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Hernandez v. Clark

December 10, 2009

SAMPSON FRANCISCO HERNANDEZ, PETITIONER,
v.
KEN CLARK, WARDEN RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 1]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

Petitioner is currently incarcerated in the California Department of Corrections and Rehabilitation ("CDCR") following his conviction for kidnaping and robbery. Petitioner was sentenced to life with the possibility of parole. Petitioner does not challenge the validity of his judgment; rather, he challenges the Board of Parole Hearings' (hereinafter "Board") 2008 decision finding him unsuitable for parole. Petitioner contends the Board's decision resulted in a violation of his Due Process rights.

In 2008, Petitioner filed a state petition for writ of habeas corpus in the San Diego County Superior Court, challenging the Board's 2008 decision. (Exhibits A & B, to Answer.) The petition was denied in a reasoned decision on November 6, 2008. (Exhibit B, to Answer.)

On December 22, 2008, Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal, Fourth Appellate District. (Exhibit C, to Answer.) The petition was denied in a reasoned decision on March 27, 2009. (Exhibit D, to Answer.)

On April 15, 2009, Petitioner filed a state petition in the California Supreme Court. (Exhibit E, to Answer.) The petition was summarily denied on June 10, 2009. (Exhibit F, to Answer.)

Petitioner filed the instant federal petition for writ of habeas corpus on August 13, 2009. (Court Doc. 1.) Respondent filed an answer to the petition on October 26, 2009. (Court Doc. 10.)Petitioner filed a traverse on November 19, 2009. (Court Doc. 11.)

STATEMENT OF FACTS*fn1

On December 26, 1998, Petitioner along with three accomplices, engaged in a 24-hour carjacking/kidnapping crime spree. The first victim was stabbed during the commission of a carjacking. The second victim was fishing at a pier with his mother and when he rode his bicycle to obtain the car for his mother, he was interrupted by Petitioner and his accomplices. The victim was forced to the car and told to drive to his home where they robbed him of several personal items, including a TV, VCR, CD players, stereo, jewelry, etc. They forced the boy back into the car and drove him to an unknown location and then dropped him in a ditch so no one could find him. Petitioner then stabbed the victim twice in the leg, then stomped on him and threw him into the ditch. The third victim observed the kidnaping of the second victim and was robbed of his wallet, jacked, and a pager. There was also a third carjacking.

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 ...


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