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Gary v. Kramer

April 28, 2010

GLENN GARY, PETITIONER,
v.
M.C. KRAMER, RESPONDENT.



The opinion of the court was delivered by: Fred Van Sickle Senior United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

THIS MATTER comes before the Court on Petitioner's Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Ct. Rec. 1). Petitioner is proceeding pro se. Respondent is represented by Robert C. Cross of the California Attorney General's Office.

BACKGROUND

At the time this petition was filed, Petitioner was in the custody of the Folsom State Prison in Folsom, California, pursuant to his August 19, 1982 conviction for first-degree murder with use of a firearm. (Ct. Rec. 1). Petitioner is currently serving a sentence of 25-years-to-life with the possibility of parole. Petitioner has not been found suitable for parole. Petitioner is challenging the August 4, 2005, decision by Board of Parole Hearings of the State of California ("BPH") finding him unsuitable for parole. (Ct. Rec. 1).

I. FACTUAL HISTORY

On March 11, 1981, the body of Casey Wallace was found in an orchard in Stanislaus County. (Ct. Rec. 1, Exh. C).*fn1 Wallace died from multiple gunshot wounds to the head. The entry wounds were in Wallace's face, and there were three (3).38-caliber bullets found in his body.

At the time of Wallace's death, Petitioner was the president of the Bar Hoppers Motorcycle Club. Christopher Avila, another member of the club, testified under a grant of immunity that Petitioner told him he killed Wallace. According to Avila, Petitioner said Wallace was killed because he was involved in an attempt to have Petitioner assassinated by another motorcycle club. Avila testified that Petitioner told him he shot Wallace in the head three times with a.38-caliber revolver in an orchard near Turlock, California. Avila further testified that Petitioner thought it "comical" that he had "blow Wallace away with his own weapon."

On the morning of the murder, Mr. Hammond, another member of the motorcycle club, was present at Petitioner's residence. He testified (under immunity) that Petitioner told him, "I blew that [expletive] away." Hammond also testified that Petitioner told him he shot Wallace three times in the head, and the shooting took place in an orchard.

II. PROCEDURAL HISTORY

Petitioner was convicted in Stanislaus County Superior Court on August 19, 1982. (Ct. Rec. 1). On September 15, 1982, he was sentenced to 25 years to life, plus a two-year enhancement for use of a firearm. (Ct. Rec. 10, Exh. A). After serving two years for the firearm enhancement, Petitioner began serving his life term on July 18, 1985. (Ct. Rec. 1, Exh. E). Petitioner has been incarcerated for the past 28 years. Petitioner's minimum eligible parole date ("MPED") was May 17, 1998. (Ct. Rec. 1, Exh. E).

On August 4, 2005, the BPH found Petitioner unsuitable for parole. (Ct. Rec. 1). After he was denied parole, Petitioner filed habeas petitions with the Stanislaus County Superior Court, the Fifth District Court of Appeals, and the California Supreme Court, all of which were denied. (Ct. Rec. 1, Exhs. M, N).

Petitioner filed this petition for writ of habeas corpus on December 13, 2006. (Ct. Rec. 1). Respondents filed a response to the petition on March 19, 2007. (Ct. Rec. 10). Petitioner filed a traverse to the response on May 9, 2007. (Ct. Rec. 14).

DISCUSSION

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief if a state court adjudication 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 resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d)(1)(2009); see Williams v. Taylor, 529 U.S. 362, 399 (2000). "Clearly established federal law" consists of "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Anderson v. Terhune, 516 F.3d 781, 798 (9th Cir. 2008) (citing Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003)). A decision is "contrary to" clearly established federal law in two circumstances. First, a state court decision is contrary to clearly established federal law when "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams, 529 U.S. at 405. Second, a state court decision is contrary to clearly established federal law when 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 this Court has on a set of materially indistinguishable facts." Id. at 412-413. Under the "unreasonable application" standard, a state court unreasonably applies clearly established federal ...


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