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Carey v. Sisto

September 22, 2009

RICHARD H. CAREY, PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Richard Carey is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Carey challenges the March 9, 2006, decision by the Board of Parole Hearings (hereinafter Board) finding him unsuitable for parole. Upon careful consideration of the record and the applicable law, the undersigned will recommend that this petition for habeas corpus relief be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

The Board recited the facts of Carey's commitment offense as follows: PRESIDING COMMISSIONER FARMER: The summary in the Board report reads as follows,

"On November 17th, 1994, at approximately 10:30 p.m. the subject had an argument with the victim and then left the victim's residence. Subject later returned to the residence and attacked the victim. Using a clawed framing hammer, he struck the victim in the head and facial area numerous times. After the assault, subject robbed the victim of 17 dollars, the victim's handgun, and fled the scene in the victim's car. The subject later returned, I assume it's to the victim's residence, at approximately 7:00 a.m. on November 18th, 1994. The subject then fled the scene again without administering aid or assistance to the victim. The subject turned himself in to the sheriff's office later that day and confessed to the crime. As a result of the assault, the victim suffered extensive injuries. The injuries included a depressed skull fracture, severe permanent disfigurement to his right ear and left side of his face. His right ear had to, his right ear had to be amputated. The victim was left with extensive deep scarring to the right side of his facial and head area. He experienced paralysis to his left side due to severe neurological damage to the right side of his brain. He sustained severely impaired oral motor movements. The victim endured facial reconstructive and neurological surgery. His surgeon, Dr. F. Mantzmaxillo, spelled M-AN-T-Z-M-A-X-I-L-L-0, was quoted as describing the victim's injuries as the worst depressed skull fracture he had seen in 20 years of practice where the patient survived the injuries."

And again, that comes from, that summary is obtained from the probation report. The prisoner's version is then summarized from that same report in the Board report as follows. . . .

"He stated that after having an argument with the victim, he felt that a physical confrontation was about to ensue. He grabbed a hammer and hit the victim with it. After realizing what he had done, he fled the scene of the crime. He claims that he went back to the scene of the crime to check on the victim, but quote, 'freaked out,' closed quote, all over again when he entered the house. He claims that he wanted to commit suicide over what he, I assume, [did] to his friend but could not go through with it. He then surrendered himself to authorities. Subject says that he takes full responsibility for the crime and contributes his state of mind at the time of the crime to his alcohol and drug abuse, drug use, I'm sorry."

Docket Number 23 ("DN 23"), transcript of the Board's March 9, 2006 hearing, at 21-23.

Carey was convicted of aggravated mayhem and sentenced to a term of seven years to life. Answer, Exhibit at 116. On March 9, 2006, the Board held Carey's Subsequent Parol Consideration Hearing. DN 23 at 4. At the conclusion of that hearing the Board found him unsuitable for parole. DN 23 at 85.

B. Habeas Review

On or about October 15, 2006, Carey filed a petition for writ of habeas corpus in the Tuolomne County Superior Court. Answer, Ex. at 2-13. That petition was denied on November 22, 2006, in a brief but reasoned opinion. Answer, Ex. at 68-69. Carey then filed a petition in the California Court of Appeal, Third Appellate District on December 27, 2006. Id. at 71. That petition was denied on May 3, 2007, in a short but reasoned opinion. Id. at 143. Carey next filed a petition for review in the California Supreme Court on May 11, 2007. Id. at 151. That petition was summarily denied on June 13, 2007. Id. at 160. Finally, Carey filed this federal petition on August 10, 2007.

III. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW

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. SeePeltier 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. SeeEstelle 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 denovo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). SeeLindh 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.

28 U.S.C. § 2254(d). SeealsoPenry 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).

IV. DISCUSSION OF PETITIONER'S CLAIM

All of Carey's arguments rely on a claim of the denial of Constitutional due process.*fn1

1) Description of Claim

Carey argues that the Board's decision violated his right to due process because it was based solely on the circumstances of the commitment offense, was not supported by some evidence, and did not reflect an "individualized consideration of the specified criteria." Petition at 5-6.

2) State Court Opinion

The Tuolomne County Superior Court rejected this claim finding that Carey's "contention is not supported by the transcript of the hearing." Answer, Ex. at 138. That holding was affirmed by the California Court of Appeal which stated that "the record, as presently ...


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