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Gamez v. Gonzalez

January 27, 2010

SERGIO ALEJANDRO GAMEZ, PETITIONER,
v.
F. GONZALEZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

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

PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections serving an indeterminate sentence of fifteen years to life for his 1982 conviction in the Los Angeles County Superior Court for second degree murder. (Pet. at 3.)

On March 11, 2008, a parole suitability hearing was held before the California Board of Parole Hearings ("Board") to determine Petitioner's eligibility for parole. (HT*fn1 at 3.) Petitioner attended the hearing and was represented by an attorney. (HT at 3-4.) At the conclusion of the hearing, the Board denied parole and deferred rehearing for two years. (HT at 103-120.)

On June 3, 2008, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court. See Answer, Exhibit D. On July 23, 2008, the petition was denied in a reasoned decision. See Answer, Exhibit D. Petitioner then filed a habeas petition on September 26, 2008, in the California Court of Appeals, Second Appellate District. See Answer, Exhibit C. The petition was denied on October 9, 2008, with citation to In re Dannenberg, 34 Cal.4th 1061, 1070-71 (2005), In re Rosenkrantz, 29 Cal.4th 616 (2002), In re Lawrence, 44 Cal.4th 1181 (2008), and In re Shaputis, 44 Cal.4th 1241 (2008). See Answer, Exhibit C. On December 1, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. See Answer, Exhibit A. On June 10, 2009, the petition was summarily denied. See Answer, Exhibit B.

On July 21, 2009, Petitioner filed the instant federal petition for writ of habeas corpus. The petition challenges the 2008 decision of the Board of Parole Hearings denying parole. On November 6, 2009, Respondent filed an answer to the petition. Petitioner filed a traverse to Respondent's answer on December 3, 2009.

FACTUAL BACKGROUND*fn2

Shortly before midnight on April 6, 1981, both victims were walking in the Hollywood area of Los Angeles. The inmate and co-defendant Dix approached them in a vehicle near the intersection of El Centro and Romaine Street. The vehicle stopped and both Petitioner and Dix exited and approached the victims. The inmate and Dix accused the victims of being rival gang members. The victims denied any gang affiliation, at which time Petitioner identified himself as a Clanton gang member and began firing a rifle at the victims. Victim Lopez fell to the ground wounded. Victim Lopez died at the scene and victim Burnell was transported and treated for gunshot wounds. A short time later, police observed the suspect's vehicle at a service station. The officers observed what later proved to be the murder weapon, a .22-caliber semi-automatic rifle, lying in plain view inside the vehicle. Both defendants were arrested without incident.

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 filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Petitioner is in custody of the California Department of Corrections pursuant to a state court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 U.S.C. § 2254 remains the exclusive vehicle for his habeas petition because he meets the threshold requirement of being in custody pursuant to a state court judgment. Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir.2006), citing White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.2004) ("Section 2254 'is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petition is not challenging his underlying state court conviction.'").

The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "resulted in a decision that was based on an unreasonable determination of the facts in light ...


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