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Goings v. Sisto

December 3, 2009

GEORGE GOINGS, PETITIONER,
v.
DENNIS K. SISTO, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner George Goings is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the November 8, 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. FACTS

The Board recited the facts of the commitment offense as follows: PRESIDING COMMISSIONER ENG: The defendant and codefendant Dyetria Lorrayne Jones, D-Y-E-T-R-I-A, Lorrayne, L-O-R-R-A-Y-N-E, last name, J-O-N-E-S, were involved in three robberies in which a knife was used and on the third robbery the victim was killed. In July of 1985 victim Nicholis, N-I-C-H-O-L- I-S, Dyer, D-Y-E-R, related to police that he was at his residence at about 10:00 a.m. that codefendant Jones and her male companion, Goings, came to his residence and borrowed $2. Shortly thereafter, about 12 o'clock noon, they returned and defendant Goings placed a knife at his throat and demanded money. Defendant Goings made two small cuts on the victim's neck and struck him on top of the head with the knife handle. The defendant Goings then removed $10 from the victim's wallet and both suspects fled the location. With regard to the second robbery, victim Jay, J-A-Y, Hill, H-I-L-L, indicated to police that on September 3rd, 1985, at approximately 7:00 p.m. that defendant Jones obtained a kitchen knife and placed it at the victim's neck at which time defendant Goings removed $125 from the victim's pocket. The victim stated he received two small superficial knife cuts to his neck during the robbery. With regard to the third robbery in this matter, victim Goethe, G-O-E-T-H-E, was found dead in his apartment on September 5th, 1985, at approximately 8:00 p.m. at 2901 Palmgrove, P-A-L-M-G-R-O-V-E, Avenue in Los Angeles. An examination of the victim's body revealed that he had been stabbed nine times to his chest, two of which were fatal. The victim sustained additional injuries consisting of two superficial knife wounds to the neck, four superficial knife wounds to the right wrist, and blunt force trauma or knife wounds to the top of his head. The resident's telephone cord had been disconnected and was wrapped around the victim's left wrist and neck. A belt was also tied around the victim's neck. A bloodstained steak knife was observed lying between the victim's legs and a butcher knife was observed lying on the couch adjacent to the victim. The residence had been partially ransacked and the victim's television had been taken. The victim's wallet also was lying open on the bedroom dresser and contained no money. There was no forced entry to the residence observed. Subsequent investigation from statements of witnesses and landlord [sic] in this matter revealed that codefendant Jones had befriended victim Goethe and both defendant's landlord had helped them sell the victim's television and clothes they had taken from his residence. Subsequent investigation led to the arrest of both the defendant and codefendant in this case due to statements from witnesses, landlords, and positive identification by the first two victims in this matter.

Petition at 57-59.

Sometime in 1986 a jury found petitioner guilty of first degree murder, two counts of robbery of an inhabited dwelling, and an enhancement for the use of a deadly weapon. Petition at 46. He received a sentence of 25 years to life, plus eight years and four months. Id.

III. ISSUES

A. PROCEDURAL BACKGROUND

All issues raised in this petition were exhausted in state court proceedings.

Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court on or around April 10, 2007. Answer, Exhibit 1 at 23. That petition was denied in a reasoned opinion on September 21, 2007. Answer, Ex. 2 at 2-5. Petitioner then filed a petition in the California Court of Appeal, Second Appellate District on November 1, 2007. Answer, Ex. 3 at 2. That petition was denied on November 9, 2007. Answer, Ex. 4 at 2. Petitioner then filed a petition in the California Supreme Court on March 21, 2008. Answer, Ex. 5 at 2. That petition was summarily denied on August 27, 2008. Answer, Ex. 6 at 2. Finally, petitioner filed this federal petition on September 11, 2008.

B. CLAIMS

The petition raises five issues as follow, verbatim:

1. Petitioner contends that he is being denied his liberty interest right by the Board of Parole Hearings without some evidence to deny parole to petitioner based upon erroneous parole procedures in violation of the state and federal constitution.

2. The Board of Parole Hearings is charges with determining the parole suitability of prisoners serving indeterminate life term sentences; the Board of Parole Hearings has set forth "guidelines" to aid in its suitability determinations 15 CCR 2281 & 2402.

3. Petitioner's positive efforts overt twenty one years supports suitability for parole and outweigh all negative factors of unsuitability for parole.

4. Petitioner's life sentence has been altered by the Board to resemble a sentence of life without the possibility of parole or death, thus constitutes an ex-post facto application of the law.

5. Response to superior court denial of habeas corpus the state court decision contradict [sic] the only clearly established federal law addressing the federal protections for inmates in the parole process.

IV. 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 ...


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