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Priest v. Swarthout

June 17, 2010


The opinion of the court was delivered by: Timothy M. Burgess United States District Judge


Petitioner David Priest, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Priest is in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered and Priest has replied.


After entering a plea of guilty in July 1987, Priest was convicted in the San Joaquin Superior Court of one count of Murder in the Second Degree (Cal. Penal Code, § 187) and the use of a firearm (Cal. Penal Code, §§ 969(d), 12022.5). The trial court sentenced Priest to an indeterminate prison term of 15 years plus two years on the firearms conviction, to be served consecutively, for an aggregate term of 17 years to life. Priest does not challenge his conviction and sentence in this proceeding.

In January 2007 Priest appeared at a parole suitability hearing before the California Board of Parole Hearings. The Board denied Priest parole for a period of one year. Priest timely filed a petition for habeas corpus relief in the San Joaquin County Superior Court, which denied his petition in an unpublished, reasoned decision. The California Court of Appeal, Third Appellate District, summarily denied his petition for habeas corpus relief without opinion or citation to authority. The California Supreme Court summarily denied review without opinion or citation to authority on January 16, 2008. Priest timely filed his petition for relief in this court on February 5, 2008.

The facts of the case, as recited by the Board are:

On March 24, 1986, at approximately 5:09, a.m., the Stockton Police Department responded to the parking lot at the Dopaco, D-O-P-A-C-O, company, 800A Adam, West Church Street in Stockton. Paramedics were transporting the victim, John William Howe, H-O-W-E, to the hospital. The victim had no pulse and was pronounced dead at 5:28 a.m. at the San Joaquin General Hospital. In the victim's wallet, officers found two small baggies of white powder, two additional baggies of white powder were found in a pack of cigarettes. The victim had $1,080 in cash in his pants pocket. The powder tested positive for methamphetamines. Officers received information the victim sometimes sold methamphetamines at the work site. The autopsy noted gunshot wounds to the right pectoral, left back, and right side of the body. Cause of death was attributed to shock and hemorrhage. Witness Ernest Machado, M-A-C-H-A-D-O had arrived at the business and saw the victim lying motionless and summoned authorities. The victim worked at this business and had been seen by several co-workers at 4:20 a.m. Investigators found bullet fragments in a tire and on the ground near the Ford Thunderbird vehicle -- Pardon me. Near a Ford Thunderbird vehicle in the parking lot 30-30 caliber rifle shell casings were found. Officers learned from an employee that [Priest] had been at the plant approximately 3:00 a.m. and had met the victim outside for a few minutes before the victim returned to his work site. Victor Coleman, C-O-L-E-M-A-N told officers that [Priest] had been at his Lodi residence at approximately 12:00 p.m. on March 24, 1986. He and [Priest] worked at Dopaco Company before [Priest] had been terminated. [Priest] was chopping up and snorting, quote, "crank," end quote, at the house until approximately 1:20 a.m. [Priest] told Coleman that he had something to take care of that night and that he was going to take care of a lot of other people's problems too. Coleman was told that if he heard anything bad had happened, he should not say anything about what [Priest] had told him or he, parens, ([Priest]), end of parens, would shoot him too. Coleman thought [Priest] was just high on drugs and initially discarded the statement. [Priest] told Coleman that he wanted to go to Stockton to obtain more methamphetamines from the victim. Coleman had [Priest] drop him off at his house. Apparently, the victim had an arrangement with [Priest] wherein Howe would front [Priest] a quantity of, quote, "crank," end quote, and [Priest] would pay Howe back had he sold it. Coleman stated that he saw a rifle on the floorboard of [Priest's] vehicle and that he observed a bullet fall from [Priest's] pocket. Officers also learned that Susan Priest, the victim's (sic) estranged wife, had been seen at the victim's residence in the past and that [Priest] had displayed jealousy regarding that situation. Susan Priest advised officers that her estranged husband had obtained narcotics from Howe and that he was also selling. She said that his personality and reliability had gone, quote, "downhill," end quote, recently. She denied any relationship with Howe. On March 27, 1986, a search warrant was served at [Priest's] residence in Lodi. This was the home of [Priest's] brother, Steven Priest, where [Priest] had been staying for the last two weeks. A 30-30 caliber rifle was found in the rafters of the garage. [Priest's] brother said that the gun had been moved from a cabinet inside the house.

Laboratory analysis reflected the expended 30-30 cartridge casing found at the scene were fired from this rifle. [Priest] was arrested on March 27, 1986. He was advised of his rights but had offered that he had taken a gun to the Dopaco plant at about 3:00 a.m. to talk to Stacey, S-T-A-C-Y, Dodson, D-O-D-S-O-N for about five minutes to find out where Dodson lived. [Priest] stated that he talked to Victim Howe for one to two minutes as well before departing. [Priest] denied that he had any weapon in his vehicle, denied shooting the victim. He disclaimed any knowledge of the rifle found in his brother's garage. At the conclusion of the interview, [Priest] was booked for the murder of Mr. Howe.

After the pleadings were complete and the issues joined, this Court stayed further proceedings in this action pending decision by the en banc panel of the United States Court of Appeals for the Ninth Circuit in Hayward.*fn2 The Ninth Circuit has issued its en banc opinion in Hayward;*fn3 therefore, the Court terminates the stay and decides the case.


Although he has enumerated five grounds, Priest presents but three grounds, three of which (second, third, and fourth) attack the quantum and adequacy of the evidence and are addressed as one as Ground 2 in this Memorandum Decision: (1) that he has a liberty interest in parole that is subject to the Due Process Clause of the U.S. Constitution; (2) that the finding of the Board of unsuitability for parole is not based upon sufficient reliable evidence; and (3) the Board is biased. Respondent asserts no affirmative defense.*fn4


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), 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."*fn5 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."*fn6 The holding must also be intended to 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.*fn7 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.'"*fn8 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.*fn9 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn10 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn11 In a federal ...

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