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Murillo v. Subia

September 29, 2010

VICTOR MURILLO, PETITIONER,
v.
R.J. SUBIA, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2006 denial of parole decision. Pending before the court are: Petitioner's petition for writ of habeas corpus (Doc. 1), Respondent's response to the petition (Doc. 8), Petitioner's traverse (Doc. 9), Respondent's supplemental brief (Doc. 11), and Petitioner's supplemental brief (Doc. 12).*fn1

I. BACKGROUND

Petitioner is serving an indeterminate life sentence for a conviction of second-degree murder. Petitioner appeared at his first subsequent parole suitability hearing in April 2006, at which time he was represented by counsel. In denying parole, the Board of Prison Terms ("Board") stated:

The panel has reviewed all the information received and relied on the following circumstances in concluding you are not yet suitable for parole and would pose an unreasonable risk of danger to society and a threat to public safety if released from prison. The offense was carried out in a cruel and callous manner.. . . . You indicate that you are not a violent person but you have a prior history of using a knife, of carrying a knife. Your prior history includes adult convictions and to me what they look like are things that would more care [sic] on a juvenile record but you were still doing as an adult, bicycle theft, the menacing it was a felony, menacing with a knife and you were placed on probation. You were given an opportunity, you knew what probation was all about. Regardless of the fact that you did complete that probation satisfactorily you were carrying a knife at that time, you came back and you started carrying a knife again. So to me you didn't learn anything from that experience. So to speak that was some sort of society's previous attempts to rehabilitate you but you kept going on. Also in terms of prior criminality and your social history you indicated that you were a meth dealer for three years. You did it to sustain your own addictions and you basically used crank and weed and LSD and some cocaine and alcohol during the course of your time. You participated in street gang association whether you were a member or an associate, in my book you walk like a you know what and talk like a you know what. . . . When you got into prison you went and joined a gang or you're an associate of a gang. Allegedly you dropped out of that, you indicated that that was for protection. Every time that we questioned you today your answer was it was for protection, your gang association or why you carried a knife or what ever the case may be. Also even though you had gotten you know you said that you weren't going to participate in the gang activity anymore, you got your tattoo which was an original gang tattoo upgraded after you had gotten out of the gang thing Also while you were in prison you received a 128A for grooming issues and that was after you had been told by I guess your previous panel no more 115's, no more 128's. I do want to indicate that you have done a good job and you should be applauded your efforts while you were in custody. Commissioner Smith mentioned a variety of programs that you have been involved in. Laudatory chronos, you've been participating in Criminals and Gangs Anonymous Program in Narcotics Anonymous and the 12 Step Recovery Program. . . . Workshops, you participated in a Victim's Workshop, a Parenting Workshop and you completed vocational electronics program. You are moving in the right direction but for us I think we would like to see you distance yourself from the disciplinary action. Your programming and your admission of your guilt so to speak, taking a look at yourself as a criminal. Some of the things that the Deputy District Attorney mentioned are fairly recent in your current history.

Petitioner challenged the decision with a petition for writ of habeas corpus filed in the Santa Clara County Superior Court. In denying relief, the court stated:

Pursuant to In re Dannenberg (2005) 34 Cal.4th 1061 parole can be denied if any one of several broadly interpreted, and extremely deferentially reviewed, unsuitability factors are present. In this case Petitioner's extensive criminal history and gang membership/activities weigh against parole. Petitioner does need to "distance" himself from his past history of continuous misconduct. The habeas petition is DENIED.

The California Court of Appeals and California Supreme Court both summarily denied relief.

II. STANDARDS OF REVIEW

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.

Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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.

Under § 2254(d)(1), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412) . "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an ...


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