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Rodriguez v. Clark

February 18, 2010

MYNOR RODRIGUEZ, PETITIONER,
v.
KEN CLARK, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder 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 in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his conviction for second degree murder in the Orange County Superior Court. Petitioner is serving a sentence of 19 years-to-life.

In the instant petition for writ of habeas corpus Petitioner does not challenge the validity of the state court judgment; rather, Petitioner challenges the Board of Parole Hearings' (Board) 2007 decision finding him unsuitable for release.

Petitioner filed a state petition for writ of habeas corpus in the Orange County Superior Court challenging the 2007 Board decision. The superior court denied the petition in a reasoned decision finding there was some evidence to support the Board's decision that Petitioner would pose an unreasonable risk of danger to society. (Exhibit 1, to Answer.)

Petitioner then filed a state petition for writ of habeas corpus in the California Court of Appeal. (Exhibit 2, to Answer.) The petition was summarily denied.*fn1 (Id.)

Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court. The petition was summarily denied. (Exhibit 3, to Answer.)

Petitioner filed the instant petition for writ of habeas corpus on February 23, 2009, in the United States District Court for the Central District of California. (Court Doc. 1.) The petition was transferred to this Court on February 27, 2009. (Court Doc. 4.)

Respondent filed an answer to the petition on May 29, 2009, and Petitioner filed a traverse on June 22, 2009. (Court Docs. 16, 17.)

STATEMENT OF FACTS*fn2

On October 21, 1990, Roberto Eddie Gonzalez, murder victim, was walking to a convenience store in the city of Orange with three of his friends. After crossing the street, three Hispanic youths riding bicycles approached them. Petitioner got off his bicycle and challenged Gonzalez to reveal any gang affiliation and stated "Puro South Side." When Gonzalez did not respond, Petitioner punched him in the face. Gonzalez backed away and then Petitioner pulled a small pistol from his pants and shot Gonzalez in the chest area. The gun misfired and Gonzalez reached toward Petitioner as though he was trying to take the gun away from him. Petitioner pulled back the top of the gun and shot again striking Gonzalez in the chest and killing him. Gonzalez's three friends did not know Petitioner but provided a description of him to police. One of Gonzalez's friends identified Petitioner from a photograph lineup as the shooter. However, the other two did not identify Petitioner. Petitioner's girlfriend informed police that Petitioner asked her to keep a chrome bicycle for him because he had witnessed a shooting and was afraid police might think he did it. Petitioner also changed clothes and gave the clothes he was wearing to a friend. Petitioner was arrested later that same night. All three of Gonzalez's friends identified Petitioner from a six-pack photo lineup.

During an interview, Petitioner described the incident as an accident. He claimed he felt intimidated by Gonzalez because of his age and size, and he never had any intention to shot the gun. Petitioner claimed Gonzalez attempted to wrestle the gun away from ...


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