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Richard Hamilton Mckay, Jr v. Rosanne Campbell

April 7, 2011

RICHARD HAMILTON MCKAY, JR., PETITIONER,
v.
ROSANNE CAMPBELL, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his subsequent parole consideration hearing held on February 4, 2004. He claims that the Board's failure to find him suitable for parole violated his right to due process.

As discussed below, the United States Supreme Court has held that the only inquiry on federal habeas review of a denial of parole is whether the petitioner has received "fair procedures" for vindication of the liberty interest in parole given by the state. Swarthout v. Cooke, 562 U.S. ___, No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam). In the context of a California parole suitability hearing, a petitioner receives adequate process when he/she is allowed an opportunity to be heard and a statement of the reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners were "allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied"); see also Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 16 (1979). For the reasons that follow, applying this standard here requires that the petition for writ of habeas corpus be denied on petitioner's claim that the Board's failure to find him suitable for parole violated his right to due process because there was no evidence he posed a current danger to society.

I. Procedural Background

In 1976, petitioner was convicted of first degree murder, first degree robbery, and assault. Pet. at 1.*fn1 On February 10, 1977, he was sentenced to seven years to life in state prison. Answer, Ex. 1. On February 4, 2004, the Board held a parole consideration hearing and found petitioner not suitable for parole. Id. at 71.

Petitioner challenged the Board's decision in a petition for writ of habeas corpus filed in the California Superior Court on May 27, 2005. Answer, Ex. 6. That petition was denied in a reasoned decision on the merits. Id., Ex. 7. On July 25, 2005, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. Id., Ex. 8. That petition was summarily denied by order dated July 29, 2005. Id., Ex. 9. Petitioner filed a petition for review in the California Supreme Court on August 29, 2005. Id., Ex. 10. That petition was summarily denied by order dated October 19, 2005. Id., Ex.11.

Petitioner filed the instant petition for a writ of habeas corpus on December 13, 2005. Respondent filed an answer on December 1, 2006, and petitioner filed a traverse on December 27, 2006.

II. Timeliness of Petition

Respondent argues that the claims contained in the instant petition are barred by the statute of limitations set forth in 28 U.S.C. § 2244(d). Answer at 7-8. He asserts that petitioner did not begin his state court challenges to the Board's 2004 suitability decision until after the one year limitations period had expired. Id.*fn2

This action was filed after April 26, 1996, and the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:

(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...


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