Morfin v. Salinas, No. CIV S-10-1223 KJM DAD P

• Decision Date: 26 April 2012
• Docket Number: No. CIV S-10-1223 KJM DAD P
• Parties: HERMINIO A. MORFIN, Petitioner, v. S. SALINAS, Respondent.
• Court: U.S. District Court — Eastern District of California

HERMINIO A. MORFIN, Petitioner,

v.S. SALINAS, Respondent.

No. CIV S-10-1223 KJM DAD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: April 26, 2012

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 several challenges to the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at his parole consideration hearing held on October 23, 2008. 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 1985 judgment of conviction entered against him in the Yuba County Superior Court following his conviction on charges of second degreemurder with use of a firearm and assault with use of a firearm. (Doc. 1 at 1.)¹ Pursuant to that conviction, petitioner was sentenced to twenty 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 October 23, 2008. (Doc. 10-1 at 53). Petitioner appeared at and participated in that hearing. (Id. at 56-88.) Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for two years as well as the reasons for that decision. (Id. at 89-96.)

Petitioner first challenged the Board's 2008 decision denying him parole in a petition for writ of habeas corpus filed in the Yuba County Superior Court. (Doc. 10-1.) The Superior Court denied that petition, reasoning as follows:

The Court has reviewed the Petition for Writ of Habeas Corpus.

The issue on habeas review of denial of parole is whether "some evidence" supports the Board's decision. In re Rosenkrantz (2002) 29 Cal.4th 616, 625.

The largely hypothetical discussion in the petition as to language barrier, that is contended to have created a defective record, is insufficient. To take but one example is the following from the petition attachment: " . . . [W]hat was the actual Spanish word used; did the Petitioner actually say 'Accidente' or 'error'? We'll never know." Petitioner is the person who is being quoted in this passage, yet he discusses the contents of the conversation only hypothetically. Theoretical discussions cannot form the basis of relief. The numerous factors recited in the petition are sufficient to meet the "some evidence" standard. Petitioner has failed to affirmatively show his entitlement to relief. The petition is denied.

(Doc. 10-2.)

Petitioner subsequently challenged the Board's 2008 decision denying him parole in a petition for writ of habeas corpus filed in the California Court of Appeal for the Third Appellate District. (Doc. 10-3.) The California Court of Appeal denied that petition with a citation to In re Steele, 32 Cal.4th 682, 692 (2004) (holding that motions for post-convictiondiscovery should generally be brought in the trial court that rendered the judgment) and In re Hillery, 202 Cal. App.2d 293 (1962) (holding that an appellate court has discretion to refuse to issue a writ of habeas corpus where the application for the writ has not been made in the lower court in the first instance). (Doc. 10-4.)

Petitioner subsequently filed a petition for writ of habeas corpus in the California Supreme Court, wherein he provided evidence that he had filed habeas petitions in both the California Superior Court and California Court of Appeal. (Doc. No. 10-5.) That petition was summarily denied. (Doc. No. 10-6.)

On May 19, 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 § 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 § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.² Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. _, _,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition forobtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. St...