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Larry Hines v. D.K. Sisto*Fn1

February 4, 2011

LARRY HINES, PETITIONER,
v.
D.K. SISTO*FN1 , RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Larry Hines, 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 an indeterminate sentence of thirty-six years to life following his 1981 guilty plea to forcible rape with a penalty enhancement for use of a deadly weapon and his 1982 jury conviction for first degree murder with penalty enhancements for use of a deadly weapon and a prior violent felony conviction. Here, Petitioner does not challenge the constitutionality of his convictions, but rather, the execution of his sentence, and specifically, the February 14, 2007 decision by the Board of Parole Hearings (the "Board") finding him unsuitable for parole.

II. ISSUES PRESENTED

Petitioner alleges two grounds for relief in his pending petition. Specifically, Petitioner's claims are as follows:

(1) The Board of Parole Hearings' decision to delay setting Petitioner's parole release date was not supported by any relevant, reliable evidence in the record that he 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 Fifth and Fourteenth Amendments.

(2) The Board of Parole Hearings' unsuitability factors are unconstitutional.

After careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.

III. FACTUAL BACKGROUND

The basic facts of Petitioner's July 7, 1980 crime were summarized in the probation officer's April 1981 pre-sentencing investigation report as follows:

[A]t approximately 4:00 P.M. the victim, Debra Dobson, was waiting for a bus near the corner of 97th street and Graham Avenue in the City of Los Angeles. She was approached by the defendant and they began talking. They then walked to Jordan Downs Project and the victim purchased some "Shermans." This refers to PCP laced Sherman cigarettes. The defendant and the victim were then driven by two men back to 97th Street and Graham Avenue where the defendant and the victim exited the vehicle. The defendant and the two men in the car had smoked the phencyclidine laced cigarette. After the car left the defendant and the victim were standing on a corner when the defendant suddenly grabbed the victim's right arm and told her he needed a woman to go with him to buy an ounce of "juice" and pawn a watch. She refused and he released her arm. He then began walking back and forth and again grabbed her arm and pointed to an abandoned apartment house which was on blocks having just been moved to the location. The victim refused and the defendant again released her arm. He then told her to follow him and she followed him to an alley between Graham Avenue and Beach Street. The victim then walked back to the bus stop but realized she had missed her bus. The defendant then returned to her location and then again grabbed her arm and pulled her in the direction of the alley. She then freed her arm and was able to freely follow the defendant. As they neared the apartment building which was up on blocks the defendant grabbed her without warning and placed a choke hold on her with his right arm. As she attempted to scream, the defendant stated, "Shut your damn mouth[,] bitch." He attempted to push her to the ground but she resisted. He then put his weight upon her back and forced her onto the ground. As the victim attempted to scream and struggle the defendant told her he would take his knife out and reach[ed] towards his pants pocket. He then continued to pull her pants off. The defendant then lifted the victim off the ground and picked up a brick. He told her that he would hit her with the brick if she continued to holler. They walked down the alley with the defendant holding the victim by the back of her neck. He placed the brick along the left side of her face. They then entered the apartment building which was abandoned and up on blocks and the defendant then raped the victim while holding the brick and threatening to hit her with it. The defendant then raped her a second time. The victim then began to put on her clothes and the defendant told her he was going to rape her again. She began crying and the defendant started combing her hair. He then threw the brick away and led her back through the openings and out of the building. They then parted company and the victim received a ride home from a passer-by. She explained to this passer-by she had been raped and when she arrived home she told her mother what had happened. Police Officers were called and a report was taken. On July 10, 1980, at approximately 6:30 P.M. the victim flagged down a patrol car and indicated she had just seen the man who had raped her a few days earlier. The officers entered Jordan Downs Housing Projects where the victim identified the defendant and he was arrested. . ..

DEFENDANT'S STATEMENT

The defendant has failed to supply this officer with a written statement of the facts surrounding his arrest. His right to submit a written statement was explained to him. Verbally he indicates he had been to court earlier in the morning and went to the liquor store on his way home when he saw the victim. He started talking to her and asked her if she could buy some Sherman cigarettes for him and she agreed. They went to a house where they thought they could buy some "Sherms" but there was no one there. They met some men on the street and got in the car with them and drove to Jordan Downs. The victim then bought four one-half Sherman cigarettes and they all went to her front yard and smoked some Shermans. The two men they had met then took them to the bus stop where the victim and the defendant got out of the car. The victim said she was broke and that she needed some money for the bus and her child. She suggested they go to a motel where the defendant could pay her for sex. The defendant explained he had no money for a motel and she suggested they go into the abandoned house. They went into the abandoned house and had intercourse. The defendant denies ever using force or threats of force in order to complete the act of intercourse. Two days later he was arrested and accused of raping the victim. (Pet. Ex. A at 6-9.)

The District Attorney charged Petitioner with kidnapping with penalty enhancements for use of a deadly weapon and for a prior felony conviction. In addition, Petitioner was charged with two counts of rape with penalty enhancements for use of a deadly weapon and prior felony conviction. On March 17, 1981, Petitioner entered a guilty plea to the rape charge with a penalty enhancement for use of a firearm, and in exchange, Petitioner was promised no more than seven years incarceration. All other charges were continued to the probation and sentencing hearing. While defendant was out on bail awaiting sentencing on the rape charge, he committed another offense, described in the probation officer's August 1982 pre-sentencing investigation report as follows:

On March 31, 1981, witnesses who were neighbors of the deceased victim, Rebecca Booker, established that the victim had been alive about 9:00 P.M. on that date. While inside the house, a witness observed two television sets, one located in the living room, and the other, a portable type, located in the bedroom. Witness, upon leaving the decedent's house, observed her to be in good health, having no bruises or marks on her body. The following day, April 1, 1981, witness had gone to the victim's home at 11:30 in the morning to advise her she would pay her some money she owed her. Witness knocked on the door and witness's children had told her earlier that the victim was home, having not seen her leave. Witness ...


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