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Jesse Perry v. Matthew Cate

December 10, 2012

JESSE PERRY, PETITIONER,
v.
MATTHEW CATE, 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 both a due process and an ex post facto challenge to the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for three years at his parole suitability hearing held on November 29, 2010. 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 with respect to his due process claim and that his Ex Post Facto claim be dismissed without prejudice.

I. Procedural Background

Petitioner is confined pursuant to a 1980 judgment of conviction entered against him in the Santa Barbara County Superior Court following his conviction on one count of second degree murder with use of a firearm. (Doc. 1 at 1.) Pursuant to that conviction, petitioner was sentenced to fifteen years to life in state prison plus five years. (Id.)

The parole suitability hearing that is placed at issue by the instant federal habeas petition was held on November 29, 2010. (Id. at 48.) Petitioner appeared at and participated in that hearing. (Id. at 50, et seq.) Following deliberations held at the conclusion of that hearing, the Board panel announced their decision to deny petitioner parole for three years as well as the reasons for that decision. (Id. at 94-102.)

Subsequently, petitioner challenged the Board's November 29, 2010 decision in petition for writ of habeas corpus filed in the Santa Barbara County Superior Court. (Doc. 12 (Answer), Ex. 1.) Therein, petitioner claimed that the Board's decision to deny him parole for three years violated the Ex Post Facto Clause of the United States Constitution as well as his right to due process. (Id.) That court denied the petition in a reasoned decision on the merits of petitioner's claims. (Answer, Ex. 2.)

Petitioner subsequently challenged the Board's 2010 decision in a petition for writ of habeas corpus filed in the California Court of Appeal for the Second Appellate District. (Answer, Ex. 3.) That petition was summarily denied. (Answer, Ex. 4.) Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court. (Answer, Ex. 5.) That petition was also summarily denied. (Answer, Ex. 6.)

On December 28, 2011, 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 that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of ยง 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle ...


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