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Ramos v. Carey

August 6, 2009

LINO RAMOS, PETITIONER,
v.
TOM L. CAREY, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding with counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are Petitioner's petition for a writ of habeas corpus (Doc. 1), Respondent's response (Doc. 13), and Petitioner's traverse (Doc. 22).*fn1

I. BACKGROUND

Petitioner pleaded guilty to second degree murder and was sentenced on July 12, 1991, to a total term of 17 years to life. Petitioner states his minimum eligible parole date was June 2, 2001. He had his initial parole consideration hearing on January 11, 2001. The Board of Prison Terms ("Board") denied Petitioner a parole release date for three years. He did not appeal that initial decision. Petitioner appeared before the Board for his first subsequent parole consideration hearing on May 25, 2004. Petitioner was again denied a parole release date for another three years. The 2004 parole denial is the subject of the current petition.

In it's decision, the Board denied Petitioner parole for three years citing the following reasons: (1) the facts of Petitioner's commitment offense; (2) Petitioner's prior criminal and social history; (3) Petitioner's prison disciplinaries and failure to program; and (4) Petitioner's unfavorable psychological report. Specifically, the board found:

Since his last hearing the prisoner has received additional disciplinaries. Sexual misconduct on 8-29; 3-4-02 for smoking in a State building; possession of dangerous contraband on 3-29-01 and an array of 128's. So certainly his behavior have (sp) not been the best. . . . The psychological report dated 3-19-04 by Dr. Van Couvering is not supportive of release at this time -- rates the prisoner as a moderate degree of threat to the public. (Board Decision at 3 (attached to Answer, Ex. B, parole hearing transcript at 43))

Petitioner filed a petition for a writ of habeas corpus in the Alameda County Superior Court challenging the 2004 denial of parole. In a decision denying the petition, the state court found the

[p]etition fail[ed] to state a prima facie case for relief. Even though Petitioner has submitted documents in support of his Petition, review of the transcript and documents pertaining to the May 25, 2004 hearing, indicate that there was no abuse of discretion by the Board of Prison Terms. The record presented to this Court for review demonstrates that there was certainly some evidence, including, but not limited to the committing offense, Petitioner's disciplinary record, and Petitioner's participation in rehabilitation programs, to support the Board's decision. There is nothing in the record that indicates that the Board's decision was arbitrary or capricious, nor the Petitioner's equal protection or due process rights were violated. (Response, Exhibit E).

Subsequent habeas petitions challenging the denial of parole were denied by the California Court of Appeal and California Supreme Court without comment or citation. Respondent concedes that Petitioner's claims are exhausted.

II. STANDARDS OF REVIEW

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.

Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is not available for any claim decided on the merits in state court proceedings unless the state court's 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 presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F. 3d 1223, 1229 (9th Cir. 2001). Thus, under § 2254(d), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412) . "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial ...


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