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Gaston v. Clark

October 20, 2010

STEFAN GASTON, PETITIONER,
v.
KEN CLARK, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]

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

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his conviction of attempted murder with a firearm resulting in great bodily injury and robbery.

In the instant petition Petitioner does not challenge the validity of his conviction; rather, Petitioner contends that the Board of Parole Hearings' October 2, 2008 decision finding him unsuitable for release was not supported by some evidence to demonstrate he presents an unreasonable risk to public safety if released.

Petitioner filed a state petition for writ of habeas corpus in the Los Angeles County Superior Court on April 1, 2009. The Superior Court denied the petition in a reasoned decision finding there was some evidence to demonstrate that Petitioner remains an unreasonable risk to public safety if released.

On July 28, 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District. The petition was summarily denied on August 7, 2009.

On September 8, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which issued a summary denial on February 10, 2010.

Petitioner filed the instant federal petition for writ of habeas corpus on May 17, 2010. Respondent filed an answer to the petition on August 3, 2010, and Petitioner filed a traverse on September 1, 2010.

STATEMENT OF FACTS

On January 11, 1992, Petitioner, along with four suspects, forced their way into the victim's residence and at gunpoint robbed the victims who were playing cards. The victim, along with a friend, fled into the bathroom and upon hearing a gunshot the victim exited the bathroom and was confronted by Petitioner. Petitioner shot the victim two times hitting him in the upper chest, which eventually left him paralyzed from the chest down. The victim's friend escaped through a window. During this time, two of the three suspects held the other victims at gunpoint, robbed them of money and jewelry. All of the suspects ran out of the front door. All of the suspects wore blue and gray bandanas over their faces and had dark clothing.

On February 26, 1992, Petitioner, along with two other male companions, forced their way into the residence of Francisco and Irene Morales demanding money and jewelry. Petitioner, armed with a gun, broke a piece of wire from the phone line and gave it to a co-suspect who tied one of the victims with the phone line. One of the suspects removed $125 from the victim's pants pockets.

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 [her] 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, 606 F.3d 606, 609 (9th Cir. 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 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 ...


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