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Herminio A. Morfin v. S. Salinas

April 26, 2012

HERMINIO A. MORFIN, PETITIONER,
v.
S. SALINAS, RESPONDENT.



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 several challenges to the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his parole consideration hearing held on October 23, 2008. The matter has been fully briefed by the parties and is submitted for decision. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

I. Procedural Background

Petitioner is confined pursuant to a 1985 judgment of conviction entered against him in the Yuba County Superior Court following his conviction on charges of second degree murder with use of a firearm and assault with use of a firearm. (Doc. 1 at 1.)*fn1 Pursuant to that conviction, petitioner was sentenced to twenty years to life in state prison. (Id.)

The parole consideration hearing that is placed at issue by the instant federal habeas petition was held on October 23, 2008. (Doc. 10-1 at 53). Petitioner appeared at and participated in that hearing. (Id. at 56-88.) Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for two years as well as the reasons for that decision. (Id. at 89-96.)

Petitioner first challenged the Board's 2008 decision denying him parole in a petition for writ of habeas corpus filed in the Yuba County Superior Court. (Doc. 10-1.) The Superior Court denied that petition, reasoning as follows:

The Court has reviewed the Petition for Writ of Habeas Corpus. The issue on habeas review of denial of parole is whether "some evidence" supports the Board's decision. In re Rosenkrantz (2002)

The largely hypothetical discussion in the petition as to language barrier, that is contended to have created a defective record, is insufficient. To take but one example is the following from the petition attachment: " . . . [W]hat was the actual Spanish word used; did the Petitioner actually say 'Accidente' or 'error'? We'll never know." Petitioner is the person who is being quoted in this passage, yet he discusses the contents of the conversation only hypothetically. Theoretical discussions cannot form the basis of relief. The numerous factors recited in the petition are sufficient to meet the "some evidence" standard. Petitioner has failed to affirmatively show his entitlement to relief. The petition is denied. (Doc. 10-2.)

Petitioner subsequently challenged the Board's 2008 decision denying him parole in a petition for writ of habeas corpus filed in the California Court of Appeal for the Third Appellate District. (Doc. 10-3.) The California Court of Appeal denied that petition with a citation to In re Steele, 32 Cal.4th 682, 692 (2004) (holding that motions for post-conviction discovery should generally be brought in the trial court that rendered the judgment) and In re Hillery, 202 Cal. App.2d 293 (1962) (holding that an appellate court has discretion to refuse to issue a writ of habeas corpus where the application for the writ has not been made in the lower court in the first instance). (Doc. 10-4.)

Petitioner subsequently filed a petition for writ of habeas corpus in the California Supreme Court, wherein he provided evidence that he had filed habeas petitions in both the California Superior Court and California Court of Appeal. (Doc. No. 10-5.) That petition was summarily denied. (Doc. No. 10-6.)

On May 19, 2010, petitioner filed his federal application for habeas relief in this court.

II. Standards of Review

Applicable to Habeas Corpus Claims An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal 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.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied ...


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