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Morgan James Kane v. S. Salinas

November 2, 2011

MORGAN JAMES KANE, PETITIONER,
v.
S. SALINAS, RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the October 2009 decision by the Board of Parole Hearings ("Board") finding him unsuitable for parole. He claims that the Board's five-year denial violated his due process rights and the ex post facto clause of the Constitution. Pending is respondent's August 18, 2011 motion to dismiss the petition for failure to state a cognizable claim for federal habeas relief. Petitioner filed an opposition on September 9, 2011. Upon careful consideration of the record and the applicable law, the undersigned will recommend that respondent's motion to dismiss be granted.

PROCEDURAL BACKGROUND

In 1984, petitioner pled guilty to first degree murder, forgery, and attempted forgery, and was sentenced to a state prison term of twenty-five years to life plus two years.

(Dkt. No. 1 ("Ptn.") at 1.) On October 23, 2009, the Board held a subsequent parole hearing at which it found petitioner unsuitable for parole and issued a five-year denial. (Dkt. 13-1 at 83-92.)

Petitioner filed three state habeas petitions challenging the Board's 2009 decision. He filed a petition in the Fresno County Superior Court, which was denied on February 5, 2010. (Ptn. at 2-3.) He next filed a petition in the California Court of Appeal, Fifth Appellate District, which was denied on May 5, 2010. (Id. at 3.) He then filed a petition in the California Supreme Court, which was denied on February 16, 2011. (Id. at 3, 41.)

On April 4, 2011, petitioner commenced this action by filing the instant petition. Respondent filed a motion to dismiss on August 18, 2011, and petitioner filed a response on September 9, 2011.

ANALYSIS I. Standards of Review Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of

some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:

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 Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § ...


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