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Jon Burnight v. D.K.Sisto

February 10, 2011

JON BURNIGHT, PETITIONER,
v.
D.K.SISTO, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Burnight, a state prisoner, proceeds pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a January 23, 2007 decision of the state parole authority that he was not suitable for parole.*fn1

II. BACKGROUND

In 1993, petitioner pleaded guilty to second degree murder and was sentenced to prison for 15 years to life. His minimum eligible parole date passed on April 23, 1999.

On January 23, 2007, a panel of the Board of Parole Hearings ("Board") conducted a fourth subsequent (fifth overall) parole suitability hearing to determine whether petitioner was suitable to be released on parole. It was determined that petitioner still posed an unreasonable risk of danger to the public, and thus that he was not suitable for parole.

Petitioner challenged the Board's denial of parole in a petition for writ of habeas corpus to the Alameda County Superior Court; his claims were denied in a written decision filed on August 13, 2007. The California Court of Appeal and the California Supreme Court likewise denied petitioner's requested relief, but without written opinions.

III. GROUNDS FOR RELIEF

The pending federal petition presents the following grounds for relief, verbatim: GROUND ONE- The BPH's decision to deny petitioner parole violated petitioner's right to due process of law under the California and United States Constitutions. The Board failed to afford petitioner an individualized consideration of all the factors relev[a]nt to parole decisions.

GROUND TWO- The BPH violated petitioner's due process of law under California and United States Constitutions by using language that gave extra weight to the gravity of petitioner's commitment offense. Petitioner was not afforded individualized consideration of all relevant factors to parole decisions.

GROUND THREE- The BPH using a religious based program to in part deny petitioner suitability violates the 1st Amendment of the United States Constitution's Establishment Clause and the 14th Amendment civil liberties.

Petitioner's first and second grounds for relief both challenge the Board's denial of parole as a violation of federal due process and/or state law, and will be addressed together herein as a single claim. For purposes of this opinion, however, ground three will be addressed first.

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)).

Additionally, 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 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). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the ...


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