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Perez v. Clark

September 21, 2010

PHILLIP L. PEREZ, PETITIONER,
v.
KEN CLARK, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 1]

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

DISCUSSION*fn1

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his 2002 conviction of kidnap for ransom and attempted extortion. Petitioner is serving a term of seven-years-to-life, plus two years.

In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges a September 8, 2008 decision by the California Board of Parole Hearings (Board) denying him parole.

In December 2008, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the Board's 2008 decision as not being supported by some evidence of his current dangerousness. (Ex. 1, to Pet.) The superior court found there was some evidence to support the Board's 2008 finding that Petitioner remained a danger to society and denied the habeas petition.

Petitioner then presented the same claim in a habeas petition to the California Court of Appeal. The petition was denied after finding the circumstances of Petitioner's commitment offense, lack of insight into the crime, and limited institutional programming, constituted some evidence to support the Board's finding of unsuitability.

Petitioner raised the same claim to the California Supreme Court, which summarily denied the petition.

Petitioner filed the instant petition for writ of habeas corpus on April 8, 2010. Respondent filed an answer to the petition on June 14, 2010, and Petitioner filed a traverse on July 7, 2010.

STATEMENT OF FACTS*fn2

Just before New Year's Day in 2000, Steven Barnes, called an escort service from his room at the Bellagio Hotel in Las Vegas, Nevada. The escort service sent Clark to Barnes' room. Barnes agreed to and did pay her $300 for sex. The next night Barnes gave Clark the key to his room and $3,000 for the sex they had and were planning to have. Barnes took Clark to dinner at the hotel and sometimes gambled with her. One day while his room safe was open he gave Clark $2,000 or $3,000. Barnes told Clark that he had approximately $20,000 in the safe. During his entire stay in Las Vegas, he had sex with Clark once or twice a day and he paid her approximately $6,000 in cash. On January 2, 2001, Barnes woke up in his hotel room and saw Clark looking through his briefcase. His briefcase contained personal belongs such as his wallet, credits, checkbook and business accounts. When Clark explained that she needed money to pay her rent, Barnes wrote a check to a rental management company on her behalf in the amount of $1,350. His home address and telephone number were on the check. On January 3, 2001, before leaving Las Vegas, Barnes gave Clark another personal check for $7,000. He also gave her his business card with one of his business phone numbers on it. Clark agreed to fly to Los Angeles the following weekend to visit him. He also gave Clark his home telephone number. When Barnes arrived home in Santa Monica, he telephoned the bank to stop payment on both checks. He did not tell Clark that he had done so.

On January 4, 2001, Clark presented the $7,000 check to the bank. After confirming with Barnes that a stop payment had been placed on the check, the teller informed Clark the check could not be cashed. Clark left the bank and telephoned Barnes about the refusal of the check, and Barnes told her he had stopped payment on both checks. Clark was very unhappy and told him that he needed to pay, and if he did not he would hear from her lawyer. Barnes warned Clark to leave him alone or he would get the Los Angeles Police Department involved.

Later that after afternoon, Munns went with Clark back to the bank and attempted to cash the check again. When the teller responded that she could not cash it, Munns became irate. The supervisor told Munns to take the matter up with Barnes, and Munns stated "I'll handle it" or "I will take care of this." The supervisor later telephoned Barnes about her concern for his safety.

On January 11, 2001, between 10:30 and 11:00 p.m. Barnes picked up Roxanne Shimp at the house of a relative she was visiting. She agreed to have sex with Barnes for $500. He had meet Shimp, a prostitute, on an earlier occasion in Las Vegas. After arriving at his Bellaire home, he escorted Shimp to the front door. As he opened it, three men charged him. Munns was in the front, Petitioner was behind, and the third male could not be identified. Barnes was ordered to the floor, and then he was hit with a club device and knocked to the floor. He was then struck in the back and kicked on the side of his face. Shimp was hysterical and curled up on the floor. Petitioner took Barnes' Rolex watch, valued at $12,000, from him. The men bound his arms and legs with duct tape and informed Barnes they were there in response to the check he wrote Clark.

The men then demanded $20,000 and asked about his safe. One of the men threatened to kill Barnes if he did not cooperate. Barnes denied having a safe or money on his person. A knife was held to Barnes' head and ear, and one of the men threatened to cut of his ear and blow off his head if he did not give them money. They took $200 or $300 from Barnes' pants pocket. Barnes told them that his father had $20,000 at his residence and he would take them there. Before leaving, the men took various items from the residence, including a television, leather jackets, Laker season tickets and cowboy boots. Barnes valued these items at $50,000.

The three men, Barnes, and Shimp all left the residence in two different vehicles. Barnes was in the back seat behind an unidentified driver and Petitioner was in the front passenger seat. Munns drove Barnes' truck with Shimp as the passenger. When they got to the father's residence, Petitioner told Barnes to tell his father to open to the door because they needed to talk. His father opened the front door and turned on the porch and yard lights. Munns and Perez who were approaching the house returned to the car. After reporting Barnes' father was calling the police, Munns and Perez removed Barnes and got into the car. Shimp exited the truck, and got into the back seat of the car with Munns and Petitioner.

On January 17, 2001, Petitioner called Barnes at his business and said, "This is your house gift. You need to take care of this. You need to get us the $20,000 and we're going to [sic] -- you just need to take care of this, or we're coming back to your house, and somebody is going to get hurt."

On January 19, 2001, Petitioner called Barnes again and told him to call a certain telephone number at 9:00 p.m. After Barnes called the number, Petitioner told him to place the $20,000 in a paper bag and throw it in the gutter in front of John and Pete's Liquor Store on La Cienega Boulevard. Two police officers hid in the back seat of the car Barnes drove to the drop-off location. At the location, Barnes threw a red duffle bag containing phony money out of his car window as he drove by. Perez then came out of some bushes and appeared to be making a telephone call at a pay phone while keeping an eye on the bag. He then ran across the street picked up the bag and ran off. After he was arrested, Petitioner claimed he was just "picking up money that's owed to me. He owes us a lot of money."

At trial, Petitioner presented an alibi defense for the January 11th robbery and kidnapping incident and presented evidence to establish his character traits for honesty and nonviolence and Barnes' character for dishonest. Petitioner also ...


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