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Hall v. Swarthout

October 1, 2010

ANDRE HALL, PETITIONER,
v.
GARY SWARTHOUT, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Hall is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner stands convicted of second degree murder with use of a firearm for which he is currently serving a sentence of 17 years to life in state prison. In the pending petition, petitioner presents a single claim challenging the November 20, 2008 decision of the Board of Parole Hearings that he was not suitable for parole. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.

II. BACKGROUND

According to the probation officer's report, police were summoned to the residence of the victim, petitioner's estranged wife, on March 4, 1989 at 9:55 a.m. Petitioner had forcibly entered the apartment and proceeded to assault the victim with his fists. Two male friends of the victim subdued petitioner and removed him from the apartment. By the time police officers arrived, petitioner was no longer in the area. At 11:38 a.m. on the same day, police were again summoned to the victim's residence in response to a shooting. The victim had sustained four gunshot wounds and was pronounced dead at the scene.

Petitioner's five year old daughter and three year old son were in the apartment, along with a third child. After seeing her father with a gun and hearing her mother say "Please don't," the five year old took the other two children and hid under a bed in another room. After she heard gunshots, she came out and found her mother on the floor.

Several other witnesses heard the gunshots and observed petitioner walking away from the apartment. Petitioner was observed to throw the handgun used to kill the victim onto the roof of a nearby building. Petitioner fled the state and was arrested some months later in Kansas City, Missouri. According to petitioner, he was under the influence of alcohol and crack cocaine at the time of the offense. He was "out of control" and not thinking clearly.

Petitioner was convicted of second degree murder with use of a firearm and sentenced to a term of 17 years to life. He was received in state prison on January 19, 1991. His minimum eligible parole date passed on February 6, 2001. On November 20, 2008, the Board of Parole Hearings ("Board") conducted a subsequent hearing to determine whether petitioner was suitable to be released on parole. A panel of the Board concluded that petitioner still posed an unreasonable risk of danger to the public, and thus that he was not suitable for parole.

Petitioner challenged the Board's denial of parole as a violation of due process in a petition for writ of habeas corpus to the Los Angeles County Superior Court; his claim was denied in a written decision dated May 13, 2009. The California Court of Appeal, Second District, and the California Supreme Court likewise denied relief, but without written opinions.

III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States.

28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Additionally, this petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).

IV. DISCUSSION

Petitioner presents a single ground for relief: that "the Board's decision to deny parole was unsupported by any relevant, reliable evidence in the record that petitioner currently poses an unreasonable risk of danger to society and that it was arbitrary because it did not articulate a ration[al] nexus between the factors relied upon an[d] its conclusion [that petitioner was unsuitable], in violation of petitioner's right to due process of law under the Fourteenth Amendment."

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't. of ...


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