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McElroy v. Martel

August 9, 2010

MARVIN MCELROY, PETITIONER,
v.
MICHAEL MARTEL, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Marvin McElroy 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 an indeterminate sentence of life in prison following his 1983 convictions for burglary and first degree murder with use of a firearm in the Alameda County Superior Court. Petitioner challenges the execution of his sentence, and specifically, the decision of the Board of Prison Terms following a September 19, 2007 parole consideration hearing that he was not suitable for parole.

II. BACKGROUND

The facts of petitioner's commitment offenses will be set forth in greater detail below; for the time being, it suffices to say that in 1983, he was convicted by jury of burglary and first degree murder with use of a firearm. He was sentenced to a term of 14 months plus 26 years to life in state prison. During his incarceration, petitioner has consistently maintained that he is innocent of the commitment offenses.

On September 19, 2007 a panel of the Board of Prison Terms conducted a second subsequent hearing to determine whether petitioner would pose an unreasonable risk of danger or threat to society if released from prison, and thus whether he was suitable for parole. Citing petitioner's commitment offenses and criminal history, his failure to upgrade educationally, insufficient participation in prison programming, and inadequate plans for parole, the Board determined that petitioner was not suitable for parole.

Petitioner challenged the Board's decision in a petition for writ of habeas corpus to the Alameda County Superior Court. He presented identical claims to those presented in the pending federal petition. The Alameda County Superior Court denied the petition in a brief written decision dated February 25, 2008. Petitioner sought relief in the California Court of Appeal and the California Supreme Court; those petitions were likewise denied, but without written opinions.

III. CLAIMS FOR REVIEW

Petitioner claims that (A) the Board's denial of parole violated his due process rights because it was based on an inaccurate statement of facts relating to petitioner's commitment offenses and because there was insufficient evidence in the record to support the decision; and (B) the parole commissioners on the Board of Parole Hearings are biased.

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

V. DISCUSSION

A. Due ...


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