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Mark James Lyon v. Warden De La Jour

December 5, 2012

MARK JAMES LYON, PETITIONER,
v.
WARDEN DE LA JOUR,
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 Audrey B. Collins, 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" on September 7, 2012, accompanied by a supporting memorandum ("Pet. Mem.") and exhibits. The Petition challenges a December 2, 2010 decision of a panel of the California Board of Parole Hearings ("Board") deeming Petitioner unsuitable for parole. On November 2, 2012, Respondent filed Motion to Dismiss, asserting that: (1) the Petition fails to allege a federal claim for relief; (2) the Petition is untimely; and (3) the Petition is procedurally defaulted. On November 26, 2012, Petitioner filed "Petitioner's Reply to Respondent[']s Notice of Motion and Motion to Dismiss, etc."

BACKGROUND

In 1987, a jury found Petitioner guilty of first degree murder (Petition, p. 2). According to the description of the crime recited at the parole hearing, Petitioner armed himself with a .44 caliber revolver, a buck knife, a brass knuckle knife with twin blades, and a ski mask (see Petition, Ex. A [Transcript of December 2, 2010 hearing of the Board of Parole Hearings], pp. 74-77, 82-83, 100).*fn1 Petitioner then walked to the home of a neighbor with whom Petitioner had a long-running dispute. When Petitioner pounded on the door, the victim, clad in underwear, came around the side of the house (id., pp. 81, 141). Petitioner immediately shot the victim in the chest twice from a distance of six to eight feet (id., pp. 77, 82, 84, 107). When the victim fell and grabbed Petitioner's leg, Petitioner stabbed the victim "numerous" times (id., pp. 82, 84-85, 101).*fn2 Petitioner then stuffed the body in one of the victim's garbage cans (id., pp. 85-86). Petitioner donned the ski mask, but shortly thereafter was apprehended by police (id., p. 101).

Petitioner appeared at the Board hearing on December 2, 2010, represented by counsel (id., pp. 3-4). Petitioner answered the Board members' questions, discussed the crime and other relevant factors with the Board members, presented documentary evidence, and made a closing statement (id., pp. 72-155). The Board denied parole for seven years (id., pp. 156-64).

On February 18, 2011, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a reasoned order on April 21, 2011 (Respondent's Lodgments 1, 2). On May 19, 2011, Petitioner filed a habeas corpus petition in the California Court of Appeal (Respondent's Lodgment 3). On June 3, 2011, the Court of Appeal denied the petition without prejudice to the filing of a new petition (Respondent's Lodgment 3). On June 17, 2011, Petitioner filed a second habeas corpus petition in the Court of Appeal, which that court denied summarily on June 23, 2011 (Respondent's Lodgment 4). On July 5, 2011, Petitioner filed a petition for review in the California Supreme Court, which that court denied summarily on August 10, 2011 (Respondent's Lodgments 5, 6). On April 23, 2012, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied in a summary order with citations on April 23, 2012 (Respondent's Lodgment 7, 8).*fn3

PETITIONER'S CONTENTIONS

Petitioner contends:

1. A purported state procedural default allegedly does not bar federal habeas review (Ground One);*fn4

2. The purportedly corrupt state courts assertedly subjected Petitioner to cruel and unusual punishment, by allegedly:

(1) applying the "some evidence" standard improperly; and (2) using asserted falsehoods to deny Petitioner parole (Ground Two);

3. The Superior Court allegedly denied Petitioner a fair hearing, by assertedly: (1) making a conclusory determination that Petitioner lacked "insight" regarding his crime; and (2) falsely claiming that Petitioner's prior crimes and misbehavior in ...


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