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Hammons v. Sisto

November 12, 2010


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



Petitioner, Lowell E. Hammons, 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 serving a sentence of fifteen years to life imprisonment for second degree murder following a plea in 1993. Petitioner challenges a January 27, 2006 decision by the Board of Parole Hearings ("Board") which denied him parole. Petitioner presents two claims in this federal habeas petition; specifically: (1) the Board's denial of parole violated his plea agreement ("Claim I"); and (2) the Board's denial violated his due process rights because there was a lack of reliable evidence demonstrating his current dangerousness ("Claim II"). Petitioner also requests an order to show cause, the appointment of counsel, reasonable discovery and an evidentiary hearing on his Claims. For the following reasons, Petitioner's requests are denied and it is recommended that his habeas petition be denied.


[O]n October 24th, 1992, inmate Hammons and Manuel Macias were both at a trailer belonging to a man named Billy. Inmate Hammons had spent the night there with his girlfriend who had run away from home the night before. When Inmate Hammons awoke on the date of the offense, Manuel Macias, who goes by the name of Manny . . . who was staying at Billy, Dawn's (phonetic) and Brian Konz, the victim -- the victim was also at Billy's trailer. At the time Dawn liked an individual by the name of Art C. (phonetic) who was the father of her then unborn child. Dawn had been letting Brian stay with her for the last few weeks because she lived alone with her two year old child. Dawn and Brian Konz began sharing a beer when Manuel Macias seemed to become angry about this because he liked Dawn. Manuel Macias started calling Brian Konz a snitch and refused to give him a ride to Dawn's apartment when the victim, Brian Konz, asked him to do so. Manuel Macias took Dawn to her apartment and Brian Konz went to Art C.'s residence. Brian Konz called Dawn from Art's place and she got a ride there from the brother of a friend then they picked up Art and Brian Konz . . . . and returned to Dawn's apartment. At Dawn's apartment Brian fell asleep on the couch. Manuel Macias called and asked Dawn who was at her apartment. Dawn told Manuel Macias that Art and Brian were there.

Inmate Hammons had been told by Manuel Macias before the Man had called Dawn asking her who was at her apartment that Brian Konz had been calling the man who owned the trailer Billy and Manuel snitches. Manuel Macias, Inmate Hammons -- there's something missing there but Manuel Macias and Inmate -- I don't know the word is, it reads Manuel Macias, Inmate Hammons that he wanted to kick the ass of Brian Konz and Inmate Hammons agreed to go along with him to do so. These two individuals, Manuel Macias and Inmate Hammons, armed themselves with a sawed off 12 gauge shotgun and a knife. They began to drive to Dawn's apartment and Inmate Hammons and Manny Macias stopped at the residence of James H. At this residence, Inmate Hammons asked for and was given shotgun shells by James. Manuel Macias then drove down to Dawn's apartment. Inmate Hammons and Manny Macias went inside the apartment and Hammons, who reportedly had the shotgun at the time, sat on the back of the couch where Brian Konz was lying. Manny Macias took Dawn to her bedroom and talked to her for about five minutes telling her the following and Manuel Macias indicated to Dawn that Brian Konz was in very serious trouble with someone who wanted to talk to him. Manuel Macias indicates that Inmate Hammons was going to take Brian to this person in an . . . unknown location and if Brian Konz refused to go they were going to quote, do him, in the apartment or they were going to forcibly take him with them but Dawn did not want to be involved in any way and she needed to leave the apartment. Dawn then got her baby and asked her friend Inez (phonetic) to go with her to Inez' apartment.

After these people left the apartment, Inmate Hammons and Manuel Macias took Brian in their car to a remote area in Dvore. Manuel Macias stopped his car at a turn out and ordered Brian out of the car. Another car pulled up so Manuel Macias ordered Brian Konz back into the back seat of his car and they drove to a place where Brian Konz was murdered. At that location, Brian Konz was again ordered from the car and told to lie down in the dirt as he did and then Inmate Hammons or Manuel Macias shot him in the back with a shot gun and also hit him three times in the back of the head with a gun.

Manuel Macias (indiscernible) himself and Inmate Hammons from the murder scene to James' house where they had obtained the shotgun shells. Inmate Hammons gave James the shotgun and told him it was not working and asked if he could fix it. James then took the gun, wrapped it in a blanket and told James two of them would later go together and fix it. Manuel Macias and Inmate Hammons then drove to Billy's trailer. They looked excited, hyper, nervous and scared going and is roommate Eric [sic]. They took Billy to a bathroom and closed the door. Manuel Macias told Billy that Brian Konz had been calling Manny and Billy narcs. Billy said that they would kick his ass. Inmate Hammons said it's been taken care of and they told Billy they had killed Brian. Billy asked how they had done and Inmate Hammons told him the details of the murder as previously noted in this report.

(Pet'r's Pet., Ex. C at p. 11-15.) In 1993, Petitioner pled to second degree murder. He was sentenced to fifteen years to life imprisonment. On January 27, 2006, the Board conducted a subsequent parole hearing. The Board concluded that Petitioner was not suitable for parole at that time because he posed an unreasonable risk of danger to society and a threat to public safety if released from prison.

Petitioner challenged the Board's decision denying parole in the County of San Bernardino Superior Court via a state habeas petition. That court denied his habeas petition on February 8, 2007 in a written opinion. The California Court of Appeal, Fourth District Division Two denied Petitioner's state habeas petition without discussion on March 7, 2007. The California Supreme Court denied the petition without discussion on May 9, 2007. Petitioner filed the instant federal habeas petition on May 29, 2007.


An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).

If a state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a petitioner's habeas claims. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Additionally, where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v. Andrande, 538 U.S. 63 (2003).

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, 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." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "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. 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 an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned state court decision in this case was from the County of San Bernardino Superior Court which analyzed Claim II on the merits. While the Superior Court did not discuss Claim I on the merits, "the California Constitution provides that each of the three levels of state courts -Superior Court, Courts of Appeal, and the Supreme Court - has 'original jurisdiction in habeas proceedings.'" Gaston v. Palmer, 417 F.3d 1030, 1036 (9th Cir. 2005) (citing Cal. Const. art. VI, § 10), modifiedon other grounds, 447 F.3d 1165 (9th Cir. 2006). As previously stated, the California Supreme Court denied Petitioner's petition without discussion. The Ninth Circuit construes this type of "postcard" denial as a decision on the merits. See id. at 1038. Thus, the record will be independently reviewed with respect to Claim I to determine whether the state court was objectively unreasonable in its application of clearly established federal law.

See Crittenden v. Ayers, -- F.3d --, 2010 WL 3274506, at *13 (9th Cir. Aug. 20, 2010) (stating that it will "perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable, because the state-court adjudication was not reasoned.") (internal quotation marks and citation omitted).


A. Claim I

In Claim I, Petitioner argues that the Board violated his plea agreement when it denied him the benefit of his plea. Petitioner asserts that, "the parties agreed that the circumstances of Petitioner's conduct would warrant that he has a right to be released upon parole after serving a minimum term of imprisonment of 15-years minus credit under Penal Code section 190, or a maximum base term established pursuant to Penal Code section 3041, subd. (A) of either 16-17-18 years." (Pet'r's Pet. at p. 28.)

"'Plea agreements are contractual in nature and are measured by contract law standards.'" United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993) (citing United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990). Petitioner fails to state a valid claim for federal habeas relief. Petitioner was sentenced to fifteen years to life imprisonment with the possibility of parole. (See Resp't's Answer, Ex. 1 (Abstract of Judgment) (emphasis added); see also Pet'r's Pet. at Ex. A at p. 9 (Criminal Minute Order) ("Defendant is committed to State Prison for the term prescribed by Law as to ct 1 15 yrs to life.") Petitioner does not show that his plea agreement was conditioned in any way upon his receipt of the Board's favorable parole decision at some point. See, e.g., James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). Petitioner must show that he is in custody in violation of the Constitution, laws or treaties of the United States to receive federal habeas relief. See, e.g., Silvia v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002). Petitioner fails to meet this requirement in arguing that the denial of his parole violated his plea agreement.

Petitioner alludes to the fact that he was under medication during the plea proceedings such that his mental faculties were slightly impaired and that his counsel was ineffective when counsel purportedly told Petitioner not to inform the trial court about his medications. (See Pet'r's Pet., Ex. E at ¶ 4-5.) Thus, Petitioner appears to seek to collaterally attack his underlying conviction in asserting that his plea was not knowing or intelligent. See Brady v. United States, 397 U.S. 742, 748 (1970) ([Guilty pleas] must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences."). The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1) which states:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Petitioner's conviction occurred in 1993 and he did not appeal nor did he file any habeas petitions with respect to the judgment of conviction. (See Pet'r's Pet. at p. 1-2.) Because Petitioner's conviction became final prior to AEDPA's enactment on April 24, 1996, the one-year statute of limitations began to run on April 25, 1996, and expired one year later, on April 24, 1997 with respect to his argument regarding a purported unknowing and unintelligent plea. See Malcolm v. Payne, 281 F.3d 951, 955 (9th Cir. 2002) (where state prisoner's conviction became final prior to AEDPA's enactment, AEDPA's one-year statute of limitations begins to run on April 25, 1996, the day after AEDPA was enacted).

However, Petitioner does not only assert that his plea was not knowing and intelligent because of his medication and due to his counsel's purported ineffectiveness due to statements made to him ...

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