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Kevin Reid v. D. K. Sisto

April 28, 2011

KEVIN REID, PETITIONER,
v.
D. K. SISTO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the May 17, 2007 decision by the California Board of Parole Hearings (BPH) finding him unsuitable for parole. Petitioner claims that the Board's decision was not supported by "some evidence." He also alleges that the Board lacked statutory authority to deny him parole and that the Board's decision violated his plea agreement. For the reasons discussed below, the undersigned will recommend that the petition be denied in its entirety.

BACKGROUND

In its December 5, 2007 decision denying petitioner's state habeas petition, the Contra Costa County Superior Court summarized petitioner's case as follows:

Petitioner pled guilty to a violation of Penal Code 187, murder in the second degree. He also admitted to the use of a deadly weapon in violation of Penal Code section 12022 subdivision 2(b)(1). On October 14, 1981, he was sentenced to fifteen years to life for second degree murder, plus a one year enhancement for the use of a deadly weapon. Petitioner is currently incarcerated in the California State Prison.

On November 1, 2004, at petitioner's ninth parole hearing, the Board of Prison Terms, as it was then called, granted him parole. However, on March 22, 2005 the Governor reversed the decision of the Board of Prison Terms. The petitioner remained incarcerated. At a subsequent hearing on November 8, 2005, the renamed Board of Parole Hearings (hereinafter the Board) found petitioner unsuitable for parole.

On May 17, 2007, the Board denied petitioner parole again, this time for one year. (Answer, Ex. 1, Part A (hereinafter "Sup. Ct. Order") at 1.

The Contra Costa Superior Court denied petitioner's request for habeas relief from the Board's 2007 decision in a reasoned opinion. (Sup. Ct. Order.) Petitioner's second state habeas petition to the California Court of Appeal, First Appellate District, was denied on April 1, 2008. (Answer, Ex. 2, Part A at 1.) The California Supreme Court denied petitioner's third request for state habeas relief on May 21, 2008. (Answer, Ex. 3, Part A at 1.)

On December 1, 2008, petitioner filed the instant petition. Respondent filed an answer on September 13, 2010, and petitioner filed a traverse on September 21, 2010.

ANALYSIS

I. AEDPA

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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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