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Nguyen v. Kramer

April 28, 2010

NGOC NGUYEN 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. (Ct. Rec. 1). Petitioner is proceeding pro se. Respondent is represented by Michael G. Lagrama of the California Attorney General's Office.

BACKGROUND

At the time this petition was filed, Petitioner was incarcerated at Folsom State Prison. (Ct. Rec. 1). Petitioner is in custody pursuant to his April 6, 1990, conviction for attempted murder with great bodily injury. (Id.) Petitioner began serving an indeterminate life sentence plus three years on May 4, 1990. (Id.) Petitioner has not been found suitable for parole. Petitioner is challenging the August 19, 2004 decision by the California Board of Parole Hearings ("BPH") finding him unsuitable for parole. (Id.)

I. Factual History

On September 4th, 1989, Los Angeles Police Department officers responded to Petitioner's residence regarding a "human immolation." (Ct. Rec. 13, Exh. B at 16). The officers found a "red pitcher smelling of gasoline" on the floor in the bathroom. (Id.) The victim, Petitioner's wife, was found in the bedroom closet. (Id.) She survived, but suffered burns to over 50 percent of her body. (Id.) Witnesses testified that Petitioner entered his home, and moments later the victim came running out, engulfed in flames. (Id. at 17). The victim immediately identified Petitioner as her assailant. (Id.) She told officers that he had a drinking problem, and while drunk, he doused her with gasoline, struck a match to paper, and then threw the paper on her. (Id. at 18). According to the victim, Petitioner had been attempting to leave her and their three children, and had also been threatening to kill her "for the past three weeks." (Id.) Petitioner stated that he committed the crime because he was drunk, and jealous over his wife's infidelity. (Id.)

II. Procedural History

Petitioner was convicted by a jury of attempted murder with great bodily injury. (Ct. Rec. 1). The Los Angeles County Superior Court, South District, entered the judgment on April 6, 1990. (Id.) He was sentenced to life plus three years. (Id.) He began serving his life term on August 23, 1991 (Id.) Petitioner has been incarcerated for 19 years. His minimum eligible parole date ("MEPD") was August 23, 1998. (Ct. Rec. 1, Exh. A at 2).

On May 31, 2005, Petitioner filed a petition for habeas review in Los Angeles County Superior Court. (Ct. Rec. 1, Exh. M). There, Petitioner challenged the same August 19, 2004 parole denial that is the subject of this petition. (Id.) The Superior Court denied relief. (Id.) Petitioner then filed a petition with the Second District Court of Appeal. (Ct. Rec. 13, Exh. E). That petition was summarily denied. (Id.) On September 13, 2006, the California Supreme Court, with citation to two cases, denied review. (Ct. Rec. 13, Exh. F).

Petitioner filed this petition with the United States District Court for the Eastern District of California on January 17, 2007. (Ct. Rec. 1). Respondent filed a response on June 15, 2007. (Ct. Rec. 13). Petitioner filed a traverse on July 16, 2007. (Ct. Rec. 15).

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 law when it applies the law in a manner that is "objectively unreasonable." Id. at 409. "[The] AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) - whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law." Lockyer, 538 U.S. at 71.

In examining whether state courts reached a decision that was contrary to federal law or whether the state courts unreasonably applied such law, the reviewing court should look to the last reasoned state court decision. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002) cert. dismissed, 538 U.S. 919 (2003). Where no reasoning is given in either the state court of appeals or the state supreme court, Ninth Circuit courts must determine whether a state court's decision was objectively unreasonable based on an independent review of the record. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (quoting Delgado v. Lewis, 223 F.3d 976, 981-982 (9th Cir. 2000). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Id.

Here, both the Second Appellate Court and the California Supreme Court issued two-sentence denials, both citing In re Dannenberg, 34 Cal.4th 1061');">34 Cal. 4th 1061 (2005), and In re Rosenkrantz, 29 Cal. 4th 616 (2002). (Ct. Rec. 1, Exhs. O, P). ...


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