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Barber v. Hartley

September 1, 2010

JEWELL BARBER, PETITIONER,
v.
J. D. HARTLEY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

RELEVANT HISTORY*fn1

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his conviction in Riverside County Superior Court in 1983 of second degree murder. Petitioner is serving a sentence of fifteen years to life with the possibility of parole.

Petitioner does not challenge his underlying conviction; rather, he claims the California Board of Parole Hearings ("Board") violated his due process rights in its 2009 decision finding Petitioner unsuitable for parole. Petitioner contends there was no evidence to support the finding that he currently posed an unreasonable risk of danger to the public if released. He contends that each ground relied upon by the panel lacked evidentiary support. He claims the Board's continued reliance on the commitment offense violates due process. He alleges his offense was not particularly egregious, and he has served the maximum term for his offense. He contends there was no nexus between his offense and his parole risk. He claims the Board's decision was not based on some evidence as required in In re Lawrence, 44 Cal.4th 1191, 1202, 1204 (2008). And last, he claims the application of Proposition 9 in his case constitutes an ex post facto violation.

Petitioner filed a habeas court petition challenging the Board's 2009 decision in the Riverside County Superior Court on August 13, 2009. The petition was denied on August 20, 2009, for failure to state a prima facie factual case. The superior court also determined that "there is some evidence supporting the Parole Board's decision." Petitioner next filed habeas petitions in the California Court of Appeal, Fourth Appellate District, and the California Supreme Court. The petitions were summarily denied on September 18, 2009, and December 2, 2009, respectively.

Petitioner filed the instant federal petition for writ of habeas corpus on March 8, 2010. Respondent filed an answer to the petition on June 1, 2010. Petitioner filed a traverse on June 16, 2010.

STATEMENT OF FACTS*fn2

On September 7, 1982, Petitioner and a couple of his friends and crime partners were sitting around a table discussing the victim, James Edward Bailey. Petitioner and these individuals knew each other as a result of drug dealings and sales. One of the individuals, McCauley, stated he was going to kill Bailey. He produced a .22-caliber revolver, put it in his front pants pocket, left, came back again, and said he was going to kill Bailey. He came back again and said he couldn't do it because there were too many people around. Shortly thereafter, Petitioner left the apartment and returned a short time later advising everyone that Bailey was in his apartment. McCauley got up, left the apartment again, and stated he was going to kill Bailey. A short time later there was a loud thud noise. Petitioner went up to Bailey's apartment, came back, and told the rest that Bailey was lying on the floor. Later that day, Petitioner and Jones made contact with McCauley. McCauley stated Petitioner owed him $100.00 as part of the $300.00 that McCauley had been promised for killing Bailey. Bailey had been shot twice in the back of the head over a drug deal.

DISCUSSION

I. Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Petitioner is in custody of the California Department of Corrections and Rehabilitation pursuant to a state court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 U.S.C. § 2254 remains the exclusive vehicle for his habeas petition because he meets the threshold requirement of being in custody pursuant to a state court judgment. Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir.2006), citing White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.2004) ("Section 2254 'is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petition is not challenging [her] underlying state court conviction.'").

The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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 Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.

"[A] federal court may not issue the writ simply because the 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. Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).

II. Review of Petition

There is no independent right to parole under the United States Constitution; rather, the right exists and is created by the substantive state law which defines the parole scheme. Hayward v. Marshall, 603 F.3d 546, 559, 561 (9th Cir. 2010) (en banc) (citing Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Pearson v. Muntz, No. 08-55728, 2010 WL 2108964, * 2 (9th Cir. May 24, 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, No. 06-15444, 2010 WL 2330283, *6 (9th Cir. June 4, 2010). "[D]espite the necessarily subjective and predictive nature of the parole-release decision, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause." Bd. of Pardons v. Allen, 482 U.S. at 371.

In California, the Board of Parole Hearings' determination of whether an inmate is suitable for parole is controlled by the following regulations:

(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for a denied parole if in the judgment of the panel the prisoner will ...


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