Free Response to Habeas Petition - District Court of California - California

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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, Acting Warden 10 11 12 13 14 C07-5039 JSW 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

HAROLD HAWKS, Petitioner, v. BEN CURRY, Respondent. Judge: The Honorable Jeffrey S. White

ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES

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1 2 3 4 5 6 7 8 9 10 B. 11 12 C. 13 14 15 16 17 18 2. 19 3. 20 21 22 23 24 25 26 27 28 CONCLUSION D.

TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION ARGUMENT THE STATE COURT'S DENIAL OF PETITIONER'S HABEAS CLAIMS WAS NOT CONTRARY TO OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW, NOR BASED ON AN UNREASONABLE DETERMINATIONOF THE FACTS. A. 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, and thus Is Not Applicable to Petitioner's Claims under AEDPA. Even if the Some-Evidence Standard Is Clearly Established Federal Law, the Standard Was Correctly Applied by the State Court. Petitioner Fails to Demonstrate that the Board's Decision Was Otherwise Unlawful. 1. Petitioner cannot show that the Board is required, before denying parole based in part on the commitment offense, to engage in a comparative review of similar offenses by other inmates or consider the proportionality of his sentence under the Board's sentencing matrices. The Board may rely on static factors to deny parole. The Board's regulatory provision regarding consideration of the commitment offense is not unconstitutionally vague given that the challenged term has more specific and detailed standards than similar terms used in death penalty statutes that have been upheld as valid against vagueness challenges in the United States Supreme Court. 7 7 7

7 8

9 12 17

18 19

21 24

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1 2 3 Cases

TABLE OF AUTHORITIES Page

4 Apprendi v. New Jersey 530 U.S. 466 (2000) 5 Arave v. Creech 6 507 U.S. 463 (1993) 7 Benny v. US. Parole Comm 'n 295 F.3d 977 (9th Cir. 2002) 8 Biggs v. Terhune 9 334 F.3d 910 (9th Cir. 2003) 10 Blakely v. Washington 542 U.S. 296 (2004) 11 Carey v. Musladin U.S. 127 S. Ct. 649 (2006) 12 13 14 Cunningham v. California 15 _ U.S. _, 127 S. Ct. 856 (2007) 16 Foote v. Del Papa 492 F.3d 1026 (9th Cir. 2007) 17 Garner v. Jones 18 529 U.S. 244 (2000) 19 20 21 22 23 Hayward v. Marshall 24 No. 06-5392, _ F.3d _, 2008 WL 43716 (9th Cir. Jan. 3, 2008) 25 In re Dannenberg 34 Cal. 4th 1061 (2005) 26 In re Honesto 27 130 Cal. App. 4th 81 (2005) 28
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A. ii

15 22, 23 6 20, 21 15 5, 9-12 10 15 11 23 4, passim 17 6, 18 20, 21 4, 12, 16-19 16

Crater v. Galaza 491 F.3d 1119 (9th Cir. 2007)

Greenholtz v. Inmates of Nebraska Penal & Correctional Complex 442 U.S. 1 (1979) Gurley v. Rhoden 421 U.S. 200 (1975) Gutierrez v. Griggs 695 F.2d 1195 (9th Cir. 1983)

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TABLE OF AUTHORITIES (continued)
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Page 6, 12, 16, 17 12, 20

2 In re Rosenkrantz 29 Cal. 4th 616 (2002) 3 4 Irons v. Carey(9th Cir. 2007) 505 F.3d 846 5 Jancsek v. Oregon Board of Parole 833 F.2d 1289 (9th Cir. 1987) 6 Jones v. Gomez 7 66 F.3d 199 (9th Cir. 1995) 8 Juan H. v. Allen 408 F.3d 1262 (9th Cir. 2005) 9 Lockyer v. Andrade 10 583 U.S. 63 (2003) 11 Maynard v. Cartwright 12 486 U.S. 356 (1988) Middleton v. Cupp 13 768 F.2d 1083 (9th Cir. 1985) 14 Nelson v. City of Irvine 15 143 F.3d 1196 (9th Cir. 1998) 16 Nguyen v. Garcia Cir. 2007) 477 F.3d 716 (9th 17 Pedro v. Or. Parole Bd. 825 F.2d 1396 (9th Cir. 1987) 18 Pulley v. Harris 19 465 U.S. 37 (1984) 20 Rompilla v. Beard 21 545 U.S. 374 (2005) Rose v. Hodges 22 423 U.S. 19 (1975) 23 Sandin v. Conner 24 515 U.S. 472 (1995) v. Cal. Bd. of 25 SassF.3d 1123 (9thPrison Terms 461 Cir. 2006) 26 Schriro v. Landrigan U.S. , 127 S. Ct. 1933 (2007) 27 28
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16 13 8 21-23 18 17 11 8, 16 18 10 6, 18 4 4, 12, 20 10, 11

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TABLE OF AUTHORITIES (continued)
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Page 1 9, 13 11 10 9, 11 7 11 8

2 Stanley v. Cal. Supreme Court 21 F.3d 359 (9th Cir. 1994) 3 Superintendent v. Hill 4 472 U.S. 445 (1985) 5 6 7 8 9 Wainwright v. Greenfield 474 U.S. 284 (1986) Wiggins v. Smith 539 U.S. 510 (2003) Wilkinson v. Austin 545 U.S. 2384 (2005)

Williams v. Taylor 10 529 U.S. 362 (2000) 11 12 13 Wolff v. McDonnell 418 U.S. 539 (1974) Ylst v. Nunnemaker 501 U.S. 797 (1991)

14 Constitutional Provisions 15 United States Constitution Sixth Amendment 16 Statutes 17 28 U.S.C. 18 § 2254 Rule 2(a) § 2254(a) 19 § 2254(d) § 2254(d)(1)-(2) 20 § 2254(e)(1) 21 California Code of Regulations, Title 15 § 2402(a) 22 § 2402(b) § 2402(c)(1)(A) 23 § 2402(c)(1)(E) § 2403(a) 24 25 California Penal Code § 3041 § 3041(b) 26 § 3046(c) 27 28
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1 5, 18 9, 12, 17 7, 11 13 18, 19 14, 16 14 15, 21, 23 18 4, 6, 18, 19 19 17

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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, Acting Warden 10 11 12 13 14 C07-5039 JSW 15 16 17 18 19 20 21 As an Answer to the Petition for Writ of Habeas Corpus filed by inmate Harold Hawks, v. BEN CURRY, Judge: Respondent. The Honorable Jeffrey S. White HAROLD HAWKS, Petitioner, ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

22 Respondent Ben Curry, Acting Warden at the Correctional Training Facility in Soledad, 23 24 25 1. The proper respondent in this action is Acting Warden Curry. Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (holding that the warden where petitioner is incarcerated is the proper respondent); Rule 2(a), 28 U.S.C. § 2254. But because the actions complained of in this 27 petition concern a parole consideration hearing, the Board of Parole Hearings is used interchangeably 28 with Respondent in this Answer and supporting memorandum of points and authorities. 26
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

California,11 alleges as follows: 1. Petitioner is lawfully within the custody of the California Department of Corrections

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and Rehabilitation after being convicted of second degree murder with use of a firearm in June 1987, and sentenced to an indeterminate prison term of 15 years to life. (Ex. 1, Abstract of Judgment; Ex. 2, Jul. 27, 2006 Subsequent Parole Consideration Hearing Transcript, at 1.)

4 Petitioner was also convicted of two counts of assault with a deadly weapon, for which the 5 sentences were stayed. (Ex. 3, Abstract of Judgment-Commitment.) Petitioner is not challenging

6 the validity of his commitment or sentence in these proceedings, but rather the Board's July 2006 7 parole denial. 8 2. Petitioner does not contest that he received notice of his 2006 parole hearing, appeared

9 at the hearing, and received a copy of the Board's decision finding him unsuitable for parole. 10 (See generally Pet.) 11 3. The Board denied Petitioner parole at the 2006 hearing, finding that he was "not yet

12 suitable for parole and would pose an unreasonable risk of danger to society or a threat to public 13 safety if released from prison." The Board based this decision in part on the gravity of his

14 murder offense, which Hawks committed while driving on a freeway on August 22, 1986. The 15 murder arose out of a dispute between Hawks and the driver of another vehicle (a van driven by 16 Mr. Dwyer) regarding use of the "fast lane." At that time, Mr. Dwyer was driving the Dwyer 17 family and a friend to the hospital to seek care for the Dwyers' son, who had been injured in a 18 motorcycle competition. In response to the dispute over use of the passing lane, Hawks 19 eventually removed a shotgun while driving, loaded it, "aimed it at the van," and fired it. The 20 shot struck Patricia Dwyer, the boy's mother, killing her as it severed her aorta, and then exited 21 Ms. Dwyer's throat, striking and critically injuring passenger Wendy Varga. (Ex. 2 at 30-38; Ex.

22 4, Probation Officer's Report, at 2-5; Ex. 5, Mar. 2006 Life Prisoner Evaluation Report [Board 23 24 25 26 Report], at 1; Ex. 6, Nov. 2004 Board Report, at 1-2.) 4. The Board denied Petitioner parole in part based on the circumstances of his murder

offense. The Board found that the murder was carried out in a manner that was "especially callous," demonstrated "an exceptionally callous disregard for human life," involved multiple

27 victims, and was based on a motive that was "inexplicable in relation to the offense." In support 28 of its decision, the Board noted that Petitioner had been involved in "what would be described
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today as a road rage incident." The Board specifically considered the fact that Petitioner was

2 "already angry when he chose to drive after drinking" and that rather disengaging from the 3 conflict, Petitioner chose to load a shotgun, point it at the Dwyers' van, and fire it. (Ex. 2 at 149-

4 50.) 5 5. The Board also considered the opposition to parole from Riverside County District

6 Attorney and the victim's next of kin. (Ex. 2 at 150-51; see also Ex. 2 at 109-21 [Deputy District 7 Attorney's closing statement], 142-48 [victim's next-of-kin statements].) 8 9 6. Although it found him unsuitable for parole, the Board commended Petitioner on

several criteria that tended to support his suitability for parole, including his positive in-prison

10 programming. (Ex. 2 at 151-52.) 11 7. Before filing his federal petition, Petitioner sought relief in the state courts. Petitioner

12 filed a habeas corpus petition in the Riverside County Superior Court. 2l On March 2, 2007, the 13 superior court denied his petition, stating that the Board has "broad discretion in release

14 decisions" and that the court "may inquire only whether some evidence in the record supports the 15 decision." The superior court then found that "[t]here is a sufficient record" supporting the

16 Board's decision to deny Petitioner parole. (Ex. 7, Cal. Super. Ct. Order.) 17 18 8. Petitioner next filed a habeas corpus petition in the California Court of Appeal,

generally alleging the same claims as in his federal petition. On May 9, 2007, the Court of

19 Appeal summarily denied the petition. (Ex. 8, Cal. Ct. Appeal Pet.; 21 Ex. 9, Cal. Ct. Appeal 20 Order.) 21 9. Petitioner subsequently filed a petition for review in the California Supreme Court,

22 generally alleging the same claims as in his federal petition. On July 25, 2007, the California 23 24 25 26 2. Respondent has not yet been able to obtain a copy of this petition. Supreme Court summarily denied the petition. (Ex. 10, Cal. Sup. Ct. Pet. for Review; Ex. 11,

3. Petitioner's state court petitions are produced without the exhibits because such exhibits 27 are voluminous and because substantially the same exhibits have been filed with his federal habeas corpus petition. If this Court orders that these documents must be filed in this case, Respondent will 28 promptly file these exhibits.
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Cal. Sup. Ct. Order.) 10. Based on the petitions filed and the orders issued in his state court proceedings, Petitioner appears to have exhausted his cognizable claims in the instant petition. Respondent

4 does not admit Petitioner has exhausted his claims to the extent they are more broadly interpreted 5 to encompass any systematic issues beyond this particular parole consideration hearing. 6 11. Respondent denies that Petitioner has shown that the state court's denial of

7 habeas corpus was contrary to, or involved an unreasonable application of, clearly established 8 Supreme Court law, or that the denial was based on an unreasonable determination of facts in

9 light of the evidence presented. Petitioner therefore fails to make a case for relief under the 10 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 11 12. Respondent denies that Petitioner has a federally protected liberty interest in parole.

12 The Supreme Court has set forth two methodologies for determining whether a state creates a 13 federally protected liberty interest and it is not clear which applies in the parole context. Under

14 Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1 (1979), California 15 inmates do not have a federal liberty interest in parole because California's parole statute 16 involves a two-step process that does not impose a mandatory duty to grant parole release unless 17 and until the Board finds an inmate suitable for parole. See id. at 12 (finding that a convicted 18 person does not have a federally protected liberty interest in parole release unless the state creates 19 the interest through the "unique structure and language" of its parole statutes, thereby giving 20 inmates an expectancy in parole release); see also In re Dannenberg, 34 Cal. 4th 1061, 1087-88 21 (2005) (clarifying that under California Penal Code section 3041, the setting of a parole release

22 date is neither mandatory nor presumed); contra Sass v. Cal. Bd. of Prison Terms, 461 F.3d 23 24 25 26 1123, 1128 (9th Cir. 2006). 13. Under the alternative methodology of Sandin v. Conner, 515 U.S. 472 (1995), an inmate's constitutional liberty interest is "generally limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents

27 of prison life." Id. at 484. A decision to continue incarcerating an inmate who is serving a 28 potential life term simply cannot amount to an "atypical and significant hardship . . . in relation
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to the ordinary incidents of prison life." Id. Therefore, California inmates do not have a liberty

2 interest in parole under either methodology. Accordingly, because Petitioner is not in custody in 3 violation of federal law, he has not alleged a federal question and this Court does not have

4 subject matter jurisdiction to decide his petition. 28 U.S.C. § 2254(a). 5 14. Even if Petitioner has a federally protected liberty interest in parole, Respondent

6 alleges that Petitioner had an opportunity to present his case before the Board, and that the Board 7 provided him with a detailed explanation as to why he was denied parole. Hence, Petitioner 8 received all the process due under Greenholtz. 9 15. There is no United States Supreme Court decision requiring a state parole decision

10 to be supported by some evidence. See Carey v. Musladin, _ U.S. _ 127 S. Ct. ·649, 654 11 (2006) (holding that the absence of Supreme Court law on a particular issue preclude habeas

12 relief under AEDPA). Therefore, Petitioner has not shown that the state court's denial of habeas 13 corpus was contrary to, or involved an unreasonable application of, clearly established Supreme

14 Court law, or that the denial was based on an unreasonable determination of facts in light of the 15 evidence presented. Petitioner therefore fails to make a prima facie case for relief under

16 AEDPA. 17 18 19 16. If an evidentiary standard of review applies, Respondent denies that it is a higher standard than some evidence. 17. Respondent denies that Petitioner must be presumed suitable for parole, is entitled to a

20 fixed and uniform parole date under the Board's sentencing matrices, or that the Board cannot 21 find him unsuitable for parole until it has conducted a comparative review between the

22 circumstances of Petitioner's commitment offense and comparable offenses committed by other 23 24 inmates. 18. Respondent denies that the Board was required to parole Petitioner in 2005 based on

25 the evidence in favor of parole. 26 27 28 19. Respondent denies that the Board has unlawfully continued to rely on the circumstances of Petitioner's murder offense to deny him parole. 20. Respondent denies that Petitioner was entitled to parole under the statutory language of
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Penal Code section 3041 or that the Board's decision was based on an unlawful policy or bias

2 against paroling indeterminate term prisoners rather than on an individualized consideration of 3 4 Petitioner's suitability for parole. 21. Respondent denies that the Board is subject to the standards imposed on sentencing

5 judges by the United States Supreme Court. 6 7 8 22. Respondent denies that the Board's parole regulations are unconstitutionally vague. 23. Respondent denies that the Board improperly addressed the objections made by his attorney at the hearing. The Board also denies that Petitioner's allegations regarding his

9 attorneys' objections state a federal claim as opposed to addressing violations of state regulations 10 and the applicable state-law hearing procedures. See, e.g., Rose v. Hodges, 423 U.S. 19, 21 11 (1975) (holding state law claims not cognizable in federal habeas corpus); Gutierrez v. Griggs,

12 695 F.2d 1195, 1197-98 (9th Cir. 1983). 13 24. Respondent denies that the Board's decision denying parole violated Petitioner's

14 federal due process rights. 15 25. Respondent affirmatively alleges that Petitioner fails to state or establish any grounds

16 for federal habeas corpus relief. 17 26. If the petition is granted, Petitioner's remedy is limited to a new parole consideration

18 hearing before the Board that comports with due process. Benny v. US. Parole Comm 'n, 295 19 F.3d 977, 984-85 (9th Cir. 2002) (finding that the Board must exercise the discretion in 20 determining whether or not an inmate is suitable for parole); Rosenkrantz, 29 Cal. 4th at 658 21 (finding that the proper remedy if a Board decision lacks some evidence is a new hearing that

22 comports with due process). 23 27. Respondent does not contend that there is any procedural bar to this action, including

24 statute of limitations or non-retroactivity. 25 26 28. Respondent denies that an evidentiary hearing is necessary in this matter. 29. Except as expressly admitted above, Respondent denies, generally and

27 specifically, each allegation of the petition, and specifically denies that Petitioner's 28 administrative, statutory, or constitutional rights have been violated in any way.
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For the reasons stated in this Answer and in the following Memorandum of Points and

2 Authorities, the Court should deny the Petition. 3 4 5 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Petitioner challenges the Board's July 2006 parole denial on the basis that the decision

6 violated his right to due process on several grounds, including that the decision was not 7 supported by sufficient evidence. This Court should deny his Petition because the state court 8 decisions denying him relief were neither contrary to, nor an unreasonable application of, federal 9 law as established by the Supreme Court, nor based on an unreasonable determination of the 10 facts. Petitioner was provided an opportunity to be heard and a written copy of the Board's 11 decision, which is all the process he is entitled to receive. And even if this Court applies the

12 some-evidence standard, Petitioner's claims still fail because the Board's decision that Petitioner 13 was unsuitable for parole and would pose an unreasonable danger to society if released was

14 supported by some evidence. 15 16 17 18 19 ARGUMENT THE STATE COURT'S DENIAL OF PETITIONER'S HABEAS CLAIMS 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

20 court, a federal court may grant a writ of habeas corpus on the same claim only if the state court's 21 adjudication was either (1) "contrary to, or involved an unreasonable application of, clearly

22 established Federal law, as determined by the Supreme Court of the United States;" or (2) "based 23 on an unreasonable determination of the facts in light of the evidence presented at the State Court

24 proceeding." 28 U.S.C. § 2254(d)(1)-(2). 25 "Clearly established federal law, as determined by the Supreme Court of the United States,"

26 refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time 27 of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court 28 decision is contrary to established federal law if "the state court applies a rule that contradicts the
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governing law set forth in [United States Supreme Court] cases," or "the state court confronts a

2 set of facts that are materially indistinguishable from a decision of [the United States Supreme] 3 Court and nevertheless arrives at a result different from [the Court's] precedent." Lockyer v.

4 Andrade, 583 U.S. 63, 73 (2003) (citations and internal quotation marks omitted). A state court 5 decision is an unreasonable application of clearly established law "if the state court identifies the 6 correct governing legal principle from [the United States Supreme Court's] decision but 7 unreasonably applies that principle to the facts of the prisoner's case." Id. at 75. It is not enough 8 that the state court applies the law erroneously or incorrectly; rather, the application must be 9 objectively unreasonable. Id. at 75-76. 10 11 When, as here, the California Supreme Court denies a habeas corpus petition without comment, the federal court will look to the last reasoned decision as the basis for the state court's

12 judgment. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). Contrary to Petitioner's 13 allegations, the Riverside County Superior Court's order denying Petitioner's habeas claims was

14 a reasoned decision. (Ex. 7.) Specifically, the superior court held that the Board has "broad 15 discretion in release decisions" and that the court "may inquire only whether some evidence in

16 the record supports the decision." (Id.) The superior court then found that "[t]here is a sufficient 17 record" supporting the Board's decision to deny Petitioner parole. (Id.) As this decision is 18 neither contrary to or an unreasonable application of federal law, nor based on an unreasonable 19 determination of the facts in light of the evidence presented, Petitioner fails to establish a 20 violation of AEDPA standards. Therefore, his petition for writ of habeas corpus must be denied. 21 22 23 The setting of a parole date is not part of the criminal prosecution so the full panoply of A. Petitioner Received All Process Due under the Only United States Supreme Court law Addressing Due Process in the Parole Context.

24 rights afforded a defendant in a criminal proceeding are not constitutionally mandated in a parole 25 proceeding. Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The only 26 Supreme Court decision to address the requirements of due process at a parole consideration

27 hearing has held that a parole board's procedures are constitutionally adequate if the inmate is 28 given an opportunity to be heard and a decision informing him of the reasons he did not qualify
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for parole. Greenholtz, 442 U.S. at 16. 4 Here, Petitioner does not contend that he failed to receive an opportunity to be heard and a statement of the grounds for which the Board found him unsuitable for parole. (See generally

4 Pet.) Similarly, the Board's hearing transcript reflects that Petitioner appeared at the hearing and 5 received an opportunity to be heard, and that the Board issued a decision informing him of the 6 grounds upon which he was denied parole. (Ex. 2.) Accordingly, because Petitioner thus 7 received all the process due under the United States Supreme Court precedent finding a federal 8 liberty interest in discretionary parole release, the state court decision was not contrary to or an 9 unreasonable application of clearly established federal law as determined by the United States 10 Supreme Court. See 28 U.S.C. § 2254(d). 11 12 Petitioner alleges that the Board's decision must be overturned in part because it is not 13 supported by some evidence. This argument stems from the holding in Superintendent v. Hill, 14 472 U.S. 445, 455 (1985) in which the United States Supreme Court determined that some 15 evidence must support the decision of a prison disciplinary board to revoke good time credits. In 16 Jancsek v. Oregon Board of Parole, 833 F.2d 1289, 1290 (9th Cir. 1987), the Ninth Circuit held 17 that this standard applies not only in the disciplinary context, but the parole context as well, and 18 that some evidence must support the Board's denials of parole. Because the holding in Jancsek 19 is not clearly established federal law under AEDPA standards, the some-evidence standard may 20 not be applied in federal habeas proceedings challenging parole denials. 21 As the Supreme Court clarified in Musladin, 127 S. Ct. at 654, where the Court has not 22 applied a test or standard to a certain type of case it cannot be said that the failure of a state court 23 24 25 4. The Supreme Court has continued to cite Greenholtz approvingly for the proposition that the "level of process due for inmates being considered for release on parole includes an opportunity 26 to be heard and notice of any adverse decision" and noted that Greenholtz remains "instructive for 27 [its] discussion of the appropriate level of procedural safeguards." Wilkinson v. Austin, 545 U.S. 2384, 2397 (2005). 28
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

B.

The Ninth Circuit's Some-Evidence test Is Not Clearly Established Supreme Court Law, and thus Is Not Applicable to Petitioner's Claims under AEDPA.

to do so was an unreasonable application of clearly established federal law. In Musladin, the

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petitioner challenged a state court decision finding that the fact that the victim's family wore

2 buttons displaying the victim's image at the defendant's trial was not inherently prejudicial. Id. 3 at 650. The Ninth Circuit held that the state court decision was contrary to or an unreasonable

4 application of federal law regarding state-sponsored courtroom practices. Id. In reversing the 5 Ninth Circuit, the Supreme Court noted that although it had articulated a test to determine 6 whether state-sponsored courtroom practices were inherently prejudicial, it had never addressed 7 the issue of whether conduct by a private party was so prejudicial that it deprived the defendant 8 of his right to a fair trial. Id. at 654. "Given the lack of holdings" on the specific issue, the Court 9 reversed the Ninth Circuit and held that the state court's decision was not an unreasonable 10 application of federal law. Id. 11 The Supreme Court has since reiterated its holding in Musladin, confirming that a state

12 court decision cannot be contrary to or an unreasonable application of federal law where the 13 Court has not addressed what protection or test is required in a specific factual or legal scenario.
U.S. ,

14 In Schriro v. Landrigan, 15 16

127 S. Ct. 1933 (2007), the Ninth Circuit found that the

state court unreasonably applied Wiggins v. Smith, 539 U.S. 510 (2003) and Rompilla v. Beard, 545 U.S. 374, 381 (2005) when it denied federal habeas relief to a defendant asserting ineffective

17 assistance of counsel, despite the fact that he had refused to allow the presentation of any 18 mitigating evidence. Landrigan, 127 S. Ct. at 1942. The Supreme Court reversed that part of the 19 decision after distinguishing the facts of the case from those in Wiggins and Rompilla. Wiggins 20 did not address a situation in which the client had interfered with counsel's efforts to present 21 mitigating evidence. Id. And in Rompilla, the defendant had not informed the court that he did

22 not want mitigating evidence presented. Id. Because the high court had never addressed a 23 situation like the one raised in Landrigan, the state court's decision was not objectively

24 unreasonable. Id. 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). Because the Supreme Court developed the some-evidence standard in the context of a

10 prison disciplinary hearing, which is fundamentally different from a parole proceeding, applying 11 this standard to a parole decision cannot be clearly established federal law. Musladin, 127 S. Ct.

12 at 654; Landrigan, 127 S. Ct. at 1942. The level of due process protections to which an inmate is 13 entitled is directly related to the level of his liberty interest and the nature of the decision being

14 made. Greenholtz, 442 U.S. at 13-14. At a disciplinary hearing, the inquiry is retrospective and 15 factual in nature, and the prisoner faces a potential loss of credits. Greenholtz, 442 U.S. at 14.

16 But a decision to parole an inmate is fundamentally different. First, the level of liberty interest 17 an inmate has in the possibility of parole is markedly different from that of an inmate who is 18 facing a loss of credits. Wolff v. McDonnell, 418 U.S. 539, 560-61 (1974) (contrasting the

19 different interests that a parolee and a prisoner may have in their deprivation of liberty); 20 21 Greenholtz, 442 U.S. at 13-14 (distinguishing the parole suitability decision from the parole revocation and disciplinary decisions). Second, a parole decision is not factual in nature. Rather,

22 it is a predictive and subjective decision requiring discretionary analysis of the inmate's 23 suitability for release. Greenholtz, 442 U.S. at 9-10; Wilkinson, 545 U.S. at 229. In fact, due to

24 the discretionary nature of parole decisions, the Supreme Court has held that, in contrast to prison 25 26 27 28 disciplinary hearings, due process does not require the decision-maker to specify the evidence showing that a prisoner is unsuitable for parole. Greenholtz, 442 U.S. at 15. In summary, applying the some-evidence standard to a parole proceeding is not clearly established federal law. Instead, the only clearly established Supreme Court authority describing
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the process due when there is a federal liberty interest in parole simply requires that the inmate be

2 given an opportunity to be heard and advised of the reasons he was not found suitable for parole. 3 Greenholtz, 442 U.S. at 16. Indeed, in Greenholtz the Supreme Court rejected the argument that

4 due process requires an evidentiary standard of review in parole cases, holding that there is 5 "nothing in the due process concepts as they have thus far evolved that requires the Parole Board

6 to specify the particular `evidence' . . . on which it rests the discretionary determination that an 7 inmate is not ready for conditional release." Id. at 15-16. The Supreme Court has thus explicitly 8 rejected the notion that a parole decision must be supported by any particular quantum of 9 evidence. Id. 10 11 Accordingly, because application of the some-evidence standard to parole denial challenges is not clearly established Supreme Court law regarding federal due process, AEDPA

12 precludes this standard from being applied to Petitioner's claims in this case. See 28 U.S.C. § 13 2254(d); Musladin, 127 S. Ct. at 654. Even if the Some-Evidence Standard Is Clearly Established Federal Law, the Standard Was Correctly. Applied by the State Court. Even if the some-evidence standard is clearly established federal law for AEDPA

14 C. 15 16

17 purposes, Petitioner's claim would nonetheless fail because he cannot show that the state court 18 unreasonably applied this standard or made an unreasonable determination of the facts. sl Under 19 California law the proper level of judicial review is whether "some evidence in the record before 20 the Board supports the decision to deny parole, based upon the factors specified by statute and 21 regulation." Rosenkrantz, 29 Cal. 4th at 658. Similarly, as a matter of federal due process, the

22 some-evidence standard "does not require examination of the entire record, independent 23 24 5. Petitioner asserts that a preponderance-of-evidence standard rather than the some-evidence standard should be applied. (Pet. at 71-76.) But although Petitioner contends that the federal courts 26 should not follow the California Supreme Court's decision to apply the some-evidence standard in both Dannenberg and Rosenkrantz, the Ninth Circuit has also recently reiterated its prior 27 determination that the some-evidence standard is the appropriate standard. Sass, 461 F.3d at 112829; Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007). 28 25
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

assessment of the credibility of witnesses, or weighing of the evidence;" rather, it is satisfied if

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there is "any evidence in the record that could support the conclusion reached by the [B]oard."

2 Hill, 472 U.S. at 455-57; see also Sass, 461 F.3d at 1129 (stating that "Hill's some evidence 3 4 5 standard is minimal.") Although Petitioner invites the Court to re-examine the facts of his case and re-weigh the evidence presented to the Board, AEDPA does not permit this degree of judicial intrusion. Petitioner bears the burden of proving that the state court's factual determinations were objectively unreasonable. 28 U.S.C. § 2254(e)(1); Juan H v. Allen, 408 F.3d 1262, 1270 (9th Cir. 2005). So long as the state court's reasoned decision was a reasonable determination of the facts presented, Petitioner's claim must fail. 10 11 Moreover, in assessing the state court's review of Petitioner's claims, deference must be afforded to both the state court's review and the underlying Board decision. The Supreme Court

12 has recognized the difficult and sensitive task faced by the Board members in evaluating the 13 advisability of parole release. Greenholtz, 442 U.S. at 9-10. Thus, contrary to Petitioner's belief

14 that he should be paroled based on the evidence in support of parole presented at the hearing 15 (Pet. at 41-47), the Supreme Court has stated that in parole release, there is no set of facts which,

16 if shown, mandate a decision favorable to the inmate. Greenholtz, 442 U.S. at 9-10. Instead, 17 under the some-evidence standard, the court's inquiry is limited solely to determining whether 18 the state court properly found that the Board's decision to deny parole is supported by some 19 evidence in the record, i.e., any evidence. Hill, 472 U.S. at 455. As a result, the state court 20 properly determined that "[t]he court may inquire only whether some evidence in the record 21 22, 23 supports the [Board's] decision." (Ex. 7.) Here, Petitioner cannot show that the state court's decision denying him relief was based on an unreasonable application of the Hill some-evidence standard or an unreasonable

24 determination of the facts. In upholding the Board's parole denial, the state court found that the 25 Board's decision denying Petitioner parole was supported by some evidence. (Ex. 7.) 26 Specifically, the Board found that the murder was carried out in a manner that was "especially 27 callous," demonstrated "an exceptionally callous disregard for human life," involved multiple 28 victims (one killed and one injured), and was based on a motive , that was "inexplicable in relation
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to the offense." (Ex. 2 at 149-50.) In support of its decision, the Board indicated its decision

2 was based on the evidence regarding the offense, concluding that Petitioner had been involved in 3 "what would be described today as a road rage incident." (Id. at 150.) The Board specifically

4 noted as adverse circumstances that Petitioner was "already angry when he chose to drive after 5 drinking" and that rather disengaging from the conflict, Petitioner chose to load a shotgun, point 6 it at the Dwyer's van, and fire it. (Id.) As a result, the state court reasonably determined that the 7 Board's findings satisfied the minimally stringent some-evidence standard. 8 In challenging the reasonableness of the state court decisions, Petitioner disputes each of

9 the Board's findings. His arguments, however, are without merit and based on an artificially 10 narrow interpretation of the broad range of discretion due to the Board in considering the 11 circumstances of an inmate's offense under its regulatory guidelines. For instance, Petitioner

12 contends that the Board improperly relied on the existence of multiple victims given that both 13 victims had been wounded by a single slug he fired and that there is no evidence that "multiple

14 victims were intentionally and independently attacked or killed." (Pet. at 35.) Contrary to 15 Petitioner's argument, the Board's regulations do not require such a showing, but rather provide 16 that a relevant circumstance to be considered is any offense in which "[m]ultiple victims were 17 attacked, injured or killed in the same or separate incidents." Cal. Code Regs. tit. 15, § 18 2402(c)(1)(A). Indeed, at least two of the terms defining terms regarding multiple 19 victims-those "injured" or "killed"-can include both intentional and unintentional victims. Id. 20 Moreover, in addition to this general guideline regarding the commitment offense, the 21 regulations also provide that the Board must consider "[a]ll relevant, reliable information,"

22 including that pertaining to the commitment . offense. Id. at § 2402(b). Thus, the Board properly 23 24 considered the fact that Petitioner's murder offense had involved multiple victims. Petitioner also argues that the Board could not properly deem his murder offense as

25 having been committed with exceptionally callous disregard for human life because there is no 26 27 28 evidence that his crime exceeded the bare minimum elements of a second-degree murder offense. (Pet. at 37-39.) But there is no clearly established Supreme Court law mandating such a standard, nor does such a standard appear in the Board's regulations.
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Furthermore, the Board also considered the circumstances of the murder offense during

2 the hearing, which reflected that Petitioner's conduct was not an immediate, reflexive response to 3 his anger at the manner in which the Dwyers' van was being driven. Rather, the Board

4 specifically noted that rather than disengaging from the traffic conflict with the Dwyers, 5 Petitioner chose to load a shotgun, point it at the Dwyer's van, and fire it. (Ex. 2 at 150.) Indeed, 6 according to Petitioner's own statements he took the time while driving with his two-year-old 7 son in the backseat to reach back and grab a bag from his backseat that contained a shotgun and 8 ammunition, remove the shotgun, grab a shell, load the shotgun, and then aim the shotgun in the

9 direction of the Dwyer's van from "one or two car lengths" away and fire a shot towards the van. 10 11 (Id. at 41-42.) Thus, rather than an instinctive, reflexive action - such as cutting another driver off in traffic - Petitioner's offense required purposeful, deliberate, and calculated actions

12 beyond the minimum elements of a second-degree murder offense. 13 Petitioner also attempts to argue that becoming angry at another person ( over a traffic

14 dispute is not a very trivial motive for committing murder, but rather that his motive was 15 "explainable" even if not "excusable" given his "enraged and overwhelmed state." (Pet. at 39.)

16 Although such emotions may serve to explain, at least in part, his motive for the crime, that 17 explanation does not make the motive for his murderous actions any less trivial "in relation to the 18 offense." Cal. Code Regs. tit. 15, § 2402(c)(1)(E). Thus, the Board's finding regarding the

19 trivial motive for Petitioner's murder offense is supported by some evidence. 20 21 22 23 In addition to disputing the Board's factual findings, Petitioner also alleges that the Board erred in making factual findings that exceeded those made by the jury in his criminal case. (Pet. at 27-28, 32 n.6, 34.) In support of this claim, Petitioner cites the due process requirements applicable to a sentencing authority in a criminal matter that restrict it from increasing the

24 punishment for a crime based on factors not proven to a jury beyond a reasonable doubt. (Id.) 25 There is no authority, however, for applying this criminal judicial standard in the context of an 26 27 6. Specifically, Petitioner relies onApprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and Cunningham v. California, _ U.S. 127 S. Ct. 856 28 (2007).
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administrative parole proceeding. To the contrary, it is well established that the Board is not

2 limited by the nature of the conviction as to the evidence it can consider, most significantly 3 because the Board is not required to support its decision with evidence that meets the criminal 4 beyond-a-reasonable-doubt standard. See Pedro, 825 F.2d at 1399 (holding that the full panoply 5 of rights due a defendant in a criminal proceeding is not constitutionally mandated in a parole 6 proceeding because the setting of a parole term is not part of a criminal prosecution); 7 Rosenkrantz, 29 Cal. 4th at 678-79. 8 Rather than being limited by the facts proved in a criminal trial, the Board's regulations

9 require that it consider "[a]ll relevant, reliable information." Cal. Code Regs. tit 15, § 2402(b). 10 Thus, the California Supreme Court has found that "the parole authority may credit evidence 11 12 13 suggesting the inmate committed a greater degree of the offense than his or her conviction evidences," such as that "one convicted only of second degree murder acted with premeditation and deliberation." Dannenberg, 34 Cal. 4th at 1095 n.16 (2005). This principle is equally

14 applicable in cases where the inmate's conviction was by plea agreement rather than jury 15 determination. In re Honesto, 130 Cal. App. 4th 81, 93 (2005) ("The applicable statute and

16 regulations make the facts of the offense a critical part of the Board's consideration of parole 17 18 19 suitability, and this was true when [petitioner] entered into the plea agreement"). Thus, the Board properly considered all the facts regarding Petitioner's murder offense. Petitioner also alleges that the Board's decision should not have been upheld merely

20 because the Board's findings were supported by some evidence, but rather only if those findings 21 established that he currently posed an unreasonable risk of danger to society. (Pet. at 29-30.)

22 But the only authority Petitioner cites in support of this argument is California Court of Appeal 23 opinions discussing California law. (Id. at 30.) Thus, Petitioner's argument fails to demonstrate

24 a federal due process violation. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) 25 (holding that a petitioner has the burden of alleging specific facts that show a federal claim is

26 presented, or the petition is subject to dismissal). Further, regardless of any state appellate court 27 decision, the California Supreme Court has interpreted California's statutory and regulatory 28 parole provisions as establishing that an inmate's right to due process is satisfied if the Board's
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findings regarding the circumstances of the crime are supported by some evidence. Dannenberg,

2 34 Cal.4th at 1094-95; In re Rosenkrantz, 29 Cal.4th 616, 665 (2002). 21 In any event, Petitioner's 3 claim does not establish a basis for relief given that he cannot show that the state appellate court

4 opinions he relies on are also supported by clearly established United States Supreme Court law. 5 Finally, contrary to Petitioner's allegations (Pet. at 52-53), the Board properly considered

6 the opposition to parole from the Riverside County District Attorney and the deceased victim's 7 next-of-kins' statements from Ms. Dwyer's children regarding the impact that the loss of their 8 mother had on their lives. See Dannenberg, 34 Cal. 4th at 1084, 1085 (holding that the Board is 9 not only required to consider the public opposition to parole, but that this factor "may be 10 influential, and even decisive in appropriate cases"); Cal. Penal Code § 3046(c); (Ex. 2 at 15011 51; see also Ex. 2 at 109-21 [Deputy District Attorney's closing statement], 142-48 [victim's

12 next-of-kin statements].) Accordingly, the Board properly considered the public opposition to 13 14 parole. In summary, the state court properly found that the Board had sufficient evidence to deny

15 parole. Thus, Petitioner cannot demonstrate that the state court's decision denying his federal 16 habeas claims was contrary to or an unreasonable application of clearly established Supreme 17 Court law, or that it was based on an unreasonable interpretation of the facts. 28 U.S.C. § 18 2254(d); Wilson, 355 F.3d at 1154. As a result, Petitioner's federal habeas corpus petition should

19 be denied. 20 D. 21 Petitioner Fails to Demonstrate that the Board's Decision Was Otherwise Unlawful. In addition to challenging whether the evidence demonstrated his suitability for parole,

22 Petitioner also alleges that the Board's decision was unlawful on several other grounds. 23 24 25 7. While this Court is generally not bound by state-court decisions, federal courts are bound 26 by the decision of the state's highest court interpreting its own law, Nelson v. City oflr°vine,143 F.3d 1196, 1206-07 (9th Cir. 1998), as the state's highest court is the final arbiter of the meaning of the 27 state statutes. Gurley v. Rhoden, 421 U.S. 200, 208 (1975). Thus, the California Supreme Court's interpretation of California's parole statute in Dannenberg and Rosenkrantz is binding authority in 28 this case. See Nelson, 143 F.3d at 1206-07.
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

Petitioner's arguments, however, are without merit, and thus insufficient to demonstrate the state

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court unreasonably denied his petition. 1. Petitioner cannot show that the board is required, before denying parole based in part on the commitment offense, to engage in a comparative review of similar offenses by other inmates or consider the proportionality of his sentence under the board's sentencing matrices.

Petitioner alleges that his federal due process rights also require that the Board conduct a

6 comparative review of similar offenses committed by other inmates in determining whether 7 Petitioner's crime is a factor weighing against suitability for parole. (Pet. at 23 n.17, 33, 58-70.) 8 In addition, Petitioner alleges that, regardless of whether the Board finds him unsuitable for

9 parole, the Board is required to set him a proportional release date based on the Board's 10 sentencing matrices. (Id. at 22-25, 34-36, 71.) Petitioner's claims, however, are contrary to the 11 provisions of California Penal Code section 3041, and thus he cannot show that the state court

12 unreasonably denied relief as to these claims. 13 As an initial matter, Petitioner's claims are predicated on state law questions, and thus not

14 cognizable in federal habeas corpus. See, e.g., Rose, 423 U.S. at 21; Gutierrez, 695 F.2d at 15 1197-98. Here, Petitioner's allegations fail to implicate a federal claim to the extent they are

16 based on his construction of applicable California parole regulations. As a result, the Petition 17 must be denied as to this claim. 28 U.S.C. § 2254(a); Rose, 423 U.S. at 21; Gutierrez, 695 F.2d 18 at 1197-98. Moreover, even if Petitioner is alleging that the state court erroneously interpreted or

19 applied the Board's regulations when it denied his petition, a federal court may not challenge a 20 state court's interpretation or application of state law, Middleton v. Cupp, 768 F.2d 1083, 1085 21 (9th Cir. 1985), or grant relief "on the basis of a perceived error of state law." Pulley v. Harris,

22 465 U.S. 37, 41 (1984). 23 Further, even if addressed on the merits, California Penal Code section 3041 and the

24 applicable regulations governing parole separate the suitability determination from setting a 25 release date, and make it clear that the determination of an appropriate release date occurs only 26 after deciding that an inmate is suitable for parole. Cal. Penal Code § 3041; Cal. Code Regs. tit. 27 15, §§ 2402(a), 2403(a) Dannenberg, 34 Cal. 4th at 1082-83. As a result, the Board may

28 lawfully deny Petitioner parole without "comparing [his] crime to other second degree murders,
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

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to [the Board's] base term matrices, or to the minimum statutory prison term for that offense."

2 Dannenberg, 34 Cal. 4th at 1098. Accordingly, Petitioner cannot demonstrate that the state court 3 unreasonably denied his claims regarding the Board's alleged failure to conduct a comparative

4 review or set a proportional parole release date. 5 6 2. The Board may rely on static factors to deny parole.

Petitioner also argues that due process precludes the Board from relying on static

7 factors-namely, the circumstances of the commitment offense-to deny parole. (Pet. at 25-26, 8 30-31, 34, 54-58.) For several reasons, Petitioner cannot show that the state court's rejection of

9 this claim was contrary to, or an unreasonable application of, clearly established Supreme Court 10 law. 11 First, California Penal Code section 3401 requires that the parole authority examine the

12 commitment offense, providing that the Board "shall set a release date unless it determines that 13 the gravity of the current convicted offense or offenses, or the timing and gravity of current or

14 past convicted offense or offenses, is such that consideration of the public safety requires a more 15 lengthy period of incarceration." Cal. Penal Code § 3041(b); Dannenberg, 34 Cal. 4th at 1080. 16 The applicable regulations also provide that a prisoner shall be denied parole if he "will pose an 17 unreasonable risk of danger to society if released from prison." Cal. Code Regs. tit. 15, § 18 2402(a). As a result, the California Supreme Court held in Dannenberg that the Board may rely 19 solely on the circumstances of the commitment offense to deny parole. 34 Cal. 4th at 1094. 20 Hence, "an inmate whose offense was so serious as to warrant, at the outset, a maximum term of 21 life in prison, may be denied parole during whatever time the Board deems required for `this

22 individual' by `consideration of the public safety.' Id. at 1084.8 23 Moreover, the Board's consideration of public safety is not limited solely to the inmate's

24 potential for violence as suggested by Petitioner's argument that it is improper to consider the 25 8. Thus while Petitioner is correct that he could earn good time credits against his sentence (Pet. at 26), such credits would only reduce the minimum term of his sentence to make him eligible 27 for parole at an earlier date, but would not affect his maximum term given that the maximum term is not a fixed sentence, but rather for the indefinite period of life. Rather, Petitioner would continue 28 to face a maximum period of life imprisonment. Dannenberg, 34 Cal. 4th at 1084. 26
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static circumstances of his commitment offense given the length of time since that offense was

2 committed. Rather, the Supreme Court has indicated that the parole authority's consideration of 3 the commitment offense also must account for "whether, in light of the nature of the crime, the 4 inmate's release will minimize the gravity of the offense, weaken the deterrent impact on others, 5 6 and undermine respect for the administration of justice." Greenholtz, 442 U.S. at 8. The Ninth Circuit's holding in Biggs, which Petitioner relies on (Pet. at 25, 30-31, 54-58),

7 does not compel

a different result. In Biggs, the Ninth Circuit stated that the Board's continuing

8 reliance on an unchanging factor to deny parole "could result in a due process violation." Biggs 9 v. Terhune, 334 F.3d 910, 917 (9th Cir. 2003). However, the Biggs court did not definitively 10 indicate that reliance on an unchanging factor necessarily violates due process, only that it 11 possibly could. Indeed, the court praised Biggs for being "a model inmate," and found that the

12 record was "replete with the gains Biggs has made," including a master's degree in business 13 administration. Id. at 912. Nonetheless, the court denied habeas relief because the Board's

14 decision to deny parole-which relied solely on the commitment offense-was supported by 15 16 some evidence. Id. at 917. Most importantly, the statement in Biggs is merely circuit court dicta, and not clearly

17 established federal law sufficient to overturn a state court decision under AEDPA standards. In 18 Sass, the Ninth Circuit emphasized that Biggs does not contain mandatory language, and that 19 "[u]nder AEDPA, it is not our function to speculate about how future parole hearings could 20 proceed." Sass, 461 F.3d at 1129. The Sass court then rejected the argument that the Board's 21 reliance on "immutable behavioral evidence" to deny parole violated federal due process. Id.

22 Similarly, in Irons, the Ninth Circuit overturned a district court grant of habeas corpus, holding 23 that despite substantial evidence of the inmate-petitioner's rehabilitation, the Board acted 24 properly and did not abuse its discretion by relying on the circumstances of the commitment 25 26 offense to deny parole. Irons, 505 F.3d at 852-54. Finally, the recent decision in Hayward v. Marshall, No. 06-5392, _ F.3d 2008 WL

27 43716 (9th Cir. Jan. 3, 2008) (petition for rehearing pending), in which the Ninth Circuit held 28 that after twenty-nine years, the petitioner-inmate's commitment offense could no longer be used
Answer to, Pet. for Writ of Habeas Corpus; Mem. of P. & A.

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to deny parole, has no impact on the current case. First, the Hayward decision is not yet final, as

2 a petition for rehearing en banc is pending. Second, the Hayward court expressly limited its 3 decision to the facts presented, and emphasized that in some circumstances, the commitment

4 offense alone is sufficient to warrant a parole denial. Id. at *5. Lastly, and most importantly, the 5 holding in Hayward is non-dispositive circuit court dicta that may not be used to overturn a valid 6 state court decision under AEDPA standards. Thus, the holdings in Biggs and subsequent cases 7 do not preclude the Board from using circumstances of the commitment offense to deny parole, 8 nor may this dicta be used to overturn a valid state court decision. 9 Accordingly, because Petitioner fails to prove that the state court decision rejecting his

10 claim regarding the Board's continued reliance on his murder offense is contrary to or an 11 unreasonable application of clearly established Supreme Court law, his federal petition must be

12 denied. 13 14 15 16 3. The Board's regulatory provision regarding consideration of the commitment offense is not unconstitutionally vague given that the challenged term has more specific and detailed standards than similar terms used in death penalty statutes that have been upheld as valid against vagueness challenges in the United States Supreme Court.

Petitioner alleges that the Board's regulations are unconstitutionally vague as applied to

17 him at his 2006 hearing, specifically challenging the regulation set forth at title 15 section 18 2402(c)(1) of the California Code of Regulations, which indicates that a crime committed in an 19 "especially heinous, atrocious or cruel manner" is a circumstance tending to show unsuitability 20 for parole. (Pet. at 32 n.26.) But while Petitioner asserts his vagueness claim regarding the 21 Board's regulations, this type of claim typically is asserted in the context of the application of

22 death penalty statutes. For instance, in Maynard, the Supreme Court rejected as 23 unconstitutionally vague an Oklahoma death penalty statute that used as an aggravating factor the 24 same term at issue here-"especially heinous, atrocious, or cruel." Maynard v. Cartwright, 486 25 U.S. 356, 363 (1988). The Court did not find that this term was unconstitutional on its face, but 26 rather only that the statute was too vague because it was not applied with any limiting 27 constructions or further sub-definitions to provide some guidance to the discretion of the 28 decision-maker. Id. at 3 64-65.
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

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Subsequently, in Arave v. Creech, 507 U.S. 463 (1993), the United States Supreme Court

2 addressed a death penalty statute that contained a limiting construction. The Court initially stated 3 that the language in a death penalty statute was not unconstitutionally vague unless it was "too

4 vague to provide any guidance" and the challenged language had not been further defined to 5 provide "some guidance." Id. at 471. Thus, the Court held that an Idaho death penalty statute citing as an aggravating factor crimes carried out with an "utter disregard for human life" was not unconstitutionally vague because a limiting construction had been adopted which defined this factor as those crimes demonstrating the "utmost callous disregard for human life, i.e., the coldblooded pitiless slayer." Id. at 407-08. Thus, even though there was but one further sub10 definition that essentially restated the original term in its beginning and then added only the very 11 subjective term "cold-blooded pitiless slayer," the Court held it was sufficient to provide some

12 guidance and therefore it passed constitutional muster. Id. 13 Here, the heightened scrutiny of the death penalty review in Maynard and Arave does not

14 apply because Petitioner is merely challenging a discretionary parole suitability regulation. Thus, 15 while Maynard held that the term "especially heinous, atrocious, or cruel" was unconstitutionally 16 vague in the absence of a limiting construction, that reasoning would not apply to this non-death 17 penalty case. See Arave, 507 U.S. at 470-71 (setting forth standard to be applied in the context of 18 challenges to death penalty statutes). Indeed, the Supreme Court has determined that parole

19 suitability determinations necessarily require in part a discretionary, subjective analysis. For 20 instance, in Greenholtz the Court reasoned: 21 22 23 24 25 [T]here is no set of facts which, if shown, mandate a decision favorable to the individual. The parole determination, like a prisoner-transfer decision, may be made for a variety of reasons and often involve[s] no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate. The decision turns on a discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done. Greenholtz, 442 U.S. at 10 [citations and quotations omitted]. Similarly, the Supreme Court later

26 adhered to this understanding of parole suitability determinations, holding that "we can say with 27 some assurance that where parole is concerned discretion, by its very definition, is subject to 28 changes in the manner in which it is informed and then exercised. The idea of discretion is that it
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has the capacity, and the obligation, to change and adapt based on experience." Garner v. Jones,

2 529 U.S. 244, 253 (2000). For instance, the Court determined that "[n]ew insights into the 3 accuracy of predictions about the offense and the risk of recidivism consequent upon the

4 offender's release, along with a complex of other factors, will inform parole decisions." Id. 5 As a result, Petitioner cannot demonstrate that the Board's parole regulations are 6 unconstitutionally vague merely because they provide the Board with substantial discretion in 7 making a subjective de