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Benitez v. Rawers

January 27, 2010

VICTOR BENITEZ, PETITIONER,
v.
SCOTT P. RAWERS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION RECOMMENDING PETITION FOR WRIT OF HABEAS CORPUS BE GRANTED [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 in custody of the California Department of Corrections and Rehabilitation (CDCR), following his conviction in the Fresno County Superior Court for first degree murder in violation of California Penal Code section 187, and assault with the intent to commit murder in violation of California Penal Code section 217. (Exhibit 1, Abstract of Answer, attached to Answer.)

In the instant petition, Petitioner does not challenge the propriety of his conviction; rather, he challenges Governor Davis' 2003 reversal of the Board of Prison Hearings' ("BPH") 2002 decision finding him suitable for parole.

On September 30, 2003, Petitioner filed a petition for writ of habeas corpus in the Superior Court of Fresno County. (Exhibit 6, attached to Answer.) The petition was denied on October 8, 2003. (Id.)

On January 14, 2004, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. (Exhibit 7.) The petition was denied on June 17, 2004. (Id.)

On August 11, 2004, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Exhibit 8.) The petition was denied on July 20, 2005. (Id.)

Petitioner filed the instant petition for writ of habeas corpus on February 9, 2006. (Court Doc. 1.) Respondent filed an answer to the petition on February 5, 2007, and Petitioner filed a traverse on May 2, 2007. (Court Docs. 18, 23.)

STATEMENT OF FACTS*fn1

Petitioner asked his cousin Valentine Sanchez if he could have a ride to the town of Sanger. Mr. Sanchez agreed to give his cousin a ride to Sanger and he, Ramon Alonzo, [Petitioner], and [Petitioner's] unidentified associate then entered Mr. Sanchez' car. Sanchez drove, while Sanchez' roommate, Ramon Alonzo, sat in the passenger seat, and Petitioner sat behind Alonzo. As they drove, Petitioner directed Sanchez to drive down a dirt road and pull over. Without saying anything, Petitioner then placed a gun on the back of Sanchez's head and shot him, killing him instantly. Petitioner also attempted to shoot Alonzo, however, the gun misfired and he managed to get away. Petitioner evaded arrest for five years. Petitioner claimed that the murder occurred because of his belief that Sanchez had killed his brother in Mexico in 1969.

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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