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Arzaga v. Hartley

September 4, 2009

JAVIER ARZAGA, PETITIONER,
v.
J. HARTLEY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gary S. Austin 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 plea of nolo contendere on January 21, 1988, to second degree murder in violation of Cal. Penal Code § 187. See Petition at 2. Petitioner was sentenced to serve an indeterminate term of fifteen years to life in state prison with the possibility of parole. Id.

On February 5, 2008, a subsequent 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 Exhibit 1 of Answer (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 four years. Id. at 55.

On September 3, 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 November 4, 2008, the petition was denied in a reasoned decision. Id. Petitioner then filed a habeas petition in the California Court of Appeals, Second Appellate District, on December 5, 2008. See Answer, Exhibit 2. The petition was denied on December 15, 2008. Id. Petitioner then filed a petition for review in the California Supreme Court. See Answer, Exhibit 3. On February 11, 2009, the petition was denied. Id.

On April 6, 2009, Petitioner filed the instant petition for writ of habeas corpus in this Court. The petition for writ of habeas corpus challenges the 2008 decision of the Board denying parole. Petitioner contends there is no evidence to show he is currently a dangerous risk to society. He further contends there is no evidence to support the multi-year denial. He also claims the Board was not fair and impartial. Finally, he claims the Board continues to rely on immutable factors to deny him parole in violation of his constitutional rights. On June 23, 2009, Respondent filed an answer to the petition. Petitioner filed a traverse to Respondent's answer on July 9, 2009.

FACTUAL BACKGROUND*fn1

On July 24, 1987, Petitioner, along with several co-defendants, went to the residence of Carl Wagner in a pick-up truck. One of the co-defendants, Sara Stratford, had told Petitioner and others about a prior incident. According to Stratford, Wagner had jumped her over a dispute involving five dollars. Upon hearing her story, the others became enraged and went to Wagner's residence to beat him up. Hamilton was driving. Stratford and Walsh were in the front passenger seat; Petitioner and Reyes were seated in the truck bed. They passed by Wagner's residence several times. At one point, witnesses heard the sound of a gun being fired. When Petitioner saw Lawrence Pirrone, the victim, and Carl Wagner, the witness, leave the residence in Wagner's vehicle, Petitioner and the co-defendants followed. When Wagner's vehicle pulled onto Highway 71 with Pirrone driving and Wagner sitting in the front passenger seat, Petitioner and the co-defendants pulled alongside, shouted obscenities, and started shooting. Pirrone was shot. Wagner gained control of the vehicle as the defendants fled the scene at a high rate of speed. Upon arrival of the police, Pirrone was transported to Pomona Hospital where he died from his wounds shortly after 9:00 p.m.

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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