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Eugene Kincaide v. Kathleen Dickinson

October 19, 2012

EUGENE KINCAIDE, PETITIONER,
v.
KATHLEEN DICKINSON, WARDEN, 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 a due process challenge to the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at two parole consideration hearings held on April 22, 2004, and April 16, 2009. Petitioner also claims that the sentence imposed with respect to his underlying conviction violates his Sixth Amendment right to a jury trial. 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 1987 judgment of conviction entered against him in the Los Angeles County Superior Court following his conviction for first degree murder and robbery, with a sentence enhancement for use of a gun. (Doc. 1 at 1, 4.) Pursuant to that judgment of conviction, petitioner was sentenced to thirty-one years to life in state prison. (Id.)

The first parole consideration hearing that is placed at issue by the instant federal habeas petition was held on April 22, 2004. (Id. at 27.) Petitioner appeared at and participated in that hearing. (Id. at 29, et seq.) Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for four years as well as the reasons for that decision. (Id. at 94-103.)

The second parole consideration hearing that is placed at issue by the federal habeas petition pending before this court was held on April 16, 2009. (Id. at 106.) Petitioner appeared at and participated in that hearing as well. (Id. at 109, et seq.) Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for five years as well as the reasons for that decision. (Id. at 177-83.)

On January 18, 2007, petitioner raised a due process challenge to the Board's 2004 decision in a petition for writ of habeas corpus filed in the California Court of Appeal for the Second Appellate District. (Answer, Ex. 3.) On February 27, 2007, that petition was summarily denied. (Answer, Exs. 4, 5.)

Petitioner subsequently raised a due process challenge to the Board's 2004 parole suitability decision and a Sixth Amendment challenge to the sentence imposed on his underlying conviction in a petition for writ of habeas corpus filed in the Los Angeles County Superior Court. (Answer, Ex. 1.)*fn1 As respondent points out, although that petition was date-stamped September 21, 2006 by the Superior Court, it was apparently filed on or about March 2, 2007 because petitioner signed and dated the petition on "3/2/2007" and therein he cited the decision in Cunningham v. California, 549 U.S. 270 (2007) in support of his Sixth Amendment challenge to his sentence. (Id. at 00009, 00011.) The Los Angeles County Superior Court denied petitioner's due process challenge to the 2004 parole suitability hearing by order dated August 20, 2007, finding that "some evidence" supported the Board's 2004 denial of parole. (Answer, Ex. 2.) The court did not address petitioner's Sixth Amendment challenge to his sentence. (Id.)

On March 28, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, in which he again raised a due process challenge to the Board's 2004 decision to deny him parole and a Sixth Amendment challenge to his underlying sentence. (Answer, Ex. 6.) That petition was summarily denied by order dated August 29, 2007. (Answer, Ex. 7.)

On October 18, 2007, petitioner filed a federal petition for writ of habeas corpus in the United States District Court for the Central District of California, claiming that the Board's 2004 parole suitability decision violated his right to due process and that the sentence imposed by the trial court in his case violated his Sixth Amendment right to trial by jury. Kincaide v. Hubbard, case No. 2:07-cv-6781 JSL AGR. (Answer, Ex. 8.) That federal habeas petition was subsequently transferred to this court where it was designated as Case No. 2:07-cv-2410 WBS KJM. (Answer, Exs. 8, 9.) After the respondent filed a motion to dismiss, petitioner voluntarily dismissed his petition in Case No. 2:07-cv-2410 WBS KJM. (Answer, Ex. 9.)

On September 4, 2009, petitioner filed another petition for writ of habeas corpus in the Los Angeles County Superior Court, in which he challenged both the 2004 and 2009 Board decisions finding him unsuitable for parole. (Answer, Ex. 10.) Petitioner also again claimed that his state court imposed sentence violated his Sixth Amendment right to jury trial. (Id.) He also included a claim that the Board's 2009 deferral of his next suitability hearing for five years violated his rights under the Ex Post Facto Clause. (Id.) On November 6, 2009, the Los Angeles County Superior Court denied that petition in a reasoned decision addressing all of petitioner's claims on the merits. (Answer, Ex. 11.) Petitioner subsequently filed a habeas petition in the California Court of Appeal for the Second Appellate District, raising the same claims. (Answer, Ex. 12.) That petition was summarily denied. (Answer, Ex. 13.) Next, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Answer, Ex. 14.) That petition was also summarily denied. (Answer, Ex. 15.)

On August 4, 2010, petitioner commenced the instant action by filing a petition for writ of habeas corpus in this court. Petitioner filed an amended petition on September 9, 2010. This action proceeds on the amended petition.

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 ...


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