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Collier v. Duffy

United States District Court, Ninth Circuit

December 16, 2013

TRACY COLLIER, Petitioner,
v.
B. DUFFY, Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Consuelo B. Marshall, 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 July 23, 2013. Respondent filed an Answer and lodged documents on September 18, 2013. Petitioner filed a Reply on October 11, 2013.

BACKGROUND

In 1992, a jury found Petitioner guilty of attempted wilful, deliberate and premeditated murder, and found true the allegation that Petitioner personally used a firearm within the meaning of California Penal Code section 12022.5(a) (Respondent's Lodgment 1). The court sentenced Petitioner to a term of life with the possibility of parole plus four years on the firearm enhancement (Respondent's Lodgment 1).

On October 17, 2012, Petitioner appeared before the California Board of Parole Hearings ("Board") for a subsequent parole hearing (Respondent's Lodgment 2). The Board found Petitioner unsuitable for parole and, applying "Marsy's Law, "[1] deferred Petitioner's next parole hearing for five years. Id.

Petitioner filed a petition for habeas corpus in the Superior Court, which that Court denied in a brief order (Respondent's Lodgments 3 and 4). Petitioner filed habeas corpus petitions in the California Court of Appeal and the California Supreme Court, which those courts denied summarily (Respondent's Lodgments 5-8).

SUMMARY OF PETITIONER'S CONTENTIONS

Although difficult to decipher, the Petition appears to contend:

1. Marsy's Law assertedly does not apply to prisoners convicted of attempted murder, as distinguished from prisoners convicted of murder (Petition, Issue One);
2. Given the nature of Petitioner's recent conduct in prison, the 2012 parole unsuitability determination assertedly violated Petitioner's constitutional due process rights (Petition, Issue Four);
3. The continuing denial of parole and the application of Marsy's Law to delay Petitioner's next parole hearing have assertedly resulted in a constitutionally ...

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