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Victor Ballesteros v. Gary Swarthout

January 12, 2011

VICTOR BALLESTEROS, PETITIONER,
v.
GARY SWARTHOUT, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the June 10, 2009, decision of the California Board of Parole Hearings ("Board" or "BPH") to deny him parole. On June 28, 2010, the undersigned ordered respondent to file a response to the petition. On August 24, 2010, respondent filed the pending motion to dismiss, arguing that petitioner has failed to properly exhaust his federal habeas claims by first fairly presenting them to the highest state court. Petitioner has filed an opposition to the motion.

BACKGROUND

On June 10, 2009, the Board conducted a parole hearing and found petitioner unsuitable for release on parole. Petitioner filed three petitions for writ of habeas corpus in state court, challenging the Board's decision. Applying the mailbox rule, on October 14, 2009, petitioner filed a petition for writ of habeas corpus in the Riverside County Superior Court.*fn1 On November 12, 2009, the Superior Court denied the petition. Subsequently, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. On March 15, 2010, the Court of Appeal denied that petition. Finally, March 23, 2010, petitioner filed a petition for review with the California Supreme Court. On May 4, 2010, the California Supreme Court denied review. (Resp't's Mot. to Dismiss Exs. 1-3.)

On June 1, 2010, petitioner commenced this action by filing a federal petition for writ of habeas corpus, presenting the following two claims:

I. The BPH's decision to deny parole was not supported by any reliable evidence that petitioner currently poses an unreasonable risk of danger to society and was arbitrary in violation of petitioner's right to due process of law under the Fourteenth Amendment and the California Constitution.

II. The application of Marsy's Law to petitioner violated the Ex Post Facto Clause of the State and Federal Constitutions.

(Pet. at 6.3, 6.5-6.7.) Petitioner elaborates on each of his claims in a lengthy memorandum of points and authorities submitted in support of his petition. (Pet. Mem. of P. & A. 1-16 & Exs.)

RESPONDENT'S MOTION TO DISMISS

I. Respondent's Motion

Respondent has moved to dismiss the pending petition, arguing that petitioner failed to exhaust his habeas claims in state court as required. Specifically, respondent contends that petitioner never raised Ground I of his federal petition in any of his state habeas petitions. Respondent also contends that petitioner raises various other claims throughout his federal petition that, although raised in his petitions filed in the Riverside County Superior Court and the California Court of Appeal, were not presented in his petition filed with the California Supreme Court. (Resp't's Mot. to Dismiss at 3-5.)

II. Petitioner's Opposition

In opposition to respondent's motion to dismiss, petitioner argues that he presented each of his claims to the California Supreme Court, thereby satisfying the exhaustion requirement. Specifically, petitioner contends that, in his petition to the California Supreme Court, he claimed that the Board's decision to deny parole was arbitrary and violated the "some evidence" standard of review. Petitioner also contends that he has not raised any new claims in his federal petition but rather has merely elaborated on certain facts in support of his claims. In this regard, petitioner argues that the California Supreme Court has had the opportunity to review all of his contentions and deny relief as to each of them. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 3-7.)

ANALYSIS

I. Exhaustion of State Court ...


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