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Plunkett v. Sisto

March 16, 2010



Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for one year at his fourth subsequent parole consideration hearing held on May 1, 2007. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.


Petitioner is confined pursuant to a judgment of conviction entered in the Butte County Superior Court in 1991. (Pet. at 1.) In that case petitioner pled nolo contendere to second degree murder with use of a firearm. (Id.) Pursuant to his plea, on February 7, 1991, petitioner was sentenced to sixteen years to life in state prison. (Id.)

Petitioner's initial parole consideration hearing, held on January 14, 1999, resulted in a two-year denial of parole. (Pet. at 4 of 68.) Petitioner's next parole consideration hearing was held on January 29, 2002. (Id.) On that date, petitioner was found not suitable for release on parole and denied parole for one year. (Id.) Petitioner's third parole consideration hearing was held on February 4, 2003, at which time he was again found unsuitable for release and denied parole for one year. (Id.) Petitioner's fourth subsequent parole consideration hearing, which is placed at issue in the instant petition, was held on May 1, 2007. (Answer, Ex. 1at Ex. A) (hereinafter "Decision"). A panel of the Board found petitioner not suitable for parole and denied parole for one year. (Decision at 81.) At the time of this latest parole denial, petitioner had served two years past his minimum sentence of sixteen years in prison. (Pet. at 21 of 68.)

Petitioner challenged the Board's May 1, 2007 decision in a petition for a writ of habeas corpus filed in the Butte County Superior Court on October 9, 2007. (Answer, Ex. 1.) The Superior Court rejected petitioner's claims for the following reasons:

The vague, unsupported, and conclusory allegations contained in the Petition are insufficient to allow for intelligent consideration of the issues which petitioner had attempted to raise. (In re: Swain (1949) 34 Cal.2D 300; In re Patton 1918) 178 Cal.629).

Petitioner has failed to establish a prima facie case for relief on habeas corpus (In re Lawler 23 Cal.3rd 190, 194). (Answer, Ex. 2.) On October 30, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Answer, Ex. 3.) That petition was summarily denied by order dated December 13, 2007. (Answer, Ex. 4.) Petitioner subsequently filed a petition for review in the California Supreme Court, which was summarily denied by order dated February 27, 2008. (Answer, Exs. 5, 6.)


The Board described the facts of petitioner's commitment offense, which have not changed over the years, at the May 1, 2007 parole suitability hearing, as follows:

June 11th, 1989, an on-duty police officer observed a white van approaching him on Bird Street in Oroville, driving with its parking lights on. The officer flashed his lights at the vehicle to signal the driver to turn on his lights. The driver of the van did not turn on the lights, so the officer made a U-turn and began to follow the van in order to make a traffic stop. When the officer activated his overhead light, the van accelerated and ran a red light."

The officer made a turn to intercept the van and subsequently located the van in the 2000 block of High Street in Oroville. The van had been driven up onto the curb. The driver's door was open, but the officer did not observe any subjects in sight. The officer approached the van and inside found the body of a male adult. The officer called for backup and an ambulance and secured the scene. When medical personnel arrived at the scene, they determined that the person in the van was deceased as a result of a gunshot wound in the back. The victim was later identified as Peter Macias, -AC-I-A-S, age 19. According to the coroner's report, Peter Macias died of a shotgun wound to the upper -- to the right upper back and chest. The autopsy report indicated additional trauma to the body, some beating and maltreatment prior to death.

An investigation commenced and officers began to search the area for the driver of the van. An officer was approached by a man who told him that two subjects, Michael Plunkett, P-L-U-N-K-E-T-T, and Donald Ferraro, F-E-R-R-A-R-O, had earlier in the day forced their way into an apartment on Montgomery Street and forcibly removed the victim Peter Macias. The witness stated that the two men had been armed with a shotgun and that they had beaten Macias prior to removing him from the apartment.

Further information indicated that Ferraro and Plunkett were involved with another subject by the name of Roger Hunter, who drove a white van similar to the one in which the body was found. A number of witnesses were interviewed and information was gathered indicating that Peter Macias, along with another male subject that had -- another male subject had previously stolen a quarter of a pound of marijuana from Michael Plunkett. There were several reports, including one to a police officer, that Peter Macias had stated that Plunkett was going to kill him over a 500 dollar drug debt.

Information was received from witnesses indicating that Plunkett, Ferraro, and Hunter had been associating with each other for the last two weeks and had been living in the Oroville area in an apartment rented by Michael Plunkett near where the van was abandoned on High Street. During the search of the area, police found a fire escape that led to an open window of an apartment near where the van was abandoned. Evidence found in the apartment indicated that it had been rented by Michael Plunkett and that he had previously lived there.

After a complete investigation of the case, warrants were issued for Donald Ferraro, Roger Hunter, and Michael Plunkett on charges of kidnapping and murder. On October 23rd, 1990, Plunkett, Hunter, and Ferraro each pled guilty to one count of second degree murder. Ferraro pled guilty to being personally armed during the offense and Plunkett and Hunter pled to being involved where a principal was armed.

(Decision at 12-15.)


I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claim

Petitioner claims that the Board's failure to find him suitable for parole at his May 1, 2007, parole suitability hearing violated his right to due process. (Pet., at 5 & 7 of 68.) He argues that the Board "failed to properly consider petitioners exemplary post conviction behavior, positive prison programming and favorable psychological evaluations as proof of his rehabilitation and suitability for parole." (Id. at 5.) Petitioner notes, among other things, that he had no prior criminal history and that his only prison disciplinary proceeding involved the infraction of "receiving a tattoo." (Id. at 4, 5.) Petitioner also argues that the Board failed to comply with relevant state law and regulations, and used "arbitrary and capricious standards" in finding him unsuitable for parole. (Id. at 7.)

A. Due Process in the California Parole Context

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. One alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002) (McQuillion I).

A protected liberty interest may arise from either the Due Process Clause of the United States Constitution or state laws. Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, "a state's statutory scheme, if it uses mandatory language, 'creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives ...

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