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Moreno v. Hartley

August 31, 2009

ABEL MORENO, PETITIONER,
v.
JAMES HARTLEY, WARDEN, 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 on February 19, 1997, of assault with a caustic chemical, child abuse, conspiracy to torture, conspiracy, and aggravated mayhem. See Petition at 2. Petitioner was sentenced to serve an indeterminate term of life in state prison plus one year and four months with the possibility of parole. Id.

On May 3, 2007, a parole suitability hearing was held before the California Board of Parole Hearings ("Board") to determine Petitioner's eligibility for parole. See Hearing Transcript attached to Petition (hereinafter "Transcript"). 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 two years. Id. at 88.

On May 12, 2008, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the Board's decision. See Answer, Exhibit 1. On July 23, 2008, the petition was denied in a reasoned decision. See Answer, Exhibit 2. Petitioner then filed a habeas petition in the California Court of Appeals, Second Appellate District, on September 18, 2008. See Answer, Exhibit 3. The petition was denied on November 6, 2008. See Answer, Exhibit 4. On November 20, 2008, Petitioner filed a petition for review in the California Supreme Court. See Answer, Exhibit 5. On January 14, 2009, the petition was denied. See Answer, Exhibit 6.

On March 18, 2009, Petitioner filed the instant petition for writ of habeas corpus in this Court. The petition for writ of habeas corpus challenges the 2007 decision of the Board denying parole. Petitioner claims there is not "some evidence" to show he is currently a dangerous risk to society, and the Board's continued reliance on the commitment offense and circumstances surrounding the commitment offense violates the Fifth and Fourteenth Amendments. On July 14, 2009, Respondent filed an answer to the petition. Petitioner filed a traverse to Respondent's answer on August 14, 2009.

FACTUAL BACKGROUND*fn1

On August 5, 1995, at approximately 2:30 p.m., Roumelia Hernandez was waiting at a bus stop at the corner of Gage and Cesar Chavez with her son, Abel Ordaz. Abel was six or seven years old. The two had just parted from Petitioner, who was Abel's father.

Hernandez and Petitioner had lived together until December, 1994, when they separated. After he moved out of Hernandez's home, Petitioner twice tried to harm Hernandez, once by putting a rag soaked in chemicals under her nose, and once by hitting her on the back of her head with an unknown object, which split her head open and required 14 stitches to close. The two nevertheless maintained some contact because of their son. The met on August 5th because Petitioner wanted to buy some shoes for Abel.

As a bus approached the stop where Hernandez and Abel were waiting, a man by the name of Savala ran in front of the bus forcing the bus driver, Janet Mitchell, to brake to avoid hitting him. Savala was holding a 16-ounce clear tumbler in his hand. Mitchell stopped the bus and opened the door. As Hernandez and Abel began to board the bus, Savala threw a liquid into Hernandez's face. Mitchell realized the liquid was acid when she saw the damage to Hernandez's face. The acid was eating through Hernandez's clothes. In addition, some of the acid had splashed onto Abel's arm and shirt. Hernandez and Abel began screaming in pain. Mitchell saw Savala throw the tumbler in a trash can and run away.

Salvador Escobar was driving on Cesar Chavez and also saw Savala throw something into a trash can and run away. Escobar heard a scream, saw a woman with red substance resembling blood on her face and decided to follow Savala. Escobar caught up with him and subdued him with the help of two other men.

Abel left and returned with Petitioner, who put his coat around Hernandez. Petitioner also poured water onto Hernandez's face. Paramedics took Hernandez and Abel to the hospital. Sheriff's deputies arrested Savala and recovered a plastic tumbler containing a small amount of liquid from the nearby trash can.

Mitchell later identified Savala as the man who threw the liquid on Hernandez's face. The liquid was later determined to be sulfuric acid. Hernandez was shown a six-pack photograph line-up while in the hospital, and identified Savala as the man who threw the acid on her.

The incident was also witnessed by Jose Espinoza, who worked in a nearby television shop. He saw Savala approach a bus and throw the contents of a brown paper bag into the face of a woman, then throw the bag into a trash can and run away. Espinoza went to the scene and saw Petitioner with whom he had once worked, and Petitioner was throwing water on Hernandez's face.

Espinoza later told police that about three months before the incident, Petitioner had attempted to hire three homeless people to throw acid on Hernandez. Espinoza testified that Petitioner said that he wanted to throw acid on her in order to get her money. Espinoza also testified that Petitioner said that he had ...


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