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EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYA M. BINSACCA Supervising Deputy Attorney General SCOTT C. MATHER, State Bar No. 190912 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5709 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent Ben Curry 10 11 12 13 14 IVAN VON STAICH, 15 Petitioner, 16 v. 17 BEN CURRY, Warden, 18 19 20 21 22 23 24 25 26 27 28
Answer to OSC; Mem. of P. & A. Von Staich v. Curry C08-0848 PJH

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION C08-0848 PJH

Judge: Respondent.

The Honorable Phyllis J. Hamilton

ANSWER TO ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES

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1 2 3 INTRODUCTION

TABLE OF CONTENTS Page 1 2 9 9

4 ANSWER TO THE ORDER TO SHOW CAUSE 5 MEMORANDUM OF POINTS AND AUTHORITIES 6 7 8 9 10 11 1. 12 13 2. 14 15 16 1718 C. Conclusion. 19 20 21 22 23 CONCLUSION 24 25 26 27 28
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ARGUMENT THE STATE COURT'S DENIAL OF PETITIONER'S HABEAS CLAIM WAS NOT CONTRARY TO OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW, NOR BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS. A. The State Superior Court Decision Was Not Contrary to or an Unreasonable Interpretation of Clearly Established Federal Law. Petitioner received all process due under the only United States Supreme Court law addressing due process in the parole context. The Ninth Circuit's some-evidence test is not clearly established Supreme Court law. Even if the some-evidence standard was clearly established federal law, the standard was correctly applied by the state court.

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3.

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B.

The State Court Decision Upholding the Board's Parole Denial Was Based On a Reasonable Interpretation of the Facts.

II. AEPDA'S PROHIBITION AGAINST SUCCESSIVE PETITIONS AND THE DOCTRINE OF COLLATERAL ESTOPPEL BAR PETITIONER'S CLAIMS THAT THE BOARD UNLAWFULLY FAILED TO (1) APPLY SENTENCING CREDITS AGAINST HIS SECOND-DEGREE MURDER SENTENCE AND (2) SET A MAXIMUM TERM AND FIXED PAROLE RELEASE DATE FOR HIS SECOND-DEGREE MURDER CONVICTION.

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1 2 '3 Cases

TABLE OF AUTHORITIES Page

4 Ashe v. Swenson 397 U.S. 436 (1970) 5 Babbitt v. Woodford 6 177 F.3d 744 (9th Cir. 1999) 7 Bd. of Pardons v. Allen 482 U.S. 369 (1987) . 8 Benny v. US. Parole Comm 'n 9 295 F.3d 977 (9th Cir. 2002) 10 Biggs v. Terhune 334 F.3d 910 (9th Cir. 2003) .11 Cal. Dept. of Corr., et. al. v. Morales 12 514 U.S. 499 (1995) 13 14 15 16 17 Foote v. Del Papa 18 492 F.3d 1026 (9th Cir. 2007) 19 20 21 Hernandez v. Small 282 F.3d 1132 (9th Cir. 2002) Greenholtz v. Inmates of Neb. Penal & Corr. Complex 442 U.S. 1 (1979) Cooper v. Brown 510 F.3d 870 (9th Cir. 2007) Crater v. Galaza 491 F.3d 1119 (9th Cir. 2007) Carey v. Musladin _ U.S. _, 127 S. Ct. 649 (2006)

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8 13

22 In re Dannenberg 34 Cal. 4th 1061 (2005) 23 In re Rosenkrantz 24 29 Cal. 4th 616 (2002) 25 Irons v. Carey 505 F.3d 846 (9th Cir. 2007) 26 Jancsek v. Oregon Board of Parole 27 833 F.2d 1389 (9th Cir. 1987) 28
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TABLE OF AUTHORITIES (continued) Page 2 Juan H. v. Allen 3 408 F.3d 1262 (9th Cir. 2005) 15 9, 16 12, 13
9,

4 Lockyer v. Andrade 583 U.S. 63 (2003) 5 McQuillion v. Duncan 306 F.3d 895 (9th Cir. 2002) 6 Miller-El v. Cockrell 7 537 U.S. 322 (2003) 8 Miller-El v. Dretke 9 545 U.S. 231 (2005) 10 Morales v. Ornoski 2006) 439 F.3d 529 (9th Cir. 11 Nguyen v. Garcia 12 477 F.3d 716 (9th Cir. 2007) Connor 13 Sandin v.472 (1995) 515 U.S. 14 Sass v. California Board of Prison Terms 15 461 F.3d 1123 (9th Cir. 2006) 16 Schriro v. Landrigan 1933 (2007) U.S. , 127 S. Ct. 17 Superintendent v. Hill 18 472 U.S. 445 (1985) 19 20 21 United States v. Allen 157 F.3d 661 (9th Cir. 1998) United States v. Smith-Baltiher 424 F.3d 913 (9th Cir. 2005)

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17,18 13 5 6, 13, 14 12 6, 10, 12, 14-16 '17 18 7, 17, 18 13

Von Staich v. California 't of Corrections 22 228 Fed. Appx. 780 (9th Dep 2007) Cir. 23 Wainwright v. Greenfield 474 U.S. 284 (1986) 24 25 26 Wilkinson v. Austin 545 U.S. 2384 (2005)

Williams (Terry) v. Taylor 529 U.S. 362 (2000) 27 28
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TABLE OF AUTHORITIES (continued) Page Ylst v. Nunnemaker 501 U.S. 797 (1991) Constitutional Provisions 5 Untied States Constitution Sixth Amendment 6 Statutes 7 8 28 U.S.C.§ 2244(b)(1) § 2254(d) 9 § 2254(d)(1) § 2254(d)(1-2) 10 § 2254(d)(2) § 2254(e) 11 § 2254(e)(1) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYA M. BINSACCA Supervising Deputy Attorney General SCOTT C. MATHER, State Bar No. 190912 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5709 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent Ben Curry 10 11 12 13 14 IVAN VON STAICH, 15 Petitioner, 16 v. 17 BEN CURRY, Warden, 18 Respondent. 19 20 INTRODUCTION Petitioner Ivan Von Staich is a California state inmate at the Correctional Training Facility, proceeding pro se in this habeas corpus action. Petitioner, currently serving a prison term of thirty years to life for second-degree murder and attempted murder, alleges that the Board of Parole Hearings unconstitutionally denied him parole at his 2007 parole consideration hearing. . 25 On February 26, 2008, this Court issued an Order to Show Cause. Respondent Warden Ben Judge: The Honorable Phyllis J. Hamilton ANSWER TO ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES C08-0848 PJH IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

26 Curry answers as follows: 27 // 28 //
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ANSWER TO THE ORDER TO SHOW CAUSE In response to the Petition for Writ of Habeas Corpus, Respondent admits, denies, and alleges the following: 1. Petitioner is in the lawful custody of the California Department of Corrections and

5 Rehabilitation following his December 1985 convictions for second-degree murder and attempt 6 murder. (Ex. 1, Abstracts of Judgment; Ex. 2, Parole Hearing Transcript, at 18.) He is currently 7 serving an indeterminate sentence of thirty years to life. (Ex. 2 at 18.) Petitioner does not 8 challenge his underlying conviction or sentence in the current proceeding. Rather, he alleges that 9 the Board unlawfully denied him parole at his May 2007 parole consideration hearing. (See 10 generally Pet.) 11 2. Petitioner's murder and attempted murder offenses arose out of his relationship with

12 Cynthia Bess, a relationship that was interrupted in 1980 when Petitioner was sentenced to a 13 federal penitentiary. Petitioner and Cynthia continued to communicate by telephone and mail

14 until June 9, 1983, when he was released to a halfway house, at which point Cynthia visited him 15 there. But during this time Cynthia also had met Robert Topper, and as her relationship with 16 Robert proceeded, she "communicated less frequently" with Petitioner. 17 According to Cynthia, she had reluctantly agreed to pick Petitioner up at the halfway house

18 on June 20, 1983. While she was driving him back to the halfway house, Petitioner "became 19 irate and threatened to `kill' her because she had `hurt' him so bad." Petitioner struck Cynthia in 20 the jaw with his fist, after which she said she loved him in order to get him to stop attacking her. 21 After Petitioner left, Cynthia reported the incident to the halfway house and requested that

22 Petitioner not contact her or her family. Later that day, Petitioner arrived at Cynthia's residence 23 and stated, "You're gonna die. You called the halfway house on me and you're gonna get it."

24 Based on these threats, Cynthia took a flight out of state a few days later. (Ex. 3 at 4-5; Ex. 4 at 25 26 1-2.) On June 29, 1983, Petitioner was returned to prison after breaking into Cynthia's former

27 residence in search of her and, based on these circumstances, was denied direct contact with her 28 for the remainder of his sentence. "Frustrated with the uncertainty of the situation," Petitioner
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sent Cynthia letters "in which he professed his love and threatened to harm her if she left him for

2 another [man]." In an attempt to locate her, Petitioner made at least sixty-seven collect calls to 3 Cynthia's father in July and August 1983. In addition, after learning of Cynthia's relationship

4 with Robert Topper, Petitioner telephoned Robert "on numerous occasions and repeatedly 5 threatened him, warning him to stay away from [Cynthia]." 6 Petitioner was released to parole in November 1983, after which he learned that Cynthia

7 was staying at her grandparent's home. Petitioner was apparently unaware, however, that 8 Cynthia had married Robert. On December 8, 1983, in "the early morning hours," Petitioner 9 went to Cynthia's grandparents' home armed with a hammer. After cutting the telephone wires 10 to the home, Petitioner kicked in the front door, and then located Cynthia and Robert inside the 11 home. Robert was then "brutally slain" by Petitioner, suffering "[n]umerous hammer blows" to

12 his head and being shot four times "at close range in the back of the neck." Cynthia was also 13 assaulted, but survived despite suffering multiple blows to the head-probably from a

14 handgun-which "crushed" her skull (the resulting brain damage rendered Cynthia incompetent 15 to testify).'- Petitioner was also shot "once or twice" during the confrontation, sustaining wounds 16 "to a hand and arm and the ribcage." (Ex. 2 at 18-20, 86-88; Ex. 3, Probation Officer's Report, 17 at 3-7; Ex. 4, Nov. 2006 Life Prisoner Evaluation Report, at 1; Ex. 5, Oct. 2002 Life Prisoner 18 Evaluation Report, at 1-2.) 19 Following his arrest for the commitment offenses, Petitioner escaped from jail before

20 completion of the criminal proceedings, but was subsequently apprehended. (Ex. 3 at 7, 13.) 21 3. Petitioner appeared for a Subsequent Parole Consideration Hearing on May 9, 2007.

22 At that time, Petitioner declined the Board's appointment of an attorney, stating that he would 23 proceed in pro per at the hearing. (Ex. 2 at 1-7.) At the conclusion of Petitioner's May 2007 24 hearing, the Board found Petitioner was unsuitable for parole. The Board's decision was based 25 in part on the gravity of Petitioner's commitment offenses. The Board found that Petitioner's 26 1. As of the preparation of the Probation Officer's Report in March 1986, Cynthia had undergone two lobotomies and her mental ability had been "impaired due to injuries received in this 28 incident." (Ex. 2 at 16; Ex. 3 at 6-7; Ex. 4 at 2.) 27
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offenses were carried out in a manner that was "especially cruel," "vicious," "calculated," 2 "demonstrates callous disregard for human suffering," involved multiple victims, included abuse 3 or mutilation of a victim, and was based on a motive that was "inexplicable and very trivial in

4 relation to the commitment offense." (Ex. 2 at 86-88, 91-92.) The Board also denied parole in 5 part due to Petitioner's prison disciplinary history (id. at 30-31, 80-83, 89-90, 92; Ex. 5 at 4-5 6 and attached Disciplinary Sheet); prior criminal history (Ex. 2 at 20-22, 27, 81-82, 89; Ex. 3 at 97 11; Ex. 5 at 3-4); unstable social history, including the fact that all of his "involvement with the

8 law involved women" (Ex. 2 at 84, 88-90; Ex. 3 at 9-11); Petitioner's "superficial" statements 9 and lack of credibility regarding his insight into the "causation factors" of the commitment 10 offenses (Ex. 2 at 50-64, 85-86, 89); and limited participation in self-help therapy and the need 11 for further therapy in order to "face, discuss, understand and cope with stress in a non-destructive

12 manner as well as [to address] relationships with women" (id. at 29, 36-38, 90-91, 93-95; Ex. 4 13 at 2-3; Ex. 5 at 4-5). Finally, the Board considered the Orange County District Attorney's

14 opposition to parole. (Ex. 2 at 64-69 [Deputy District Attorney's statement]; ex. 6, District 15 Attorney's Apr. 25, 2007 letter opposing parole.) 16 4. In finding Petitioner unsuitable for parole, the Board did not issue Petitioner the

17 minimum one-year denial. Rather, in a separate decision the Board deferred further parole 18 consideration for four years, finding that it was "unreasonable to expect that parole would be 19 granted in the next four years." The Board's finding was supported by a statement of the 20 evidence relied on to make this decision, which was substantially similar to the evidence the 21 22 Board relied on in finding Petitioner unsuitable for parole. (Ex. 2 at 91-93.) 5. Before filing his federal petition, Petitioner sought relief in the state courts, generally

23 raising the same claims raised in his federal petition. 2l Petitioner initially filed a habeas corpus 24 petition in the Orange County Superior Court, which was denied in a reasoned decision issued on 25 26 2. Petitioner's state court petitions are attached to this Answer without their supporting exhibits because these exhibits appear to be substantially the same as those filed with his federal 28 petition. Respondent will promptly submit these exhibits, however, if ordered to do so by this Court. 27
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October 15, 2007. The court initially denied the petition on the ground that Petitioner had

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previously filed three petitions in that court regarding the same Board hearing, and thus his

2 current petition improperly asserted claims that could have been raised in the prior petitions. The 3 court also denied relief on the merits, however, finding that the Board's decision denying

4 Petitioner parole based on the gravity of his commitment offense, criminal history, and 5 disciplinary history was supported by some evidence. Finally, the court denied Petitioner's claim

6 for post-sentence credits on the ground that Petitioner had not demonstrated exhaustion of 7 administrative remedies. (Ex. 7, Super. Ct. Pet.; Ex. 8, Super. Ct. Order.) ,8 6. Petitioner then filed a petition for habeas corpus in the California Court of Appeal,

9 generally raising the same claims as in his federal petition. The court summarily denied the 10 petition in November 2007. (Ex. 9, Cal. Ct. Appeal Pet.; Ex. 10, Cal. Ct. Appeal Opn.) 11 7. Petitioner then filed a petition for review in the California Supreme Court, generally

12 raising the same claims as in his federal petition. The court summarily denied the petition in 13 14 15 January 2008. (Ex. 11, Cal. Sup. Ct. Pet.; Ex. 12, Cal. Sup. Ct. Order.) 8. Based on the orders issued in his state court proceedings, Petitioner appears to have

exhausted his cognizable claims in the instant petition. Respondent does not admit Petitioner has

16 exhausted his claims to the extent they are more broadly interpreted to encompass any systematic 17 issues beyond this particular parole consideration hearing. 18 9. Respondent denies that Petitioner has shown that the state court ' s denial of habeas

19 corpus was contrary to, or involved an unreasonable application of, clearly established Supreme 20 Court law, or that the denial was based on an unreasonable determination of facts in light of the 21 evidence presented. Petitioner therefore fails to make a case for relief under the Antiterrorism

22 and Effective Death Penalty Act of 1996 (AEDPA). 23 10. Respondent denies that Petitioner has a federally protected liberty interest in parole;

.24 hence, Petitioner fails to assert a basis for federal jurisdiction. Greenholtz v. Inmates of Neb. 25 Penal & Corr. Complex, 442 U.S. 1 (1979); Bd. of Pardons v. Allen, 482.U.S. 369, 374 (1987) 26 (no federal liberty interest without an expectation of early release); In re Dannenberg, 34 Cal. 4th 27 1061, 1087 (2005) (no expectation of early release in California); Sandin v. Connor, 515 U.S.

28 472, 484 (1995) (federally protected liberty interest arises only in connection with conditions of
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confinement that impose a significant or atypical hardship). Respondent acknowledges that the

2 Ninth Circuit came to the opposite conclusion in Sass v. California Board of Prison Terms, 461 3 4 F.3d 1123 (9th Cir. 2006), but preserves the argument. 11. Respondent affirmatively alleges that even if Petitioner has a federally protected liberty

5 interest in parole, Petitioner had an opportunity to appear for his May 2007 hearing and the Board 6 provided him with a detailed explanation as to why he was denied parole. (Ex. 2 at 79-95.) 7 Hence, Petitioner received all the process due under Greenholtz, the only clearly established 8 9 Supreme Court law regarding the due process rights of inmates at parole consideration hearings. 12. Respondent affirmatively alleges that there is no United States Supreme Court decision

10 requiring a state parole decision to be supported by some evidence. Thus, Petitioner's challenge 11 to the sufficiency of the evidence supporting the Board's decision fails to raise a cognizable due

12 process claim for relief under clearly established Supreme Court law, as required by AEDPA. 13 See Carey v. Musladin, _ U.S. _, 127 S. Ct. 649, 654 (2006) (holding that the absence of 14 Supreme Court law on a particular issue precludes habeas relief under AEDPA). 15 13. If an evidentiary standard of review applies, Respondent denies that the state court

16 unreasonably applied the some-evidence standard. Superintendent v. Hill, 472 U.S. 445, 455-56 17 (1985); In re Rosenkrantz, 29 Cal. 4th 616, 658, 665 (2002) (adopting the some-evidence test and 18 distinguishing it from "considering whether substantial evidence supports the findings underlying 19 a gubernatorial decision"). 20 21 22 23 14. Respondent affirmatively alleges that the state court reasonably determined that the Board's 2007 decision denying Petitioner parole was supported by some evidence. 15. Respondent denies that the Board was precluded from considering Petitioner's disciplinary records on the grounds that his disciplinary offenses were old, non-violent, and

24 involved conduct that did not presently constitute grounds for disciplinary action. 25 16. Respondent denies that the state court unreasonably rejected Petitioner's claim that the

26 Board acted with bias by failing to give sufficient weight to evidence in favor of parole, such as 27 favorable psychological reports. 28 17. Respondent denies that the state court unreasonably rejected Petitioner's claim that the
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Board failed to apply sentencing credits against his second-degree murder sentence. (See Pet. at 11-13; Order to Show Cause, at 2 [identified as Petitioner's second claim].) Respondent also affirmatively alleges that this claim is barred under the doctrine of collateral estoppel and as

4 successive because it was litigated in a prior federal habeas petition that culminated in an April 2007 Ninth Circuit Court of Appeal opinion denying Petitioner relief as to this claim. See Von Staich v. California Dep 't of Corrections, 228 Fed. Appx. 780, 781 (9th Cir. 2007) (copy attached as Ex. 13). 18. Respondent denies that the state court unreasonably rejected Petitioner's claims that 9 the Board's failure to set a maximum term and parole release date for his second-degree murder 10 conviction effectively enhanced this conviction and sentence from second-degree to first-degree. 11 (Pet. at 13-18, 28-34; Order to Show Cause, at 2 [identified as Petitioner's third and sixth

12 claims].) Respondent also affirmatively alleges that these claims are barred under the doctrine of 13 collateral estoppel and as successive claim because they were litigated in a prior federal habeas

14 petition that culminated in a Ninth Circuit Court of Appeal opinion denying Petitioner relief as to 15 these claims. See Von Staich, 228 Fed. Appx. at 781. 16 19. Respondent denies that the Board's decision to deny Petitioner further parole

17 consideration for four years rather than one year violated the Constitution's Ex Post Facto Clause 18 based on Petitioner's allegation that at the time of his murder offense in 1983 California law 19 required annual parole consideration reviews. Cal. Dept. of Corr., et. al. v. Morales, 514 U.S. 20 499, 510-02, 504-14 (1995) (holding that retroactive application of California statutory 21 amendment authorizing multi-year parole denials did not violate Ex Post Facto Clause because

22 such the amendment did not increase the prisoner's punishment, but rather only altered the 23 method to be followed in determining parole suitability under identical substantive standards). 24 20. Respondent denied that the Board's decision to defer further parole consideration for

25 four years was not supported by some evidence or that the "principle reason" for the four-year 26 denial was the Board's finding that Petitioner required additional self-help therapy. (See Pet. at 27 23.) Respondent affirmatively alleges that the Board deferred further parole consideration based 28 on multiple factors, each supported by some evidence, which included the gravity of Petitioner's
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commitment offenses, disciplinary history, need for further self-help therapy, and lack of insight

2 regarding the commitment offenses. (Ex. 2 at 85:20-86:6, 91-95.) Respondent further 3 affirmatively alleges that as with the state court's decision upholding the Board's denial of

4 parole, Petitioner cannot show that state court unreasonably rejected his claims challenging the 5 Board's decision to deny him further parole consideration for four years based on these factors 6 and evidence. 7 21. Respondent denies that the Board's decision denying parole violated Petitioner's

8 federal due process rights. 9 22. Respondent affirmatively alleges that Petitioner fails to state or establish any grounds

10 for federal habeas corpus relief. 28 U.S.C. § 2254(d). 11 23. Respondent affirmatively alleges that if the Petition is granted, Petitioner's remedy is

12 limited to a new parole consideration hearing before the Board that comports with due process. 13 Benny v. US. Parole Comm 'n, 295 F.3d 977, 984-85 (9th Cir. 2002) (finding that the Board must 14 exercise the discretion in determining whether or not an inmate is suitable for parole); In re 15 Rosenkrantz, 29 Cal. 4th 616, 658 (2002) (finding that the proper remedy if a Board decision 16 lacks some evidence is a new hearing that comports with due process). 17 24. Respondent does not allege that there is any procedural bar to this action, including

18 statute of limitations or non-retroactivity. 19 25. Respondent denies that an evidentiary hearing is necessary in this matter. 28 U.S.C. §

20 2254(e). 21 26. Except as expressly admitted above, Respondent denies, generally and

22 specifically, each and every allegation of the Petition, and specifically denies that Petitioner's 23 24 administrative, statutory, or constitutional rights have been violated in any way. For the reasons stated in this Answer and in the following Memorandum of Points and

25 Authorities, this Court should deny the Petition. 26 // 27 // 28 //
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MEMORANDUM OF POINTS AND AUTHORITIES ARGUMENT I. THE STATE COURT'S DENIAL OF PETITIONER'S HABEAS CLAIM WAS NOT CONTRARY TO OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW, NOR BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS. Under AEDPA, when a state inmate's claim has been adjudicated on the merits in state court, a federal court may grant a writ of habeas corpus on the same claim only if the state court's

9 adjudication was either (1) "contrary to, or involved an unreasonable application of, clearly 10 established Federal law, as determined by the Supreme Court of the United States;" or (2) "based 11 on an unreasonable determination of the facts in light of the evidence presented at the State Court proceeding." 28 U.S.C. § 2254(d)(1-2). "Clearly established federal law, as determined by the Supreme Court of the United States," refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000). A 16 state court decision is contrary to established federal law if "the state court applies a rule that 17 contradicts the governing law set forth in [United States Supreme Court] cases," or "the state 18 court confronts a set of facts that are materially indistinguishable from a decision of [the United

19 States Supreme] Court and nevertheless arrives at a result different from [the Court's] 20 precedent." Lockyer v. Andrade, 583 U.S. 63, 73 (2003) (citations and internal quotation marks 21 omitted). A state court decision is an unreasonable application of clearly established law "if the

22 state court identifies the correct governing legal principle from [the United States Supreme 23 Court's] decision but unreasonably applies that principle to the facts of the prisoner's case." Id.

24 at 75. It is not enough that the state court applies the law erroneously or incorrectly; rather, the 25 26 application must be objectively unreasonable. Id. at 75-76. In order to find that a state court decision involved an unreasonable determination of the

27 facts, the reviewing court must find that the decision was "objectively unreasonable in light of 28 the evidence presented in the state court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340
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(2003). State court factual determinations are assumed to be correct, and a petitioner bears the

2 burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); 3 Miller-El v. Dretke, 545 U.S. 231, 240 (2005). 4 5 When, as here, the California Supreme Court denies a petition for review without comment, the federal court will look to the last reasoned decision as the basis for the state court's

6 judgment. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). In this case, the last reasoned 7 decision is the Orange County Superior Court's October 15, 2007 decision denying habeas relief. 8 (Ex. 8.) As this decision is neither contrary to, or an unreasonable application of, clearly

9 established federal law, nor based on an unreasonable interpretation of the facts, Petitioner's 10 claim for habeas relief must be denied. 11 12 13 The first standard under AEDPA is that a state court habeas decision must not be contrary A. The State Superior Court Decision Was Not Contrary to or an Unreasonable Interpretation of Clearly Established Federal Law.

14 to, or an unreasonable interpretation of, clearly established federal law. Here, Petitioner received 15 all process due under Greenholtz, the only clearly established federal law regarding the due

16 process rights of inmates at a parole consideration hearing. Furthermore, clearly established 17 federal law does not require that the Board's decision be supported by some evidence; however, 18 even if it did, the Board's decision is supported by some evidence per the standard set forth in

19 Hill. Finally, due process does not preclude the Board from relying, in part, on the factors of the 20 commitment offense to deny parole. As such, the state court decisions denying habeas relief 21 were not contrary to or an unreasonable interpretation of clearly established federal law, and the

22 petition must be denied. 23 24 25 In Greenholtz, the United States Supreme Court established the due process protections 1. Petitioner received all process due under the only United States Supreme Court law addressing due process in the parole context.

26 required in a state parole system. The Court held that the only process due at a parole 27 consideration hearing is an opportunity for the inmate to present his case, and if parole is denied, 28 an explanation for the denial. Greenholtz, 442 U.S. at 16. Petitioner received both of these
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protections in his 2006 hearing. First, Petitioner had the opportunity to fully present his case to

2 the Board, discussing each of the relevant parole consideration addressed by the Board. (Ex. 2 at 3 6-64.) In addition, Petitioner gave a closing statement at the conclusion of the hearing,

4 describing the reasons why he should be found suitable for parole. (Id. at 70-78.) Second, when 5 the Board reconvened after a short recess, it provided Petitioner with a thorough explanation as 6 to why he was denied parole and as to why he was denied further parole consideration for four 7 years. (Id. at 79-95.) 8 Thus, because Petitioner received an opportunity to present his case and an explanation as

9 to why the Board denied him parole-and does not claim otherwise-he received all process due 10 under Greenholtz, the only clearly established Supreme Court law regarding due process at 11 parole consideration hearings. Accordingly, the state court decisions upholding the Board's

12 parole denial are not contrary to clearly established federal law. 13 14 15 Petitioner states that this Court must determine whether some evidence supports the 2. The Ninth Circuit's some-evidence test is not clearly established Supreme Court law.

16 Board's decision to deny parole. However, the some-evidence standard is not the proper 17 18 standard of federal judicial review. In Greenholtz, the Supreme Court specifically rejected the idea that a parole board must specify particular evidence in the inmate's file or at his interview to

19 support its decision, as that would transform the parole process into an adversarial proceeding 20 and equate the denial of parole to a guilty verdict. Thus, as a matter of clearly established 21 Supreme Court law, a challenge to a parole decision will fail if the inmate has received the

22 protections required under GreenholtzY 23 The Ninth Circuit, however, has erroneously determined that clearly established federal

24 law requires that a parole decision be supported by some evidence. Jancsek v. Oregon Board of 25 3. The Supreme Court has cited Greenholtz approvingly for the proposition that the "level of process due for inmates being considered for release on parole includes an opportunity to be heard 27 and notice of any adverse decision" and noted that Greenholtz remained "instructive for [its] discussion of the appropriate level of procedural safeguards." Wilkinson v. Austin, 545 U.S. 2384, 28 2397 (2005). 26
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Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir.

2 2002). This standard stems from the decision in Hill, in which the United States Supreme Court 3 determined that some evidence must support the decision of a prison disciplinary board to revoke

4 good time credits. 472 U.S. at 455. In Jancsek, McQuillion, and subsequent cases, the Ninth 5 Circuit held that the some-evidence standard applies not only in the disciplinary context, but the

6 parole context as well. Id. However, because these holdings are not clearly established federal 7 law under AEDPA standards, they do not apply in federal habeas proceedings which challenge 8 parole denials. 9 In Musladin, the United States Supreme Court reiterated that for AEDPA purposes,

10 "clearly established federal law" refers only to the holdings of the Supreme Court on the specific 11 issue presented. The Supreme Court's opinion in Musladin arose from the Ninth Circuit's

12 decision holding that under clearly established federal law, courtroom spectators who wore 13 buttons depicting the victim of a murder inherently prejudiced the murder defendant and denied 14 him a fair trial. Id. at 652. In doing so, the Ninth Circuit determined that the prejudice tests used 15 by the Supreme Court in two similar but factually distinct cases constituted clearly established 16 federal law for the purposes of AEDPA. Id. The Supreme Court, however, reversed the Ninth 17 Circuit's decision upon review, holding that the highest court had "never addressed a claim that 18 private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a 19 fair trial." Id. at 653. Hence, the Musladin court made it clear that circuit courts may not import 20 a federal standard used for one set of circumstances into a different set of circumstances under 21 22 23 the guise of "clearly established federal law." Id.; see also Schriro v. Landrigan, U.S.,

127 S. Ct. 1933, 1942 (2007) (reversing the Ninth Circuit Court of Appeal's decision regarding an ineffective assistance of counsel claim on the ground that the Supreme Court had not

24 previously address the specific claim presented in this case). 25 Several recent Ninth Circuit decisions also emphasize that there can be no clearly

26 established federal law where the Supreme Court has never addressed a particular issue or 27 applied a certain test to a specific type of proceeding. Crater v. Galaza, 491 F.3d 1119, 1122-23, 28 1126-27 & n.8 (9th Cir. 2007) (citing Musladin, the Ninth Circuit acknowledged that decisions
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by courts other than the Supreme Court as "non-dispositive" under § 2254(d)(1)); Foote v. Del

2 Papa, 492 F.3d 1026, 1029-30 (9th Cir. 2007) (affirming district court's denial of petition 3 alleging ineffective assistance of appellate counsel based on an alleged conflict of interest

4 because no Supreme Court case has held that such an irreconcilable conflict violates the Sixth 5 Amendment); Nguyen v. Garcia, 477 F.3d 716, 718, 727 (9th Cir. 2007) (holding that state 6 court's decision finding Wainwright v. Greenfield, 474 U.S. 284 (1986) did not apply to a state 7 court competency hearing was not contrary to clearly established federal law because Supreme 8 9 Court had not held that Wainwright applied to competency hearings). The Jancsek and McQuillion courts, however, did exactly what the Musladin court

10 warned against-they took the some-evidence standard from the prison disciplinary context and 11. applied it to an entirely different situation. Although both prison disciplinary hearings and parole 12 consideration decisions affect the duration of an inmate's confinement, the two situations are not 13 identical. Specifically, prison disciplinary hearings involve a finding of guilt, meaning that the

14 process due in disciplinary hearings is greater than that required in parole hearings. Greenholtz, 15 442 U.S. at 15-16. Thus, the Jancsek and McQuillion courts erred in determining that the some16 evidence standard should apply in the parole hearing context, and subsequent courts have erred in 17 holding that this standard is clearly established federal law for the purposes of AEDPA. See 18 Irons v. Carey, 505 F.3d 846 (9th Cir. 2007); Sass, 461 F.3d 1123; Biggs v. Terhune, 334 F.3d 19 910 (9th Cir. 2003). 20 21 Any argument that due process requires a less deferential standard of review is without merit. Neither the some-evidence standard nor any more stringent standard is necessary to

22 protect Petitioner's due process rights, as three California courts have already evaluated the 23 substantive merits of his claims. (Exs. 8, 10, 12.) Therefore, the absence of substantive review

24 under AEDPA does not diminish Petitioner's due process rights-it merely defers to the state 25 court's evaluation of those rights, consistent with AEDPA's stated purpose of "further[ing]

26 comity, finality, and federalism." Miller-El v. Cockrell, 573 U.S. 322, 337 (2003). Thus, neither 27 the some-evidence standard of review nor any higher. standard is necessary at the federal level to 28 protect Petitioner's substantive due process rights.
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In summary, Greenholtz is the only United States Supreme Court authority describing the 2 process due at a parole consideration hearing. As such, Petitioner is entitled to only those 3 protections provided in Greenholtz. Because he received these protections, the state court 4 decisions upholding his parole denial are not contrary to clearly established federal law. 5 6 7 Even if the some-evidence standard is clearly established federal law for AEDPA 3. Even if the some-evidence standard was clearly established federal law, the standard was correctly applied by the state court.

8 purposes, Petitioner's claim would nonetheless fail because the state court correctly applied the standard. The some-evidence standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence;" rather, it is satisfied if there is "any evidence in the record that could support the conclusion reached by the [B]oard." Hill, 472 U.S. at 455-57; see also Sass, 461 F.3dat 1129 (stating that "Hill's some 13 14 15 evidence standard is minimal"). The evidence used by the Board to deny parole was that regarding the egregious nature of Petitioner's commitment offenses, lack of credible insight into the offenses, prior criminal

16 offenses, prison disciplinary history, unstable social history, and limited participation in prison 17 self-help therapy and need for further therapy. (Ex. 2 at 79-95.) As to the crime, Petitioner had 18 kicked down the door of the home where the two victims were staying (after first cutting the 19 phone lines) and then confronted the victims with a hammer, murdering Robert Topper and 20 brutally beating his ex-girlfriend Cynthia to the point that her skull was crushed and she 21 22 sustained permanent brain damage. (Ex. 2 at 18-20, 86-88; Ex. 3 at 3-7; Ex. 5 at 1-2.) Here, the state court found that the Board's decision to deny Petitioner parole based on

23 the gravity of the commitment offense independently satisfied Petitioner's right to due process 24 based on the Board's review of the facts of that offense. (Ex. 8 at 2-3.) Alternatively, the state 25 court found that in addition to the commitment offense, the Board's findings regarding

26 Petitioner's criminal and disciplinary history also adequately supported the Board's decision to 27 deny parole. (Id. at 3.) Specifically, the state court considered that Petitioner had "incurred a 28 series of disciplinary reports, and that the most recent disciplinary report was 2001." (Id.) The
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court also considered the Board's finding that Petitioner's criminal and disciplinary misconduct

2 had continued for 23 years, which the Board characterized as "a long time." (Id.) And while 3 Petitioner alleges that the Board should not have denied parole based on old or irrelevant 4 disciplinary reports (Pet. at 18-22), the court further upheld the Board's determination that 5 Petitioner's criminal and disciplinary history showed that "Petitioner had `a long pattern of 6 violations involving threats to women or members of this family [sic] since [his] involvement in .7 the criminal justice system in 1978 . . . ."" (Id. [alterations in original].) Accordingly, the state .8 court concluded that based on the Board's findings and supporting evidence, Petitioner had 9 "fail[ed] to demonstrate the [Board] abused its discretion in denying parole." (Id.)4' 10 11 In summary, to the extent that the some-evidence test in Hill is clearly established federal law, it was reasonably applied by the state court, and Petitioner's claim to the contrary must be

12 denied. 13 B. 14 15 The second standard under AEDPA is that a state court habeas decision must be based on The State Court Decision Upholding the Board's Parole Denial Was Based On a Reasonable Interpretation of the Facts.

16 a reasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 17 2254(d)(2). Petitioner bears the burden of proving that the state court's factual determinations 18 were objectively unreasonable. 28 U.S.C. § 2254(e)(1); Juan H. v. Allen, 408 F.3d 1262, 1270 19 (9th Cir. 2005). Thus, in order to prevail on this claim, Petitioner would need to prove that it was 20 objectively unreasonable for the state courts to conclude that the Board acted in accordance with 21 4. The Board's findings regarding Petitioner's lack of insight into the offense (Ex. 2 at 5022 64, 85-86, 89) and his need for further self-help therapy in order to "face, discuss, understand and 23 cope with stress in a non-destructive manner as well as [to address] relationships with women" (id. at 29, 36-38, 90-91, 93-95; Ex. 4 at 2-3; Ex. 5 at 4-5) also demonstrate that the state court properly 24 determined that the Board's decision was supported by some evidence. Although these Board findings were not explicitly considered by the state court, this Court can still consider them as further 25 support for the state court's decision because under AEDPA this Court is only concerned with 26 whether the state court's decision denying relief, as opposed to its reasoning, is contrary to or an unreasonable application of Supreme Court law. Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 27 2002) (determining in habeas proceedings that "the intricacies of the state court's analysis need not concern us; what matters is whether the decision the court reached was contrary to controlling federal 28 law").
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due process and that some evidence supported the factual basis of the Board's parole denial.

2 Petitioner fails to meet this burden as he does not show that any of the state court's factual 3 determinations were erroneous. Conclusion. In assessing the state court's review of Petitioner's claims, not only should the

4 C. 5

6 appropriate deference be afforded under AEDPA to the state court's review, but deference is also 7 due to the underlying Board decision. The Supreme Court has recognized the difficult and 8 9 sensitive task faced by the Board members in evaluating the advisability of parole release. Greenholtz, 442 U.S. at 9-10. Therefore, contrary to Petitioner's belief that he should be paroled

1.0 based on the evidence in support of parole presented at the hearing-such as favorable 11 psychological reports (Pet. at 2-10), 5 the Supreme Court has stated that in parole release, there is

12 no set of facts which, if shown, mandate a decision favorable to the inmate. Greenholtz, 442 13 U.S. at 9-10. Instead, under the some-evidence standard, the court's inquiry is limited solely to

14 determining whether the state court properly found that the Board's decision to deny parole is 15 supported by some evidence in the record, i.e., any evidence. Hill, 472 U.S. at 455. Here, 16 because the state court reasonably applied the some-evidence standard to the Board's decision 17 and made a reasonable determination of the facts considered by the Board, Petitioner's claim for 18 federal habeas relief must be denied. 28 U.S.C. § 2254(d)(1-2); Andrade, 583 U.S. at 75-76. 19 20 21 22 23 24 AEDPA provides that "[a] claim presented in a second or successive habeas application II. AEPDA'S PROHIBITION AGAINST SUCCESSIVE PETITIONS AND THE DOCTRINE OF COLLATERAL ESTOPPEL BAR PETITIONER'S CLAIMS THAT THE BOARD UNLAWFULLY FAILED TO (1) APPLY SENTENCING CREDITS AGAINST HIS SECOND-DEGREE MURDER SENTENCE AND (2) SET A MAXIMUM TERM AND FIXED PAROLE RELEASE DATE FOR HIS SECOND-DEGREE MURDER CONVICTION.

25 under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 26 27 28 5. And contrary to Petitioner's assertion, the Board specifically considered at length the evidence regarding Petitioner's most recent psychological evaluation. (Ex. 2 at 32-36.)
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2244(b)(1). Further, a claim in a subsequent petition may still be considered successive even if it

2 is alleged in a different manner than in a prior petition. Specifically, a claim is "`is successive if 3 the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments . . . [or] proved by different factual allegations."' Morales v. Ornoski, 439 F.3d 529, 532 (9th Cir. 2006) (quoting Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999) and United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998)). Put differently, "[a] claim is not newly presented merely because the petitioner 8 offers new factual bases in support of a legal claim that has already been raised." Cooper v.

9 Brown, 510 F.3d 870, 918 (9th Cir. 2007). 10 11 Here, Petitioner has alleged the following successive claims in his instant federal petition: (1) the Board failed to apply sentencing credits against his second-degree murder sentence (see

12 Pet. at 11-13; Order to Show Cause, at 2 [identified as Petitioner's second claim]), and (2) the 13 Board's failure to set a maximum term and release date for his second-degree murder conviction

14 effectively enhanced this conviction and sentence from second-degree to first-degree murder 15 (Pet. at 13-18, 28-34; Order to Show Cause, at 2 [identified as Petitioner's third and sixth

16 claims]). These claims are successive because the same claims were previously presented in a 17 federal habeas corpus action filed by Petitioner, which concluded with the Ninth Circuit's April 18. 2007 opinion affirming this Court's decision to deny relief. Von Staich, 228 Fed. Appx. at 78119 82. Specifically, Petitioner's claims regarding sentencing credits and a release date were rejected

20 on the ground that these credits had already been applied to his consecutive thirteen-year 21 sentence for attempted murder and Petitioner had "no right to double credits." Id. at 781.

22 Petitioner's claims that he was entitled to have the Board set a maximum term for his second23 degree murder conviction were rejected on the ground that he had no right to have the Board

24 establish a fixed parole release date until the Board found him suitable for parole. Id. 25 Furthermore, while Petitioner may argue that the claims in his current Petition are being

26 brought in the context of a new parole hearing, such an argument does not save his claims from 27 being successive. Unlike subsequent petitions challenging the evidence considered by the Board 28 at a new parole consideration hearing, which are based on a new evidentiary record, the claims
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referenced above are not dependent on the Board's findings at any specific hearing. Indeed,

2 Petitioner's prior petition raising these claims did not challenge the outcome of a specific parole 3 consideration hearing, but rather were asserted before he had received his initial parole

4 consideration hearing. Von Staich, 228 Fed. Appx. at 781. As a result, Petitioner's repetition of 5 these claims in the current Petition must be denied as successive because they are based on the 6 same underlying generalized challenges rejected in his prior petition regardless of whether his 7 8 9 claim is now "supported by new and different legal arguments . . . [or] proved by different factual allegations." Morales, 439 F.3d at 532. Additionally, Petitioner's claims identified above are also barred under the doctrine of

10 collateral estoppel. The doctrine of collateral estoppel provides that once an "issue of ultimate 11 fact" has been determined in litigating concluding in a "valid and final judgment" a party may

12 not litigate that issue against the same party in a future lawsuit. United States v. Smith-Baltiher, 1,3 424 F.3d 913, 919 (9th Cir. 2005) (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). For

14 collateral estoppel to apply, the following three elements must be satisfied: (1) the issues in the 15 two actions are "sufficiently similar and sufficiently material in both actions to justify invoking 16 the doctrine;" (2) the issue was actually "litigated" in the first action; and (3) the issue was 17 "necessarily decided" in the first action. Smith-Baltiher, 424 F.3d at 919. 18 As to the first element, Petitioner is alleging in both actions that the Board failed to

19 provide him with sentencing credits and failed to set a maximum term and parole date regarding 20 his second-degree murder sentence. (Compare Pet. at 11-18, 28-34, and Order to Show Cause, at 21 2 [identified as Petitioner's second, third, and sixth claims] with Von Staich, 228 Fed. Appx. at

22 781.) As discussed above, these claims are not merely similar in each action, they are nearly 23 identical. As to the second and third elements, the Ninth Circuit's opinion in Petitioner's prior

24 action reflects that Petitioner's claims in that case were litigated on the merits and that these 25 matters were necessarily decided by the court (indeed, they were the only matters decided in the 26 court's opinion). See Von Staich, 228 Fed. Appx. at 781. Accordingly, Petitioner is barred under 27 the doctrine of collateral estoppel from attempting to re-litigate these claims against the Board in 28 his current Petition.
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CONCLUSION Petitioner's disagreement with the Board's decision is not sufficient to overturn three valid state court decisions denying habeas relief. Rather, in order for his claim to succeed, he must prove that the state court holdings were contrary to, or an unreasonable application of, clearly established federal law, or that the decisions were based on an unreasonable determination of the facts. Petitioner fails to make such a showing. First, he received all process

7 due under Greenholtz, the only clearly established federal law in the parole hearing context. 8 Second, the some-evidence standard does not apply to Petitioner's case; however, even if it did,

9 the state court reasonably determined that the Board's decision is supported by some evidence of 10 parole unsuitability. Further, Petitioner's claims regarding application of sentencing credits and 11 his challenges regarding the Board's failure to set a maximum parole release date regarding his

12 second-degree murder conviction are barred under AEDPA's prohibition against successive 13 petitions and the doctrine of collateral estoppel. Accordingly, Respondent respectfully requests 14 that the petition for writ of habeas corpus be denied and the Order to Show Cause discharged. 15 16 17 18 19 20 21 22 23 24 25 26 27
40225335.wpd

Dated: April 18, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYA M. BINSACCA Supervising Deputy Attorney General

SCOTT C. MATHER Deputy Attorney General Attorneys for Respondent

28

SF2008400652

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Von Staich v. Curry

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I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On April 21, 2008, I served the attached ANSWER TO ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Ivan Von Staich, E-10079 Correctional Training Facility P.O. Box 689 Soledad, CA 93960 In Pro Per I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on April 21, 2008, at San Francisco, California.

J. Palomino Declarant
40244153.wpd

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