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Perkins v. Horey

February 26, 2010

MICHAEL PERKINS, PETITIONER,
v.
ROBERT HOREY, WARDEN (A), ET AL. RESPONDENTS.



The opinion of the court was delivered by: Robert H. Whaley United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Before the Court is Petitioner's Petition for Writ of Habeas Corpus (Ct. Rec. 1). On January 29, 2007, Petitioner, a state prisoner incarcerated at California State Prison-Solano in Vacaville, California, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the California Board of Prison Terms' ("Board") decision to deny him parole.*fn1

In his Petition, Petitioner sets forth three grounds for relief: (1) the Board's finding of unsuitability was based primarily on the nature of Petitioner's crime and past criminal conduct; lack of nexus between the crime facts and Petitioner's current dangerousness; (2) the denial of parole is a breach of his original plea bargain; and (3) the Board is without jurisdiction over Petitioner's sentence because Petitioner is not a life-term prisoner.

PROCEDURAL HISTORY

On March 17, 1989, Petitioner plead guilty to second-degree murder and was sentenced to a term of between 16 years and life. On October 27, 2005, Petitioner appeared before the Board to determine whether a release date should be set.*fn2 The Board found that Petitioner was unsuitable for parole and would continue to pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Board delayed a subsequent hearing for three years. The Board relied on a number of factors in denying Petitioner's parole. It found that the offense was aggravated, and carried out in an especially cruel and callous manner; motive was lacking, or at the least, trivial; there was an escalating pattern of criminal violence; and Petitioner continued to have behavioral problems while incarcerated. The Board was also concerned about Petitioner's lack of parole plans and his failure to increase his education. The Board concluded that Petitioner was unsuitable for parole because he posed an unreasonable risk to society and a threat to public safety if released from prison.

Petitioner filed a Petition for Writ of Habeas Corpus in the San Francisco County Superior Court challenging the denial. The state court upheld the Board's parole denial in a thorough and reasoned opinion. In finding "some evidence" to support the Board's finding of parole unsuitability, the state court explained:

The decision of the Board members reveals that one of the reasons petitioner was denied parole was that the offense was carried out in an extremely cruel and callous manner. Petitioner beat a 63 year-old man in the face and head numerous times, leaving the victim on all fours on the floor of the victim's kitchen. The victim was found on his back, deceased, having choked on the blood. The motive for the crime was trivial, a monetary argument with the victim, his boss. The petitioner had been drinking heavily at the time and smoked PCP before the incident. The Board members found Petitioner's life replete with alcohol and drugs.

His history showed an escalating pattern of criminal activity. Petitioner had a history of unstable residences as Petitioner moved frequently due to his stepfather's military career. He has previous failed grants of probation. He had numerous arrests for serious crimes as a adult. Petitioner has had seven 115s [major disciplinary actions], and one since the last parole hearing for possessing inmate-manufactured alcohol.

Id. at 2-3.

Petitioner appealed the decision to the California Court of Appeals. It was summarily denied. Petitioner then filed a Petition in the California Supreme Court, which was also summarily denied.*fn3

BACKGROUND FACTS

The underlying conviction occurred on November 13, 1987. The victim was 63 years old. He was found lying dead on his kitchen floor after being hit over the head with a vodka bottle. Petitioner was arrested shortly thereafter. According to Petitioner, on the day of the murder he and the victim had been arguing over the quality of Petitioner's recent skylight installation at the victim's house. Petitioner admitted to smoking PCP and drinking heavily beforehand. At some point the dispute escalated and eventually resulted in the victim's death. Petitioner plead to second-degree murder and was sentenced to an "indeterminate term" of 16 years to life.*fn4

STANDARD OF REVIEW

This petition for writ of habeas corpus was filed after the effective date of the AEDPA, and thus 28 U.S.C. ยง 2254 establishes the applicable standard of review. This section mandates deference to state court decisions on claims adjudicated on the merits in the state court, and allows a federal court to grant habeas relief only where the state court's resolution of a claim: (1) is contrary to, or an unreasonable application of, clearly established federal law; or (2) is based on an ...


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