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Grim v. Sisto

October 5, 2010


The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge



Petitioner Darryl Grim is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, (1) Petitioner's requests are denied; and (2) it is recommended that habeas, declaratory, and injunctive relief be denied.


Petitioner is currently serving a sentence of fifteen years to life, plus a one year enhancement, following his 1989 conviction for second degree murder in the Alameda County Superior Court. Pet'r's Pet. 1, ECF No. 1. In the instant action, Petitioner challenges the decision by the California Board of Parole Hearings (the "Board") denying Petitioner parole. Petitioner appeared before the Board on August 9, 2007.

On December 26, 2007, Petitioner filed a petition for writ of habeas corpus with the Alameda County Superior Court challenging the Board's decision. See Resp't's Answer Ex. 1, ECF No. 12. The Superior Court issued a reasoned opinion, dated December 26, 2007, denying the petition. See Resp't's Answer Ex. 2. Petitioner sought relief in the California Court of Appeal, First Appellate District, and the California Supreme Court; those petitions were likewise denied, but without written opinions. See Resp't's Answer Exs. 3-6.

On July 25, 2008, Petitioner filed the instant federal petition for writ of habeas corpus. Respondent filed an answer to the petition on April 16, 2009, to which Petitioner filed a traverse on August 13, 2010.


On December 24, 1988, Officer Gloekler . . . of the Oakland Police Department[] responded to 5314 East 12th Street to investigate a possible auto accident. Upon arriving at the scene, Officer Gloekler observed a vehicle that had run over a fire hydrant by a man, later identified as Darryl Grim, who was standing by the passenger side of the car. As Officer Gloekler approached the car he observed a man, later identified as the victim, Jeffrey Anderson, in the driver's side of the vehicle hunched over the steering wheel, unconscious and bleeding from his back. Officer Gloekler searched Mr. Grim and found a knife that was later identified as the murder weapon. The investigation revealed that Mr. Anderson was at the Sadistics Motorcycle Clubhouse when Mr. Grim was asked to unlock the gate to the clubhouse grounds in order for Mr. Anderson to leave. Mr. Grim indicated that Mr. Anderson punched him in the head and said, quotes, 'Your Mama,' end quotes. Grim then pulled a knife approximately 10 to 12 inches long from a sheath on his side and stabbed Mr. Anderson in the back. It was reported that Mr. Anderson made it back to his car, but there was no way to tell from the reports how far or where his car was in relationship to the clubhouse. When Mr. Anderson was discovered in his vehicle he had defensive wounds on his wrists. The reports also indicate that Mr. Anderson's wallet was not on his person at the time of the discovery of his body. Grim confessed to Sergeant Thiem . . . . Mr. Grim said that Anderson punched him in the head and said, quotes, 'Your Mama,' end quotes. Grim's natural reaction was to knife him. He said he meant to knife him in the leg.*fn1

Petitioner was "the youngest of six children," and his parents separated when he was "about one years old." Resp't's Answer Ex. 1, at 56; Parole Hr'g Tr. 37, Aug. 9, 2007. Petitioner was "reared primarily by [his] mother who had significant medical problems," so "her main source of income was AFDC." Resp't's Answer Ex. 1, at 56; Parole Hr'g Tr. 37. Petitioner's father did not contribute to the household. Resp't's Answer Ex. 1, at 56-57; Parole Hr'g Tr. 37-38. After the divorce, Petitioner's father moved to Texas for seven years, and Petitioner "had no contact with him during that time." Resp't's Answer Ex. 1, at 57; Parole Hr'g Tr. 38. Petitioner's father "had taken [his] sisters, Vicky and Valerie, and [his] older sister Marian, with him." Resp't's Answer Ex. 1, at 58; Parole Hr'g Tr. 39. So, Petitioner lived with his mother; his sister, Terry; and his brother, Otis. Resp't's Answer Ex. 1, at 58; Parole Hr'g Tr. 39.

When Petitioner was eight years old, he "had spinal meningitis," where he "flat lined" at the hospital and "had frontal lobe brain damage." Resp't's Answer Ex. 1, at 65; Parole Hr'g Tr. 46. Petitioner claimed that prior to his illness, he "liked going to school," but afterward, "everything went bad," and his "attitude changed." Resp't's Answer Ex. 1, at 65; Parole Hr'g Tr. 46. Petitioner dropped out of school around the ninth or tenth grade. Resp't's Answer Ex. 1, at 59; Parole Hr'g Tr. 40. He quit "so he could help his mother" and went to work "unloading trucks." At the hearing, Petitioner claimed: (1) he communicated with Otis and Marian about once a month; (2) he had not spoken with Terry for about four years; (3) he had not seen Valerie in almost twenty years; and (4) he had not seen Vicky in about twenty-five years. Resp't's Answer Ex. 1, at 58-59; Parole Hr'g Tr. 39-40.


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)). 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, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more than one state court has adjudicated a petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (finding presumption that later unexplained orders, upholding judgment or rejecting same claim, rests upon same ground as prior order)). Thus, a federal habeas court looks through ambiguous or unexplained state court decisions to the last reasoned decision to determine whether that decision was contrary to or an unreasonable application of clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).


Petitioner sets forth five requests and one ground for relief. Specifically, Petitioner requests: (1) an order to show cause; (2) appointment of counsel; (3) discovery; (4) an evidentiary hearing; and (5) judicial notice. Pet'r's Pet. 16; Pet'r's Req. For Judicial Notice, ECF No. 17. Petitioner also claims that the Board's parole denial violated his due process rights and seeks habeas, declaratory, and injunctive relief. Pet'r's Pet. 16.

A. First Request: Order To Show Cause

First, in his prayer for relief, Petitioner requests "an Order To Show Cause on an expedited basis" under Rule 4.551 of the California Rules of Court. Id. As stated earlier, Respondent filed an answer to the petition on April 16, 2009, to which Petitioner filed a traverse on August 13, 2010. Accordingly, Petitioner's request for an order to show cause is denied as moot.

B. Second Request: Appoint Counsel

Second, Petitioner requests appointment of counsel in further litigation of this action. Id. The Sixth Amendment right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). A district court, however, may appoint counsel to represent a habeas petitioner whenever "the court determines that the interests of justice so require," and such person is financially unable to obtain representation. 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the district court's discretion. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Courts have made appointment of counsel the exception rather than the rule by limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal, or mixed legal and factual questions; (3) cases involving uneducated or mentally or physically impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in trying the claims; (5) cases in which the petitioner is in no position to investigate crucial facts; and (6) factually complex cases. See generally 1 J. LIEBMAN & R. HERTZ, FEDERALHABEASCORPUSPRACTICE AND PROCEDURE § 12.3b, at 383-86 (2d ed. 1994). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965).

Appointment of counsel is not warranted in this case. Petitioner's claims are typical claims that arise in habeas petitions and are not especially complex. This is not an exceptional case that would warrant representation on federal habeas review. Thus, Petitioner's request for appointment of counsel is denied.

C. Third Request: Discovery

Third, Petitioner requests discovery. Pet'r's Pet. 16. "The writ of habeas corpus is not a proceeding in the original criminal prosecution but an independent civil suit." Riddle v. Dyche, 262 U.S. 333, 335-36 (1923); see, e.g., Keeney v. Tamayo-Reyes, 504 U.S. 1, 14 (1992) (O'Connor, J., dissenting). However, modern habeas corpus procedure has the same function as an ordinary appeal. O'Neal v. McAnnich, 513 U.S. 432, 442 (1995) (recognizing federal court's function in habeas corpus proceedings is to "review errors in state criminal trials" (emphasis omitted)). A habeas proceeding does not proceed to "trial," and unlike other civil litigation, parties in a habeas proceeding are not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997); Harris v. Nelson, 394 U.S. 286, 295 (1969). Although discovery is available pursuant to Rule 6 of the Federal Rules Governing Section 2254 Cases, it is only granted at the court's discretion, and upon a showing of good cause. Bracy, 520 U.S. at 904; McDaniel v. U.S. District Court (Jones), 127 F.3d 886, 888 (9th Cir. 1997); Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997); see also Rule 6(a), Federal Rules Governing Section 2254 Cases.

Good cause is shown "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief." Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. at 300); see also Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2004). A request for discovery "must also include any proposed interrogatories and requests for admission, and must specify any requested documents." Rule 6(b), Federal Rules Governing Section 2254 Cases. Federal courts have "the power to 'fashion appropriate modes of procedure,' including discovery, to dispose of habeas petitions 'as law and justice require[.]'" Bracy, 520 U.S. at 904 (citations omitted) (quoting Harris, 394 U.S. at 299-300); see also Bittaker, 331 F.3d at 728.

Here, Petitioner does not demonstrate good cause as to why his request for discovery should be granted. Petitioner does not state why discovery is necessary, or why discovery is relevant to a determination of the petition's merits. Petitioner also does not include any proposed interrogatories or requests for admission, and fails to specify any requested documents, as required under Rule 6(b). See Rule 6(b), Federal Rules Governing Section 2254 Cases. Petitioner, therefore, fails to establish good cause, and absent any good cause, Petitioner's request for discovery is denied.

D. Fourth Request: Evidentiary Hearing

Fourth, Petitioner requests an evidentiary hearing. Pet'r's Pet. 16. Under 28 U.S.C. § 2254(e)(2), a district court presented with a request for an evidentiary hearing must first determine whether a factual basis exists in the record to support a petitioner's claims and, if not, whether an evidentiary hearing "might be appropriate." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). "[W]here the petitioner establishes a colorable claim for relief and has never been afforded a state or federal hearing on this claim, we must remand to the district court for an evidentiary hearing." Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670; Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2004); Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). In other words, a hearing is ...

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