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Priest v. Sisto

September 29, 2010


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


Petitioner, a state prisoner proceeding with appointed counsel, 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), Petitioner's supplemental brief (Doc. 12),*fn1 Petitioner's second supplemental brief (Doc. 21), Respondent's second supplemental brief (Doc. 23), Petitioner's second traverse (Doc. 24), Petitioner's motion for discovery (Doc. 25), Petitioner's motion to expand the record (Doc. 25), Respondent's oppositions thereto (Docs. 27, 28), and Petitioner's replies thereto (Docs. 29, 30).


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

Your prior record, although (indiscernible) demonstrate an escalating pattern of conduct, your prior offenses remain property offenses, and alcohol, and drug offenses. So there's no really prior record of violence. It appears what this case illustrates is drugs are a dirty business. (Indiscernible) do bad things to people with those that come in contact with them. And it is apparent that this crime came as a result of drug activities that you were involved in at the time. And thus, the primary reason for our concern in your denial today, although in many ways you've been an ideal inmate, you've been relatively disciplinary-free, you've programmed well, this 115 in 2000 is disturbing to us. Your history - - Your criminal history relates to the abuse of drugs. This crime relates to the abuse of drugs. Everything that you have done in a programming sense, it's discounted when we see that 115. We think it is important that you continue to demonstrate that - - we understand that you deny culpability in that offense, but we're required to accept as true those findings, and it's important that you continue by your conduct to distance yourself from that 115. So we really have no other comments other than to continue along the line that you are traveling. You appear to have viable parole plans. You've programmed well. But for that disciplinary-free, you would have been given serious consideration today. We have considered the psychological report, the input from the District Attorney, and the input from the victims. . . .

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

The transcript of the hearing reveals that petitioner's prior criminality, including the life crime, all involved the abuse of illegal drugs or alcohol. Petitioner admits that he had been using methamphetamine before the murder. In 2000, while incarcerated at Folsom Prison, petitioner was found guilty of a rules violation involving methamphetamine. While petitioner denies that he was, in fact, guilty of the violation, a 115 issued and a finding of guilt was made. The panel indicated its concern with this 115 given the circumstances surrounding the life crime and petitioner's prior offenses. It therefore denied parole for one year and recommended, among other things, that petitioner remain disciplinary free. The rules violation report constitutes "some evidence" and is sufficient to uphold the Board's decision.

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


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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