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Mack Nelson Shorty v. D.K. Sisto

March 1, 2011

MACK NELSON SHORTY, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Mack Nelson Shorty, is a former 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 term of twenty years to life following his 1985 jury conviction for attempted murder causing great bodily injury and a penalty enhancement for being a habitual offender. Here, Petitioner does not challenge the constitutionality of his conviction, but rather, the execution of his sentence and, specifically, the December 19, 2006 decision of the Board of Parole Hearings (the "Board") finding him unsuitable for parole.

II. ISSUES PRESENTED

Petitioner sets forth several grounds for relief in his pending petition. Specifically, Petitioner's claims are as follow, verbatim:

(1) The Board of Parole Hearings two years deferral of parole was based on resentencing prisoner under inapplicable life prisoners scheme "Life Means Life" Pinebox Parole" [sic] to deny prisoner/s one-third and half-time credits contrary to the mandatory credit provisions under CPC 667.7(1)(b) - habitual offender.

(2) The Board of Parole Hearings two years deferral of parole was based on frozen factors elements [sic] as "some evidence" (the crime) under inapplicable special aggravating circumstances that clearly restate manipulated transform and convert the instant life imprisonment must serve 20 years before eligible for parole into life without the possibility of parole and or death sentence.

(3) The Superior Court order denying petition for writ of habeas corpus review discovery evidentiary hearing neither factfinding is wrong and unreasonable and contrary to the glaring facts presented in habeas grounds/claims one and two violates petitioner's substantive procedural due process law rights and equal protection of the law rights warrants the court of appeal to remand habeas corpus constitutional claim back to superior court with instructions to hold a factfinding hearing in the interest of justice.

Petitioner's claims are difficult to decipher on the face of his petition. It appears, however, that Petitioner is claiming that (1) the Board failed to apply mandatory credits to his sentence, pursuant to section 667.7(a)(1) of the California Penal Code, unlawfully converting his sentence from twenty years to life imprisonment with the possibility of parole to life imprisonment without the possibility of parole; (2) his due process rights were violated by the Board's determination that he was unsuitable for parole, which unlawfully converted his sentence from twenty years to life imprisonment with the possibility of parole to life without the possibility of parole and/or a death sentence; and (3) the decision of the Los Angeles County Superior Court denying Petitioner's state petition for writ of habeas corpus was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts in light of the evidence presented, in violation of title 28, section 2254 of the United States Code. Upon 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 commitment offense were summarized by the Presiding Commissioner at Petitioner's parole hearing as follows:

[T]he evidence established that at approximately 10:30 p.m. on July 9, 1985 Carl Cheetham . . . asked Debra . . . Dominique . . . to do him a favor and ride with [Petitioner], whom he referred to as . . . Mack . . . in order to deliver a package. Ms. Dominique did not know the [Petitioner] but knew that Mr. Cheetham, a friend of her mother's, was a drug dealer. She agreed to travel in [Petitioner's] vehicle in order to aver possible police suspicion from the [Petitioner]. After Ms. Dominique went to various locations with [Petitioner] she asked to be driven home. [Petitioner] said he first wanted to stop at someone's house, but in Long Beach his car developed a flat tire and the two walked to a friend's residence to seek a ride home. When [Petitioner] observed that the friend's car was gone, the two continued walking. In a dark alley, [Petitioner] suddenly stabbed Ms. Dominique several times in the head, neck, shoulder and chest, then fled. Ms. Dominique was able to walk to a nearby telephone booth where Los Angeles Police Officer Duane Beckman . . . found her bleeding and apparently in shock. She told the officer her assailant was named . . . Mack . . . and described the [Petitioner's] car and its location. Ms. Dominique was taken to a hospital where a tube was placed in her lung and she remained hospitalized for a week, including two days in the intensive care trauma unit. Several days later while in the hospital she selected [Petitioner's] likeness from a display of six photographs. A . . . stakeout . . . of the car was initiated which resulted in [Petitioner's] arrest. [Petitioner's] defense was an alibi corroborated by the testimony of his brother and his brother's girlfriend. He acknowledged that he was arrested on the morning of July 10th after changing the flat tire on the car . . . .

And I will note that as to the prisoner's version as represented on . . . the October 23, 2006 Board Report . . . [s]ubsequent pages are dated November 25th, 2003, . . . does state: The prisoner's version remains the same as in - - the previous report dated March 15th of 1995. The prisoner denies any responsibility for this crime. (Pet. Ex. A at 5-9.)

Following a jury trial, Petitioner was found guilty of attempted murder causing great bodily injury and a penalty enhancement for being a habitual offender. Petitioner was sentenced to twenty years to life imprisonment with the possibility of parole. Petitioner's minimum eligible parole date passed on December 12, 1998. On December 19, 2006, Petitioner appeared before the Board of Parole Hearings for a parole consideration hearing. After considering various positive and negative suitability factors, the panel concluded that Petitioner would pose an unreasonable risk of danger to society if released, and concluded that he was not suitable for parole. Petitioner sought habeas corpus relief in the Los Angeles County Superior Court. On September 18, 2007, the court denied his petition, finding that the Board's decision was supported by some evidence that Petitioner remained an unreasonable risk of danger to society. The California Court of Appeal, Second Appellate District, and the California Supreme Court denied relief without comment. Petitioner filed this federal petition for writ of habeas corpus on June 20, 2008. Respondent filed an answer on June 29, 2009, and Petitioner filed his traverse on July 23, 2009.

IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW

This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). 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 ...


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