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Hern v. Marshall

September 11, 2009



Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in May 1985 of first degree murder and robbery with an enhancement for use of a firearm. He also admitted a prior serious felony conviction. Petitioner claims that he received ineffective assistance of trial and appellate counsel in connection with the sentencing proceedings that followed his trial. Petitioner also claims that the sentenced he received "caused him not to attend" several parole hearings which violated his right to due process by denying him opportunities to be found suitable for parole. Petition, filed November 7, 2006, at 6f.


In May 1985 petitioner was convicted in Tehama County Superior Court of first degree murder and robbery, with enhancements for use of a firearm, and he admitted a prior serious felony conviction. On July 15, 1985, the trial court sentenced petitioner to twenty-five years to life in prison plus five years for the first degree murder conviction and admitted prior felony conviction, and six years in prison plus a consecutive two year term for the robbery conviction and the firearm enhancement. Reporter's Transcript of Proceedings (RT) at 2747. The court struck a further two year sentence for the firearm enhancement found by the jury on the murder conviction. Id.

Petitioner filed several petitions for post-conviction relief in the state courts, all of which were denied with the exception of a petition for writ of habeas corpus filed in the California Supreme Court in November 2002. In that petition, petitioner claimed that the trial court's imposition of the six year sentence on the robbery conviction violated the proscription against "double punishment" set forth in California Penal Code § 654. Lodged Document 19, Petition for Writ of Habeas Corpus filed in the California Supreme Court on November 14, 2002, at 1. On March 30, 2004, the California Supreme Court issued an order to the Director of the California Department of Corrections to show cause "why petitioner is not entitled to the relief requested, as conceded by the Attorney General in his information opposition filed May 28, 2003." Lodged Document 20, Order of the California Supreme Court (en banc) filed March 30, 2004.

On May 3, 2004, petitioner appeared in the Tehama County Superior Court following issuance of an order by the California Supreme Court.*fn1 At that hearing, the court stayed the six year sentence for robbery and the two year enhancement. RTA at 5-6. The court confirmed the sentence of twenty-five years to life and the five year sentence enhancement. Id. On a subsequent appeal, the state court of appeal directed the clerk of the superior court "to amend the abstract of judgment to reflect that the five-year enhancement was imposed pursuant to section 667, subdivision (a) and to send a certified copy of said amended abstract to the Department of Corrections" and otherwise affirmed the judgment. People v. Hern, No. C047016, slip op. at 2-3.


I. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court 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 unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). 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 ...

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