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Velasquez v. Horel

August 13, 2010


The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge


Velasquez, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He does not challenge his 1982 conviction for second degree murder, for which he received a prison term of fifteen years to life. Rather, he argues that the California Board of Parole Hearings' (Board) February 17, 2005 decision denying him parole violates his constitutional rights.

On July 28, 2009, this case was ordered stayed pending the Court of Appeals of the Ninth Circuit's en banc decision in Hayward v. Marshall; that opinion was filed this spring, see Hayward v. Marshall, 603 F.3d 546 (9th Cir. Apr. 22, 2010) (en banc), and thus Velasquez's case may now proceed. I have reviewed the petition, the respondent's answer, the traverse, and all supporting documents. I hold that Velasquez is not entitled to the relief requested and order the petition denied.


The following is a summary of the facts surrounding Velasquez's underlying offense, as found in a probation report that was read into the record at the parole hearing:

The material facts of the present offense as determined from materials in the district attorney's file and conversations with the investigating officer, would appear to be as follows:

On November 13, 1981, the defendant became involved in an altercation at the residence of Linda Benjamin at 11051 Venice Boulevard in West Los Angeles. There have been various accounts as to the cause of the altercation between the defendant and the victim Pam Martinelli. The account that the most witnesses seem to agree upon is that the deceased victim indicated that she was going to inform on the defendant. It appears that [the victim] was leaving when co-defendant Allen Ochoa stopped her outside and began striking her with his fists. It appears that the defendant then approached her with an ice pick that he kept in his van and began stabbing her. She was stabbed 16 times in the chest with wounds puncturing her heart, aorta, and lungs. Her throat was also slashed three times. Her body was then dumped in a trash bin at 4901 Slauson Avenue in Culver City. It was discovered there the following morning. Witnesses who were present at the time the altercation broke out and who later heard this defendant and the co-defendant say they had killed her, informed the police and investigation led to the arrest of the defendant and co-defendant approximately one month later.

On July 27, 1982, Velasquez was convicted of one count of second degree murder. On September 23, 2003, Velasquez was granted parole following a hearing. On February 24, 2004, the grant of parole was reversed by the Governor, who cited the brutal nature of the crime and the fact that his explanations of what happened on the night of the murder and his motive had changed several times over the years, with Velasquez presenting differing versions as recently as 2003. The Governor stated that Velasquez's criminal history included robbery, burglary, and possession of marijuana. The Governor also pointed to conflicting evaluations of his risk to the public, and that his most recent evaluation found he would pose a high degree of threat to the public, even though an evaluation from 2002 by a different evaluator found only a moderate to low degree of threat to the public. The Governor expressed concern over Velasquez's lack of clear employment plans if he were to be paroled.

On February 17, 2005, Velasquez appeared before the Board for another parole hearing. At the close of the hearing, parole was denied. Velasquez has now been considered for parole nine times.


A person in custody pursuant to the judgment of a state court may petition a district court for relief by way of a writ of habeas corpus if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). Velasquez asserts that he suffered violations of his rights as guaranteed by the Constitution. The petition was filed after the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), and it is therefore governed by the AEDPA. Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). Thus, Velasquez's petition may be granted only if he demonstrates that the state court decision denying relief "resulted in a decision that was either (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. (internal quotation marks omitted), citing Doody v. Schriro, 596 F.3d 620, 634 (9th Cir. 2010) (en banc).

As a threshold matter, I must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003), quoting 28 U.S.C. § 2254(d)(1)). To do this, federal courts look to the "holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision," id., citing Williams, 529 U.S. at 412, and consider whether the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id., quoting 28 U.S.C. § 2254(d)(1)). "Under the 'contrary to' clause, a federal habeas court may [issue] the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. Although only Supreme Court law is binding on the states, precedent of the Court of Appeals for the Ninth Circuit remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000) ("because of the 1996 AEDPA amendments, [the court] can no longer reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on a federal Constitutional issue.... This does not mean that Ninth Circuit caselaw is never relevant to a habeas case after AEDPA. Our cases may be persuasive authority for purposes of determining whether a particular state court decision is an 'unreasonable application' of Supreme Court law, and also may help us determine what law is 'clearly established'"). Furthermore, the AEDPA requires that federal courts give considerable deference to state court decisions. The state court's factual findings are presumed correct, 28 U.S.C. § 2254(e)(1), and a federal habeas court is bound by a state's interpretation of its own laws. Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir. 2002).

We apply the AEDPA's standards to "the last reasoned decision" by a state court adjudicating a petitioner's claims. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Here, the California Supreme Court denied Velasquez's petition for writ of habeas corpus, citing California state cases In re Dannenberg, 34 Cal. 4th 1061, 1084, 1091, 1094 (2005); In re Rosenkrantz, 29 Cal. 4th 616, 638, 685, 686 (2002); People v. Duvall, 9 Cal. 4th 464, 474 (1995); People v. Crittenden, 9 Cal. 4th 83, 120 n.3 (1994); In re Clark, 5 Cal. 4th 750, 768 (1993); In re Miller, 17 Cal. 2d 734 (1941). The respondent in this case concedes that Velasquez ...

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