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Adkins v. Sisto

August 12, 2010

BENJAMIN ADKINS, PETITIONER,
v.
D.K. SISTO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole in March 2006. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), respondent's answer (Doc. 10), and petitioner's reply (Doc. 11).

I. BACKGROUND

Petitioner is serving an indeterminate life sentence following his conviction for second degree murder. Petitioner appeared before the Board of Prison Terms ("Board") for a parole suitability hearing on March 22, 2006. Petitioner was represented by counsel at the hearing. In denying parole, the Board cited: (1) the facts of the commitment offense; and (2) the lack of self-help programming. As to the commitment offense, the Board stated:

... Certainly the commitment offense and the situation around the commitment offense was one of the same things that we considered in making our decision. Essentially that the -- the summary of the crime states briefly that Mr. Mills was harassing Mr. Adkins' girlfriend who was a prostitute and that Mr. Adkins got into a verbal sort of altercation with him and his companion, Mr. Ray. Ultimately what it led to was the shooting death of Mr. Mills....

As to self-help, the Board stated:

... [Parole] Hearing Panels have been asking you to participate in self-help, specifically substance abuse programming since -- well, for many years. I -- I pulled out a few just to make note of. In 1995 the Commissioners asked you to immerse yourself in substance abuse programming. In '02 they told you to participate in self-help. And in '04 they told you to participate in self-help. That's what we're going to tell you again....

The Board added:

... We would like to see you participate in self-help that would help you to gain insight -- that would help you to build tools for being able to function on the outside -- for you to develop insight into the victim impact and frankly to really look at what was going on in your life at the time of the commitment offense and evaluate who you were and what you were doing in a way that certainly didn't come across today. You almost made it sound like you were the victim of love and happened to be in the wrong place at the wrong time trying to save this poor inerrant woman and frankly that just didn't ring true to either of us....

The Board deferred further parole consideration for two years.

Petitioner challenged the March 2006 denial of parole in a habeas corpus petition filed in the San Francisco County Superior Court. Applying the "some evidence" standard, the state court concluded:

The commitment offense in this case had an apparently trivial motive. In the eyes of the board petitioner has not accepted full responsibility for his crime. The record shows he has admitted to past criminal conduct. He does not pursue self-help as requested by the board. There is evidence he still needs some insight into his criminal past and what made him commit the life offense. The board considered this evidence, their decision was not an arbitrary and capricious one, and the petitioner has not been exposed to cruel and unusual punishment.

The California Court of Appeals and California Supreme Court both ...


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