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John Robb v. D. K. Sisto

April 7, 2011


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


John Robb, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Robb is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. In his Petition, Robb challenges the February 1, 2006, decision of the California Board of Parole Hearings ("Board") denying him parole for a period of one year. Respondent has answered, and Robb has replied.


In March 1982 Rob was convicted in the Los Angeles County Superior Court of one count of Murder in the First Degree (Cal. Penal Code § 187), with a firearm enhancement (Cal. Penal Code § 12022.5). The trial court sentenced Robb to an aggregate, indeterminate prison term of 27 years to life. Robb does not challenge his conviction or sentence in his Petition to this Court.

In February 2006 Robb appeared at a parole-suitability hearing before the Board. After determining that Robb would pose an unreasonable risk of danger to society or a threat to public safety if released from prison at that time, the Board denied him parole for a period of three years. Robb timely petitioned the Los Angeles County Superior Court for habeas corpus relief. The Los Angeles County Superior Court denied Robb's petition in an unreported, reasoned decision. The California Court of Appeal summarily denied Robb's habeas petition to that court. Robb's petition for habeas relief was summarily denied by the California Supreme Court on October 28, 2008. Robb timely filed his Petition in this Court on February 8, 2009.

At Docket No. 18 this Court ordered the parties to advise the Court of: (a) the date of Robb's last parole-suitability hearing before the Board; (b) the decision of the Board at that hearing; and (c) the current status of any proceedings in the California state courts related to the Board's decision. The Court further ordered the parties to submit supplemental briefing addressing the issue of whether the Petition should be dismissed as moot. The parties have responded.


In his Petition, Robb raises a single ground: that the decision of the Board was unsupported by "some evidence." Respondent asserts no affirmative defense.*fn1


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn2 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn3 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn4 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn5 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn6 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn7 "[A]bsent a specific constitutional violation, federal habeas corpus review of [state-court] error is limited to whether the error 'so infected the [proceeding] with unfairness as to make the [result] a denial of due process.'"*fn8 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal proceeding is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn9 Because state court judgments in criminal proceedings carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn10

In applying this standard, this Court reviews the last reasoned decision by the state court.*fn11 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn12 Under California's unique habeas procedure, a defendant who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn13 This is considered the functional equivalent of the appeal process.*fn14 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn15 This presumption applies to state trial courts and appellate courts alike.*fn16


Although this Court directed the parties to advise the Court of any subsequent parole-suitability hearings before the Board and brief the question of mootness, the mootness question has, itself, become moot. In the interval, the United States Supreme Court decided Swarthout v. Cooke.*fn17 This Court must decide the case on the law as it exists at the time this Court renders its decision and, if controlling law changes while the case is pending, this Court applies the law as changed.*fn18 Thus, Cooke forecloses Robb's arguments vis-a-vis California's "some evidence" rule.

Generally, when a higher court issues new controlling authority after briefing is complete, this Court requests further briefing from the parties addressing the new authority. The Supreme Court decision in Cooke is so clear that further briefing would unduly prolong this case without any possibility of changing the result. The Supreme Court has limited review to the procedures followed by the Board and the governor and defined with care what it meant by the applicable procedures. No longer may this Court consider how the ...

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