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Dana v. Schwartz

August 17, 2009



Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 7, 1977, petitioner was convicted in the Sutter County Superior Court of two counts of first degree murder (California Penal Code § 187) with the use of a firearm and was sentenced to state prison for life with possibility of parole after seven years. (Pet. at 2; Answer at 1.) In the petition now pending before this court, petitioner challenges the March 10, 2004 decision of the California Board of Prison Terms (hereinafter, the "Board")*fn1 finding him unsuitable for parole. (Pet. at 3-6.) Upon consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.


On March 10, 2004, petitioner appeared before the Board for his eighth subsequent parole consideration hearing and was found unsuitable for parole. (Pet., Ex. B.) Petitioner had previously received parole consideration hearings in 1982, 1983, 1986, 1989, 1994, 1995, 1997, and 2001. (Id.)

On July 26, 2004, petitioner challenged the Board's 2004 decision through a habeas petition filed in the Sutter County Superior Court, raising the same issues asserted in the instant petition. (Pet. at 6-10; Answer at 2-3.) On August 5, 2004, the Superior Court issued a reasoned opinion affirming the Board's decision and denying the petition. (Answer, Ex. 3.)

On December 2, 2004, petitioner filed an application for writ of habeas corpus to the California Court of Appeal for the Third Appellate District. (Pet. at 7.) On February 17, 2005, the appellate court summarily denied the petition. (Answer, Ex. 4.)

On February 15, 2005, petitioner sought review of the denial to the California Supreme Court and his petition for review was summarily denied on February 25, 2005. (Pet. at 7; Answer, Ex. 5.)

Petitioner filed the instant application for a federal writ of habeas corpus on July 17, 2005. (Docket No. 1.)*fn2


I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief::

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

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).

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). Here, the last reasoned state court decision is the August 5, 2004 denial of habeas corpus relief by the Sutter County Superior Court. Therefore, this court will consider whether that decision was erroneous under the standard of § 2254(d).

II. Petitioner's Claims

Petitioner alleges that the Board's March 10, 2004 denial of parole violated his right to due process under the United States Constitution. (Pet. at 10.) Additionally, petitioner alleges that the Board's "application of the Determinate Sentence Law...violat[ed] the prohibitions against Ex Post Facto laws insofar as the application has deprived him of the substantive benefits of the former ...

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