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Miranda v. Carey

October 13, 2010


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Robert Louis Miranda ("Petitioner") is incarcerated for second-degree murder. Proceeding in pro se, he now seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. That Writ challenges Governor Arnold Schwarzenegger's reversal of the 2005 decision by the California Board of Prison Terms ("Board") granting Petitioner parole. Petitioner alleges that the Governor's reversal of the Board's decision violated his right to due process.*fn1

Specifically, he claims that the Governor's reversal of the Board's suitability findings were based on frozen factors/elements and were made without "some evidence" in the record to support his decision.

In the underlying state court proceedings, the San Francisco County Superior Court denied the Petitioner's Writ finding that "some evidence" existed to support the Governor's 2005 reversal. That decision was upheld by the Third Appellate District. Petitioner subsequently filed a habeas petition with the California Supreme Court but the petition was rejected as untimely filed.

After Petitioner filed the instant petition with this Court, the assigned Magistrate Judge issued Findings and Recommendations granting Petitioner's claims. Since that time, new Ninth Circuit jurisprudence has altered the underlying law and, as a consequence, this Court must look again at the entire factual record as well as applicable case law. Having reviewed the matter de novo, this Court will grant Petitioner's 2005 habeas petition.


On November 1, 1981, David Larsen, a 32-year-old merchant seaman, was found dead on a sidewalk in San Francisco. He had been stabbed several times.

While there are two versions of the facts of the crime,*fn2 Petitioner contended during his parole board hearing that testimony given by Green at the preliminary hearing, and upon which his plea bargain was negotiated, is correct. Green testified that Petitioner called him from a bar on the night of the stabbing, saying the victim wanted to buy marijuana. Green drove to the bar, picked up Petitioner and the victim, drove to Seneca and Mission Streets, and parked the car. Green stated that the victim and Petitioner got out of the car, but only Petitioner returned a few minutes later, saying "Let's go!" Green, noticing blood on Petitioner's hands asked him what happened. Petitioner told him, "Don't ask; you don't know nothing."

According to Petitioner's statement to the Board, after the victim attempted to back out of the drug buy, an argument ensued. The argument escalated when Petitioner grabbed the victim's arm to keep him from leaving. The victim swung his duffel bag at Petitioner and Petitioner stabbed the victim. Petitioner stated that he was high and under the influence of alcohol at the time.

Green testified that he and Petitioner thereafter proceeded by car to Green's parents' home where Petitioner washed up and changed clothes. According to Green, they then drove to Diana Zelms' house.

Green believed Petitioner was under the influence of PCP at the time of the crime because his eyes were glassy and because of his odd behavior. Green claims that neither he nor Petitioner learned of the victim's death until the following evening.


In 1985, Petitioner pled guilty to second-degree murder and received a sentence of 16 years to life.

In April of 2005, the Board found Petitioner suitable for parole. In September of 2005, Governor Schwarzenegger reversed the Board's decision. In November of 2005, Petitioner filed a Petition for Writ of Habeas Corpus in Superior Court for the City and County of San Francisco, challenging the Governor's reversal.

On January 9, 2006, the Superior Court, in a reasoned decision, denied the petition, holding that the Governor's decision was supported by "some evidence relevant to the factors the Governor is required to consider under article V, section 8(b) of the California Constitution." The court also held that the Governor has given "individualized consideration" to the "specified criteria." Petitioner then filed a petition with the California Court of Appeal on January 31, 2006, which was summarily denied on March 14, 2006.

Petitioner attempted to file a petition in the California Supreme Court, but that petition was erroneously rejected as untimely by the clerk (because he failed to give Petitioner the benefit of the so-called "mailbox rule").*fn3 Petitioner filed the instant federal habeas corpus petition on March 14, 2006.

In Findings and Recommendations ("F&Rs") dated July 28, 2009, the assigned Magistrate Judge recommended that

1) Petitioner's application for a writ of habeas corpus be granted; 2) that Respondent Thomas L. Carey, Warden of the California State Prison, Solano (hereinafter "Respondent") be directed to release Petitioner from custody within 10 days of any order adopting the F&Rs, with Petitioner subject to the terms and conditions set by the Board; and 3) that Respondent be directed to file, within 10 days ...

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