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Kane v. Finn

August 7, 2009


The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge



Petitioner Morgan Kane, also known as John Wetmore,*fn1 is currently incarcerated at the Deuel Vocational Institution in Tracy, California. He pled guilty to one count of first degree murder, two counts of forgery, and one count of attempted forgery in Fresno County Superior Court on January 17, 1984, and was sentenced to twenty-seven-years-to-life with the possibility of parole. (See Dkt. 1, Ex. A at 1-2.) He has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging the 2005 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn2 Respondent has filed an answer to the petition together with relevant portions of the state court record, and petitioner has filed a traverse in response to the answer. The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends the petition be denied and this action be dismissed with prejudice.


In July 1983, petitioner was involved in a failed attempt to cash a forged check at the First Interstate Bank of California on the account of Stanley John Kearns, petitioner's disabled step-father. (See Dkt. 1, Ex. B at 9; id., Ex. C3 at 8.) Petitioner was also involved in cashing two forged checks in the amounts of $230 and $170 on Mr. Kearns' account. (See id., Ex. B at 9; id., Ex. C3 at 8.) Shortly after the forgeries, petitioner was involved in the poisoning of Mr. Kearns, which resulted in his death. (See id.)

Petitioner elected not to discuss the circumstances of the murder offense with the panel during the 2005 hearing. (See id., Ex. B at 11.) As a result, the Board relied upon a synopsis of the offense written by petitioner, and kept in his central file at the prison. (See id. at 9.) Petitioner's version of the crime is therefore as follows.

After returning home from work on July 13, 1983, petitioner discovered the body of the victim, Mr. Kearns, on the living room floor of his house. (See id., Ex. B at 9-10.) Petitioner claims that he had a strained relationship with the victim, who had been arrested on a prior occasion for hitting petitioner's step-sister, Jackie. (See id. at 10.) Because of petitioner's history of verbal and physical confrontation with the victim, petitioner's first thought when he discovered the body was to get it away from his home. (See id.) He was attempting to put the body in a sleeping bag when his wife, Sandra, arrived home from dropping their son at a friend's house. (See id.)

Sandra told petitioner she had invited the victim over for dinner. (See id.) Petitioner claims the victim, who trusted Sandra, had previously shown her a purchase he had made of potassium cyanide in order "to settle scores with a number of people." (Id.) Sandra knew the victim carried asthma medication in capsule form. (See id.) When the opportunity presented itself, she emptied asthma capsules and filled them with potassium cyanide. (See id.) The victim took a capsule after dinner, just as Sandra expected he would, although it surprised her when he quickly collapsed. (See id. at 11.) She was unable to lift and conceal the body without assistance, which was why she had left the body in the living room while she drove her son to a friend's house. (See id.) Petitioner did not attempt to explain Sandra's motive for poisoning the victim.

Petitioner and Sandra then worked together to conceal the crime. After placing the body in the sleeping bag, they lifted it onto the bed of their pickup truck and drove the body to a remote location in South Fresno to dispose of it. (See id.) When the couple realized they had forgotten to bring a shovel to bury the body, they began to argue, attracting the attention of a nearby homeowner. (See id.) After driving around for a while, petitioner and his wife eventually dumped the body behind some crops in a field. (See id.) Petitioner placed a piece of paper with his name and number in the victim's wallet as someone to be notified "in case of emergency," and petitioner and Sandra were subsequently notified of the victim's death. (See id.) The toxicology report confirmed that cyanide was present in the victim's blood at levels that could cause death. (See Dkt. 12, Ex. D at 6.)

Contrary to petitioner's account of the crime, the probation officer's report provides that petitioner, Jackie, and Sandra worked together as crime partners to cash the forged checks drawn on the victim's account, and poison the victim in order to obtain the proceeds of his life insurance policy. (See id. at 3-4.) Jackie was the named beneficiary of the victim's policy. (See id. at 6;Dkt. 1, Ex. C3 at 8.) According to Jackie, the victim was poisoned by Sandra and petitioner in order to help her obtain the policy proceeds, and petitioner had told Jackie he expected to receive $33,000 of her inheritance. (See Dkt. 12, Ex. D at 6.)

Petitioner pled guilty to one count of attempted forgery, two counts of forgery, and one count of first degree murder in Fresno County Superior Court on January 17, 1984. (See Dkt. 1, Ex. A at 1-2.) Petitioner's minimum eligible parole date was set for April 8, 2000. (See id., Ex. B at 1.) The parole denial which is the subject of this petition took place after a parole hearing held on November 9, 2005. (See id.) This was petitioner's third parole consideration hearing. (See id., Exs. C1-C3.) Petitioner committed the offenses when he was twenty-three years of age. (See id., Ex. C1 at 1.) As of the date of the 2005 parole hearing, petitioner was fifty-one-years-old, and had been in custody for approximately twenty-one years. (See id., Ex. B at 1; id., Ex. C3 at 1.)

After denial of his 2005 application, petitioner filed habeas corpus petitions in the Fresno County Superior Court, California Court of Appeal, and California Supreme Court. (See id., Exs. G, I, and L.) Those petitions were unsuccessful. (See id., Exs. G, I, and L.) This federal habeas petition followed. Petitioner contends the 2005 denial by the Board violated his Fifth and Fourteenth Amendment Due Process rights. Thus, petitioner does not challenge the validity of his conviction, but instead challenges the Board's 2005 decision finding him unsuitable for parole.


The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. denied, 543 U.S. 991 (2004) (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction."). Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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)(1) and (2).

As a threshold matter, this Court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

The Court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be [objectively] unreasonable." Id. at 411.

In each case, the petitioner has the burden of establishing that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).

Finally, AEDPA requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. Woodford, 255 F.3d 926, 964 ...

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