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Moore v. Hartley

August 2, 2009

LAPEER MOORE, PETITIONER,
v.
JAMES D. HARTLEY, WARDEN RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 1]

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

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation for his convictions of second degree murder, arson, and use of a knife during the commission of the crimes. Petitioner is serving an indeterminate term of twenty four years to life.

In the instant petition for writ of habeas corpus, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings' (hereinafter "Board") July 30, 2007 decision finding him unsuitable for parole.*fn1

Petitioner filed a petition for writ of habeas corpus in the San Diego County Superior Court challenging the Board's decision. (Exhibit 1, to Answer.) The superior court denied the petition finding there was some evidence to support the finding that Petitioner was not suitable for release on parole. (Exhibit 2, at 4, to Answer.)

Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal, Fourth Appellate District. (Exhibit 3, to Answer.) The petition was denied for failure to provide an adequate record for review, with citation to People v. Duvall, 9 Cal.4th 464, 474 (1995). (Exhibit 4, to Answer.)

Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was summarily denied. (Exhibit 5, to Answer; Exhibit 11, to Petition.)

Petitioner filed the instant federal petition for writ of habeas corpus on March 16, 2009. (Court Doc. 1.) Respondent filed an answer to the petition on June 9, 2009, and Petitioner filed a traverse on July 20, 2009. (Court Docs. 11 & 13.)

STATEMENT OF FACTS*fn2

In the early morning hours of April 4, 1989, Petitioner stabbed his cousin, Angelique Dhue, twenty-two times and ignited her apartment on fire. After receiving two Crime Stopper Tip information sheets, police contacted and interviewed Petitioner on the evening of April 4, 1989. Petitioner gave numerous conflicting stories about his contact with the victim and the events leading up to her death. Petitioner initially claimed that he went to the victim's apartment, which was located upstairs from the apartment he shared with his girlfriend, Regina Sonders, the evening before the murder. He claimed that he and the victim shared some drugs, and then returned home. He went back to the victim's apartment a short time later to borrow $50 for more drugs. Petitioner initially indicated that the victim was extremely agitated and depressed, threatened suicide, was behaving crazy, and he had no involvement with her death. He also denied any involvement or knowledge of the fire in her apartment.*fn3

Petitioner finally admitted to investigators that he went to the victim's home at approximately 4:00 a.m. on April 4, 1989. He borrowed some money from her for drugs, went out and bought it, and then returned to her apartment where they shared the drugs. Petitioner then indicated that the victim became angry, demanded the return of her money, and got a knife from her kitchen and approached him. A struggle ensued and Petitioner grabbed the victim and threw her down. Petitioner admitted that he stabbed the victim once in the neck with the knife, and it was bleeding profusely. He left the apartment between 5:00 and 6:00 a.m., and turned on the gas. He returned to his apartment and was unable to sleep. He admitted that he threw his clothes in the dumpster behind the nearby apartment, but denied setting the fire or buying any gas. Petitioner claimed that he went to check on the victim at his girlfriend's request and when he approached her apartment an explosion occurred and he left.

The autopsy report found that the victim suffered a total of twenty-two stab wounds, three superficial stab wounds to the chin, sixteen wounds to the neck with penetrations in the hypo thorax, carotid cartilage, left carotid artery, left jugular vein, one stab wound in the upper left chest penetrating the left lung, and a stab wound to the right breast. In addition, there was small abrasions to the victim's left knee and hand, contusions to the left lateral knee and right interior thigh, singeing of her hair, and soot deposit on her skin. The cause of death was multiple stab wounds. There was semen found on a vaginal swab taken from the victim, and upon testing Petitioner could not be excluded as the individual depositing the semen.

DISCUSSION

I. Standard of ...


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