Chin v. Warden

Filing 25

ORDER DENYING PETITIONERS 24 MOTION FOR JUDICIAL NOTICE signed by District Judge Jeffrey T. Miller on 1/12/2009. (Figueroa, O)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Norith Chin ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 1, 2008. (Doc. No. 1, "Pet.") Petitioner challenged the September 12, 2006 Board of Parole Hearings ("BPH" or "Board") decision denying him parole, arguing his due process rights were violated in part by the Board's reliance on immutable characteristics of his commitment offense. (Pet. at 2-7.) Petitioner is presently serving an indeterminate sentence of nineteen years to life for his February 1992 conviction in the Orange County Superior Court for one count of second degree murder including an enhancement for the use of a firearm. On January 6, 2009, the court denied the Petition. (Doc. No. 23.) On January 7, 2009, Petitioner submitted a "Motion for the Court to Take Judicial Notice" of a recent decision of the California Supreme Court, In re Lawrence, 44 Cal.4th 1181 (2008), which Petitioner contends clarifies the applicable case law governing consideration of characteristics of a commitment offense in such decisions. (Doc. No. 24); See In re Rosenkrantz, 29 Cal.4th 616 (2002); NORITH CHIN, vs. WARDEN, Avenal State Prison, Respondent. Petitioner, CASE NO. 08 CV 0165 JTM ORDER DENYING PETITIONER'S MOTION FOR JUDICIAL NOTICE Doc. No. 24

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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08cv0165 (E.D. Cal.)

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In re Dannenberg, 34 Cal. 4th 1061 (2005). Because Petitioner's request was filed after the relevant court order issued, the request is moot. Further, the court notes the reviews of the Board's decision by both this court and the California Superior Court (Pet. Exh. 9) were consistent with the legal and factual analysis presented in Lawrence. First, the Lawrence court actually indicated the nature of the commitment offense may satisfy the "some evidence" standard where there is a sufficient nexus between the facts of the offense and the potential parolee's current dangerousness. Lawrence, 44 Cal.4th at 1227. That assessment

notwithstanding, the Board's decision here was based on multiple grounds, including Petitioner's record of institutional misconduct, unsupportive psychological evaluation, and opposition by local law enforcement. Thus, the Board's decision denying parole did not run afoul of the applicable legal standards. For the reasons stated above, Petitioner's request for judicial notice is DENIED. DATED: January 12, 2009
Hon. Jeffrey T. Miller United States District Judge

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08cv0165 (E.D. Cal.)