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John M. Hartway v. D.K. Sisto

June 1, 2011

JOHN M. HARTWAY, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, John M. Hartway, is a 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 sentence of seven years to life following his 1976 jury convictions for first degree murder, robbery, and assault with a deadly weapon. Here, Petitioner does not challenge the constitutionality of his conviction, but rather, the execution of his sentence and, specifically, the 2007 decision of the Board of Parole Hearings (the "Board") finding him unsuitable for parole.

II. ISSUE PRESENTED

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

1) Petitioner's due process and equal protection rights to a fair and impartial hearing were violated as the hearing was not held under ISL guidelines, provisions and regulations required under rule of law and hearing should be considered null and void.

2) In unlawfully re-litigating Petitioner's crime per the denial decision the BPH members violated the rule of law by accusing Petitioner for crimes not charged violating both state and federal due process and equal protection under the law.

3) The BPH panel members erred in failing to fix Petitioner's primary term on his ISL proportionate to his offense and culpability as a legal right.

4) The BPH has failed to establish standard criteria for determining the number of years of denial given to Petitioner in violation of state and federal constitutions' rights to due process and equal protection.

5) Penal Code section 3041 creates a liberty interest protected by the federal due process clause that the BPH panel violated ignoring the mandate that it shall normally set a parole date one year prior to Petitioner's minimum eligible release date.

6) BPH based its denial for parole suitability primarily on the circumstances of the crime which will never change rather than the post-conviction conduct of Petitioner thereby barring Petitioner from ever being found suitable.

7) The BPH's denial based on the benign psych [ ] evaluation report does not constitute ample evidentiary evidence to deny Petitioner a parole release date.

8) The role played by the Deputy District Attorney during Petitioner's hearing was excessive and in violation of guidelines and due process.

(Pet. at 72-80). Petitioner's claims will be addressed individually in subsections (V)(A)-(D), with the exception of claims five, six, seven and eight. The allegations in these claims all assert related due process violations in the context of California's statutory parole scheme and thus will be addressed cumulatively in subsection (V)(E). After careful consideration of the record and applicable law, it is recommended that the petition for writ of habeas corpus relief be denied.

III. FACTUAL BACKGROUND

The basic facts of Petitioner's commitment offense were summarized in his June 2007 psychological evaluation as follows:

INMATE UNDERSTANDING OF LIFE CRIME: The inmate was charged with PC § 187, Murder First Degree.

Summary of the Crime: On February 20, 1976, at 4:30 a.m., Oakland Police Department officers responded to a call of a shooting reported by Mr. Steward. As responding officers entered the apartment building, they observed the door of Peter Kentfield's apartment to be slightly open. The officers pushed the door open and found Peter Kentfield bound and gagged on the bed. The victim had been hog-tied with his hands and feet bound behind his back and the ropes looped around his neck with a pillowcase over his head. Peter Kentfield was dead at the time of the officer's arrival at the apartment, but the body was still warm. He had been struck in the head, apparently prior to the time he had died. The ca[u]se of death was found to be ligature ...


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