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Everette Buff v. L. Mcewan

August 11, 2011

EVERETTE BUFF,
PETITIONER,
v.
L. MCEWAN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [ECF No. ) 8]

Petitioner Everette Buff, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus with exhibits on February 22, 2011, pursuant to 28 U.S.C. § 2254 [ECF Nos. 1, 5]. In his Petition, Buff consented to magistrate judge jurisdiction. (Pet. 16, ECF No. 1.)*fn1 In ground one, he argues that his state-appointed attorney introduced "false, forged, and altered evidence" at his parole suitability hearing. (Id. at 6.) Buff claims that this evidence denied him his right to be present at the hearing, which ultimately caused the parole board to accept a five-year parole stipulation that Buff did not authorize.

(Id. at 9-10.) As a result, Petitioner contends his Fourteenth Amendment right to due process was violated. (Id. at 6.) In ground two, Buff argues that the California Court of Appeal decision did not acknowledge the "due process implications" of his appointed attorney's actions and the parole board's subsequent decision to keep Buff in custody. (Id. at 11.)

The Court dismissed the case without prejudice and with leave to amend for Petitioner's failure to pay the five-dollar filing fee or submit an application to proceed in forma pauperis [ECF No. 3]. On February 28, 2011, Buff filed a motion to proceed in forma pauperis, and the case was reopened [ECF No. 4].

Respondent Leland McEwan filed a Motion to Dismiss Petition for Writ of Habeas Corpus, along with a Memorandum of Points and Authorities and a Notice of Lodgment on May 2, 2011 [ECF Nos. 8, 9]. McEwan argues that Buff's Petition should be dismissed because it is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). (Mot. Dismiss Attach. #1 Mem. P. & A. 3, ECF No. 8.) On May 6, 2011, Respondent filed a Notice, Consent, and Reference of a Civil Action to a Magistrate Judge [ECF No. 10]. The Petitioner did not file an opposition to Respondent's Motion to Dismiss.

The Court has reviewed the Petition and Respondent's Motion to Dismiss and attachments. Although Civil Local Rule 7.1(f) provides that the failure to oppose a motion may constitute consent to granting the motion, this Court will evaluate the merits of Respondent's arguments. S.D. Cal. Civ. R. 7.1(f)(3)(c). For the reasons stated below, the Motion to Dismiss is GRANTED.

I. FACTUAL BACKGROUND

On October 5, 1984, a jury found Buff guilty of first-degree murder, and he was sentenced to twenty-five years to life in prison. (Pet. 1-2, ECF. No. 1; See Lodgment No. 6, In re Buff, No. D057345, slip op. at 1 (Cal. Ct. App. June 9, 2010).) On January 29, 2009, the Board of Parole Hearings ("BPH") held a hearing on Buff's suitability for release on parole, at which Buff was represented by his state-appointed attorney. (Lodgment No. 4, In re Buff, No. EHC01327 (Cal. Super. Ct. Apr. 19, 2010) (order denying petition for writ of habeas corpus at 1); Lodgment No. 6, In re Buff, No. D057345, slip op. at 1.) Buff contends that he told his attorney that he wished to temporarily postpone the hearing because Petitioner was unprepared. (Lodgment No. 6, In re Buff, No. D057345, slip op. at 1.) Petitioner alleges that, instead, his attorney presented forged documents to the parole board that indicated that Buff was stipulating to another five years of incarceration. (Id.) At the hearing, the BPH accepted the stipulation, making Buff ineligible for parole for five additional years. (Pet. Attach. #1 Ex. E, at 18, ECF No. 1.)

II. PROCEDURAL BACKGROUND

On February 1, 2010, Buff filed a petition for writ of habeas corpus in the Imperial County Superior Court, which was denied on March 2, 2010. (Lodgment No. 1, Buff v. Small, No. EHC01293 (Cal. Super. Ct. filed Feb. 1, 2010) (petition for writ of habeas corpus at 1); Lodgment No. 2, In re Buff, No. EHC01293 (Cal. Super. Ct. Mar. 2, 2010) (order denying petition for writ of habeas corpus at 1-2).) He refiled his petition on March 22, 2010, in the same court, and it was denied again on April 19, 2010. (Lodgment No. 3, Buff v. Small, No. EHC01327 (Cal. Super. Ct. filed Mar. 22, 2010) (petition for writ of habeas corpus at 1); Lodgment No. 4, In re Buff, No. EHC01327 (order denying petition for writ of habeas corpus at 1-2).) Next, Buff filed a habeas petition in the California Court of Appeal for the Fourth District, Division One; it was denied on June 9, 2010. (Lodgment No. 5, Buff v. McEwan, No. D057345 (Cal. Ct. App. filed May 17, 2010) (petition for writ of habeas corpus at 1); Lodgment No. 6, In re Buff, No. D057345, slip op. at 1-2). On June 28, 2010, he filed a petition for habeas corpus relief in the California Supreme Court, which was denied on January 26, 2011. (See Lodgment No. 7, In re Buff, No. S183998 (Cal. filed June 28, 2010) (petition for writ of habeas corpus at

1); Lodgment No. 8, http://appellatecases.courtinfo.ca.gov(select "Supreme Court"; then enter supreme court case number). Buff filed his Petition for Writ of Habeas Corpus in this Court on February 22, 2011 [ECF No. 1].

III. STANDARD OF REVIEW

Buff's Petition is subject to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 because it was filed after April 24, 1996. 28 U.S.C.A. § 2244 (West 2006); Woodford v. Garceau, 538 U.S. 202, 204 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)). AEDPA sets forth the scope of review for federal habeas corpus claims:

The Supreme Court, a justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of the United States.

28 U.S.C.A. § 2254(a) (West 2006); see also Reed v. Farley, 512 U.S. 339, 347 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991).

To present a cognizable federal habeas corpus claim, a state prisoner must allege his conviction was obtained in violation of the Constitution or laws of the United States. 28 U.S.C.A § 2254(a). In other words, a petitioner must allege the state court violated his federal constitutional rights. Hernandez, 930 F.2d at 719; Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990); Mannhald v. Reed, 847 F.2d 576, 579 (9th Cir. 1988). Petitions challenging a parole board's decision also fall under the umbrella of habeas review. Swarthout v. Cooke, 562 U.S. __, 131 S.Ct. 859, 860 (2011) ("If the Board denies parole, the prisoner can seek judicial review in a state habeas petition.")

A federal district court does "not sit as a 'super' state supreme court" with general supervisory authority over the proper application of state law. Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (holding that federal habeas courts must respect state court's application of state law); Jackson, 921 F.2d at 885 (concluding federal courts have no authority to review a state's application of its law). Federal courts may grant habeas relief only to correct errors of federal constitutional magnitude. Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) (stating that federal courts are not concerned with errors of state law unless they rise to the level of a constitutional violation).

In 1996, Congress "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). Amended section 2254(d) now reads:

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 ...


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