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Browning v. Salinas

April 21, 2010

JERRY E. BROWNING, PETITIONER,
v.
S. M. SALINAS,*FN1 WARDEN, DEUEL VOCATIONAL INSTITUTION, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Petitioner Jerry E. Browning, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Browning is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Deuel Vocational Institution. Respondent has filed an answer, and Browning has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

Browning is currently serving an indeterminate sentence of 29 years to life in prison following his 1983 conviction of first-degree murder with the use of a firearm. In April 2008 the Board of Parole Hearings denied Browning parole. Browning filed a petition for habeas corpus relief in the California Superior Court, Los Angeles County, which denied his petition in an unpublished, reasoned decision.*fn2 Browning's subsequent petition for habeas corpus relief to the California Court of Appeal was denied in an unpublished, reasoned decision,*fn3 and the California Supreme Court summarily denied review without opinion or citation to authority on January 21, 2009.*fn4 Browning timely filed his petition for relief in this Court on February 9, 2009.

II. GROUNDS RAISED/DEFENSES

In his petition Browning raises essentially a single ground: that the decision of the Board of Parole Hearings was unsupported by the record and the Board violated his due process rights by failing to follow California laws, policies, procedures, and regulations. Respondent does not assert any affirmative defense.*fn5

III. STANDARD OF REVIEW

Because Petitioner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn6 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn7 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn8 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn9 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn10 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn11

In applying this standard, this Court reviews the last reasoned decision by the state court.*fn12 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn13

IV. DISCUSSION

It is well-established by Supreme Court precedent that there is no constitutional right of a convicted person to be conditionally released on parole before expiration of a sentence.*fn14 The Ninth Circuit has held, however, that a California prisoner has a liberty interest in parole protected by the procedural safeguards of the Due Process Clause of the Fourteenth Amendment.*fn15 It is well settled in this circuit that a decision of the parole board to deny a prisoner parole must be supported by some evidence in the record.*fn16

Browning argues that there is no evidence in the record to support the determination that he poses a continuing risk of danger to society if released on parole. Browning further argues that in reaching its decision, the Board did not follow applicable California laws, regulations, policies and procedures. In denying this petition, the Los Angeles County Superior Court held:

The record reflects that on the morning of July 2, 1981, petitioner was observed in the garage of a service station beating an Asian man, Kyung Yul Bae, with what appeared to be a piece of pipe. Other witnesses saw the petitioner at the service station and at a liquor store at a nearby intersection earlier that morning when he took a sawed-off shotgun out of a tan Riviera. When the petitioner headed toward the service station, one of the witnesses called the police. The victim, Mr. Bae, died of his injuries and his daughter reported that $100 was missing from the cash register at the service station. At trial, the petitioner denied both robbing and beating Mr. Bae.

The Board found the Petitioner unsuitable for parole after a parole consideration hearing held on April 28, 2008. The Petitioner was denied parole for three years. The Board concluded that the Petitioner was unsuitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if he is released. The Board based its decision primarily on the commitment offense, petitioner's lack of ...


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