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Adkins v. Carey

July 28, 2010

BENJAMIN ADKINS, PETITIONER,
v.
TOM L. CAREY, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Benjamin Adkins is a state prisoner proceeding pro se 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 1981 conviction for second degree murder in the San Francisco County Superior Court. Petitioner challenges the execution of his sentence, and specifically, the decision of the Board of Prison Terms, following a March 6, 2002 parole consideration hearing, 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.

II. BACKGROUND

Petitioner's life crime was described as follows in a June 7, 1999 psychological evaluation considered by the Board at the March 6, 2002 parole suitability hearing:

On [March 21, 1981,] the inmate arrived at the scene of the crime to pick up his "girlfriend/prostitute" who was in the process of arranging her last "trick" of the day. The victim reportedly verbally insulted her. The inmate intervened, a verbal confrontation ensued, and the inmate reported that he turned to walk away. He reported that he then believed that the victim pursued him. He then turned and fired twice with a.25 handgun, striking the victim both times and killing him.

Petitioner was convicted by jury of second degree murder and sentenced to a term of 15 years to life in state prison. His minimum eligible parole date passed on March 1, 1989. On March 6, 2002, a panel of the Board of Prison Terms conducted a hearing to determine petitioner's suitability for parole and concluded that he would pose an unreasonable risk of danger to society or a threat to public safety if released, and thus that he was not suitable for parole.

Petitioner challenged the Board's decision in an administrative appeal, which was denied on February 11, 2003. Petitioner also filed a petition for writ of habeas corpus to the Solano County Superior Court. The Solano County Superior Court denied the petition in a written decision dated November 5, 2003. Petitioner also sought relief in the California Court of Appeal and the California Supreme Court; those petitions were likewise denied.

III. 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, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

IV. CLAIMS FOR REVIEW

In the pending petition, petitioner claims that (A) the Board's denial of parole violated his right to due process of law because his commitment offense was not particularly egregious and because there was no other evidence of current dangerousness; and (B) the Board's refusal to grant parole violated California state law.

V. EXHAUSTION

Before proceeding with a federal habeas corpus petition, a state prisoner must first exhaust state court remedies. 28 U.S.C. § 2254(b); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Larche v. Simons, 53 F.3d 1068, 1071 (9th Cir. 1995). Exhaustion requires that the federal claim be fairly presented to the state's highest ...


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