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Higbee v. Cambell

April 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 four years at his parole consideration hearing held on April 20, 2006. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.


On October 9, 1987, in the Los Angeles County Superior Court, petitioner entered a plea of guilty to second degree murder and was later sentenced to fifteen years to life, plus one-year and a five-year enhancements to be served consecutively. Answer, Ex. A. This sentence was to be served consecutively to a six-year sentence imposed on petitioner in another case. Id.

On April 20, 2006, following a hearing, the Board found that petitioner was unsuitable for release on parole, and denied parole for four years. Pet., Ex. 3 at 87. Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court. Answer, Ex. B at 5. That petition was denied in a reasoned decision on April 13, 2007. Id., Ex. C. Petitioner subsequently filed habeas petitions in the California Court of Appeal and the California Supreme Court, both of which were summarily denied on January 17, 2008 and September 10, 2008, respectively. Id., Ex. D; Pet. at 8.


The Board described the facts of petitioner's offense of commitment at the April 20, 2006 parole suitability hearing as follows:

The inmate [met] the victim at a liquor store and they agreed to go out together to drink alcohol. Sometime during the night, during which they had consumed a considerable amount of alcohol, the defendant hit the victim with his belt...[killed her, and] cut off pubic hairs as well cutting off portions of the [breast]. When [petitioner] sobered, the impact of what he had done hit him, he told his family that he had done something terrible. The family notified the police in Glendale, however, they could not verify [his] story and no charges were filed at that time. Approximately eight days after the killing, one of the members of the [petitioner's] family found the victim's body and notified the Norwalk Sheriff's Station. The next day, the family brought [petitioner] to the Sheriff's Station where he was arrested.

Pet., Ex. 3 at 30-31.


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).

II. Petitioner's Claims

Petitioner claims that the Board violated his due process and first amendment rights by finding that he was unsuitable for parole based on his past substance abuse and his lack of participation in AA or NA. (Pet. at 3; Traverse at 4-6.) Petitioner also seeks an order from this court directing that his prison records be modified to reflect that his sentence is 15 years to ...

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