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David Velasquez v. D.K. Sisto

December 6, 2010



Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition before this court petitioner challenges a decision by the California Board of Parole Hearings (hereinafter "Board") to deny him parole for two years at his parole consideration hearing held on September 11, 2007.*fn1 Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied. ///// /////


On July 27, 1982, petitioner was convicted of second degree murder in the Los Angeles County Superior Court. (Petition (hereinafter "Ptn.") at 1.) Thereafter, he was sentenced to a state prison term of fifteen years to life. (Id.) Petitioner began serving his term in September 1982 and was first eligible for parole on February 26, 1990. (Pet., Ex. A (hereinafter "Board Hearing") at 8.)

On September 23, 2003, following a hearing, the Board found petitioner suitable for parole. On February 24, 2004, the Governor reversed the Board's grant of parole. Petitioner again requested release on parole, but the Board found him unsuitable following a hearing on February 17, 2005. (Board Hearing at 15; see also Velasquez v. Horel, No. 2:06-CV-02618 JCW, 2010 WL 3220193, at *2 (E.D. Cal. Aug. 13, 2010).)

In the decision being challenged in this federal habeas proceeding, the Board found that petitioner was unsuitable for parole following a hearing on September 11, 2007, and denied parole for two years. (Board Hearing at 86.)

On January 28, 2008, petitioner filed a petition for habeas corpus in the Los Angeles County Superior Court challenging the Board's September 11, 2007 determination. (Answer, Ex. 1.) On May 2, 2008, the Superior Court denied the petition in a reasoned decision. (Answer, Ex. 2 (hereinafter, "Opinion") at 1-2.) On June 9, 2008, petitioner raised the same claims in a petition to the California Court of Appeal for the Second Appellate District. (Answer, Ex. 3.) On July 19, 2008, the California Court of Appeal denied the petition, indicating that the Board's decision was lawful under California law. (Answer, Ex. 4.) The California Supreme Court summarily denied an identical habeas petition filed by petitioner. (Answer, Exs. 5, 6.)

On January 27, 2009, petitioner filed the instant petition. (Doc. No. 1.) Respondent filed an answer on May 4, 2009. (Doc. No. 12.) A traverse was filed on May 29, 2009. (Doc. No. 13.)


The Board described the facts of petitioner's commitment offense at the September 11, 2007 parole suitability hearing as follows: [O]n November 13, 1981 inmate Velasquez became involved in an altercation at the residence of Linda Benjamin . . . in West Los Angeles. . . [T]he investigation revealed several different accounts of the cause of the altercation between Inmate Velasquez, and the victim, Pam [Martinelli.] Witnesses advised law enforcement that the victim was going to inform, that is pass on information to law enforcement on inmate David Velasquez. Witnesses told law enforcement that the victim was leaving when crime partner Alan Ochoa stopped her outside and began striking her with his fist. Witnesses advised law enforcement that Mr. Velasquez then approached the victim with an ice pick that he kept in his van, and began stabbing her. She was stabbed 16 times in the chest with wounds puncturing her heart, aorta, and lungs; her throat was also slashed three times. Her body was then dumped in a trash bin . . . in Culver City. The body was discovered at that location the following morning. Witnesses who were present at the time of the altercation advised law enforcement that they heard Inmate Velasquez and crime partner Alan Ochoa say that they had killed her. (Board Hearing at 10-11.)


I. Standards of Review Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See 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)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the 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 habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claim

Petitioner claims that the Board's September 11, 2007 decision was not supported by evidence that he would pose an unreasonable risk to society if released. He argues that the he was found suitable for parole in 2003 and has not engaged in any activities since that time that show him to pose a danger to society. (Pet. at 5.) He alleges that the Board unconstitutionally relied on his commitment offense, as well as "vague descriptive language" to deny him parole, despite "over 25 years of non-violent positive programming while incarcerated." (Id. at 56; see id., Attached Petition to ...

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