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Karr v. Sisto

March 22, 2010

RICHARD E. KARR, PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.



The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge

REPORT AND RECOMMENDATION

I. SUMMARY

Petitioner Richard E. Karr is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted by a jury of first degree murder in Alameda County Superior Court on March 3, 1976, and sentenced to seven-years-to-life with the possibility of parole. He has filed a petition for writ of habeas corpus, together with relevant portions of the state court record, under 28 U.S.C. § 2254 challenging his 2005 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Docket 1 at 1-64.) Respondent has filed an answer to the petition, and petitioner has filed a traverse in reply to the answer. (See Dkt. 6; Dkt. 7.) The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends that the Court deny the petition, and dismiss this action with prejudice.

II. BACKGROUND

Petitioner participated in the murder of the victim, Robert Sweeney, because he believed the victim was a "snitch" who had informed police of petitioner's involvement in a large drug trafficking conspiracy involving several co-conspirators. (See Dkt. 6, Exhibit 3 at 9-14.) On August 9, 1974, petitioner and his co-conspirators interrogated and severely beat the victim, and then bound him with twine and gagged him. (See id. at 11-12.) After the victim was placed in the trunk of petitioner's vehicle, petitioner drove to the highest point of the San Mateo Bridge. Although the victim was still alive, he was thrown off the bridge into the water below. (See id. at 12.) His body was found floating in the San Francisco Bay the next day. (See id.) When petitioner was arrested a few days later, authorities found in his home a thirty-eight caliber revolver, a copy of the Daily Review containing an article about the victim's death, and several copies of a tape the victim made on the day he died. (See id. at 12.) The victim apparently suspected that he was about to be murdered by petitioner and his co-conspirators, because he began the tape, "This is the story of my life." (Id. at 11.)

Evidence admitted at petitioner's trial revealed that petitioner and his co-conspirators had previously abducted, beaten, and interrogated another suspected informant, Barry Krell, in the same manner as the victim in July 1974. (See id. at 13- 14.) Tapes of this interrogation were also found at petitioner's home. (See id. at 14.) Although the co-conspirators threatened to throw Krell from the San Mateo Bridge to his death, they dumped him out on the bridge instead. (See id. at 13-14.)

Petitioner was convicted by a jury of first degree murder in Alameda County Superior Court on March 3, 1976, and was originally sentenced to death. (See id., Ex. 4 at 1; id., Ex. 2.) In a separate case, however, the California Supreme Court later held that the provisions of the death penalty statute under which petitioner had been sentenced were unconstitutional, and that the remedy for prisoners like petitioner is commutation to a life sentence. (See id., Ex. 2 at 7-10.) Accordingly, the California Court of Appeal modified petitioner's judgment. Petitioner received a sentence of seven-years-to-life with the possibility of parole rather than the death penalty. (See id., Ex. 1 at 1-2.) His minimum eligible parole date was set for August 14, 1981. (See id., Ex. 3 at 1.)

The parole denial which is the subject of this petition took place after a parole hearing held by the Board on August 2, 2005. (See id.) This was petitioner's nineteenth parole consideration hearing, and the Board denied his application for parole for one year. (See id. at 57.) As of the date of the 2005 parole hearing, petitioner was fifty-six-years-old and had been in custody for approximately twenty-nine years. (See id. at 46 and 51.)

After denial of his 2005 application, petitioner filed habeas corpus petitions in the Alameda County Superior Court, California Court of Appeal, and California Supreme Court. (See Dkt. 1, Ex. P; Dkt. 6, Exs. 8 and 9.) Those petitions were unsuccessful. (See Dkt. 6, Exs. 8 and 9.) This federal habeas petition followed. Petitioner contends his 2005 denial by the Board violated his federal due process rights. Thus, petitioner does not challenge the validity of his conviction, but instead challenges the Board's 2005 decision finding him unsuitable for parole.

III. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction."). Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the [U.S.] Supreme Court," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) and (2).

As a threshold matter, this Court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the U.S. Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

The Court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be [objectively] unreasonable." Id. at 411.

In each case, the petitioner has the burden of establishing that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).

Finally, AEDPA requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1).

Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir. 1993)).

IV. FEDERAL HABEAS CHALLENGES TO STATE PAROLE DENIALS

A. Due Process Right to be Released on Parole

Under the Fifth and Fourteenth Amendments to the U.S. Constitution, the government is prohibited from depriving an inmate of life, liberty or property without the due process of law. U.S. Const. amends. V, XIV. A prisoner's due process claim must be analyzed in two steps: the first asks whether the state has interfered with a constitutionally protected liberty or property interest of the prisoner, and the second asks whether the procedures accompanying that interference were constitutionally sufficient. Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006).

Accordingly, our first inquiry is whether petitioner has a constitutionally protected liberty interest in parole. The Supreme Court articulated the governing rule in this area in Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 482 U.S. 369 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying "the 'clearly established' framework of Greenholtz and Allen" to California's parole scheme). The Court in Greenholtz determined that although there is no constitutional right to be conditionally released on parole, if a state's statutory scheme employs mandatory language that creates a presumption that parole release will be granted if certain designated findings are made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 12; Allen, 482 U.S. at 377-78.

As discussed infra, California statutes and regulations afford a prisoner serving an indeterminate life sentence an expectation of parole unless, in the judgment of the parole authority, he "will pose an unreasonable risk of danger to society if released from prison." Title 15 Cal. Code Regs., § 2402(a). The Ninth Circuit has therefore held that "California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion, 306 F.3d at 902. To similar effect, Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007), held that California Penal Code § 3041 vests all "prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the ...


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