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Kash Register v. S. Salinas

October 2, 2012

KASH REGISTER, 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 challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his parole consideration hearing held on May 28, 2009. 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 1979 judgment of conviction entered against him in the Los Angeles County Superior Court following his conviction for first degree murder with use of a firearm. (Pet. (Doc. No. 1) at 1.) Pursuant to that conviction, petitioner was sentenced to twenty-five 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 May 28, 2009. (Id. at 47.) Petitioner appeared at and participated in that hearing. (Id. at 50-94.) Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for three years, as well as the reasons for that decision. (Id. at 95-102.)

Petitioner first challenged the Board's 2009 decision denying him parole in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court. (Answer, Ex. 1.)

Therein, petitioner alleged that the Board's 2009 decision violated his right to due process because it was not based on evidence that he posed a current danger to society if released from prison, and that the application of California's Marsy's Law to deny him parole for three years violated the Separation of Powers Doctrine, the Ex Post Facto Clause, and his rights to due process and equal protection. (Id.) The Los Angeles County Superior Court denied that petition in a reasoned decision on the merits of petitioner's claims. (Answer, Ex. 2.)

Petitioner subsequently challenged the Board's 2009 decision denying him parole in a petition for writ of habeas corpus filed in the California Court of Appeal for the Second Appellate District, in which he raised the same claims that he raised in his petition before the Superior Court. (Answer, Ex. 3.) The state appellate court summarily denied that petition. (Answer, Ex. 4.) Petitioner then filed a petition for review in the California Supreme Court. (Answer, Ex. 5.) That petition was also summarily denied. (Answer, Ex. 6.)

On April 14, 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 ยง 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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