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Deville v. Kramer

June 15, 2010

SHELBY DEVILLE, PETITIONER,
v.
M. KRAMER, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Shelby DeVille is a state prisoner proceeding through counsel with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Petitioner is currently serving a sentence of 15 years to life following his 1990 conviction for second degree murder in the Los Angeles County Superior Court. Here, petitioner challenges the execution of his sentence, and specifically, the September 7, 2006 decision of the Board of Parole Hearings that he was not suitable for parole. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied. The Board's decision has not denied petitioner due process of law under the minimally stringent standard that must be applied.

II. BACKGROUND

The basic facts of petitioner's life crime were set forth by the presiding commissioner at the hearing as follows:

[O]n October 20, 1988, at 6:30 hours... DeVille and his girlfriend met Alvin Dion Mason, [ ] (the victim) to purchase drugs. DeVille's girlfriend took the drugs from the victim but refused to pay. The victim asked for the drugs back, but DeVille's girlfriend dropped the drugs in the car and told the victim she couldn't find them. The victim confronted DeVille about the drugs and they began to fight. DeVille lost the fight when the victim, along with the members with the Elm Street Gang, proceeded to smash DeVille's car. DeVille called the police but told police he just wanted his car back and he didn't want to follow through with filing a report. DeVille left the area and returned [at] approximately 09:00 hours with his father's car and gun. DeVille asked the same men that vandalized his car, "Do ya'll remember me?" DeVille then opened fire, killing the victim...

(Pet. Ex. A at 9-10.)

Petitioner was convicted of second degree murder and sentenced to serve 15 years to life in state prison. His minimum eligible parole date passed on June 5, 1999. On September 7, 2006, a panel of the Board of Parole Hearings ("Board") conducted a hearing to determine petitioner's suitability for parole and concluded that he was not suitable for parole.

Petitioner challenged the Board's decision in the Los Angeles County Superior Court; his claims were denied in a written decision dated October 1, 2007. The California Court of Appeal, Fourth District, and the California Supreme Court denied petitioner's claims without written opinion.

III. ISSUES FOR REVIEW

Petitioner challenges the Board's 2006 denial of parole as arbitrary in violation of due process. Specifically, petitioner argues that (A) no evidence supports any of the Board's stated reasons for denying parole; (B) no nexus exists between the factors cited by the Board to deny parole and public safety; and (C) denial of parole based on historic, unchanging factors violates due process at this point.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, ...


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