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Jose Avala v. J. D. Hartley

December 22, 2010

JOSE AVALA,
PETITIONER,
v.
J. D. HARTLEY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gary S.Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

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

RELEVANT HISTORY*fn1

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation following his conviction in Los Angeles County Superior Court in 1988 of first degree murder and attempted second degree murder. He is serving a sentence of twenty-six years to life with the possibility of parole.

Petitioner does not challenge his underlying conviction; rather, he claims the California Board of Parole Hearings ("Board") violated his due process rights in its August 7, 2008, decision finding Petitioner unsuitable for parole. Petitioner contends the Board denied his due process rights when it denied parole based on the commitment offense without articulating a nexus between the offense and the Board's determination of current dangerousness.

Petitioner filed a habeas petition challenging the Board's 2008 decision in the Los Angeles County Superior Court on January 5, 2009. The petition was denied in a reasoned decision on March 23, 2009. Petitioner next filed a habeas petition in the California Court of Appeal, Second Appellate District, on May 18, 2009. The appellate court denied the petition on June 19, 2009. Petitioner then filed a habeas petition in the California Supreme Court on October 14, 2009. The petition was summarily denied on April 28, 2010.

Petitioner filed the instant federal petition for writ of habeas corpus on August 9, 2010. Respondent filed an answer to the petition on October 26, 2010. Petitioner filed a traverse on November 24, 2010.

STATEMENT OF FACTS*fn2

Prior to May, 1987, Petitioner was living next door to the victim, the victim's wife and their baby. During May, 1987, Petitioner began having an affair with the victim's wife, causing tension between Petitioner and the victim. About six months into the affair, the victim's wife tried to end the relationship. On the morning of December 8, 1987, the victim was to take his baby to a sitter, but he did not show. The victim's wife was notified at work and she went home to check on her family. When the victim's wife arrived home, she found Petitioner cleaning her apartment. The victim's wife noticed that her bed sheets and drapery were missing, Petitioner's clothing was missing, bleach had been used and there was blood on Petitioner. Also, the victim's wife discovered her child lying on the floor making gasping sounds. Petitioner told the victim's wife that four men had kidnaped the victim and tried to kidnap the baby. Petitioner then drove the victim's wife and baby to the hospital. The baby stopped breathing in route to the hospital, but was revived by doctors. Doctors concluded that the baby had been strangled manually.

When police initially questioned Petitioner, he maintained that four men had been searching for the victim in the months prior to the incident and the same four men took the victim. After some investigation, police officers found the victim's body in the trunk of Petitioner's sister's vehicle, which Petitioner had been driving. The victim was found with all the missing sheets and drapes from his apartment as well as the clothing Petitioner was wearing the day of the incident. Reports later showed that the victim was beaten to death with a blunt object. Upon the discovery of the victim's body, Petitioner admitted he fabricated the story about four men and said he killed the victim in self-defense. Evidence was presented at trial which showed Petitioner was considerably larger than the victim and that Petitioner lacked defensive wounds consistent with his story of self-defense. Petitioner also maintains that he never touched the baby.

DISCUSSION

I. Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Actof 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 his 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 (9thCir.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, No. 08-55728, 2010 WL 2108964, * 2 (9th Cir. May 24, 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, No. 06-15444, 2010 WL 2330283, *6 (9th Cir. June 4, 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 ...


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