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Cobos v. Hartley

October 6, 2010

TONY COBOS, PETITIONER,
v.
J. D. HARTLEY, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

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

RELEVANT HISTORY*fn1

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his conviction in Los Angeles County Superior Court in 1986 of first degree murder. Petitioner is serving an indeterminate sentence of twenty-five years to life with the possibility of parole.

Petitioner does not challenge his underlying conviction; rather, he challenges a September 10, 2008, decision of the Board of Parole Hearings (Board) denying parole. Petitioner claims the Board violated his due process rights by finding him unsuitable for parole when no evidence demonstrated he posed an unreasonable risk of danger to society. He claims the Board erroneously stated the psychological evaluation rated him a moderate risk of danger to reoffend when in actuality the evaluation rated him in the low range.

Petitioner filed a habeas court petition challenging the Board's 2008 decision in the Los Angeles County Superior Court on January 21, 2009. The petition was denied in a reasoned decision on April 2, 2009. Petitioner then filed a state habeas petition in the California Court of Appeal, Second Appellate District, on June 3, 2009. The petition was summarily denied on June 16, 2009. He next filed a habeas petition on August 20, 2009, in the California Supreme Court. The petition was summarily denied on February 10, 2010.

Petitioner filed the instant federal petition for writ of habeas corpus on April 19, 2010. Respondent filed an answer to the petition on July 30, 2010. Petitioner filed a traverse on August 31, 2010.

STATEMENT OF FACTS*fn2

On December 1, 1985, Petitioner's friends murdered Martin Osuna's girlfriend. On December 6, 1985, Petitioner talked with his friends regarding their belief that Osuna was planning to retaliate against them for killing his girlfriend. In response, Petitioner and his friends planned to kill Osuna. Later that day, Petitioner and one of his co-defendants brought Osuna to Petitioner's home. An argument ensued and Osuna left. Petitioner stated Osuna was getting away and told a co-defendant to go get him. Petitioner and the co-defendants pursued Osuna so that he would not leave. Petitioner and his friends got into a car with Petitioner driving, Osuna in the passenger seat, and the co-defendants in the back seat. Petitioner stopped the car and one of his co-defendants engaged in a physical altercation with Osuna. Petitioner then grabbed Osuna by the legs and began stabbing him repeatedly in the back and buttocks. Osuna was stabbed approximately 37 times, which resulted in his death. Petitioner and the others removed Osuna's bloody body from the car. Petitioner told a co-defendant to "be sure he's dead," and the co-defendant repeatedly stabbed Osuna in the neck. Petitioner subsequently removed the victim's shirt and jacket, and joked about how many holes were in the jacket. The victim's body was covered in drapes taken from Petitioner's home and dumped in an isolated area in the mountains. Petitioner subsequently instructed a co-defendant to dismantle the car so that any evidence would be destroyed.

DISCUSSION

I. Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Petitioner is in custody of the California Department of Corrections and Rehabilitation pursuant to a state court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 U.S.C. § 2254 remains the exclusive vehicle for his habeas petition because he meets the threshold requirement of being in custody pursuant to a state court judgment. Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir.2006), citing White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.2004) ("Section 2254 'is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petition is not challenging his underlying state court conviction.'").

The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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 Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.

"[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).

II. Review of Petition

There is no independent right to parole under the United States Constitution; rather, the right exists and is created by the substantive state law which defines the parole scheme. Hayward v. Marshall, 603 F.3d 546, 559, 561 (9th Cir. 2010) (en banc) (citing Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Pearson v. Muntz, No. 08-55728, 2010 WL 2108964, * 2 (9th Cir. May 24, 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, No. 06-15444, 2010 WL 2330283, *6 (9th Cir. June 4, 2010). "[D]espite the necessarily subjective and predictive nature of the parole-release decision, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause." Bd. of Pardons v. Allen, 482 U.S. at 371.

In California, the Board of Parole Hearings' determination of whether an inmate is suitable for parole is controlled by the following regulations:

(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for a denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.

(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.

Cal. Code Regs. tit. 15, §§ 2402(a) and (b). Section 2402(c) sets forth circumstances tending to demonstrate unsuitability for release. "Circumstances tending to indicate unsuitability include:

(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The ...


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