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Claiborne v. Carey

September 30, 2009



Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for three years at his initial parole consideration hearing held on April 14, 2004, violated his federal constitutional right to due process. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.


Petitioner is confined pursuant to a judgment of conviction entered in the Solano County Superior Court in 1995. (Answer, Ex. 1.) A jury found petitioner guilty of second degree murder, in violation of California Penal Code § 187, and first degree burglary, in violation of California Penal Code § 459. (Id.) On November 27, 1995, petitioner was sentenced to state prison for a term of fifteen years to life with the possibility of parole. (Id.)

Petitioner's initial parole consideration hearing, which is placed at issue in the instant petition, was held on April 14, 2004. (Answer, Ex. 2.) On that date, a panel of the Board of Parole Hearings (hereinafter "Board"), then the Board of Prison Terms, found petitioner not suitable for parole and denied parole for three years. (Id.)

On October 4, 2004, petitioner filed a petition for a writ of habeas corpus in the Solano County Superior Court, claiming that the Board's failure to find him suitable for parole at his initial parole suitability hearing violated his federal constitutional rights to due process and equal protection. (Answer, Ex. 4.) The Superior Court rejected petitioner's claims in a reasoned decision on the merits. (Answer, Ex. 5.) The court reasoned as follows:

Petitioner, Kevin Claiborne applies for a Writ of Habeas Corpus, asserting that the Board of Prison Terms ("BPT") wrongfully denied his parole.

Petitioner has not made a prima facie case that the BOT wrongfully denied him parole. (People v. Duvall (1995) 9 Cal.4th 464, 475.) The "some evidence" standard applies to judicial review of the BPT's decision to deny parole. (In re Rosenkrantz (2002) 29 Cal.4th 616, 652.) A reviewing court may not independently resolve conflicts in the evidence, determine the wright to be given to the evidence, or decide how the factors relevant to suitability are to be considered or balanced. (In re Scott (2004) 119 Cal.App.4th 871, 899.) "It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole." (In re Rosenkrantz 29 Cal.4th at 677.)

The BPT's decision to deny parole is supported by ample evidence. Petitioner was convicted of second degree murder in which the victim was held down and shot in the back of the head and the buttocks while the victim pleaded for his life. The victim was killed in retaliation for having stolen some drugs from the perpetrators. The record supports the assessment that Petitioner was involved in an execution style murder and that the actions display an exceptionally callous disregard for human suffering for a relatively trivial motive. (Cal. Code Regs., tit. 15, §2402(c)(1), subds (B), (D), and (E).) The parole decision is also supported by Petitioner's lengthy, sometimes violent criminal record.

Contrary to Petitioner's assertion, a proportionality analysis pursuant to the matrix provided in Title 15 of the California Code of Regulations, Section 2403(d), is only applicable after a finding of suitability in setting a parole release date. (Pen Code §3042(a); Cortinas, supra, 120 Cal.App.4th at 1170-1171.) Petitioner was properly found unsuitable for parole, rendering the proportionality analysis premature at this time.

Accordingly, the Petition for Writ of Habeas Corpus is DENIED.


On February 10, 2005, petitioner filed a habeas petition in the California Court of Appeal for the First Appellate District, in which he raised the same claims that were contained in his habeas petition filed in the Solano County Superior Court. (Answer, Ex. 6.) By order dated March 30, 2005, that petition was summarily denied. (Id. at penultimate page.)

On April 22, 2005, petitioner filed a habeas petition in the California Supreme Court, raising the same claims that were set forth in his petitions for a writ of habeas corpus filed with the Solano County Superior Court and the California Court of Appeal. (Answer, Ex. 7.) That petition was denied by order filed February 1, 2006, with citations to In re Rosenkrantz, 29 Cal. 4th 616 (2002) and In re Dannenberg, 34 Cal. 4th 1061 (2005). (Answer, Ex. 8.)


The Board described the facts of petitioner's offenses, which have not changed over the years, at the April 14, 2004 parole suitability hearing, as follows:

The information that we have, taken from the Vallejo Police Department report was that the Vallejo Police were dispatched to a residence for a reported shooting incident. And when they entered the residence, the police discovered the body of the victim lying facedown on the floor. Paul Cousins, Paul Dwayne Cousins, had been shot in the back of the head and in the buttocks. Medical personnel arrived and declared the victim dead at the scene. A witness who lived in the house told police that the victim had entered the house, turned off the lights, closed the door, and appeared visibly nervous. Suddenly three young males entered the house and immediately tackled the victim and forced him to the floor. The victim pled with his assailants not to kill him but two shots were fired and the three men fled the scene. Since this house has been using -- was being used as a rock house, a place where people would congregate to base cocaine, there were numerous witnesses to these events. Initially however, witnesses could not or would not identify the shooters. As the police investigation ensued in the days and weeks that followed, numerous witnesses would eventually come forward and several of them identified the defendant, Mr. Claiborne, as one of the three men who entered the house to kill the victim. They described a situation in which the victim had, on a previous occasion, stolen some drugs from various individuals, which had resulted in a vendetta by the three men against the victim. Several witnesses testified that the defendant was at the scene and one told police that he had held the victim down while a co-responsible shot the victim. The defendant insisted to police that he did not -- that he did drive them to the scene but was in no way connected to the murder. (Answer, Ex. 2 at 10-11.) Petitioner conceded at the April 14, 2004, parole suitability hearing that he drove the assailants to the victim's house, thinking that "they were going to beat him up." (Id. at 12.) Petitioner agreed that the killing was over "a drug deal gone bad or drugs that [the victim] had stolen." (Id.) Petitioner knew that one of his companions had a gun. (Id. at 12-13.) Petitioner admitted that he went into the victim's house, but denied that he held the victim down. (Id. at 13-14.) He stated that he stood in the kitchen and watched what was going on. (Id. at 14-15.) Petitioner did not shoot the victim. (Id. at 12-16.) He left the house after the "first gunshot round," ahead of his two companions. (Id. at 15.)*fn1


I. Standards of Review Applicable to Habeas Corpus Claims

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. See Peltier 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. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); ...

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