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Smith v. Sisto

August 13, 2010

HOSEA SMITH, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Hosea Smith 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 16 years to life following his 1983 second degree murder conviction in the Los Angeles County Superior Court. In the pending petition, petitioner challenges the execution of his sentence, and specifically, the decision of the Board of Parole Hearings that he was not suitable for parole after a February 26, 2008 parole suitability hearing. Petitioner claims that (A) the Board's decision was unsupported by some evidence in violation of his right to due process of law and (B) the denial of parole violated the terms of his negotiated plea agreement.

II. BACKGROUND

According to the evidence in the record, the victim, Carolyn Gaston, was petitioner's common law wife although they had been separated for approximately three to four weeks. On the day of the offense, petitioner went to the home of Gaston's mother to discuss custody matters regarding their daughter. Gaston then returned with petitioner to his house. On the way they bought some cocaine and gin. At the house, they drank and free-based cocaine, and then got into an argument.

Petitioner retrieved an unloaded automatic weapon and pointed it at Gaston. He then placed the weapon on the floor. As Gaston tried to get the weapon, a struggle ensued and they began fighting on the floor. The fight lasted two or three hours. Gaston had unusual strength due to being on free-based cocaine. Petitioner hit Gaston several times with a large crystal ashtray. She suffered 11 major blows to the head area and lost two teeth. Her nose and right hand were fractured and she had lacerations on her face, hands and shoulders. The cause of death was determined to be multiple cranial cerebral injuries resulting from blunt-force trauma to the head. Cocaine, free-based cocaine, PCP and ethyl alcohol were present in her bloodstream at the time of death.

After Gaston died, petitioner drove their daughter to his mother's house in Arizona before returning to Long Beach, California, where he turned himself in to the police. After his arrest, he provided the above version of facts regarding his altercation with Gaston. At the scene of the crime, police found two seven-inch ashtrays and one two-foot high crystal ashtray which was covered with blood. Items in the room where the fight occurred were splattered with blood and the room was in total disarray.

Petitioner pleaded guilty to second degree murder with use of a firearm and received a sentence of 16 years to life. His life term began in 1983 and his minimum eligible parole date passed on February 17, 1992. On February 26, 2008, a panel of the Board of Parole Hearings ("Board") conducted a parole suitability hearing to determine if 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 various factors, including, but not limited to, the nature and gravity of the offense, petitioner's failure to participate in self-help programs, and an unfavorable psychological report, the panel concluded that he was not suitable for parole. The Board subsequently adopted the decision of the panel.

Petitioner challenged the Board's denial of parole on due process grounds in a petition for writ of habeas corpus to the Los Angeles County Superior Court. In a written decision dated October 3, 2008, the superior court denied petitioner's claim. The California Court of Appeal, Second District, and the California Supreme Court likewise denied relief.

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. DISCUSSION

A. Due ...


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