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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 AMANDA J. MURRAY, State Bar No. 223829 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5741 Fax: (415) 703-5843 Email: [email protected] Attorneys for Respondent Warden Ben Curry

10 11 12 13 14 SANTOS CHAVEZ, 15 Petitioner, 16 v. 17 BEN CURRY, 18 Respondent. 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 C-07-5014 PJH ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES Judge: The Honorable Phyllis J. Hamilton

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TABLE OF CONTENTS Page 6 6

3 MEMORANDUM OF POINTS AND AUTHORITIES 4 INTRODUCTION 5 .6 7 8 9 B. 10 11 C. 12 13 D. 14 15 16 17 18 19 20 21 22 2. 23 24 25 3. 26 27 28'
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A. i

THE STATE COURTS' ADJUDICATION OF CHAVEZ'S CLAIMS WAS NEITHER CONTRARY TO, NOR INVOLVED AN UNREASONABLE APPLICATION OF, CLEARLY ESTABLISHED FEDERAL LAW, NOR WAS IT BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS. A. The Standard of Review for Federal Habeas Petitions Brought by State Prisoners Is Highly Deferential to the State Courts' Rulings. Chavez's Petition Should Be Denied Because He Received All Process Due: an Opportunity to Be Heard and an Explanation for the Parole Denial. The Some-Evidence Standard of Review Is Not Clearly Established Federal Law by the United States Supreme Court for Challenging Parole Denials. Chavez's Petition Should Be Denied Because There Is Some Evidence Supporting the Board's Decision and - as Required by AEDPA - the State Court Decision Upholding the Board's Parole Denial Is Based on a Reasonable Application of the Facts in Light of the Evidence Presented. No Clearly Established United States Supreme Court Law Precludes the State Courts from Upholding the Board's Reliance on Chavez's Commitment Offense to Deny Him Parole. Chavez Cannot Demonstrate that the State Court Acted Contrary to Clearly Established Supreme Court Law or Unreasonably Determined the Facts Regarding His Remaining Claims. 1. Chavez cannot show that the state courts acted contrary to clearly established Supreme Court law regarding his claim that the Board improperly relied on Chavez's version of the commitment offense in the police report. Chavez cannot show that the state courts acted contrary to clearly established Supreme Court law regarding his claim that the Board violated his plea agreement by relying on dismissed charges for attempted murder in finding that Chavez's commitment offense involved multiple victims. Chavez cannot show that the state courts acted contrary to clearly established Supreme Court law regarding Chavez's claim that he is entitled to parole based on the language of California Penal Code section 3041, subdivision (a).

6

7

9

E.

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F.

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TABLE OF CONTENTS (continued 1 2 3 4 5 6 7 8 9 CONCLUSION 5. 4. Chavez cannot show that the state courts acted contrary to clearly established Supreme Court law regarding Chavez's claim that he is entitled to post-conviction conduct credits. Chavez cannot show that the state courts acted contrary to clearly established Supreme Court law regarding Chavez's claim that Proposition 89 violates his ex post facto rights. Page

14

15 16

14 15 16 17' 18 19 20 21 22 23 24 25 26 27 28
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TABLE OF AUTHORITIES

2 3 Cases

. Page

4 Avila v. Galaza 297 F.3d 911 (9th Cir. 2002) 5 Benny v. US. Parole Comm 'n 6 295 F.3d 977 (9th Cir. 2002) 7 Biggs v. Terhune 334 F.3d. 910 (9th Cir. 2003) 8 Brown v. Poole 9 337 F.3d 1155 (9th Cir. 2003) 10 Cal. Dept. of Corr. &Rehab. v. Morales 514 U.S. 499 (1995) 11 Carey v. Musladin .12 _ U.S. _, 127 S. Ct. 649 (2006) 13 14 Crater v. Galaza 491 F.3d 1119 (9th Cir. 2007) 15 16 Early v. Packer 573 U.S. 3 (2002) 17 Ex Parte Rockwell 18 75 F.Supp. 702 (1948) .19 20 21 Gutierrez v. Griggs 695 F.2d 1195 (1983) Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex 442 U.S. 1 (1979) Cook v. Schriro F.3d 2008 WL 441825 *1 (9th Cir. 2008)

7

10 13 15 5, 8, 10, 14 8 8 7 15 2, 7-9 5, 12 8 ·11 4, 11

22 Hayward v. Marshall 512 F.3d 536 (9th Cir. 2008) 23 Hernandez v. Small 24 282 F.3d 1132 (9th Cir. 2002) 25 In re Dannenberg 34 Cal. 4th 1061 (2005) 26 In re Rosenkrantz 27 29 Cal.4th 616 (2002) 28
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TABLE OF AUTHORITIES (continued)

2

Irons v. Carey 3 505 F.3d 846 (9th Cir. 2007)

4 Johnson v. Gomez 92 F.3d 964 (9th Cir. 1996) 5 Lockyer v. Andrade 6 538 U.S. 63 (2003) 7 Pedro v. Oregon Parole Board 825 F.2d 1396 (1987) .8 People v. James 9 176 Cal.App.3d 795 (1986) 10 Plumlee v. Masto Cir. 2008) 512 F.3d 1204 (9th 11 Pulley v. Harris 12 465 U.S. 37 (1984) 13 Rose v. Hodges 423 U.S. 19 (1975) 14 Sandin v. Connor 15 515 U.S. 472 (1995) 16 Santobello v. New York 404 U.S. 257 (1971) 17 Sass v. Cal. Bd. Prison Terms 18 461 F.3d 1123 (9th Cir. 2005) 19 Schriro v. Landrigan Ct. 1933 (2007) , 127 S. U.S. 20 Stanley v. Cal. Supreme Court 21 21 F.3d 359 (9th Cir. 1994) 22 Superintendent v. Hill 472 U.S. 445 (1985) 23 Wilkinson v. Austin 545 U.S. 209 (2005) 24 25 26 27 28 Williams v. Taylor 529 U.S. 362 (2000) Woodford v. Visciotti 537 U.S. 19 (2002) Wright v. Van Patten , 2008 WL 59980, at *2 4 (Jan. 7, 2008) U.S.
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

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TABLE OF AUTHORITIES (continued) 1 2 3 4 5 Constitutional Provisions 15
Ylst v. Nunnemaker

Page 501 U.S. 797 (1991)

6 California Constitution, Article V, Section 8(b) 7 8 Regulations of 9 California Code (a) Regulations, Title 15 § 2281 §2402 10 § 2402 (a) § 2402 (b) Statutes California Penal Code §1170 et seq. §3041 § 3041, subdivision (a); and (4) § 3041.2 § 3046, subd. (c) 16 28 United States. Code 17 § 2254 § 2254(a) § 2254(d) § 2254(d)(1) § 2254(d)(2) § 2254(e)

14 14 14 13

14 11 2, 5, 11 15 3 1 5, 12 6, 14 4,7,8 4 6

22 Other Authorities Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 23 Proposition 89 24 25 26 27 28
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

6-9, passim 2, 5, passim

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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 AMANDA J. MURRAY, State Bar No. 223829 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5741 Fax: (415) 703-5843 Email: [email protected] Attorneys for Respondent Warden Ben Curry

IN THE UNITED STATES DISTRICT COURT 12 13 14 SANTOS CHAVEZ, 15 Petitioner, 16 v. 17 BEN CURRY, 18' - . Respondent. 19 20 21 As an Answer to the Petition for Writ of Habeas Corpus filed by California state inmate Santos Chavez, proceeding pro se in this habeas corpus action, Respondent Warden Ben Curry'-' Judge: The Honorable Phyllis J. Hamilton ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES . C-07-5014 PJH FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

22 admits, denies, and alleges as follows: 2324 25 1. The proper respondent in this action is Warden Ben Curry. Stanley v. Cal. Supreme 26 Court, 21 F.3d 359, 360 (9th Cir. 1994) (holding that the warden where the petitioner is incarcerated is the proper respondent); Rule 2(a), 28 U.S.C. § 2254. Because the actions complained of in this 27 petition concern a parole consideration hearing, the Board of Parole Hearings is used interchangeably with Respondent in this Answer and supporting Memorandum of Points and Authorities for 28 convenience only.
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

1. Chavez is in the lawful custody of the California Department of Corrections and

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Rehabilitation serving a life sentence following his 1984 conviction in Los Angeles County for

2 second degree murder. (Ex. A, Abstract of Judgement.) 3. 2. Chavez's Petition does not challenge his conviction; instead, he challenges the Board'

4 of Parole Hearings' February 9, 2006 decision finding him unsuitable for parole. Specifically, he 5 alleges that his federal due process rights were violated because there is no evidence to support

6 the Board's decision. (See generally Petn.)2l He also makes several state law claims alleging 7 that: (1) the Board improperly considered Chavez's version of the commitment offense in the 8 police report (petn. at 6k); (2) the Board violated his plea agreement by relying upon dismissed 9 charges for attempted murder in finding that Chavez's commitment offense involved multiple 10 victims (id. at 6j); (3) Chavez is entitled to parole based on the language in California Penal Code 11 section 3041, subdivision (a); (4) Chavez was unconstitutionally deprived of his statutory right to

12 good time conduct credit under the indeterminate sentencing law (id. at 61); and (5) that the 13 14 15 application of Proposition 89 violates Chavez's ex post facto rights. (Id. at 6n-6o.) 3. On July 24, 1983, Chavez and his co-criminal Jessie Cantu, members of the Avenues

gang, drove into rival gang territory. (Ex. B, Subsequent Parole Consideration Hearing, at 4-29,

16 36, 87-100; Ex. C, Probation Officer's Report, at 2-3; Ex. D, 2003 & 2004 Life Prisoner 17 Evaluation Report, at 1 [2003 Report].) Chavez was armed with a rifle and fired several shots at 18 members of the rival gang. (Ex. B at 87; Ex. C at 2-3; Ex. D at 2003 Report, 1.) Ronald Rivas, a 19 bystander, was fatally shot with a single gunshot wound to the head. (Ex. B at 5; Ex. C at 2-3; 20 Ex. D at 2003 Report, 1.) Two others were also wounded by the gunfire. ' (Id.) Chavez contends 21 22 the shooting was in retaliation for an attempted attack on his pregnant wife. (Ex. B at 9-15.) 4. On February 9, 2006, Chavez was provided an opportunity to be heard during

23 his parole consideration hearing (Ex. B at 4-110), and the Board issued a decision explaining 24 why he was not yet unsuitable for parole. (Id. at 111-126); Greenholtz v. Inmates of Neb. Penal 25 26 27 2. Respondent construes Claims One through Three, Five, and Six in Chavez's Petition as 28 challenging the sufficiency of the evidence. (Petn. at 6k-6n.)
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

& Corr. Complex, 442 U.S. 1, 16 (1979) (federal due process requires an inmate being

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considered for release on parole receive an opportunity to be heard and a reasoned decision). In

2 denying him parole, the Board found that the commitment offense was carried out with an 3 exceptionally callous disregard for human suffering because Chavez armed himself with a rifle

4 and fired into a crowd of people, killing Rivas with a single gunshot wound to the head. (Id. at 5 111-126.) The Board also noted that there were multiple victims, and that with the substantial

6 gunfire, many additional individuals could have been injured or killed. (Id. at 112.) Further, the .7 Board questioned Chavez's motive for the crime because he chose to retaliate against those who 8 allegedly threatened his wife by killing one person and wounding two others. (Id. at 113.) 9 Finally, the Board was concerned with Chavez's inconsistent versions of the commitment 10 offense, and advised that he needed to resolve those inconsistencies to ensure the Board that he 11 12 13 14 would no longer pose an unreasonable risk of danger to public safety. (Id. at 115-126.) 5. The Los Angeles District Attorney opposed Chavez's parole. (Ex. B at 114; Pen.

Code, § 3046, subd. (c).) 6. Chavez filed a petition with the Los Angeles County Superior Court raising

15 substantially the same challenges to the Board's 2006 decision that he now asserts in his federal 16 Petition. (Ex. E, Superior Court Pet. & Denial$ The superior court denied Chavez's petition on 17 May 4, 2007 in a two-page reasoned decision. (Id.) Specifically, the court found that there was 18 some evidence supporting the Board's decision denying Chavez parole because "multiple victims 19 were attacked, injured or killed" in that Chavez killed Rivas, injured two additional individuals, 20 and could have harmed several others as he fired multiple shots into a crowd of people. (Id.) 21 The court also found that the Board's concern regarding Chavez's inconsistent versions of the

22 murder offense was some evidence supporting the Board's decision to deny him parole. (Id.) 23 7. Chavez pursued his claims by filing substantially the same petition for writ of habeas

24 corpus in California's Second Appellate District, which was denied on July 11, 2007 (Ex. F, , 25 Appellate Court Pet. & Denial.) 26 27 3. To avoid repetition and unnecessary volume, the exhibits attached to Chavez's state court 28' petitions have been removed. Respondent will provide these documents upon the Court's request:
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8.

Chavez then pursued his claims by filing substantially the same petition for writ of

'2 habeas corpus in the California Supreme Court, which was denied on September 19, 2007. (Ex. 3 4 5 G, Supreme Court Pet. & Denial.) 9. Respondent admits that Chavez has exhausted his state court remedies regarding the

claims alleged in his federal petition regarding his February 2006 parole denial. Respondent

6 denies that Chavez has exhausted his claims to the extent that they are more broadly interpreted 7 to encompass any systematic issues beyond this particular review of parole denial. 8 10. Respondent denies that the state courts' adjudication of Chavez's claims was

9 contrary to, or involved an unreasonable application of, clearly established federal law as 10 determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). .11 11. Respondent denies that the state courts' adjudication of Chavez's claims was based on

12 an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d)(2). 13 12. ,To preserve the issue, Respondent denies that Chavez has a federal liberty interest

14 in parole under California Penal Code section 3041, notwithstanding the Ninth Circuit's contrary 15 decision in Sass v. Cal. Bd. Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2005). See Greenholtz,

16 442 U.S. at 12 (finding no federally protected liberty interest in parole release date unless state 17 creates interest through the unique structure and language of state parole statute); but see also 18 Sandin v. Connor, 515 U.S. 472, 484 (1995) (no federal liberty interest unless the state's action 19 poses an atypical or significant hardship compared with ordinary prison life). Chavez does not 20 have a federally protected liberty interest in parole under either methodology: first, California's 21 parole scheme is a two-step process that does not impose a mandatory duty to grant life inmates

22 parole before a suitability finding (In re Dannenberg, 34 Cal. 4th 1061, 1087 (2005)), and 23 second, an inmate (such as Chavez) continuing to serve his life sentence does not pose an

24 atypical or significant hardship compared to ordinary prison life (In re Rosenkrantz, 29 Cal.4th 25 616, 658 (2002) ["parole release decisions concern an inmate's anticipation or hope of

26 freedom"]). Thus, Chavez does not have a protected liberty interest and fails to assert a basis for 27 federal jurisdiction. 28 13. To preserve the issue, notwithstanding the Ninth Circuit's contrary decision in Irons v.
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Carey, 505 F.3d 846, 851 (9th Cir. 2007), Respondent denies that the Supreme Court has ever

2 clearly established that a state parole board's decision must be supported by some evidence. See 3 Carey v. Musladin,
U.S. ,

127 S. Ct. 649, 654 (2006) (federal habeas relief was improper

4 under AEDPA in absence of United States Supreme Court precedent). 5 14. Respondent affirmatively alleges that if the some-evidence standard applies to federal

6 . review of parole denials, there is some evidence supporting the Board's 2006 decision to deny 7 Chavez parole. 8 15. Respondent alleges that there is no clearly established federal law precluding the

9 Board's reliance on Chavez's commitment offense as a reason to deny him parole. See 10 Musladin, 127 S. Ct. at 654. 11 16. Respondent alleges that Chavez's state law claims asserting that (1) the Board

12 improperly considered Chavez's version of the commitment offense in the police report (petn. at .13 6k); (2) the Board violated his plea agreement by relying upon dismissed charges for attempted

14 murder (id. at 6j); (3) Chavez. is entitled to parole based on the language in California Penal Code 15 section 3041, subdivision (a); and (4) Chavez was unconstitutionally deprived of his statutory

16 right to good time conduct credit under the indeterminate sentencing law (id. at 61), are not 17 subject to federal habeas relief because they are issues of state law. 28 U.S.C. § 2254(a); Rose v. 18 Hodges, 423 U.S. 19, 21 (1975); Gutierrez v. Griggs, 695 F.2d 1195, 1197-1198 (1983). 19 Moreover, Respondent denies that they are contrary to any established United States Supreme 20 Court law. 21 .

17. Respondent denies that Chavez's claim that Proposition 89 violates Chavez's ex post

22 facto rights. (Id. at 6n-6o) 23 18. Respondent denies that the Board's decision denying parole violated Chavez's

24 federal due process rights. 25 19. If the Petition is granted, Chavez's remedy is limited to a new parole consideration

26 hearing before the Board that comports with due process. Benny v. US. Parole Comm 'n, 295 27 F.3d 977, 984-985 (9th Cir. 2002) (finding that the Board must exercise discretion in determining 28 whether or not an inmate is suitable for parole); In re Rosenkrantz, 29 Cal.4th at 658.
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20. Respondent denies that an evidentiary hearing is necessary in this matter. 28 U.S.C. §

2 2254(e). 3 21. Respondent alleges that there is any procedural bar to this action, including statute of

4 limitations or non-retroactivity. 5 22. Except as expressly admitted in this Answer, Respondent denies the allegations of the

6 Petition. 7 8 23. Chavez fails to state or establish any grounds for habeas corpus relief. For the reasons stated in this Answer and in the following Memorandum of Points and

9 Authorities, this Court should deny the Petition. 10 11 12 13 MEMORANDUM OF POINTSANDAUTHORITIES INTRODUCTION Chavez's Petition should be denied because he received the only process due under clearly established Supreme Court authority: the opportunity to be heard and a decision. Thus, the

14 Board's decision did not violate his federal due process rights. Finally, if the some-evidence test 15 is applicable, and Respondent maintains it is not, Chavez's Petition should be denied because 16 there is some' evidence supporting the Board's decision denying Chavez parole. 17 18 19 20 21 22 23 A. The Standard of Review for Federal Habeas Petitions Brought by State Prisoners Is Highly Deferential to the State Courts' Rulings. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 ARGUMENT THE STATE COURTS' ADJUDICATION OF CHAVEZ'S CLAIMS WAS NEITHER CONTRARY TO, NOR INVOLVED AN UNREASONABLE APPLICATION OF, CLEARLY ESTABLISHED FEDERAL LAW, NOR WAS IT BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS.

24 (2002) (per curiam). Indeed, federal habeas relief for state prisoners is tightly constrained under 25 AEDPA and a federal petition must be denied unless the state court's adjudication was contrary 26 to, or involved an unreasonable application of, clearly established Federal law, as determined by 27 the United States Supreme Court; or was based on an unreasonable determination of the facts in 28 light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). In
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conducting an AEDPA analysis, "[w]hat matters are the holdings of the Supreme Court, not the

,2 holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en 3 banc). 4 Under AEDPA, a state court decision is " contrary to" clearly established Supreme Court

5 precedent "if it `applies a rule that contradicts the governing law set forth in [Supreme Court] 6 cases,' or if it `confronts a set of facts that are materially indistinguishable from a decision' of 7 the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 573 U.S. 3, 8 8 9 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may

10 grant the writ if the state court identifies the correct governing legal principle from the Supreme 11 Court's decisions, but unreasonably applies that principle to the facts of the case. Williams, 529

12 U.S. at 413. A federal habeas court may not grant the writ "simply because that court concludes 13 in its independent judgment that the relevant state-court decision applied clearly established

14 federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. 15 at 411; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal

16 habeas court, in its independent review of the legal question, is left with a `firm conviction' that 17 the state court was 'erroneous.") 18 The federal court looks to the last reasoned state court decision as the basis for the state

'19 court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002); see Ylst v. Nunnemaker, 501 20 U.S. 797, 803-804 (1991). 21 22 23 B. Chavez's Petition Should Be Denied Because He Received All Process Due: an Opportunity to Be Heard and an Explanation for the Parole Denial. The Supreme Court has found that a parole board's procedures are constitutionally adequate

24 if the inmate is given an opportunity to be heard and a decision informing him of the reasons he 25 is not yet suitable for parole. Greenholtz, 442 U.S. at 16. As a matter of "clearly established" 26 federal law then, a challenge to a parole decision will fail if the inmate has received the 27 protections required under Greenholtz. See Wilkinson v. Austin, 545 U.S. 209, 229 (2005) 28 (Supreme Court cited Greenholtz approvingly for the proposition that the "level of process due
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for inmates being considered for release on parole includes opportunity to be heard and notice of any adverse decision" and noted that Greenholtz remained "instructive for [its] discussion of the appropriate level of procedural safeguards.") Chavez does not deny that he received an opportunity to be heard or the reasons he was denied parole. (Ex. B.) Thus, the state courts' 5 6 7 8 decisions were not contrary to clearly established federal law. C. The Some-Evidence Standard of Review Is Not Clearly Established Federal Law by the United States Supreme Court for Challenging Parole Denials.

The some-evidence standard does not apply in federal habeas proceedings challenging

9 parole denials because it is not clearly established federal law. Yet, the Ninth Circuit has held 10 that the some-evidence standard governs parole cases, even though the Supreme Court has never 11 extended that test from disciplinary cases to parole cases. See, e.g., Hayward v. Marshall, 512 U.S. ,

12 F.3d 536, 542 (9th Cir. 2008); Irons v. Carey, 505 F.3d at 851; but see Musladin, 13

127 S. Ct. at 654 (federal habeas relief was improper under AEDPA in absence of United States

14 Supreme Court precedent as to specific issue presentedY2 Indeed, both the United States 15 Supreme Court and the Ninth Circuit, have reiterated that there can be no clearly established

16 federal law where the Supreme Court has never addressed a particular issue or applied a certain 17 test to a specific type of proceeding. See e.g., Schriro v. Landrigan, 18 19 U.S. , 127 S. Ct.

1933, 1942 (2007) (no federal habeas relief when the issue is an open question in the Supreme Court's precedent); Wright v. Van Patten, U.S. , 2008 WL 59980, at *2 4 (Jan. 7, 2008)

20 (per curiam) (Supreme Court vacated the judgment, and remanded for further consideration in 21 light of Musladin because "No decision of this Court . . . squarely addresses the issue in this

22 case" and, therefore relief under § 2254(d)(1) is "unauthorized"); Crater v. Galaza, 491 F.3d 23 1119, 1126 & n.8 (9th Cir. 2007) (citing Musladin, the Ninth Circuit acknowledged that

. 24 decisions by courts other than the Supreme Court are "non-dispositive" under § 2254(d)(l)); 25 Cook v. Schriro, _ F.3d _, 2008 WL 441825 *1, *10 (9th Cir. 2008) (citing Musladin, the

26 Ninth Circuit found that absent United States Supreme Court precedent establishing the 27 28 4. Although published after Musladin, neither Irons nor Hayward addressed the Musladin Court's AEDPA analysis
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unconstitutionality of the clause in plea agreements, the Court could not say "that the state court 2 3 `unreasonably applied clearly established Federal law'). Accordingly, because Superintendent v. Hill, 472 U.S. 445, 455-56 (1985) applied the

4 some-evidence standard to a prison disciplinary hearing and Chavez challenges his 2006 parole 5 consideration hearing, the some-evidence standard does not apply. Because Greenholtz is the

6 only United States Supreme Court authority describing the process due at a parole consideration

7 hearing when an inmate has a federal liberty interest in parole, the Greenholtz test, not the some.8 evidence standard, should apply in this proceeding. Regardless, Respondent recognizes that the

9 Ninth Circuit has held otherwise and will argue this case accordingly. 10 11 12 13 If this Court finds that the some-evidence standard applies and assuming Chavez has a D. Chavez's Petition Should Be Denied Because There Is Some Evidence Supporting the Board's Decision and - as Required by AEDPA - the State Court Decision Upholding the Board's Parole Denial Is Based on a Reasonable Application of the Facts in Light of the Evidence Presented.

14 federally protected liberty interest, some evidence supports the Board's decision denying Chavez 15 parole. The some-evidence standard "does not require examination of the entire record, 16 independent assessment of the credibility of witnesses, or weighing of the evidence;" rather, it 17 assures that "the record is not so devoid of evidence that the findings of the . . . board were 18 without support or otherwise arbitrary." Hill, 472 U.S. at 455-457 (applying some-evidence 19 standard to prison disciplinary hearing). Thus, both the "reasonable application" standard of 20 AEDPA and the some-evidence standard of Hill are very minimal standards. 21 Although Chavez invites the Court to re-examine the facts of his case and re-weigh the

22 evidence presented to the Board, neither AEDPA nor Hill's some-evidence test permit this degree 23 of judicial intrusion. Moreover, in assessing the state court's review of Chavez's claims, not

24 only should the appropriate deference be afforded to the state court's review under AEDPA, but '25 deference is also due to the underlying Board decision. The Supreme Court has recognized the

26 difficult and sensitive task faced by the Board members in evaluating the advisability of parole 27 release. Greenholtz, 442 U.S. at 9-10. Thus, contrary to Chavez's belief that he should be . 28 paroled based on the evidence in support of his parole (see generally, Petn.), the Supreme Court
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has'stated that in parole release, there is no set of facts which, if shown, mandate a decision

2 favorable to the inmate. Id. Instead, under the some-evidence standard, the court's inquiry is 3 limited solely to determining whether the state court properly found that the Board's decision to

4 deny parole is supported by some evidence in the record, i.e., any evidence. Hill, 472 U.S. at 5 455. 6 In this case, the superior court concluded that there was some evidence supporting the

7 Board's decision denying Chavez parole in that Chavez killed Rivas, injured two additional 8 individuals, and could have harmed several others as he fired multiple shots into a crowd of 9 people. (Ex. E.) The court also found that the Board's decision was supported by Chavez's 10. inconsistent versions of his murder offense. (Id.) This is a reasonable application of the minimal 11 12 13 some-evidence test. Thus, if the some evidence test applies, the state court denials were not an unreasonable application of clearly established United States Supreme Court law. Moreover, because the facts

14 were supported by the record as reviewed by the Board (Ex. B), the state courts reasonably 15 determined that the Board's decision was supported by some evidence in the record. Thus, 16 Chavez's Petition should be. denied. 17 18 19 E. No Clearly Established United States Supreme Court Law Precludes the State Courts from Upholding the Board's Reliance on Chavez's Commitment Offense to Deny Him Parole.

Chavez contends that the Board violated his federal due process rights by improperly .

20 relying on his commitment offense to find him unsuitable for parole. (Petn. at 6n-6m.) Yet, 21. there is no clearly established federal law as determined by the United States Supreme Court 22 precluding the Board's reliance on Chavez's crime as a reason to find him unsuitable for parole. 23 See Musladin, 127 S. Ct. at 654; Landrigan, 127 S. Ct. at 1942. Although the Ninth Circuit's

24 recent holdings suggest that continued reliance on the commitment offense may violate due 25 process at some future date (see, e.g., Irons, 505 F.3d at 854 [citing Biggs v. Terhune, 334 F.3d. 26 910, 916-17 (9th Cir. 2003)]; Hayward v. Marshall, 512 F.3d at 547, fn. 10 [court concluded that 27 Governor's continued reliance on Hayward's commitment offense violated due process, but 28 expressly limited its holding to the facts of Hayward ' s case and the nature of his specific
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conviction offense], these holdings are irrelevant when conducting an AEDPA analysis.

2 Plumlee, 512 F.3d at.1210 ("What matters are the holdings of the Supreme Court, not the 3 4 5 6 7 8 9 Van Patten,
U.S. ,

holdings of lower federal courts"). Indeed, the Supreme Court recently highlighted the tight constraints imposed by AEDPA: Because our cases give no clear answer to the question presented, let alone one in [Petitioner's] favor, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" , 127 S. Ct. 649, 654 (quoting 28 U.S.C. Musladin, 549 U.S. at § 2254(d)(1)). Under the explicit terms of § 2254(d)(1), therefore, relief is unauthorized. 128 S.Ct. at 747. Thus, because the Board's reliance on Chavez's

10 commitment offense to deny parole is supported by California state law (Cal. Pen. Code, §3041; 11 Dannenberg, 34 Cal.4th 1061, 1094 (2005)) and such reliance is not contrary to any clearly

12 established United States . Supreme Court law, Chavez's argument is without merit. 13 14 15 F. Chavez Cannot Demonstrate that the State Court Acted Contrary to Clearly Established Supreme Court Law or Unreasonably Determined the Facts Regarding His Remaining Claims.

In addition to challenging the sufficiency of the evidence, Chavez alleges several state

16 law claims, asserting that: (1) the Board improperly considered Chavez's version of the 17 18 commitment offense in the police report (petn. at 6k); (2) the Board violated Chavez's plea agreement by relying on dismissed charges of attempted murder in finding that Chavez's

19 commitment offense involved multiple victims (id. at 6j); (3) Chavez is entitled to parole based 20 on the language in California Penal Code section 3041, subdivision (a); and (4) Chavez has been 21 unconstitutionally deprived of his statutory right to good time conduct credit under the

22 indeterminate sentencing law (id. at 61). He also alleges that Proposition 89 violates his ex post 23 24 25 5. In its order, the superior court did not address Chavez's claims regarding the 26 indeterminate sentencing law or Proposition 89. However, this Court may still review these claims under AEDPA because this Court is only concerned with whether the superior court's decision 27 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. 2002) (determining in habeas proceedings that 28 "the intricacies of the state court's analysis need not concern us; what matters is whether the decision
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

facto rights. (Id. at 6n-6o$

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As an initial matter, Chavez's state law allegations fail to implicate a federal claim to the

2 extent they are based on his construction of the state statutes and regulations regarding the 3 manner in which the parole authority determines suitability for parole. Accordingly, Chavez's 4 claims are predicated on state law and not cognizable in federal habeas corpus. 28 U.S.C. § 5 2254(a); Rose v. Hodges, 423 U.S. at 21; Gutierrez v. Griggs, 695 F.2d at 1197-1198. Moreover, 6 even if Chavez is alleging that the state court erroneously rejected these claims, a federal court 7 may not challenge a state court's interpretation or application of state law, Middleton v. Cupp, 8 768 F.2d 1083, 1085 (9th Cir. 1985), or grant relief "on the basis of a perceived error of state 9 law." Pulley v. Harris, 465 U.S. 37, 41 (1984). Accordingly, the Petition should be denied , as to 10 these claims. 11 Moreover, as addressed below, Chavez cannot show that the state courts acted contrary

12 to United States Supreme Court law or that they acted unreasonably in rejecting Chavez's state . 13 14 15 16 17 18 Chavez argues that because the police report was not part of the "record of conviction," and because he pled guilty to second degree murder as part of his plea agreement, the Board law claims. 1. Chavez cannot show that the state courts acted contrary to clearly established Supreme Court law regarding his claim that the Board improperly relied on Chavez's version of the commitment offense in the police report.

19 cannot use the report to "over ride [sic] reliable factual judicial findings to deny parole." (Petn. 20 at 6k.) However, there is no Supreme Court authority for Chavez's arguments in the context of 21 an administrative parole proceeding. To the contrary, it is well established that the Board is not

22 limited by the nature of the conviction as to the evidence it can consider, most significantly 23 because the Board is not required to support its decision with evidence that meets the criminal 24' beyond-a-reasonable-doubt standard. See Pedro v. Oregon Parole Board, 825 F.2d 1396, 1399 25 26 27 the court reached was contrary to controlling federal law.") Thus, this Court may consider whether these additional grounds also support the superior court's decision denying Chavez's federal due 28 process claims. (Id.)
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

(1987) (holding that the full panoply of rights due a defendant in a criminal proceeding is not

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constitutionally mandated in a parole proceeding because the setting of a parole term is not part of a criminal prosecution); Cal. Code Regs. tit. 15, § 2402 (b). Indeed, the superior court noted that there was some evidence supporting the Board's concern that Chavez's version of his murder offense in the police report was inconsistent with his current version of events, and concluded that "[w]here guilt is uncontested, Petitioner's , version of events may be `some

6 evidence' he lacks remorse and understanding of the nature and magnitude of the offense." (Ex. 7 E.) .8 Thus, because there is no Supreme Court authority limiting the evidence the Board may

9 consider in determining an inmate's parole suitability, the superior court did not act contrary to 10 clearly established Supreme Court law. (Ex. E; Ex. B at 87-99, 114-117). As such, Chavez 11 12 13 14 15 cannot prove there was an AEDPA violation. 2. Chavez cannot show that the state courts acted contrary to clearly established Supreme Court law regarding his claim that the Board violated his plea agreement by relying on dismissed charges for attempted murder in finding that Chavez's commitment offense involved multiple victims.

Chavez argues that the Board violated his plea agreement by improperly relying on

16 dismissed charges for attempted murder in concluding that his crime involved multiple victims. 17 18 (Petn. at 6j.) Chavez's argument fails because he fails to show an AEDPA violation. Chavez's claim fails because there is no evidence that Chavez was promised in the plea

19 agreement that the Board would be limited in the factors it could consider when making a parole 20 suitability determination - i. e., there was no "promise or representation regarding parole 21 eligibility at the time of the plea." Santobello v. New York, 404 U.S. 257, 261-62 (1971); cf.

22 Brown v. Poole, 337 F.3d 1155, 1160-1161 (9th Cir. 2003) (A plea bargain agreement containing 23 a specific promise, such as when the inmate will be paroled, is enforceable). In the absence of

24 such evidence, Chavez's subjective belief that the Board could not rely on dismissed charges for . 25 attempted murder to deny him parole is insufficient to demonstrate the state courts unreasonably

26 determined the facts regarding his claim. 27 Moreover, there is no clearly established federal law precluding the Board's reliance on

28 the circumstances of Chavez's murder offense as a reason to find him unsuitable for parole.
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Musladin, 127 S. Ct. at 654; Landrigan, 127 S. Ct. at 1942; Cal. Code Regs., tit. §2402, subd. (b). Thus, in the absence of any clearly established United States Supreme Court law or 4 evidence that the plea restricted the facts the Board can consider, Chavez cannot show that the 5 state courts' decision violated AEDPA, and his Petition should be denied as to this claim. 28

6 U.S.C. § 2254(d). 7 8 .9 10 11 Chavez also contends that he was unlawfully denied parole because the Board is "normally" required to parole all indeterminate life-term inmates after they become eligible for 3. Chavez cannot show that the state courts acted contrary to clearly established Supreme Court law regarding Chavez's claim that he is entitled to parole based on the language of California Penal Code section 3041, subdivision (a).

12 parole under California Penal Code section 3041. (Petn. 61-6n.) Because Chavez's allegation 13 14 15 fails to state a federal claim and is without merit, he cannot establish a claim for relief. While the Board's regulations set forth a matrix of factors used in setting a parole date (Cal. Code Regs., tit. 15, § 2402), they also specify that the matrix is invoked only after a life

16. inmate is "found suitable for parole." (Id. at § 2402 (a); see also id. at § 2281 (a).) There is no 17 United States Supreme Court law mandating that a release date be calculated before an inmate is 18 found suitable for parole. Accordingly, Chavez cannot prove that the state courts acted contrary

19 to United States Supreme Court law with respect to this claim. 20 21 22 23 24 25 4. Chavez cannot show that the state courts acted contrary to clearly established Supreme Court law regarding Chavez's claim that he is entitled to post-conviction conduct credits.

Chavez argues that he was unconstitutionally deprived of his statutory right to receive good-time conduct credit under the indeterminate sentencing law (ISL). His claim lacks merit. The ISL applies to murders committed before July 1, 1977; the determinate sentencing law (DSL) applies to murders committed after July 1, 1977. Cal. Pen. Code, §1170 et seq.;

26 People v. James, 176 Cal.App.3d 795, 797 (1986). Thus, because Chavez was convicted of '27 murder in 1984 (Ex. A), the DSL - not the ISL - applies. 28 ///
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Moreover, under both the ISL and DSL, post-conviction conduct credit applies only after

2 an inmate is found suitable for parole. Stanworth, 187 Cal.3d at 183-186. Accordingly, any 3 alleged statutory right to post-conviction conduct credit is irrelevant because Chavez has not yet

4 been found suitable for parole. Because there is no Supreme Court law requiring that the ISL (or 5 DSL) applies to Chavez's murder offense, or that he is entitled to post-conviction conduct credit 6 before he is found suitable for parole, Chavez cannot prove he is entitled to relief. 7 8 5. Chavez cannot show that the state courts acted contrary to clearly established Supreme Court law regarding Chavez's claim that Proposition 89 violates his ex post facto rights.

Chavez erroneously argues that Proposition 89 - which entitles the Governor to review convicted murderers for parole under California Penal Code section 3041.2 = violates his ex post facto rights. (Petn. at 6n-6o.) Chavez's claim lacks merit because the United States Supreme Court has never specifically addressed this issue. But see, e.g., Cal. Dept. of Corr. & 13 Rehab. v. Morales, 514 U.S. 499, 509 (1995) (California statute amending parole procedures to 14 allow Board to decrease frequency of parole suitability hearings under certain circumstances did 15 not violate ex post facto clause). Moreover, Chavez's claim is not ripe for review because the 16 Governor has never reviewed the Board's 2006 decision. Finally, this claim has already been 17 addressed and rejected by the Ninth Circuit. 18 Here, Chavez is challenging the Board's = not the Governor's - 2006 decision to deny

19 him parole. Indeed, the Governor has not reviewed the Board's 2006 decision. To the extent 20 Chavez is challenging an anticipatory action that the Governor may not ever take, such a claim is 21 improper because an inmate may not seek habeas corpus relief to challenge the validity of an

22 anticipated future action. See Ex Parte Rockwell, 75 F.Supp. 702 (1948). Accordingly, because 23 the Governor has not reviewed Chavez's 2006 denial and because the Supreme Court has never 24 addressed this issue, Chavez's claim should be denied. 25 Moreover, Chavez's claim that Proposition 89 violates his ex post facto rights has

26 already been addressed and rejected by the Ninth Circuit. The Ninth Circuit has held that 27 gubernatorial review of the Board's parole grants under the California Constitution, Article V, .28
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Section 8(b) does not violate the Ex Post Facto Clause of the federal Constitution. Johnson v. Gomez, 92 F.3d 964, 967 (9th Cir. 1996). Thus, Chavez's ex post facto claim is without merit and .as to this claim, his Petition should be denied. CONCLUSION Chavez received all process he was due under clearly established Supreme Court

6 authority. Moreover, the record reflects that the Board's decision was supported by some 7 evidence. Thus, the state courts' adjudication of Chavez's claims was not contrary to, nor did it 8 involve an unreasonable application of, clearly established federal law, or an unreasonable .9 determination of the facts. Accordingly, Chavez's Petition should be denied. 10 11 12 13 14 15 16 17 18 19 20 21 22
40226613.wpd

Dated: April 11, 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

·;^^ . I DA J. MURRA ' Deputy Attorney Geneal Attorneys for Responder

23 2425 26 27 28

SF2008400296

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& A. 16

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: 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 15, 2008, I served the attached Chavez v. Curry C-07-5014 PJH

ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES (W/EXHIBITS A-G)
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: Santos Chavez C-87968 Correctional Training Facility P.O. Box 689 Soledad, CA 93960-0689 In Pro Per C-87968 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 15, 2008, at San Francisco, California.

S. Redd Declarant
40241620.wpd

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