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Remar Salango v. D. K. Sisto

February 4, 2011

REMAR SALANGO, PETITIONER,
v.
D. K. SISTO, RESPONDENT.



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

AMENDED ORDER, FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Remar Salango is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, (1) the January 13, 2011, order, findings and recommendations is vacated; (2) the Clerk of the Court shall assign this case to a United States District Judge in accordance with the Court's general assignment plan; (3) Petitioner's requests are denied; and (4) it is recommended that habeas relief be denied.

II. PROCEDURAL HISTORY

Petitioner is currently serving a sentence of eighteen years to life following his 1991 conviction for second degree murder in the Kern County Superior Court.*fn1 Resp't's Answer Ex. A, at 30, ECF No. 7.*fn2 Petitioner is not currently challenging his conviction; rather, the instant petition challenges the decision by the California Board of Parole Hearings (the "Board") denying Petitioner parole. Petitioner appeared before the Board on January 3, 2008.

On March 19, 2008, Petitioner filed a petition for writ of habeas corpus with the Kern County Superior Court challenging the Board's decision. See Resp't's Answer Ex. A. On May 20, 2008, the Superior Court issued a reasoned opinion denying the petition. See Resp't's Answer Ex. B. Petitioner sought relief in the California Court of Appeal, Fifth Appellate District, and the California Supreme Court; those petitions were likewise denied, but without written opinions. See Resp't's Answer Exs. C-F.

On January 6, 2009, Petitioner filed a federal petition for writ of habeas corpus. See Pet'r's Pet, ECF No. 1. On August 18, 2009, Respondent filed an answer to the petition. See Resp't's Answer. On September 3, 2009, Petitioner filed his original traverse. See Pet'r's Traverse, ECF No. 8. On December 8, 2009, Petitioner filed an amended traverse and a motion requesting nunc pro tunc acceptance of his traverse. See Pet'r's Am. Traverse, ECF No. 9; Pet'r's Mot. Requesting Nunc Pro Tunc Acceptance of Pet'r's Traverse, ECF No. 10. On January 28, 2010, the assigned United States Magistrate Judge at the time, the Honorable Kimberly J. Mueller, granted Petitioner's motion for acceptance of the amended traverse. See Order 1, Jan. 28, 2010, ECF No. 12.

III. CONSENT

On January 14, 2009, Petitioner consented, pursuant to 18 U.S.C. § 636(c)(1), to have a Magistrate Judge conduct all further proceedings, including the entry of final judgment. See Pet'r's Consent, ECF No. 3. Respondent, however, never responded to the "Consent Deadline set for 7/22/2009" issued by the previously assigned Magistrate Judge. See Order, Jan. 7, 2009, ECF No. 4. This case is submitted for decision but is currently unassigned to a United States District Judge. Since Respondent did not indicate his consent to jurisdiction by a United States Magistrate Judge, the Clerk of the Court shall assign this case to a United States District Judge in accordance with the Court's general assignment plan.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in 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 the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. ...


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