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Gomez v. Small

September 13, 2010

LOUIS GOMEZ, PETITIONER,
v.
LARRY SMALL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER (1) ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS

On November 24, 2008, Petitioner Louis Gomez ("Petitioner"), a state prisoner, filed a Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254, challenging the Board of Parole Hearings' (the "Board") denial of parole. (Doc. 1.) Pursuant to Local Rule 72.1(c)(1)( c), Magistrate Judge Peter C. Lewis issued a Report and Recommendation ("R&R") on October 30, 2009, recommending that the Petition be denied. On November 10, 2009, Petitioner filed an Objection to the R&R. Since the objection, the Ninth Circuit issued a decision in Hayward v. Marshall, 603 F. 3d 546 (9th Cir. 2010) (en banc), establishing the proper inquiry of a federal court reviewing a habeas petition challenging a denial of parole. After reviewing the Hayward decision, and having reviewed de novo the Magistrate Judge's Report and Recommendation, the Court adopts the recommendation and denies the Petition.

I. BACKGROUND

A. Statement of Facts

Petitioner is a state prisoner at Calipatria State Prison. Following his conviction for second degree murder, he began serving his 15 years to life sentence on July 26, 1983. On April 24, 1995, Petitioner received an additional six year sentence for violating California Penal Code Section 4501, assault upon another prisoner with the use of a weapon likely to produce great bodily injury. While in prison, Petitioner stipulated twice to a one-year denial of parole. On January 12, 2006, the Board denied Petitioner's request for parole following a hearing.

On October 30, 2006, Petitioner filed a petition for writ of habeas corpus alleging several due process violations. The Superior Court of Los Angeles County denied the petition on May 17, 2007. On August 16, 2007, Petitioner filed another petition in the California Court of Appeal, Second Appellate District, Division Eight. The Court of Appeal denied the petition without a written opinion on December 6, 2007. On January 17, 2008, Petitioner filed the same petition with the California Supreme Court. The Supreme Court summarily denied the petition on July 16, 2008, without a written opinion.

Petitioner filed the instant Petition for a federal writ of habeas corpus on November 24, 2008. The Petition was identical to the one filed with the California Supreme Court. The Petition raised several claims alleging: (1) disproportionate term of confinement with respect to his commitment offense in violation of Petitioner's Eighth Amendment rights*fn1 ; (2) violation of his federal right to procedural due process with respect to his plea bargain, thereby violating ex post facto principles; (3) violation of his federal right to procedural due process by denial of parole based on the facts of his commitment offense; (4) violation of his federal right to procedural due process when the Board arbitrarily denied Petitioner's request for parole; (5) an unlawfully constituted Board under California law; and (6) violation of his Eighth Amendment and federal right to procedural due process due to repeated delays in scheduling subsequent parole hearings.

Respondent filed an Answer on April 15, 2009. (Doc. 12.) Petitioner filed a traverse on April 22, 2009. (Doc. 14.) Magistrate Judge Lewis issued an R&R recommending that the Petition be denied. Petitioner filed an Objection to the R&R, arguing that: (1) the "some evidence" the Board used to support its decision, including the Board's reliance on "unchanging factors", is unreasonable; (2) Petitioner's denial of annual parole hearings violates his due process rights because California allowed for annual parole hearings at the time Petitioner entered into his plea bargain; (3) the subsequent amendments to California Penal Code Section 3041.5(b)(2) allowing multi-year parole denials is a violation of the ex post facto clause; and (4) the denial of parole resulted in Petitioner serving a disproportionately long sentence in light of the fact that he was a juvenile when he was sentenced. The Court will address these objections in light of the R&R.

B. Legal Standard

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the instant Petition because the Petition was filed after the AEDPA's effective date. Under the AEDPA, the Court cannot grant a writ of habeas corpus with respect to any claim adjudicated on the merits unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to the State court. 28 U.S.C. 2254(d).

According to the Supreme Court, Section 2254(d)(1) imposes a "highly deferential standard for evaluating state-court rulings," and "demands that state court decisions be given the benefit of the doubt." Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003) (citations omitted). Therefore, state court's decision is "contrary to" clearly established federal law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Williams v. Taylor, 529 U.S. 362, 405 (2000).

A state court's decision is an "unreasonable application of" federal law if it either: (1) correctly identifies the correct governing legal rule but then applies it to a new set of facts in a way that is objectively unreasonable, or (2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Id.at 407.

A similar inquiry applies under Section 2254(d)(2). That portion of the statute provides for habeas relief only if the state court's decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. A federal court may not second-guess the state court's factual determination unless it determines that the court was not merely wrong, but actually unreasonable. Taylor v. Maddox,366 F.3d 992, 999 (9th Cir. 2004).

Lastly, a federal court reviews the last reasoned opinion issued in state proceedings if the state's highest court did not issue a reasoned opinion. Y1st v. Nunnemaker, 501 U.S. 797, 803 (1991). In Petitioner's case, the California Supreme Court denied his Petition without comment. The Superior Court of California, County of Los Angeles issued the last reasoned opinion on May 17, 2007. Thus, the Court will review the Superior Court's decision and determine whether it was contrary to, or involved, an ...


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