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Tucker v. Hartley

March 1, 2010

JEROME TUCKER, PETITIONER,
v.
JAMES D. HARTLEY, WARDEN RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck 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.

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following 1990 conviction for attempted first degree murder and second degree robbery with use of a firearm. Petitioner was sentenced to seven years to life with the possibility of parole.

In the instant petition, Petitioner does not challenge the validity of his underlying conviction; rather, he challenges the Board of Parole Hearings' 2008 (Board) decision finding him unsuitable for release.

On December 2, 2009, Petitioner filed a petition for writ of habeas corpus in the Riverside County Superior Court, challenging the Board's 2008 decision. The petition was denied for failure to state a prima facie case. (Exhibits A & B, to Answer.)

Petitioner then filed state petitions in the California Court of Appeal and California Supreme Court. (Exhibits C & E, to Answer.) Both petitions were summarily denied. (Exhibits D & F, to Answer.)

Petitioner filed the instant federal petition for writ of habeas corpus on July 2, 2009. (Court Doc. 1.) Respondent filed an answer to the petition on September 11, 2009, and Petitioner filed a traverse on October 5, 2009. (Court Docs. 15, 18.)

STATEMENT OF FACTS

On May 2, 1989, Petitioner and his partner entered a jewelry store in Moreno Valley. Petitioner's partner held a gun to the store manager-Charles Johnson-and ordered him to get down. Mr. Johnson complied and provided keys to the jewelry display. Petitioner then obtained a handgun that was located in the jewelry store. The two then began ransacking the store. At one point during the robbery, Petitioner's crime partner broke a display case and demanded another key. When Mr. Johnson stated that there was no other key, Petitioner said "kill him. He's lying." Petitioner made the same statement again after his partner was unable to open the cash register. In addition, Petitioner repeatedly pistol-whipped the victim to the point of unconsciousness. Petitioner then dragged the victim by his hair to the back room and began interrogating him about the video surveillance. The victim's hands were then bound behind his back and his feet were bound together at the ankles with duck tape. Petitioner was then shot three times, causing him to be paralyzed from the waist down. Petitioner and his partner fled the scene. (Exhibit A, to Answer, Transcript at 76-77.)

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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