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Topalian v. Yates

April 8, 2010

CARLO TOPALIAN, PETITIONER,
v.
JAMES A. YATES, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDING AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Keith Allen Wattley, Esq.

BACKGROUND

In 1992, Petitioner was convicted of conspiracy to commit aggravated mayhem. Petitioner was sentenced to seven years to life in state prison.

In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he contends the Board of Parole Hearings' (Board) August 16, 2007 decision finding him unsuitable for release on parole violated his federal rights.

Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal challenging the Board's 2007 decision on the grounds that there was no evidence to support the Board's finding, and the Board is applying its regulations in an unconstitutionally vague and overbroad manner. (Exhibit 1, to Answer.) The Court of Appeal denied the petition finding there was some evidence to support the findings of the Board. (Exhibit 2, to Answer.)

Petitioner then filed a petition in the California Supreme Court, which was summarily denied on May 21, 2008. (Exhibits 3 & 4, to Answer.)

Petitioner filed the instant federal petition for writ of habeas corpus on December 19, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on April 1, 2009. (Court Doc. 15.) Petitioner filed a traverse on May 1, 2009. (Court Doc. 16.)

STATEMENT OF FACTS*fn1

Petitioner's father, Ara Topalian and Lyudmila Lalayan were married for sometime prior to 1989. Lalayan and her daughter, Shushan Eloyan, moved in with Ara Topalian and his two children, Petitioner and his sister, Lulu. The stepchildren did not get along. Apparently, Petitioner did not like Eloyan, and she moved out of the house. Lalayan visited Eloyan frequently and the Topalian family did not like it. Petitioner and his sister placed their father in the middle of their hostility and he was very upset. Lalayan eventually separated from Petitioner's father and lived with a friend. During this time, Petitioner's father made threats against Lalayan and Eloyan. After the threats were made, Lalayan went to Eloyan's school and saw Petitioner, along with another male and two females near the school. Lalayan talked to Petitioner and he said his father wanted to talk to her. Emad Kalta, Petitioner's friend, went with him to the school intending to have the girls beat up Eloyan. Petitioner drove Kalta and the two girls to the school. Although the girls observed Eloyan at the school, they did not beat her up. Kalta heard Petitioner's father state that he wanted to kill Eloyan and Lalayan because Eloyan destroyed his marriage. Petitioner was also present at that time. Petitioner's father asked Kalta about getting a silencer for a gun, and Kalta and Petitioner went to Kalta's cousin's house to get it. Petitioner's father offered $5,000 and a gold diamond ring to friends if they would kill Eloyan and Lalayan. He also asked people, while Kalta was present, if they would throw acid on Eloyan or Lalayan. However, Petitioner did not want to do these things.

Petitioner's friend, Jack Eghbalieh, heard Petitioner's father ask Petitioner about the silencer. Kalta told Jack that Petitioner asked him to place a fake telephone call to his father as if he had tried to get the silencer but was unsuccessful. Kalta did so, and Petitioner told his father that Kalta was not able to reach the person to get the silencer.

In the summer of 1989, Timothy Witt, went to Petitioner's house at his request. Kalta and a person named Mike were also there. Witt heard Petitioner and his father have a conversation in foreign language. Petitioner told Witt, Kalta, and Mike that his father was offering to pay them $5,000 to 10,000 to throw a jar of acid on Eloyan's face in retaliation for her ruining his marriage.

On a different day, Petitioner's friend, Mohamad Jaafil, was visiting Petitioner at his house, and he overheard Petitioner's father tell Petitioner Jaafil "will do it." Jaafil got upset and asked what they were talking about, and Petitioner explained that his father wanted to do something to Eloyan. Jaafil refused to become involved. When Petitioner and Jaafil were working together at a mini market, Petitioner complained about Eloyan stating she was "psycho" and the cause of his father's divorce.

In February 1989, Lalayan and Eloyan moved to Glendale, and Petitioner's father and Lalayan divorced in April of that year. Lalayan obtained a restraining order in May of 1989 to keep Petitioner's father away from her and her daughter. On one occasion, Lalayan and Petitioner's father agreed to meet at a store, but he did not arrive. Lalayan later observed Petitioner's father approaching her house. She asked him why he was there, and Petitioner patted his father's clothing as if he were looking for weapons. On a prior occasion, Petitioner's father called and asked Lalayan for something, and she send Eloyan to deliver it at a nearby store.

On or about July 16, 1989, Petitioner and Kalta obtained acid from an auto parts store. They also went to Petitioner's school and obtained a bottle of yellowish liquid. Kalta observed Petitioner's father mix the acid and put it in a jar. When some of the acid spilled onto the concrete, it began to smoke. Petitioner's father stated the acid would disfigure Lalayan or Eloyan. On this same day, Kalta, Petitioner, and Petitioner's father went to Glendale, and Petitioner's father had the jar of acid. Petitioner and his father told Kalta to throw the acid on Lalayan or Eloyan. Petitioner and his father discussed the plan of approaching the victim from behind and throwing the acid. Petitioner and his father pointed Eloyan's house out as they drove and walked around the area. The three of them went to a nearby store and called Lalayan and Petitioner's father told her he had $1,000 and was waiting at the store. Lalayan stated that she would send Eloyan. Petitioner pointed Eloyan out to Kalta and handed him the acid. Kalta approached Eloyan alone and took the lid off the jar. He then walked behind her, touched her on the shoulder and asked the time. When she turned around, Kalta threw the acid on her face. Kalta dropped the jar, fled, and heard Eloyan scream. As a result of the attack, Eloyan can see light but is otherwise blind. Expert testimony established the acid was nitric acid but it could not be determined whether sulfuric acid was also used. Kalta stated that Petitioner's father threatened him and Petitioner if they did not participate. When Kalta returned to the car after the attack, Petitioner's father asked what happened, and Kalta said that Eloyan was screaming badly and was hurt and both Petitioner and his father said "good." Some of the acid splashed on Kalta's face and he told Petitioner's father that he was going to tell the police what happened, but Petitioner's father threatened him and tossed the acid. ...


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