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Somers v. Clark

March 4, 2010

KEITH SOMERS, PETITIONER,
v.
KEN CLARK, 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 his 1993 conviction for second degree murder. Petitioner was sentenced to fifteen years to life.

In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings' 2007 (hereinafter Board) decision finding him unsuitable for release.

In 2008, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, challenging the Board's 2007 decision. (Exhibit A, to Answer.) On June 25, 2008, the superior court denied the petition in a reasoned decision. (Exhibit B, to Answer.)

Petitioner filed a petition in the California Court of Appeal, Second Appellate District. (Exhibit C, to Answer.) On October 10, 2008, the Court of Appeal denied the petition in a reasoned decision (the last reasoned decision of the state courts) stating that "[t]he record submitted reflects some evidence that petitioner constitutes a current threat to public safety to support the challenged decision. (In re Lawrence (2008) 44 Cal.4th 1181, 1212; In re Shaputis (2008) 44 Cal.4th 1241, 1254-1261.)" (Exhibit D, to Answer.)

Petitioner then filed a petition in the California Supreme Court, which was summarily denied. (Exhibits E & F, to answer.)

Petitioner filed the instant federal petition on August 26, 2009. (Court Doc. 1.) Respondent filed an answer to the petition on November 16, 2009, and Petitioner filed a traverse on December 21, 2009. (Court Docs. 15, 16.)

STATEMENT OF FACTS*fn1

On November 15, 1992, at approximately 2:20 a.m., Petitioner was observed driving his vehicle at a high rate of speed outside a night club parking lot. Instead of properly exiting the parking lot through the driveway, Petitioner's car crossed over the sidewalk and jumped the curb, causing several people to leap out of the way. Petitioner's vehicle then struck a hot dog vendor parked in front of the club, causing the vendor to jump backwards to avoid being struck. Two sheriff's deputies observed the incident and pursued Petitioner reaching speeds of approximately 70 to 80 miles an hour. Petitioner weaved in and out of the traffic, passing on the right side of the lane or entering the opposite direction of traffic to get around stopped traffic. After Petitioner failed to make a curve, he slid into oncoming traffic and collided with a vehicle driven by Angel Luis Austrom who was impaled on a portion of the steering wheel which severed his aorta, killing him. Three passengers in the vehicle were also injured. The momentum of Petitioner's vehicle caused it to continue traveling into the opposite lane where it collided with a taxicab, causing injuries to the driver. Deputies arrived just moments later and saw Petitioner inside his stopped vehicle. When they told him to put his hand in the air, he continued reaching into the back of his car. He obtained his cellular phone and made a phone call, and was repeatedly telling someone that he needed to be bailed out of jail. When one deputy opened the driver's door, he could instantly smell a strong odor of alcohol. Petitioner's blood alcohol level was.14 percent at 3:50 a.m., and he tested positive for cocaine. (Exhibit A, Transcript at 12-14, hereinafter "Transcript".)

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 ...


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