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Avalos v. Sisto

United States District Court Eastern District of California


July 27, 2010

VICTOR AVALOS, PETITIONER,
v.
D.K. SISTO, WARDEN, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Terry J. Hatter, Jr. Senior United States District Judge

Order

The court has considered the petition for writ of habeas corpus of Victor Avalos, together with the moving and opposing papers. For the reasons set forth herein, the petition is denied.

Avalos pled guilty in 1991 to the second-degree murder of Alicia Adame with the use of a firearm and was sentenced to a term of twenty years to life with the possibility of parole.

The Board of Parole Hearings ["Board"] denied Avalos parole in 2004. The Board denied Avalos parole for a second time in 2006.

Avalos filed a petition for writ of habeas corpus in state court challenging, on due process grounds, the Board's 2006 decision to deny him parole. The court denied the petition, finding there was some evidence to support the Board's decision to deny Avalos parole. On appeal, the California Court of Appeal, also, denied the petition, finding in Avalos's plea agreement no promise of parole by a specified time, if at all. The California Supreme Court summarily denied Avalos's petition for review. Avalos, then, filed for habeas relief in this Court.

Under 28 U.S.C. § 2254, courts may grant habeas relief only where the state court's decision to uphold a denial of parole was an "unreasonable application" of the "some evidence" standard, or was "based on an unreasonable determination of the facts in light of the evidence." Hayward v. Marshall,603 F.3d 546, 562-63 (9th Cir. 2010).

Under the "some evidence" standard, due process is satisfied if there is some evidence to support the Board's decision to deny parole, i.e., some evidence from which the Board's conclusion could be deduced. Superintendent, Mass. Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed. 2d 356, 365 (1985). If there is any evidence in the record to support the conclusion by the Board that Avalos was unsuited for parole, its decision must stand. Hill, 472 U.S. at 455, 105 S.Ct. at 2774, 86 L.Ed. 2d at 365.

Evaluated against that deferential standard of review, Avalos's habeas claim fails. There is some evidence in the record to support the Board's decision. The Board found that the offense was carried out in a "cruel" and "dispassionate" manner; that Avalos abused his victim's trust; and that the motive was "inexplicable" in light of Avalos's expressed belief that, due to her religious beliefs, the victim would not have shot herself had he refused her request that he shoot her. The Board further relied on an unfavorable psychological report that indicated an unpredictable potential for violence, citing Avalos's lack of sophistication and vulnerability to external pressures, and considered, also, the opposition of the district attorney and the victim's family. Taken together, the disposition of these factors constitutes "some evidence" to support the Board's decision.

To the extent that Avalos disagrees with the Board's interpretation or construction of the evidence, i.e., that certain factors were over emphasized while others were overlooked or under emphasized -- the "some evidence" standard does not permit this Court to re-examine how the evidence was weighed, just whether the evidence exists. Hill, 472 U.S. at 455, 105 S.Ct. at 2774, 86 L.Ed. 2d at 365. Because it does exist, the state court properly denied the writ.

Finally, Avalos's claim that the Board's decision violated his plea agreement has no merit. Paragraphs 2 and 8a of Avalos's plea agreement, both of which he initialed, explicitly advised him that the maximum penalty as a result of his plea would be twenty years to life. Life imprisonment is the statutory maximum for second-degree murder set by California Penal Code § 190. Avalos cannot claim under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 2d 435, 455 (2000), that his penalty was improperly increased beyond the statutory maximum when the statutory maximum was life.

The matrix of base terms does not apply here since it applies only when the Board has found an inmate suitable for parole. Since Avalos was not found suitable for parole, the matrix does not apply. 15 Cal. Code Regs. §§ 2401-2403(a). In re Dannenberg, 34 Cal. 4th 1061, 1071, 23 Cal. Rptr. 3d 417, 421 (2005).

It is Ordered that the petition for writ of habeas corpus be, and hereby is, Denied.

20100727

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