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Kirk Franklin v. Gary Swarthout

January 31, 2012

KIRK FRANKLIN,
PETITIONER,
v.
GARY SWARTHOUT, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Dean D. Pregerson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" and exhibits on October 4, 2011. The Petition challenges a 2009 decision of the California Board of Prison Terms ("Board") deeming Petitioner unsuitable for parole and the state courts' subsequent denials of habeas relief in connection with that decision.*fn1 Respondent filed an Answer and lodged supporting documents ("Respondent's Lodgments") on November 30, 2011. Petitioner filed a Traverse on December 23, 2011.

BACKGROUND

In 1982, a jury found Petitioner guilty of first degree murder, robbery, burglary, and grand theft auto for events surrounding the killing of Harold Williams (Petition, p. 2; State. Pet. Ex. A (Abstract of Judgment)). The trial court sentenced Petitioner to 25 years to life in prison (Petition, p. 2; State Pet. Ex. A). On April 30, 2009, Petitioner appeared before the Board for a fifth subsequent parole suitability hearing (State Pet. Ex. C). The Board denied parole for three years (State Pet. Ex. C, pp. C100, C109).

Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a reasoned decision on November 23, 2009 (Pet. Ex. A; Respondent's Lodgments 1-2). Petitioner then filed a habeas corpus petition in the California Court of Appeal, which that court denied on July 29, 2010, with citations to In re Lawrence, 44 Cal. 4th 1181, 82 Cal. Rptr. 3d 169, 190 P. 3d 535 (2008) and In re Shaputis, 44 Cal. 4th 1241, 82 Cal. Rptr. 3d 213, 190 P.3d 573 (2008) (Pet. Ex. B; Respondent's Lodgments 3-4).*fn2 Petitioner filed a petition for review in the California Supreme Court, which that court denied summarily on August 31, 2011 (Pet. Ex. C; Respondent's Lodgments 5-6).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The Board's decision denying Petitioner parole suitability allegedly is not supported by sufficient evidence (Ground One);

2. The Board's decision to deny suitability allegedly converts Petitioner's indeterminate sentence into a sentence of life without the possibility of parole, which assertedly is unfair, disproportionate, amounts to cruel and unusual punishment, and denies Petitioner equal protection (Ground Two); and

3. The application of Marsy's Law (Proposition 9) to Petitioner's parole consideration allegedly violates the Ex Post Facto Clause (Ground Three).

THE BOARD'S HEARING AND DECISION

At the April 2009 hearing, Petitioner testified and offered evidence in support of his alleged suitability for parole (State Pet. Ex. C, pp. C24-C84). The Board incorporated by reference the facts from the commitment offenses as included in the Probation Officer's Report (State Pet. Ex. C, p. C25), which provides:

In the late evening hours of December 6, 1981, the victim, Harold A. Williams, was visited at his residence by [Petitioner's brother], Roy Franklin. Apparently both were homosexuals and involved in the act of homosexuality when [another of Petitioner's brothers] Ben Franklin, and [Petitioner] entered the victim's residence. They proceeded into the bedroom, at which time it is alleged that Ben Franklin pulled out a handgun, pointed it at the rear portion of the victim's head, and shot the victim once in the back of the head. Allegedly, all three then wrapped the victim up in the bedding material, took him into the back yard, [and] placed him in a pond. . . . They dumped him in the pond, covered him with debris, and then went back into the house. They then allegedly ransacked the house and took a camera, a key set, and several items of men's jewelry. They then set fire to the house and the house was completely gutted. While the fire was in progress, they [] stole the victim's vehicle.

(State Pet. Ex. B, pp. B9-B10).

Petitioner testified that he went with his two brothers to the house of the victim on the night of the murder and was at the house when the shooting occurred, but claimed he was not armed and was not in the room where Williams was shot (State Pet. Ex. C, pp. C27-C30). Petitioner acknowledged that at one time he had said he heard gunfire, but testified that he could not hear the gunshot because the house was soundproofed (State Pet. Ex. C, p. C31). Petitioner said it was his brother Roy who shot Williams (State Pet. Ex. C, pp. C29-C30). Later, Petitioner testified that he did not know which of his brothers shot Williams (State Pet. Ex. C, p. C47).*fn3

The Board ultimately deemed Petitioner not suitable for parole, finding that Petitioner would pose an unreasonable risk of danger to society if released, based on Petitioner's:

(1) understanding of the nature and magnitude of the commitment offenses and of Petitioner's prior and subsequent offenses, an understanding which the Board believed ...


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