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Varner v. Sisto

July 30, 2010




Petitioner Fredrick Varner 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 17 years to life following his 1981 conviction for second degree murder in the Alameda County Superior Court. Petitioner challenges the execution of that sentence, and specifically, the October 20, 2006 decision of Governor Schwarzenegger reversing a grant of parole by the Board of Parole Hearings. Petitioner presents a single claim for review: that the governor's decision is unsupported by any reliable evidence in the record in violation of his right to due process of law. Based on a thorough review of the record and the applicable law, it is recommended that the petition be denied.


Petitioner declined to discuss his commitment offense with the Board at his 2006 hearing. The presiding commissioner read into the record the following summary of the offense, taken from petitioner's probation report:

On September 5, 1980 at 3:45 p.m. the defendant and Orlando Summers... were in the 1000 block of 60th Street [in Oakland, California]. The defendant had a rifle, which he swung like a baseball bat at Summers. Summers tried to protect himself with his hands. The defendant attempted to fire the rifle three times at Summers but the rifle malfunctioned and just clicked. The fourth time the rifle fired and Summers fell face down at the curb. The defendant stood over Summers and fired several more shots at Summers back. Defendant put the rifle in the car and drove off.

It was further noted that petitioner gave the following statement to the probation officer at the time that report was created:

According to the defendant the victim had been more or less harassing him for several days. On the day of the offense the victim appeared to be drunk and started harassing the defendant verbally. He then pulled out a knife and struck the defendant several times. During this time the defendant was fending the victim off by pushing him away. Finally the defendant went to his car and got his rifle to protect himself. He had trouble getting the bullets to stay in the magazine and... when he tried to shoot at the victim to hit him in the legs the gun misfired several times. During a struggle the gun went off and hit the victim in the eye. The victim fell down and was clutching the defendant's legs. The defendant did not know the victim had been shot. Defendant says he is not a good shot and aiming again at the victim's legs -- he was aiming the gun at the victim's legs when he pulled the trigger several more times and hit the victim in the back. Defendant feels witnesses who testified against him may have been frightened by the victim's family to report the incident as they did and says he was acting in self-defense. He says the knife the victim was using was thrown into a nearby lot where it was later found by police. (Probation Officer's Report and Recommendation, April 30, 1981, at 2-3.)

Petitioner was convicted by jury of second degree murder with use of a firearm and sentenced to a term of 17 years to life in state prison. His minimum eligible parole date passed on November 9, 1990. On May 26, 2006, a panel of the Board of Prison Terms ("Board") conducted a ninth subsequent hearing to determine petitioner's suitability for parole and concluded that he would not pose an unreasonable risk of danger to society or a threat to public safety if released and thus that he was suitable for parole.

On October 20, 2006, Governor Schwarzenegger reversed the Board's grant of parole. Petitioner challenged the governor's reversal in the Alameda County Superior Court; his claims were denied in a written decision dated June 3, 2007. The California Court of Appeal, First District, and the California Supreme Court denied petitioner's claims, but without written opinions.


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).


The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't. of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).

A protected liberty interest may arise from either the Due Process Clause itself or from state laws. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create a protected liberty interest in the receipt of a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). However, if a state's statutory parole scheme uses mandatory language, it "creates a presumption that parole release will be granted" when or unless certain designated findings are made, thereby giving rise to ...

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