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Scott v. Hartley

August 12, 2009

HOWARD SCOTT, PETITIONER,
v.
JAMES HARTLEY, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder 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 jury trial of second degree murder in violation of Cal. Penal Code § 187, with enhancements for firearm use and a prior serious felony. See Respondent's Answer to Petition ("Answer"), Exhibit 1. On January 12, 1987, Petitioner was sentenced to serve an indeterminate term of twenty-two years to life in state prison with the possibility of parole, to run concurrently with his 1984 conviction for armed robbery. See Answer, Exhibits 1, 2.

On February 8, 2007, a parole suitability hearing was held before the California Board of Parole Hearings ("Board") to determine Petitioner's eligibility for parole. See Answer, Exhibit 3 at p. 23. Petitioner attended the hearing and was represented by his attorney. Id. At the conclusion of the hearing, the Board denied parole and deferred rehearing for one year. Id. at 115.

On June 5, 2007, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the Board's decision. Id. On July 18, 2007, the petition was denied in a reasoned decision. See Answer, Exhibit 4. On August 10, 2007, Petitioner filed a habeas petition in the California Supreme Court. See Answer, Exhibit 5. The petition was summarily denied on January 30, 2008. See Answer, Exhibit 6.

On December 8, 2008, Petitioner filed the instant petition for writ of habeas corpus in the United States District Court for the Central District of California. The petition was transferred to this Court on December 17, 2008. The petition challenges the 2007 decision of the Board denying parole. Petitioner contends the denial of parole violates his due process rights, because the decision was not supported by some evidence. On March 16, 2009, Respondent filed an answer to the petition. Petitioner did not file a traverse.

FACTUAL BACKGROUND*fn1

Petitioner and the victim knew each other and were friends. The victim also sold drugs for Petitioner on a part-time basis. On January 13, 1986, Petitioner and the victim had begun arguing near the location of the victim's residence at 97th West 253rd Street, Harbor City, California. Petitioner was angry because the victim had been using the drugs instead of selling it. Witnesses indicated that the victim pulled a three-inch blade knife on Petitioner. Petitioner then obtained a .25-caliber handgun and fired four shots in the air. The victim ran to a staircase leading to his residence approximately five feet away, went to the top and stood there. Petitioner approached the victim, stood at the bottom of the stairs and yelled at him. Petitioner then aimed the gun at the victim. The victim turned so that his right side was facing Petitioner. Petitioner then held the gun to the victim's head for approximately 15 to 30 seconds and then fired one shot striking the victim in the head. The victim died on January 17, 1986, as a direct result of a gunshot wound to the head.

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 state prisoner in custody pursuant to a state court judgment, even when the petition is not challenging [her] underlying state court conviction.'").

The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "resulted in a decision that was based on an unreasonable determination of the facts in light ...


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