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Ashford v. Moore

October 28, 2010

WILLIAM ASHFORD, PETITIONER,
v.
STEVE MOORE, RESPONDENT.



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

ORDER, FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner William Ashford 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) it is recommended that habeas relief be denied; and (2) Petitioner's requests are denied.

II. PROCEDURAL HISTORY

On February 19, 1987, a jury convicted Petitioner of second degree murder and robbery in the Alameda County Superior Court. Resp't's Answer Ex. 1, pt. 1, at 2, ECF No. 13. For second degree murder, Petitioner was sentenced to fifteen years to life, with an additional two years for personal use of a firearm. Id. For robbery, Petitioner was sentenced, consecutively, to three years. Id. at 4. 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 June 20, 2008.

Petitioner filed a petition for writ of habeas corpus, dated November 22, 2008, with the Alameda County Superior Court challenging the Board's decision. See Resp't's Answer Ex. 2. On May 26, 2009, the Superior Court issued a reasoned opinion denying the petition. See Resp't's Answer Ex. 3. 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. 4-7.

On September 29, 2009, Petitioner filed a federal petition for writ of habeas corpus. Petitioner amended the petition on October 20, 2009. Respondent filed an answer to the petition on December 8, 2009, to which Petitioner filed a traverse on December 17, 2009.

III. FACTUAL BACKGROUND

On August 31st, 1985, [Petitioner] and his friend, Debbie Therman,... and her young daughter went to the Parkway Theater to see a movie. During the movie [Petitioner] was approached by ushers regarding his use of alcohol in the theater. Each time [Petitioner] gave an angry response. After the movie [Petitioner] saw Leslie Martin[]... in front of the theater and mistakenly thought Martin was one of the ushers who had approached him. [Petitioner] put his finger in Martin's face and angrily accused him of taking his drink. Martin moved [Petitioner's] finger out of his face. [Petitioner] said, "I've got something for you." [Petitioner] pulled out a 25-caliber hand gun and shot Martin one time in the heart. Martin died almost instantly. [Petitioner] was asked about the shooting later that night. He responded by saying matter-offactly, "It was his time to go." [Petitioner] subsequently cut his hair, changed his hair style and changed his residence.....

After [Petitioner] shot Leslie Martin, he immediately ran up East 19th Street where he saw David Thomas holding a 10-speed bicycle. [Petitioner] approached Thomas and angrily said, "Give me the mother fucking bike." Thomas refused, at which time [Petitioner] displayed his gun, demanding the bike. Thomas gave the bike to [Petitioner], who then rode away. [Petitioner] later bragged about taking a guy's bicycle to make his getaway.

Resp't's Answer Ex. 1, pt. 2, at 3-6; Parole Hr'g Tr. 13-16, June 20, 2008.

Prior to incarceration, Petitioner completed up to the eleventh grade, when he was expelled. Resp't's Answer Ex. 1, pt. 2, at 13; Parole Hr'g Tr. 23. Petitioner explained his expulsion was for not attending class. Resp't's Answer Ex. 1, pt. 2, at 13; Parole Hr'g Tr. 23. At age sixteen or seventeen, Petitioner "started using drugs," including "crack cocaine," and "drinking alcoholic beverages." Resp't's Answer Ex. 1, pt. 2, at 14; Parole Hr'g Tr. 24. When Petitioner committed the commitment offense, Petitioner was "twenty-four, 23," unemployed, and "living with [his] brother." Resp't's Answer Ex. 1, pt. 2, at 14, 40; Parole Hr'g Tr. 24, 50.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

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, 529 U.S. at 410).

V. REQUESTS FOR REVIEW

The petition for writ of habeas corpus sets forth three requests. Specifically, Petitioner requests: (1) an order to show cause; (2) appointment of counsel; and (3) an evidentiary hearing. Pet'r's Am. Pet. 14, ECF. No. 9.

A. First Request: Order To Show Cause

First, Petitioner requests that "this Court Order a Formal Show Cause [sic]." Id. As stated earlier, Respondent filed an answer to the petition on December 8, 2009, to which Petitioner filed a traverse on December 17, 2009. 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 arising in habeas petitions and are not especially complex. This is not an exceptional case warranting representation on federal habeas review. Petitioner's request for appointment of counsel is denied.

C. Third Request: Evidentiary Hearing

Third, Petitioner requests an evidentiary hearing. Pet'r's Am. Pet. 14. 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 required if: "(1) [the petitioner] has alleged facts that, if proven, would entitle him to habeas relief, and (2) he did not receive a full and fair opportunity to develop those facts[.]" Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004).

Here, Petitioner's request does not establish that these requirements are satisfied such that an evidentiary hearing would be appropriate. Petitioner does not allege facts that establish a colorable claim for relief because the Board's parole denial is supported by "some evidence" demonstrating future dangerousness, and the Superior Court's decision is reasonable. See infra Part VI. Petitioner's request for an evidentiary hearing is denied.

This matter is now ready for decision. For the following reasons, it is recommended that habeas relief be denied.

VI. CLAIMS FOR REVIEW

The petition for writ of habeas corpus sets forth two grounds for relief, both of which are due process claims. First, Petitioner argues that "the Board... [f]ailed to follow [] the laws" because "the Board failed to present any evidence that supports a denial of parole." Pet'r's Am. Pet. 5. Second, Petitioner contends "[t]he [s]tate [c]court [d]ecision (last reasoned) was unreasonable in light of the facts...." Id. at 4.

A. Legal Standard for Parole Denial

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Ky. Dep't. of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).

1. Liberty Interest in Parole

A protected liberty interest may arise from either the Due Process Clause itself or from state laws. Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create for prisoners a protected liberty interest in the receipt of a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). The full panoply of rights afforded a defendant in a criminal proceeding is not constitutionally mandated in the context of a parole proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The Supreme Court has held that a parole board's procedures are constitutionally adequate if the inmate is given an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16 (1979). If a state's statutory parole scheme uses mandatory language, however, it ...


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