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Baez v. Swarthout

October 7, 2010

ANTHONY BAEZ, PETITIONER,
v.
GARY SWARTHOUT*FN1, ET AL., RESPONDENTS.



MEMORANDUM DECISION AND ORDER

This matter comes before the court on Petitioner Anthony Baez's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

INTRODUCTION

Petitioner Baez is a state prisoner currently incarcerated at the California State Prison at Solano, in Vacaville, California. He filed this petition for a writ of habeas corpus to challenge a 2004 decision of the California Board of Prison Terms ("Board") denying him parole. A review of the record demonstrates that the 2005 decision of the Los Angeles County Superior Court rejecting Baez's habeas claims was neither contrary to nor an unreasonable application of United States Supreme Court precedent. 28 U.S.C. § 2254(d). Accordingly, the petition is DENIED and the case is DISMISSED with prejudice.

PROCEDURAL AND FACTUAL HISTORY

Baez is currently serving a sentence of fifteen years to life for second degree murder and felony assault. Baez's conviction was the result of a confrontation that took place on June 26, 1986, in the parking lot of a fast food restaurant in Pomona, California. After one of three men either whistled at or patted the buttocks of Baez's girlfriend, Baez approached them in their pickup truck and exchanged words with passenger Nick Affatati. Affatati got out of the truck and pushed Baez, who then pushed Affatati, pulled out a gun, and told Affatati to "back off" and that he was a "police officer." Affatati got back in the truck, but his friend, Bruce Massey, exited the truck and hurried after Baez, who had begun to walk away. According to Baez, Massey punched him, and Affatati, who had exited the truck and smashed the windshield of Baez's car, also advanced toward Baez. Baez drew his gun and fired two shots, fatally striking Massey in the temple and in the leg. (Pet. for Writ of Habeas Corpus Exhibit A (#6) at 3-6.)

Baez was convicted of second degree murder and felony assault on June 1, 1987, after a jury trial. (Id. at 3). His conviction was affirmed by the California Court of Appeal on February 20, 1991. (Id. at 1). Baez began his sentence on September 15, 1987, with a minimum eligible parole release date of December 17, 1997. (Pet. for Writ of Habeas Corpus (#1) at 2.) He was denied parole at his initial parole hearing on January 29, 1997, his first subsequent parole hearing on June 15, 2000, and his second subsequent parole hearing on February 17, 2004. (Id. at 2-3).

On November 1, 2004, Baez filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, alleging that the Board 's decision to deny him parole was invalid because it was based on insufficient evidence and because his parole hearing was held eight months late. (Pet. for Writ of Habeas Corpus Exhibit Q (#6) at 1-3.) On January 20, 2005, the Superior Court denied the petition, finding that the Board's parole denial was supported by "some evidence" as required by California law, and that Baez's claim as to the lateness of the hearing was "disingenuous and without merit." (Id.) The California Court of Appeal denied Baez's petition on March 24, 2005, by citing to In re Dannenberg, 104 P.3d 783 (Cal. 2005), and In re Rosenkrantz, 59 P.3d 174 (Cal. 2002). (Pet. for Writ of Habeas Corpus Exhibit R (#6).) The California Supreme Court denied Baez's petition on May 10, 2006, without comment or citation to authority. (Pet. for Writ of Habeas Corpus Exhibit S (#6).)

On July 31, 2006, Baez filed this federal petition for writ of habeas corpus.

CLAIMS

Baez's petition raises the following three claims with regard to the Board's 2004 denial of his parole:*fn2

1. Baez's federal due process rights were violated when the Board held his parole hearing eight months late;

2. Baez's federal due process rights were violated because the Board's decision was based on the minimum circumstances necessary in order to convict him of his commitment offense; and

3. Baez's federal due process rights were violated because the Board's decision was not supported by "some evidence" that his release would pose an ...


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