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Butz v. Hartley

November 3, 2010


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


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


Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his conviction of second-degree murder with use of a weapon. Petitioner is serving an indeterminate sentence of sixteen years to life.

In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings' (Board) March 4, 2008 decision finding him unsuitable for release.

Petitioner filed a petition for writ of habeas corpus in the Santa Barbara County Superior Court challenging the Board's 2008 decision. The superior court denied the petition in a reasoned decision finding some evidence to support the Board's decision.

Petitioner filed petitions for writs of habeas corpus in the California Court of Appeal and California Supreme Court, and both petitions were denied without comment.

Petitioner filed the instant federal petition for writ of habeas corpus on March 11, 2010. Respondent filed an answer to the petition on July 16, 2010, and Petitioner filed a traverse on September 24, 2010.


In 1994, Petitioner and his girlfriend, Cammie Horn, rented an apartment above the garage on Oak Park Lane in Santa Barbara, California. Petitioner quarreled with his landlord, Fred Rossi, and in November of 1994, Petitioner physically attacked him. Rossi, aged 78, obtained a restraining order against Petitioner and changed the lock to the apartment. In March of 1995, Rossi filed an unlawful detainer action to evict Petitioner and his girlfriend. Rossi inspected the apartment complex on a daily basis and looked for recyclable items in the trash. Out of fear of Petitioner, Rossi changed his schedule on March 9, 1995, and made his rounds at 4:30 a.m. Rossi thought that Petitioner and Horn had moved out and decided to retrieve some of the patio furniture he loaned them. Rossi was carrying a chair when Roy Cortez, a tenant in the apartment complex, drove up. Cortez was 51 years old, African American and weighed 120 pounds. Petitioner overheard Rossi open the apartment window and shouted, "What are you doing down there, Fred? Stay away from my shit." Petitioner saw Cortez and screamed, "And you too, you fucking nigger, what are you doing? Are you working with Fred,' or helping Fred? Stay away from my shit.'" Rossi walked away. Petitioner taunted Cortez and shouted, "You get back here too, nigger, I'm going to kick your ass. Give me back my stuff. I know you're helping him.'" Cortez in a quiet voice replied, "Stay back, I don't want any of your stuff. You all don't pay any rent here anyway." Petitioner yelled, "Well you know I have a .357 up here and I'm coming down there." Cortez retrieved a stick from his van and said, "Well, come down here, white boy." Petitioner took his Raven Fantasy Fighter knife out of the box and ran down the stairs. A neighbor heard a noise that sounded like a sword fight. Petitioner danced back and forth with the knife and ultimately stabbed Cortez in the chest. Another tenant saw him run back to the apartment and leave two or three minutes later. The police responded to several 9-1-1 calls and found Cortez dead face down in a large pool of blood. Petitioner surrendered later that morning. Petitioner said he threw the knife near Mission Street and Highway 101 on-ramp but the police never found the knife.


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 controlled by the following regulations:

(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for a denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.

(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's ...

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