in the second amended petition). For the reasons set forth below, petitioner is not entitled to habeas corpus relief on any of his claims.

III. FACTUAL AND PROCEDURAL BACKGROUND

On February 5, 1976, petitioner went next door to Maryanne Jacob's home. (Resp. Exhibit*fn2 2 at 7.) His father had sent him there to obtain a contractor's address. (Id.) Petitioner took a knife with him as he went to Jacob's home.*fn3 (Id. at 10.) When petitioner arrived, Jacobs let him in. (Id. at 7.) Jacobs talked with him and located the address of the contractor. (Id. at 10.) Then, petitioner raped Jacobs. (Id. at 7, 10.) After petitioner raped Jacobs, he smashed a lamp on her head and tied her up. (Id. at 7, 19.) While Jacobs was restrained, petitioner stabbed her repeatedly. (Id. at 19.) Then he left the home, taking with him a butcher knife, a cigarette case, cigarette lighter, and two table lamps. (Id. at 3.)

The medical examiner noted that Jacobs suffered 23 significant wounds, eighteen of which were stab wounds to her neck, back, chest, and abdomen. (Resp. Exhibit 2 at 19.) The most serious wound was a "gaping wound on the front of the neck, severing all the structures except the backbone." (Id.) The medical examiner concluded that Jacobs died as a result of a massive hemorrhage caused by the multiple stab and incised wounds. (Id.)

Petitioner was 19 years old when he committed the offenses against Jacobs. (Pet. Exhibit*fn4 2; Resp. Exhibit 5 at 13.) According to the probation officer's report prepared prior to sentencing, petitioner was also implicated in three other rapes. (Resp. Exhibit 2 at 13-14.) Following his arrest and the appearance of his picture in the newspaper, two sisters contacted authorities and identified petitioner as the individual who had attempted to rape one of them in their home three years prior, on January 28, 1973. (Id. at 13.) Petitioner's photo was then included in a photo lineup viewed by two other female juveniles, who had reported to officers an incident of attempted rape and robbery at one of the girls' residence on December 15, 1973. (Id. at 14.) One of the two girls identified petitioner through the photo lineup as the individual who looked like the person who had committed the offense. (Id.) Finally, another juvenile girl identified petitioner from a photo lineup as the individual who had raped and robbed her on December 22, 1975. (Id.)

Reports from the Stockton Police Department indicate that petitioner admitted his involvement in the incidents of January 28, 1973 and December 22, 1975 to an officer during questioning. (Id.) Petitioner, however, denies that he ever admitted or confessed to any of the crimes except for the February 5, 1976 commitment offenses. (Second Amended Petition at 5.) When asked at his October 19, 2005 parole hearing why this information appeared in the probation officer's report, petitioner stated:

When I got arrested, this police officer, Sergeant Stuart, something like that, upon interrogation-- I wanted to talk to my folks on the telephone, and he said that I should sign these papers saying that I did these other things before I could talk to my parents. And I said "well," and he said "or you're not going to talk to them." And I said "all right, I'll sign it." So I got to talk to my folks, and after I finished talking to them I said "I'm not going to sign these" and he said "well, why not?" and I told him "I didn't do these things. I'm guilty of what I've done here, today, and I didn't do anything else."

And he said, "well, you've as good as signed it," and the probation officer followed his recommendation.

(Pet. Exhibit 2 at 15-16.)

Petitioner was indicted for the February 5, 1976 murder, rape and robbery of Maryanne Jacob. A separate count charged in the indictment alleged that he had also committed the December 22, 1975 forcible rape. (Pet. Exhibit 1 at 105-07.) Petitioner entered pleas of not guilty and not guilty by reason of insanity. He was found sane and convicted of first-degree robbery, first-degree murder, and the forcible rape of Jacob. (Id. at 49-51.) On the prosecutor's motion, the count alleging the unrelated December 1975 forcible rape was dismissed. (Id. at 164.) Petitioner was thus convicted of the offenses he committed against Jacob only.

Petitioner was sentenced under California's Indeterminate Sentencing Law to an indeterminate life term on the murder count. The sentences on the rape and robbery counts were stayed pending completion of the murder sentence. (Pet. Exhibit 1 at 88-91.) Petitioner was received in the state prison on April 5, 1977. (Id. at 2-4.) His minimum eligible parole date passed on February 5, 1983. (Id. at 245.) On October 19, 2005, the Board of Parole Hearings conducted the subsequent parole suitability hearing at issue and once again found him unsuitable for parole. Petitioner raised his claim arising from the Board's denial with the California Supreme Court. That petition was denied on July 18, 2007.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under ...


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