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Lopez v. Schwarzenegger

August 14, 2009

ANDREW LOPEZ, PETITIONER,
v.
ARNOLD SCHWARZENEGGER, 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 Stanislaus, following his conviction by jury trial on December 13, 1991, of second degree murder in violation of Cal. Penal Code § 187, with enhancement for use of a knife. See Respondent's Answer to Petition ("Answer"), Exhibit A. On June 12, 1992, Petitioner was sentenced to serve an indeterminate term of seventeen years to life in state prison with the possibility of parole. Id.

On August 1, 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 B, Appendix A at p. 1. 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 five years. Id. at 56.

On March 6, 2008, Petitioner filed a petition for writ of habeas corpus in the Stanislaus County Superior Court challenging the Board's decision. Id. On April 1, 2008, the petition was denied in a reasoned decision. See Answer, Exhibit C. On April 15, 2008, Petitioner filed a habeas petition in the California Court of Appeals, Fifth Appellate District. See Answer, Exhibit D. The petition was summarily denied on April 25, 2008. See Answer, Exhibit E. Petitioner then filed a habeas petition in the California Supreme Court on May 7, 2008. See Answer, Exhibit F. The petition was summarily denied on October 28, 2008. See Answer, Exhibit G.

On October 29, 2008, Petitioner filed the instant petition for writ of habeas corpus in this Court. The petition challenges the 2007 decision of the Board denying parole. Petitioner contends the decision was not supported by some evidence. He further contends he received ineffective assistance of counsel. He also alleges the panel was partial and unfair. Last, he takes issue with the Board's decision to deny rehearing for five years. On March 30, 2009, Respondent filed an answer to the petition. Petitioner filed a traverse on April 22, 2009.

FACTUAL BACKGROUND*fn1

On June 25, 1991, at approximately 11:00 p.m., the Stanislaus County Sheriff's Department was notified of a disturbance involving an assault in the area of East Zeering and Gratton Road in the city of Denair. Upon arriving at the location, deputies conducted an examination of the area and they quickly detected the presence of an injured male adult, later identified as James Turnbough, lying on the westbound lane of East Zeering Road. As deputies approached Mr. Turnbough, they observed the victim to be bleeding profusely from wounds to the upper torso. Emergency medical personnel arrived at the scene and transported the victim to Memorial North Hospital in Modesto. Shortly after arriving at the hospital, the victim was pronounced dead due to stab wounds to the stomach, chest, and back.

Immediate and subsequent investigation by the Stanislaus County Sheriff's Department personnel was conducted and revealed the following information surrounding the death of James Turnbough. On June 25, 1991, the victim was involved in a verbal and physical altercation with Johnny Amaral, at the Denair Community Center located on Alameda Street in the city of Denair. A physical altercation which involved a fist fight between the two parties continued until Petitioner intervened and separated the two combatants. The victim and Amaral separated for a brief period of time and after an exchange of verbal threats an additional physical encounter began. Information suggests that as the physical altercation continued, Petitioner approached the victim from the rear. Petitioner then joined Amaral in the assault and at this time Petitioner began striking the victim on the back, stomach, and chest with a sharp object. The altercation ultimately came to an end and Petitioner and Amaral fled the area.

On June 26, 1991, an autopsy of the victim was performed. The results of the examination revealed the victim was stabbed a total of 13 times with a sharp, single-edged knife. The cause of death was determined to be stab wounds to the chest. Investigative results indicate that Petitioner, Amaral, and several other individuals fled in the vehicle after the incident. During the flight, Petitioner was questioned by associates about the incident and the use of the knife. Information suggests that upon being confronted, Petitioner exclaimed, "If anybody fucks with my family members, I'll stab them. I don't care."

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 ...


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