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Lynnard Smith v. Dennis K. Sisto

April 2, 2012

LYNNARD SMITH, PETITIONER,
v.
DENNIS K. SISTO, RESPONDENT,



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

FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises due process and Eighth Amendment challenges to the 2007 decision of the California Board of Parole Hearings (hereinafter "Board") denying him parole. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be dismissed.

PROCEDURAL BACKGROUND

In 1988, petitioner was convicted of first degree murder. He is serving a state prison term of 25 years to life. (Dkt. No. 1 ("Ptn.") at 3.) At petitioner's parole consideration hearing on April 25, 2007, the Board found petitioner unsuitable for release on parole and issued a four-year denial. (Dkt. No. 1-1 at 82-93.)

Petitioner filed three state habeas petitions challenging the Board's 2007 decision. He first filed a petition in the Los Angeles County Superior Court raising the following claims:

(1) the Board's 2007 decision to deny parole violated his due process rights; (2) the Board violated his right under Cal. Penal Code section 3041.5 to assistance at the hearing; (3) the Board's decision denying him parole rendered his sentence disproportionate in violation of the Eighth Amendment; (4) the Board violated California law by allowing a representative from the Los Angeles County District Attorney's Office to testify during his parole consideration hearing; (5) the California Legislature violated California law in 1982 when it amended Cal. Penal Code sections 3042 and 3043 to permit victims and their families to testify during parole consideration hearings; and (6) the Board violated California law by classifying him as an indeterminately sentenced prisoner and requiring him to demonstrate his suitability for parole before he could be released on parole. (Dkt. No. 19-1 at 2-44.) The superior court issued a reasoned decision denying petitioner's due process claim, and denying by implication all other claims without discussing their merits. (Dkt. No. 19-1 at 74-75.)

Petitioner filed a petition in the California Court of Appeal, Second Appellate District, raising the same claims. (Dkt. No. 19-2 at 2-157.) The court of appeal denied the petition, citing In re Rosenkrantz, 29 Cal.4th 616');">29 Cal. 4th 616 (2002) and In re Dannenberg, 34 Cal. 4th 1061, 1070-71 (2005). (Id. at 159.) Petitioner next filed a petition in the California Supreme Court raising these claims. (Dkt. No. 19-3 at 4-158.) The California Supreme Court summarily denied the petition. (Id. at 160.)

On March 12, 2009, petitioner commenced this action by filing the instant petition raising the same claims as in his state petitions.*fn1 Respondent filed an answer and petitioner filed a traverse.

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 ...


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