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Kane v. Moore

November 1, 2010

MORGAN JAMES KANE, PETITIONER,
v.
STEVEN MOORE, ET AL., RESPONDENT.



The opinion of the court was delivered by: Barbara Jacobs Rothstein U.S. District Court Judge

ORDER DENYING REQUEST FOR APPOINTMENT OF LEGAL COUNSEL AND PETITION FOR A WRIT OF HABEAS CORPUS

I. INTRODUCTION

Petitioner is a California state prisoner who has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.)*fn1 He challenges the state courts' upholding of the California Board of Parole Hearings' (the "Board") November 9, 2007 decision denying him parole. The court, having reviewed the record and briefing of the parties, finds as follows:

II. BACKGROUND

Petitioner is in the custody of the California Department of Corrections and Rehabilitation following his convictions for first degree murder, forgery and attempted forgery. (Dkt. No. 1 at 2.) He is currently serving a life sentence with the possibility of parole. Id. On November 9, 2007, the Board denied Petitioner parole. On November 19, 2007, Petitioner filed a petition for writ of habeas corpus in Fresno County Superior Court, alleging that the District Attorney's Office violated the terms of his plea bargain agreement by opposing his request for parole at the November 9, 2007 parole hearing.*fn2 The superior court denied the petition on December 21, 2007, holding that Petitioner had failed to present any evidence to demonstrate the existence of an agreement that the District Attorney's Office would not oppose Petitioner's request for parole. (Dkt. No. 1 at 6(a)5.). Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal and a petition for review in the California Supreme Court. Both petitions were denied without comment. (Id. at 6(a)7-8.)

On December 14, 2007, Petitioner filed a second petition for writ of habeas corpus in Fresno County Superior Court, again challenging the Board's 2007 decision. This time he claimed that the Board's decision violated his due process rights because the decision was not supported by "some evidence." The superior court denied the petition on January 4, 2008, finding that under California's some-evidence standard, there "is at least some evidence to support the Board's decision." (Dkt. No. 31, Ex. 2, Super. Ct. Order.)

Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal and a petition for review in the California Supreme Court, raising substantially similar claims. (Id. at Exs. 3 and 5.) Both petitions were denied without comment. (Id. at Exs. 4 and 6.) He filed the present petition in the United States District Court for the Eastern District of California on June 4, 2008. (Dkt. No. 1.) It was transferred to this court on June 18, 2010. (Dkt. No. 19.) This court requested supplemental briefing on August 30, 2010. (Dkt. No. 26.) On October 4, 2010, Petitioner moved this court to appoint him legal counsel.*fn3 (Dkt. No. 32.) The matter is now ripe for review.

III. FACTS

Petitioner is serving a life sentence following his conviction for his involvement in the poisoning of Stanley John Kearns which resulted in Mr. Kearns' death on July 13, 1983. Petitioner's half sister (Mr. Kearns' daughter) and Petitioner's wife were also convicted for their participation in the murder. Petitioner was also convicted of cashing and attempting to cash checks forged against Mr. Kearns' bank account. Petitioner claims that he agreed to accept a plea bargain agreement of an indeterminate sentence of 27 years to life in lieu of going to trial in order to spare his wife and sister prison time. He claims that at the time he agreed to the plea bargain, California state law allowed "a day for a day credit" for good time and all of the parties involved in the plea deal understood that he would be eligible for parole in 13 years.

IV. GROUNDS FOR RELIEF

Petitioner raises the following grounds for relief:

1. The Parole Board's 2007 decision denying him parole violated his due process rights because the decision was not supported by "some evidence";

2. The District Attorney's Office violated his plea bargain agreement by opposing ...


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