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Bello v. Sisto

August 24, 2009

ALEJANDRO BELLO, PETITIONER,
v.
D.K. SISTO, WARDEN, ET AL., RESPONDENTS.



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

REPORT AND RECOMMENDATION

I. SUMMARY

Petitioner is currently incarcerated at the California State Prison, Solano in Vacaville, California. He pled guilty to one count of attempted murder in the first degree in Fresno County Superior Court on October 1, 1993. He is currently serving a sentence of life with the possibility of parole and has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2006 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Docket 1.) Specifically, petitioner contends his Fourteenth Amendment due process rights were violated both when the Board failed to abide by the terms of his plea agreement and when it denied him a parole release date based upon insufficient evidence. Respondent has filed an answer to the petition, together with relevant portions of the state court record, and petitioner has filed a traverse in reply to the answer. (See Dkts. 5 & 6.) The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and the briefing of both parties, recommends the Court deny the petition and dismiss this action with prejudice.

II. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this amended petition as 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). It is also appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See Williams, 529 U.S.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 normally looks to the last reasoned state court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). Where, as in this case, the state court's decision only addresses some of the claims, this Court must conduct an independent review of the record to determine whether the state courts' decisions with regard to the unaddressed claim was contrary or involved an unreasonable application of Supreme Court holdings. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). Although our review of the record is conducted independently, we continue to show deference to the state court's ultimate decision. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

III. PRIOR STATE COURT PROCEEDINGS

The petition in this case presents two claims for relief. (See Dkt. 1 at 5-1.) Respondent states that petitioner has properly exhausted his state court remedies and timely filed the instant petition with regard to both claims. (See Dkt. 5 at 3.) Although the state courts did not address petitioner's plea agreement claim, it is clear from the record that these claims were exhausted as they were properly presented to the state's highest court. (See id., Exhibit 8.) See 28 U.S.C. § 2254(b)(3); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[s]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"); see also Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (holding that California law requires presentation of claims to the California Supreme Court through petition for discretionary review in order to exhaust state court remedies).

Typically, this Court looks to the state court's orders upholding the Board's decision to determine whether they meet the deferential AEDPA standard. See Ylst, 501 U.S. at 803-04. In this case, the Fresno County Superior Court issued a thorough decision regarding petitioner's claim that the Board's decision violated his due process rights by relying upon immutable factors. (See Dkt. 5, Exh. 5.) The superior court failed to address his plea agreement claim, however. (See id.) As discussed supra, when a state court issues a decision on the merits but does not provide a reasoned decision, we review the record independently to determine whether that decision was objectively reasonable. See Delgado, 223 F.3d at 982. Accordingly, this Court must conduct an independent review of petitioner's plea agreement claim. Although our review of the record is conducted independently, we continue to show deference to the state court's ultimate decision. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

IV. BACKGROUND

The probation officer's report, upon which the Board relied, summarized the facts of the crime in this case as follows:

On July the 8th, 1993, at about 8:00 p.m., Fresno police were dispatched to an area regarding a gunshot victim. They arrived and observed the victim lying on his back on the sidewalk adjacent to a residence, [who] appeared to be conscious. His eyes were open, his arms were moving. There was a crowd there. The officers interviewed several people in the crowd, and the victim was bleeding from his head. Apparently the officers came up with some witnesses that said that this inmate had fired at least two shots in the direction of the victim, and the victim fell to the ground. The inmate then ran from the scene and was subsequently arrested, and the weapon was found fully loaded except for two spent casings. Inmate was positively identified as the shooter. (Dkt. 5, Exh. 2 at 9-10.) The victim survived the shooting, but was partially paralyzed by his injuries.

Petitioner pled guilty to attempted murder on October 1, 1993, in Fresno County Superior Court. (See id., Exh. 1.) He began serving his sentence of life with the possibility of parole on December 15, 1993. (See id., Exh. 2 at 1.) His minimum eligible parole date was set for May 15, 2000. (See id.) Petitioner was nineteen-years-old when he committed this offense. He has been incarcerated for approximately sixteen years.

The parole denial, which is the subject of this petition, followed a parole hearing held on September 20, 2006. Petitioner was represented by counsel at the hearing and chose not to discuss the factual circumstances surrounding the offense. This was petitioner's third subsequent parole consideration ...


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