Peng v. Tilton et al
Filing
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ORDER DENYING HABEAS PETITION AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 10/29/2012. (ndr, COURT STAFF) (Filed on 10/29/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KUN SHAN PENG,
Petitioner,
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ORDER DENYING HABEAS
PETITION AND DENYING
CERTIFICATE OF
APPEALABILITY
v.
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No. C 12-0065 CW (PR)
JAMES TILTON, Director, G.
SWARTHOUT, Warden,
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Respondents.
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________________________________/
United States District Court
For the Northern District of California
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Petitioner, a state prisoner proceeding pro se, has filed
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this petition for a writ of habeas corpus under 28 U.S.C. § 2254,
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challenging the 2010 decision by the California Board of Parole
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Hearings (Board) to deny him parole.
He has paid the filing fee.
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BACKGROUND
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According to the allegations in the petition, Petitioner
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plead guilty to second degree murder on August 5, 1992, in Santa
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Clara County Superior Court.
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fifteen years to life in state prison.
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conviction or sentence.
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He was sentenced to a term of
He did not appeal his
On July 28, 2010, the Board found Petitioner unsuitable for
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parole.
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Board’s decision was denied by the California Supreme Court on
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December 14, 2011.
Petitioner’s state habeas corpus petition challenging the
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DISCUSSION
A.
Standard of Review
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This Court may entertain a petition for a writ of habeas
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corpus “in behalf of a person in custody pursuant to the judgment
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of a State court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United
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States.”
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(1975).
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directing the respondent to show cause why the writ should not be
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granted, unless it appears from the application that the applicant
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or person detained is not entitled thereto.”
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B.
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28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21
A district court shall “award the writ or issue an order
28 U.S.C. § 2243.
Petitioner’s Claims
1.
Due Process Violation
United States District Court
For the Northern District of California
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Petitioner claims that the Board’s decision finding him
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unsuitable for parole violated his federal constitutional right to
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due process because the decision was based solely on the immutable
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facts of the commitment offense and not on some evidence
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demonstrating that he poses a current threat to the public.
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A prisoner subject to California’s parole statute receives
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adequate process when he is allowed an opportunity to be heard and
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is provided with a statement of the reasons why parole was denied.
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Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011).
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the parole hearing that Petitioner has attached to his petition
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shows that he received at least this amount of process.
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Constitution does not require more.
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The transcript of
The
Id.
Further, whether the Board’s decision was supported by some
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evidence of current dangerousness is irrelevant on a petition for
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a writ of habeas corpus in federal court.
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made clear that “it is no federal concern . . . whether
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California’s ‘some evidence’ rule of judicial review (a procedure
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beyond what the Constitution demands) was correctly applied.”
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at 863.
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The Supreme Court has
Id.
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Accordingly, Petitioner is not entitled to habeas relief on
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this claim.
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2.
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Petitioner claims the denial of parole violated his federal
Ex Post Facto Violation
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constitutional right to be free from the ex post facto application
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of punitive laws because he committed his crime in 1988 but was
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denied parole based on laws enacted in 1988 and 2008.
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Proposition 89 was enacted in 1988.
It gave the governor
power to review and reverse or modify the Board’s parole
United States District Court
For the Northern District of California
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decisions.
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Proposition 89 does not raise ex post facto concerns because a
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prisoner cannot demonstrate with certainty that he would have been
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granted parole before the change.
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964, 967-68 (9th Cir. 1996).
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The Ninth Circuit has found, as a matter of law, that
See Johnson v. Gomez, 92 F.3d
Proposition 9 (also known as the “Victims’ Bill of Rights Act
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of 2008: Marsy’s Law”) was enacted in 2008.
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availability and frequency of parole hearings.
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Code § 3041.5(b)(3) (2010).
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the law did not raise ex post facto concerns because it had “no
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effect on the standards for fixing a prisoner’s initial date of
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‘eligibility’ for parole” or for “determining his ‘suitability’
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for parole” and setting his release date; rather, the focus of the
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law was to relieve the parole board from the costly and time-
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consuming responsibility of scheduling parole hearings for
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prisoners who have no reasonable chance of being released.
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California Dep’t of Corrections v. Morales, 514 U.S. 499, 507
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(1995).
It modified the
See Cal. Penal
The United States Supreme Court found
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See
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Accordingly, Petitioner is not entitled to habeas relief on
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this claim.
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3.
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Petitioner claims that the Board’s denial of parole is a
Breach of Plea Agreement
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breach of the term of his plea agreement that he would receive a
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sentence of fifteen years to life in exchange for pleading guilty
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to second-degree murder.
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“Plea agreements are contractual in nature and are measured
by contract law standards.”
Brown v. Poole, 337 F.3d 1155, 1159
United States District Court
For the Northern District of California
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(9th Cir. 2003) (quoting United States v. De la Fuente, 8 F.3d
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1333, 1337 (9th Cir. 1993)).
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due process right to enforce the terms of a plea agreement, see
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Santobello v. New York, 404 U.S. 257, 261-62 (1971), Petitioner
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has alleged no facts indicating that there is a term of the plea
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agreement that has been breached.
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Although a criminal defendant has a
Petitioner first contends the plea agreement has been
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breached because he is being punished as if he had plead guilty to
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first-degree murder.
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sentence he could have received for second-degree murder is
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twenty-one years, but by the time he was denied parole in 2010 he
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had served twenty-four years.
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Petitioner is receiving parole consideration based on his sentence
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of fifteen years to life.
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death, life without parole, or a term of twenty-five years to
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life.
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been convicted of first-degree murder, he would not have been
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eligible for parole consideration in 2010.
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Specifically, he maintains that the maximum
This argument fails because
First-degree murder is punishable by
Cal. Penal Code § 190(a).
Consequently, if Petitioner had
Petitioner also appears to argue that under the plea
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agreement he should have been released after he reached the
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minimum term of years on his sentence.
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because he does not allege that the plea agreement included a
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promise that he would be released on parole after he reached any
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specific number of years in custody.
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This claim fails, however,
Moreover, the claim is belied by the transcript of the change
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of plea hearing, the abstract of judgment and the sentencing
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report.1
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asked Petitioner if he understood that he was pleading guilty to a
Specifically, during the plea colloquy, the trial judge
United States District Court
For the Northern District of California
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charge of second-degree murder, “with the understanding that
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you’ll be sentenced to prison for fifteen years to life.”
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Tilton, C 07-4797 MMC (PR), Docket no. 13, Ex. 1 at 3:6-11.
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Petitioner responded that he did.
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Petitioner’s counsel, Mr. Mayfield, stated for the record that he
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had explained to Petitioner that he was pleading guilty to a
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sentence of fifteen years to life, he would not be eligible for
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parole consideration until he had served ten years of his
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sentence, and he “most likely” would not be granted parole the
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first time he came before the parole board but “he then would be
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considered again and his chances would improve.”
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Additionally, the following conversation took place between the
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Mr. Schon (the prosecutor), Petitioner and Mr. Mayfield:
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Id. at 3:12.
Peng v.
Thereafter,
Id. at 10:3-24.
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Mr. Schon:
I think it should be pointed out to Mr.
Peng, that the parole board looks at how you behave in
prison to decide when to parole you. There’s a
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The Court takes judicial notice of these documents, which
were filed as exhibits in support of Respondent’s motion to
dismiss as untimely Petitioner’s federal habeas corpus petition
challenging his conviction. See Peng v. Tilton, C 07-4797 MMC
(PR), Docket no. 13.
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possibility you could serve fifteen years or more than
fifteen years all the way up to life if the parole board
feels that for some reason you should be kept in prison.
That’s important for you to realize so it’s important
for you in prison to be well behaved and to follow their
instructions, to make yourself a more suitable candidate
for parole, whenever they start considering you for
parole, okay Mr. Peng?
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Petitioner:
Oh, yeah.
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Mr. Schon:
Do you understand that, Mr. Peng?
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Petitioner:
Yes.
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Mr. Mayfield: Then Mr. Peng I explained that to you as
well didn’t I?
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United States District Court
For the Northern District of California
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Petitioner:
Yes.
Ex. 1 at 11:27-12:14.
Based on the above, the Court finds no merit to Petitioner’s
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claim that his plea agreement was breached because he was denied
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parole.
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claim.
Accordingly, he is not entitled to habeas relief on this
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D.
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Petitioner contends that by denying him parole the Board has
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subjected him to cruel and unusual punishment in violation of the
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Eighth Amendment.
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Eighth Amendment Violation
The argument is without merit.
The Eighth Amendment
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forbids only extreme sentences that are “grossly disproportionate
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to the crime.”
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if the Court assumes, for the sake of argument, that Petitioner
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will serve the maximum term of life, a life sentence for the crime
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of murder is not disproportionate to the crime committed.
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Ewing v. California, 538 U.S. 11 (2003) (finding Eighth Amendment
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not violated by sentence of twenty-five years to life for grand
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theft); Harmelin v. Michigan, 501 U.S. 957 (1991) (finding Eighth
Ewing v. California, 538 U.S. 11, 23 (2003).
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Even
Cf.
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Amendment not violated by life sentence for cocaine possession);
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Hutto v. Davis, 454 U.S. 370 (1982) (finding Eighth Amendment not
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violated by forty-year sentence and $20,000 fine for possession
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and distribution of nine ounces of marijuana).
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Accordingly, Petitioner is not entitled to habeas relief on
this claim.
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CONCLUSION
For the foregoing reasons, the Court orders as follows:
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1.
The petition for a writ of habeas corpus is DENIED.
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United States District Court
For the Northern District of California
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2.
A Certificate of Appealability (COA) is DENIED.
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Petitioner has not made “a substantial showing of the denial
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of a constitutional right,” 28 U.S.C. § 2253(c)(2), or
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demonstrated that “reasonable jurists would find the district
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court’s assessment of the constitutional claims debatable or
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wrong.”
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of a COA cannot be appealed; however, Petitioner may seek a COA
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directly from the Ninth Circuit under Rule 22 of the Federal Rules
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of Appellate Procedure.
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Section 2254 Cases.
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Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The denial
See Rule 11(a) of the Rules Governing
The Clerk of the Court shall enter judgment and close the
file.
IT IS SO ORDERED.
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Dated: 10/29/2012
CLAUDIA WILKEN
United States District Judge
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