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Benjamin Adkins v. Tom L. Carey

February 10, 2011

BENJAMIN ADKINS, PETITIONER,
v.
TOM L. CAREY, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Benjamin Adkins, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the execution of the 15 years to life indeterminate prison term he is currently serving, and specifically, the March 6, 2002 decision of the state parole authority that he was not suitable for parole. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.*fn1

II. BACKGROUND

In 1981, petitioner was convicted by jury of second degree murder and sentenced to a term of 15 years to life in state prison. His minimum eligible parole date passed on March 1, 1989. On March 6, 2002 , a panel of the Board of Prison Terms (hereinafter "Board") conducted a hearing to determine petitioner's suitability for parole. The Board concluded that petitioner would pose an unreasonable risk of danger to society or a threat to public safety if released, and thus that he was not suitable for parole.

Petitioner challenged the Board's decision in an administrative appeal, which was denied on February 11, 2003. He also filed a petition for writ of habeas corpus to the Solano County Superior Court. The Solano County Superior Court denied the petition in a written decision dated November 5, 2003. Petitioner further sought relief in the California Court of Appeal and the California Supreme Court; those petitions were likewise denied.

III. 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 (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).

IV. CLAIMS PRESENTED

Petitioner claims generally that the Board's denial of parole violated his right to due process (ground four); that insufficient evidence supported the Board's decision (grounds one and two); and that the Board violated state law by exceeding the statutory matrix for uniform base terms (ground three).

For purposes of this opinion, each of petitioner's grounds for relief will be addressed together in a single discussion regarding the process due under federal law at a parole suitability hearing in California.

V. EXHAUSTION

Before proceeding with a federal habeas corpus petition, a state prisoner must first exhaust state court remedies. 28 U.S.C. § 2254(b); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Larche v. Simons, 53 F.3d 1068, 1071 (9th Cir. 1995). Exhaustion requires that the federal claim be fairly presented to the state's highest court to which appeal is available. O'Sullivan v. Boerckel, 526 U.S. 838, 844-47 (1999).

In this case, petitioner's pro se habeas corpus petition to the California Supreme Court was denied on March 23, 2005 with a citation to People v. Duvall, 9 Cal.4th 464, 474 (1995) and no additional explanation. Respondent contends that the California Supreme Court's denial of the petition with citation to Duvall demonstrates that the petition was procedurally defective, and thus, that the exhaustion requirement was not satisfied.

In Duvall, at the cited page, the California Supreme Court held that a habeas corpus petitioner must "state fully and with particularity the facts on which relief is sought," and must also "include copies of ...


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