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Miller v. Fischer

February 5, 2010

BRUCE MILLER, PETITIONER,
v.
SUSAN FISCHER, ET AL., RESPONDENTS.



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 twenty-five years to life for his 1983 conviction in Humboldt County Superior Court for first degree murder with use of a firearm. (Pet. at 2.)

On May 2, 2006, Petitioner's third parole suitability hearing was held before the California Board of Parole Hearings ("Board") to determine his eligibility for parole. (HT*fn1 at 1.) Petitioner attended the hearing and was represented by an attorney. (HT at 1.) At the conclusion of the hearing, the Board denied parole and deferred rehearing for two years. (HT at 58.)

Petitioner filed a petition for writ of habeas corpus in Humboldt County Superior Court. See Answer, Exhibit 1. On May 7, 2008, the petition was denied in a reasoned decision. See Answer, Exhibit 6. On July 11, 2008, Petitioner filed a habeas petition in the California Court of Appeals, First Appellate District. See Answer, Exhibit 7. The petition was denied on November 12, 2008. See Answer, Exhibit 8. On December 3, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. See Answer, Exhibit 9. On June 10, 2009, the petition was summarily denied. See Answer, Exhibit 10.

On August 21, 2009, Petitioner filed the instant federal petition for writ of habeas corpus. The petition challenges the 2006 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 9, 2009.

FACTUAL BACKGROUND*fn2

On August 24, 1982, the dead body of Norman Peerotti was discovered in the bedroom of his home. An autopsy revealed that the body had multiple stab wounds with the fatal blow located in the chest. The doctor could not determine the sequence in blows but was able to state that the wound to the chest would have caused the victim to faint within fifteen seconds and death would have been within minutes thereafter. Further, some of the stab wounds may have been inflicted after death. Police investigation revealed that Petitioner and his two male companions were in the victim's home on August 23, 1982. Petitioner, his two companions and the victim engaged in drinking alcoholic beverages, smoking marijuana and homosexual activity.

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 ...


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