Free Response to Order to Show Cause - 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 AMBER N. WIPFLER, State Bar No. 238484 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5721 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent Warden B. Curry 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Ans. to OSC; Mem. of P. & A. Dyson v. Curry C07-4955 MJJ

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

HAROLD D. DYSON, Petitioner, v. BEN CURRY, Warden,

C07-4955 MJJ ANSWER TO ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES Judge: The Honorable Martin Jenkins Respondent.

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1 2 3 INTRODUCTION

TABLE OF CONTENTS Page 1 2 7 7

4 ANSWER TO THE ORDER TO SHOW CAUSE 5 MEMORANDUM OF POINTS AND AUTHORITIES 6 ARGUMENT 7 8 9 10 11 1. 12 13 14 3. 15 16 17 18 19 II. PETITIONER FAILS TO PROVE THAT THE BOARD IS SYSTEMATICALLY BIASED. 4. Even if the some-evidence standard was clearly established federal law, the standard was correctly applied by the state courts. The Board may rely on static factors to deny parole. 2. 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. THE STATE COURT'S DENIAL OF PETITIONER'S HABEAS CLAIM WAS NOT CONTRARY TO OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW, NOR BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS. A. The State Superior Court Decision Was Not Contrary to or an Unreasonable Interpretation of Clearly Established Federal Law.

7 8 8 10 12 13 15 15 16

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

20 CONCLUSION 21 22 23 24 25 26 27 28
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1 2 3 Cases

TABLE OF AUTHORITIES Page

4 Bd. of Pardons v. Allen 482 U.S. 369 (1987 5 Biggs v. Terhune 6 334 F.3d 910 (9th Cir. 2003) 7 8 9 10 11 12 13 Greenholtz v. Inmates of Nebraska Penal & Correctional Complex 442 U.S. 1 (1979) Foote v. Del Papa 486 F.3d 1166, 2007 WL 1469776 (9th Cir. 2007) Crater v. Galaza , 2007 WL 1965122, *2, 5 and n.8 F.3d (9th Cir. July 9, 2007) Carey v. Musladin , 127 S.Ct. 649 (2006)_ U.S. U.S. 127

12, 14 5, 10, 11

11

11 5, 8-12, 16 5 12 14 10, 11 15 15

14 In re Dannenberg 34 Cal. 4th 1061 (2005) 15 Irons v. Carey F.3d., 2007 WL 2027359 (9th Cir. 2007) 16 17 Irons v. Carey 479 F.3d 658 (9th Cir. 2007) 18 Jancsek v. Oregon Board of Parole 19 833 F.2d 1389 (9th Cir. 1987)N 20 Johnson v. Zerbst 304 U.S. 458 (1938) 21 Juan H. v. Allen 22 408 F.3d 1262 (9th Cir. 2005) 23 Lockyer v. Andrade 583 U.S. 63 (2003) 24 McQuillion v. Duncan 25 306 F.3d 895 (9th Cir. 2002) 26 Miller-El v. Cockrell 537 U.S. 322 (2003) 27 Miller-El v. Dretke 28 545 U.S. 231 (2005)
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TABLE OF AUTHORITIES (continued) 1 2 Nguyen v. Garcia 3 477 F.3d 716 (9th Cir. 2007) Page 11 5 5, 6, 12, 14 5, 8, 10, passim 11 10 7 8

4 Sandin v. Connor 515 U.S. 472 (1995) 5 Sass v. California Board of Prison Terms 6 461 F.3d 1123 (9th Cir. 2006) 7 Superintendent v. Hill 472 U.S. 445 (1985) 8 Wainwright v. Greenfield 474 U.S. 284 (1986) 9 10 Wilkinson v. Austin 545 U.S. 2384 (2005) 11 Williams (Terry) v. Taylor 529 U.S. 362 (2000) 12 13 Ylst v. Nunnemaker 501 U.S. 797 (1991) 14 Constitutional Provisions 15 16 17 Regulations 18 California Code of Regulations Title 15 § 2402(c)(1) 19 Statutes 20 28 United States Code § 2244(d)(1) 21 § 2254(e)(1) § 2254(d)(1-2) 22 § 2254(d)(2) 23 California Penal Code § 3401 24 § 3041(b) 25 26 Other Authorities Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) 27 28
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Sixth Amendment

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6, 13

6 8, 15 7, 15 15 13 6

5, 7, 8, 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 AMBER N. WIPFLER, State Bar No. 238484 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5721 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent Warden B. Curry 10 11 12 13 14 15 16 17 18 19 20 21 22 INTRODUCTION Petitioner Harold D. Dyson is a California state inmate at the Correctional Training Facility, v. BEN CURRY, Warden, Judge: The Honorable Martin Jenkins Respondent. HAROLD D. DYSON, Petitioner, C07-4955 MJJ ANSWER TO ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

23 proceeding pro se in this habeas corpus action. Petitioner, who is currently serving a fifteen24 year-to-life sentence for second-degree murder, alleges that the Board of Parole Hearings 25 unconstitutionally denied him parole at his 2006 parole suitability hearing. Petitioner claims that 26 no evidence supported the Board's decision, and that the Board based its denial on an unlawful 27 28
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no-parole policy. - On October 24, 2007, this Court issued an Order to Show Cause. Respondent '

2 Warden Ben Curry answers as follows: 3 4 ANSWER TO THE ORDER TO SHOW CAUSE In response to the Petition for Writ of Habeas Corpus dated September 25, 2007,

5 Respondent admits, denies, and alleges the following: 6 1. Petitioner is in the lawful custody of the California Department of Corrections and

7 Rehabilitation following his January 4, 1984 conviction of second-degree murder. (Ex. A, 8 Abstract of Judgment.) He is currently serving an indeterminate sentence of fifteen years to life. 9 (Ex. B, Parole Hearing Transcript. p. 1.) Petitioner does not challenge his underlying conviction 10 in the current proceeding. 11 2. Respondent affirmatively alleges that on February 6, 1983, victim Hung Quy Chu

12 pulled his car across two lanes and collided with a car driven by the 26-year-old Petitioner. (Ex. 13 C, District Attorney's Summary of Offense at 1.) Police were called to the scene, and the

14 responding officer noticed no extensive damage to either of the cars. (Id.) The officer spoke 15 with both drivers, and noted that Petitioner did not seem particularly upset. (Id.) After the 16 officer completed the accident report, Petitioner asked him if he was going to arrest the victim. 17 (Id.) The officer explained that this was not normally done, and Petitioner returned to his car. 18 (Id.) The officer walked to a nearby corner to complete a diagram of the accident scene when he 19 heard two gunshots. (Id.) He saw Petitioner standing next to the driver's side door of the 20 victim's car, and observed Petitioner drop a .25 caliber handgun. (Id.) Petitioner put his hands 21 in the air and said, "That's right, I shot the son of a bitch." (Id.) The victim was found slumped

22 in the driver's set of his car with a bullet wound to his chest and arm. (Id.) Paramedics 23 unsuccessfully attempted to resuscitate the victim, and he died of his injuries. (Id. at 2.) 24 3. Respondent affirmatively alleges that according to Petitioner, he murdered the victim

25 because he was under a "lot of mental pressure." (Ex. D, Probation Officer's Report at 2.) 26 1. Petitioner also alleges that the Board's decision violates the terms of his plea agreement. However, because he did not exhaust this claim in the state courts, and because this Court did not 28 mention this claim in its Order to Show Cause, it will not be addressed in this pleading. 27
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4. Respondent affirmatively alleges that Petitioner has not participated in any self-help

2 activities or therapy since 2002. (Ex. B at 45; Ex. E, Postconviction Progress Report.) 3 Respondent further affirmatively alleges that Petitioner has not participated in vocational training

4 since 1987. (Ex. B at 32.) 5 5. Respondent affirmatively alleges that Petitioner lacked solid parole plans. (Ex. B at

6 22-25.) He did not have any job offers or leads, and offered only an undated letter from his 7 brother as proof of residential plans. (Id. at 28-29.) 8 6. Respondent affirmatively alleges that the Oakland Police Department opposed

9 Petitioner's release on parole. (Ex. B at 35-37.) 10 11 7. Respondent admits that on January 24, 2006, the Board determined that Petitioner would pose an unreasonable risk of danger to society or threat to public safety if released from

12 prison. (Ex. B at 44, 47.) The Board found that Petitioner's commitment offense was especially 13 cruel and callous, as Petitioner carried out the murder in a dispassionate manner with no

14 provocation, and killed the victim for an extremely trivial reason. (Id. at 44-45, 48.) The Board 15 also noted that Petitioner disregarded public safety by discharging his weapon on a public

16 thoroughfare, and that he had a clear opportunity to desist, but continued his criminal act. (Id. at 17 45.) In addition, the Board found that Petitioner had not sufficiently participated in self-help and 18 therapy, particularly given the nature of the crime, and that his vocation was outdated. (Id. at 4519 46.) The Board further determined that Petitioner lacked sufficient parole plans, and as required 20 by law, noted the opposition of the Oakland Police DepalLnent. (Id. at 46-47.) Finally, the 21 Board expressed concern about Petitioner's demeanor, as he presented himself as a tightly strung,

22 highly stressed individual, and the Board questioned whether Petitioner had adequately dealt with 23 his stress and anger management issues. (Id. at 48-49.) The Board commended Petitioner for his

24 positive work reports and noted that he had been disciplinary-free since 1998, but found that the 25 positive aspects of his behavior did not yet outweigh the negative, and denied parole for a period 26 of two years. (Id. at 45, 47.) 27 8. Respondent admits that on October 31, 2006, Alameda County Superior Court denied

28 Petitioner's petition for writ of habeas corpus, in which he alleged the same general causes of
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action as in the current petition, with the exception of the claim regarding violation of his plea

2 bargain. (Ex. F, Superior Court Petition and Denial. 2^) The court determined that "review of the 3 transcripts provided and documents pertaining to the January 20, 2006 hearing indicate that there 4 was no abuse of discretion by the Board." (Id. at 1.) The court found that "there was certainly 5 some evidence, including, but not limited to the committing offense, Petitioner's limited

6 programming while in custody, Petitioner's insufficient participation in self help and therapy 7 programs, Petitioner's lack of alternative parole plans, Petitioner's limited viable job skills 8 necessary to secure employment once released and the [B]oard's impression that Petitioner is in 9 need of additional one on one counseling to enable him to deal with stress and pressure." (Id.) 10 The court concluded that "nothing in the record . . . indicates that the Board's decision was 11 arbitrary or capricious, nor that Petitioner's equal protection or due process rights were violated,"

12 and denied the petition accordingly. (Id.) 13 9. Respondent admits that on December 6, 2006, the California Court of Appeal

14 summarily denied Petitioner's petition for writ of habeas corpus, in which he alleged the same 15 general causes of action as in the current petition, with the exception of the claim regarding 16 violation of his plea bargain. (Ex. G, Appellate Court Petition and Denial.) 17 10. Respondent admits that on June 20, 2007, the California Supreme Court denied

18 Petitioner's petition for writ of habeas corpus, in which he alleged the same general causes of 19 action as in the current petition, with the exception of the claim regarding violation of his plea 20 bargain. (Ex. H, Supreme Court Petition and Denial.) Thus, Respondent admits that Petitioner 21 has exhausted his state court remedies as to the claims raised in the current petition, with the

22 exception of the claim regarding violation of his plea bargain. Respondent denies that Petitioner 23 has exhausted his claims to the extent that they are more broadly interpreted to encompass any 24 systematic issues beyond the review of his 2006 parole denial. 25 26 27 2. To cut down on volume and avoid repetition, Respondent has omitted the exhibits attached to Petitioner's state court petitions. These exhibits can be provided upon the Court's 28 request.
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11. Respondent denies that Petitioner has a federally protected liberty interest in parole;

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hence, Petitioner fails to assert a basis for federal jurisdiction. Greenholtz v. Inmates of Neb.

2 Penal & Corr. Complex, 442 U.S. 1 (1979); Bd. of Pardons v. Allen, 482 U.S. 369, 374 (1987) 3 4 (no federal liberty interest without an expectation of early release); In re Dannenberg, 34 Cal. 4th 1061, 1087 (no expectation of early release in California); Sandin v. Connor, 515 U.S. 472, 484

5 (1995) (serving a contemplated sentence is not a significant or atypical hardship). Respondent 6 acknowledges that the Ninth Circuit came to the opposite conclusion in Sass v. California Board 7 of Prison Terms, 461 F.3d 1123 (9th Cir. 2006), but preserves the argument. 8 12. Respondent denies that the state court denials of habeas corpus relief were contrary to,

9 or involved an unreasonable application of, clearly established United States Supreme Court law, 10 or that the denials were based on an unreasonable interpretation of facts in light of the evidence 11 presented. Petitioner therefore fails to make a case for relief under the Anti-Terrorism and

12 Effective Death Penalty Act of 1996 (AEDPA). 13 13. Respondent affirmatively alleges that Petitioner had an opportunity to present his case

14 to the Board, and that the Board provided him with a detailed explanation as to why he was 15 denied parole. Thus, Petitioner received all process due under Greenholtz, the only clearly 16 established Supreme Court law regarding the due process rights of inmates at parole 17 consideration hearings. 18 14. Respondent affirmatively alleges that the Board conducted an individualized

19 assessment of Petitioner's parole suitability and considered all relevant and reliable evidence 20 before it. Respondent denies that the Board relied on illegal evidence to deny parole. 21 15. Respondent denies that this Court must review Petitioner's parole denial under the
U.S. ,

22 some-evidence standard. In Carey v. Musladin,

127 S. Ct. 649, 653 (2006), the

23 United States Supreme Court emphasized that under AEDPA, only Supreme Court holdings 24 regarding the specific issue presented may be used to overturn valid state court decisions. As no 25 clearly established Supreme Court law provides that a parole denial must be supported by some

26 evidence, this Court need not review the current matter under the some-evidence standard. 27 16. Respondent affirmatively alleges that if the some-evidence standard does apply to the

28 review of parole denials, the proper standard is that found in Superintendent v. Hill, 472 U.S.
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445, 455 (1985), which requires that only a "modicum of evidence" support the Board's decision

2 to deny parole. Respondent affirmatively alleges that under this standard, some evidence 3 4 supports the Board's parole denial. 17. Respondent denies that this Court must make an independent determination of whether

5 Petitioner currently poses an unreasonable risk of danger to society in order to uphold the state 6 court decisions denying parole. 7 18. Respondent denies that the Board relied on immutable factors to deny parole.

8 Respondent affirmatively alleges that the Board properly considered the gravity of Petitioner's 9 commitment offense, as required under California Penal Code section 3041(b) and California 10 Code of Regulations title 15, sections 2402(b), (c)(1)-(2). Respondent further affirmatively 11 alleges that federal due process does not preclude the Board from relying on static factors to deny

12 parole. Sass, 461 F.3d at 1129. 13 19. Respondent denies that the Board has a no-parole policy. Respondent affirmatively

14 alleges that Petitioner fails to provide any evidence that his parole denial is the result of such a 15 policy. 16 20. Respondent denies that the Board violated Petitioner's due process rights by denying

17 parole at his 2006 hearing. 18 21. Respondent admits that Petitioner's claims are timely under 28 U.S.C. § 2244(d)(1),

19 and that the petition is not barred by the non-retroactivity doctrine. 20 21 22. Respondent denies that an evidentiary. hearing is necessary in this matter. 23. Respondent affirmatively alleges that Petitioner fails to state or establish any grounds

22 for habeas corpus relief. 23 24. Except as expressly admitted above, Respondent denies, generally and specifically,

24 each allegation of the Petition, and specifically denies that Petitioner's administrative, statutory, 25 26 or constitutional rights have been violated in any way. Accordingly, Respondent respectfully requests that the petition for writ of habeas corpus be

27 denied. 28 ///
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MEMORANDUM OF POINTS AND AUTHORITIES ARGUMENT I. THE STATE COURT'S DENIAL OF PETITIONER'S HABEAS CLAIM WAS NOT CONTRARY TO OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW, NOR BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS. Under AEDPA, when a state inmate's claim has been adjudicated on the merits in state

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court, a federal court may grant a writ of habeas corpus on the same claim only if the state court's

9 adjudication was either (1) "contrary to, or involved an unreasonable application of, clearly 10 established Federal law, as determined by the Supreme Court of the United States;" or (2) "based 11 on an unreasonable determination of the facts in light of the evidence presented at the State Court

12 proceeding." 28 U.S.C. § 2254(d)(1-2). 13 "Clearly established federal law, as determined by the Supreme Court of the United States,"

14 refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time 15 of the relevant state-court decision." Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000). A

16 state court decision is contrary to established federal law if "the state court applies a rule that 17 contradicts the governing law set forth in [United States Supreme Court] cases," or "the state 18 19 court confronts a set of facts that are materially indistinguishable from a decision of [the United States Supreme] Court and nevertheless arrives at a result different from [the Court's]

20 precedent." Lockyer v. Andrade, 583 U.S. 63, 73 (2003) (citations and internal quotation marks 21 omitted). A state court decision is an unreasonable application of clearly established law "if the

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

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

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

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

6 judgment. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). In this case, the last reasoned 7 decision is the Alameda Superior Court's October 31, 2006 decision denying habeas relief. (Ex. 8 F.) As this decision is neither contrary to, or an unreasonable application of, clearly established 9 federal law, nor based on an unreasonable interpretation of the facts, Petitioner's claim for 10 habeas relief must be denied. 11 12 13 The first standard under AEDPA is that a state court habeas decision must not be contrary A. The State Superior Court Decision Was Not Contrary to or an Unreasonable Interpretation of Clearly Established Federal Law.

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

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

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

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

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

2 the Board. Although he refused to discuss his commitment offense, he told the Board about his 3 in-prison activities, his job, and his self-help activities. (Ex. B at 3, 8-15.) The Board examined 4 Petitioner's psychological evaluation, and Petitioner discussed how his years in prison had 5 changed his way of thinking. (Id. at 15-18.) Petitioner also spoke of his desire to resume work

6 in the aviation field, and to talk with young people about crime in the community. (Id. at 20-21.) 7 Petitioner then discussed his parole plans and presented the Board with his letters of support. (Id. 8 at 22-32.) Finally, both Petitioner and his attorney had the opportunity to make a closing

9 statement, detailing the reasons why Petitioner should be found suitable for parole. (Id. at 3810 43.) 11 When the Board reconvened after a short recess, it provided Petitioner with a thorough

.12 explanation as to why he was denied parole. (Ex. B at 44-50.) The Board based its decision on 13 the callous nature of the commitment offense, noting its dispassionate nature and trivial motive,

14 as well as Petitioner's failure to sufficiently participate in vocational and self-help activities. 15 (Id.) The Board also expressed concern at Petitioner's presentation, as he appeared to be very

16 stressed and uptight. (Id. at 48.) The Board commended Petitioner for his good work reports and 17 his disciplinary-free behavior, but found that the positive aspects of his behavior did not 18 outweigh the factors indicating parole unsuitability. (Id. at 44-45.) 19 Thus, because Petitioner received an opportunity to present his case and an explanation as

20 to why the Board denied him parole-and does not claim otherwise-he received all process due 21 under Greenholtz, the only clearly established Supreme Court law regarding due process at

22 parole consideration hearings. Accordingly, the state court decisions upholding the Board's 23 parole denial are not contrary to, or an unreasonable application of, clearly established federal 24 law. 25 /// 26 /// 27 /// 28
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2.

The Ninth Circuit's some-evidence test is not clearly established Supreme Court law.

Petitioner states that this Court must determine whether some evidence supports the

4 Board's decision to deny parole. However, the some-evidence standard is not the proper 5 standard of federal judicial review. In Greenholtz, the Supreme Court specifically rejected the

6 idea that a parole board must specify particular evidence in the inmate's file or at his interview to 7 8 9 support its decision, as that would transform the parole process into an adversarial proceeding and equate the denial of parole to a guilty verdict. Thus, as a matter of clearly established Supreme Court law, a challenge to a parole decision will fail if the inmate has received the

10 protections required under GreenholtzY 11 The Ninth Circuit, however, has erroneously determined that clearly established federal

12 law requires that a parole decision be supported by some evidence. Jancsek v. Oregon Board of 13 Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 14 2002). This standard stems from the decision in Hill, in which the United States Supreme Court 15 determined that some evidence must support the decision of a prison disciplinary board to revoke

16 good time credits. 472 U.S. at 455. In Jancsek, McQuillion, and subsequent cases, the Ninth 17 Circuit held that the some-evidence standard applies not only in the disciplinary context, but the

18 parole context as well. Id. However, because these holdings are not clearly established federal 19 law under AEDPA standards, they do not apply in federal habeas proceedings which challenge 20 parole denials. 21 22 23 In Carey v. Musladin, U.S. , 127 S. Ct. 649, 653 (2006), the United States

Supreme Court reiterated that for AEDPA purposes, "clearly established federal law" refers only to the holdings of the Supreme Court on the specific issue presented. In Musladin, the Ninth

24 Circuit held that under clearly established federal law, courtroom spectators who wore buttons 25 26 3. The Supreme Court has cited Greenholtz approvingly for the proposition that the "level of process due for inmates being considered for release on parole includes an opportunity to be heard 27 and notice of any adverse decision" and noted that Greenholtz remained "instructive for [its] discussion of the appropriate level of procedural safeguards." Wilkinson v. Austin, 545 U.S. 2384, 28 2397 (2005).
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depicting the victim of a murder inherently prejudiced the murder defendant and denied him a

2 fair trial. Id. at 652. In doing so, the court determined that the prejudice tests used by the 3 Supreme Court in two similar but factually distinct cases constituted clearly established federal

4 law for the purposes of AEDPA. Id. The Supreme Court, however, reversed the Ninth Circuit's 5 6 decision upon review, holding that the highest court had "never addressed a claim that privateactor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial."

7 Id. at 653. Hence, the Musladin court made it clear that circuit courts may not import a federal 8 standard used for one set of circumstances into a different set of circumstances under the guise of

9 "clearly established federal law." 10 11 The Ninth Circuit has affirmed this principle in a number of recent cases. For instance, in Foote v. Del Papa, 492 F.3d 1026, 1029-30 (9th Cir. 2007), the court affirmed the district court's

12 denial of a petition alleging ineffective assistance of appellate counsel based on an alleged 13 conflict of interest because no Supreme Court case has held that such an irreconcilable conflict

14 violates the Sixth Amendment. Similarly, in Nguyen v. Garcia, 477 F.3d 716 (9th Cir. 2007), the 15 court upheld a state court's decision finding that Wainwright v. Greenfield, 474 U.S. 284 (1986)

16 did not apply to a state court competency hearing on the ground that the Supreme Court had not 17 held yet applied Wainwright in this manner. Id. at 718, 727. Finally, Crater v. Galaza, 491 F.3d 18 1119, 1126, n. 8 (9th Cir. 2007), cited Musladin in acknowledging that decisions by courts other

19 than the Supreme Court are "non-dispositive" under AEDPA standards. 20 21 The Jancsek and McQuillion courts, however, did exactly what the Musladin court warned against-they took the some-evidence standard from the prison disciplinary context and

22 applied it to an entirely different situation. Although both prison disciplinary hearings and parole 23 consideration decisions affect the duration of an inmate's confinement, the two situations are not

24 identical. Specifically, prison disciplinary hearings involve a finding of guilt, meaning that the 25 process due in disciplinary hearings is greater than that required in parole hearings. Greenholtz, 26 442 U.S. at 15-16. Thus, the Jancsek and McQuillion courts erred in determining that the some27 evidence standard should apply in the parole hearing context, and subsequent courts have erred in 28 holding that this standard is clearly established federal law for the purposes of AEDPA. See
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1 Irons v. Carey, 505 F.3d 846 (9th Cir. 2007); Sass, 461 F.3d 1123; Biggs v. Terhune, 334 F.3d 2 910 (9th Cir. 2003). 3 Any argument that due process requires a less deferential standard of review is without

4 merit. Neither the some-evidence standard nor any more stringent standard is necessary to 5 protect Petitioner's due process rights, as three California courts have already evaluated the 6 substantive merits of his claims. (Exs. F, G, H.) Therefore, the absence of substantive review 7 under AEDPA does not diminish Petitioner's due process rights-it merely defers to the state 8 court's evaluation of those rights, consistent with AEDPA's stated purpose of "further[ing] 9 comity, finality, and federalism." Miller-El v. Cockrell, 573 U.S. 322, 337 (2003). Thus, neither 10 the some-evidence standard of review nor any higher standard is necessary at the federal level to 11 12 13 protect Petitioner's substantive due process rights. Greenholtz is the only United States Supreme Court authority describing the process due at a parole consideration hearing. As such, Petitioner is entitled to only those protections

14 provided in Greenholtz. Because he received these protections, the state court decisions 15 upholding his parole denial are not contrary to clearly established federal law. 16 17 18 Even if the some-evidence standard is clearly established federal law for AEDPA 3. Even if the some-evidence standard was clearly established federal law, the standard was correctly applied by the state courts.

19 purposes, Petitioner's claim would nonetheless fail because the state court correctly applied the 20 standard. The some-evidence standard "does not require examination of the entire record, 21 independent assessment of the credibility of witnesses, or weighing of the evidence;" rather, it is

22 satisfied if there is "any evidence in the record that could support the conclusion reached by the 23 [B]oard." Hill, 472 U.S. at 455-57; see also Sass, 461 F.3d at 1129 (stating that "Hill's some

24 evidence standard is minimal"). 25 The evidence used by the Board to deny parole was the egregious nature of Petitioner's

26 crime, his failure to participate in self-help or vocational training, his lack of viable parole plans, 27 and his manner during the hearing. (Ex. B, 44-50.) After getting into a minor traffic collision 28 with the victim, and while a police officer was present and investigating the collision, Petitioner
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returned to his car, obtained a gun, approached the victim's car, and without provocation, shot

2 the defenseless victim through the driver's side window. (Ex. C at 1.) Although he claimed the 3 murder was the result of an inability to deal with stress, he has not participated in any self-help

4 activities since 2002, and the Board noted with concern that he continued to present an uptight, 5 tightly-strung demeanor. (Ex. Bat 48; Ex. D at 2.) In addition, Petitioner failed to provide the 6 Board with any job leads or offers, had not pursued vocational training since 1987, and lacked 7 8 any verified housing arrangements. (Ex. B at 22-29, 32.) This led the state court to find that "there was certainly some evidence" to support the Board's parole denial. Thus, to the extent

9 that the some-evidence test in Superintendent v. Hill is clearly established federal law, it was 10 reasonably applied by the state courts, and Petitioner's claim to the contrary must be denied. 11 12 13 4. The Board may rely on static factors to deny parole.

Petitioner also argues that due process precludes the Board from relying solely on his commitment offense to deny parole. This argument fails for a number of reasons. First, the

14 Board did not rely solely on the facts of the commitment crime to deny parole; rather, the Board 15 based its decision on Petitioner's demeanor, as well as his failure to upgrade vocationally, pursue 16 self-help, or obtain reasonable parole plans. (Ex. B at 44-50.) All of these are dynamic factors 17 under Petitioner's control. Second, no clearly established Supreme Court law provides that the 18 Board cannot base a parole denial on the factors of an inmate's commitment offense. Third, 19 California's parole provisions explicitly state that parole may be denied based on the egregious

20 nature of the crime. For instance, California Penal Code section 3401 states that Board "shall set 21 a release date unless it determines that the gravity of the current convicted offense or offenses, or

22 the timing and gravity of current or past convicted offense or offenses, is such that consideration 23 of the public safety requires a more lengthy period of incarceration." Similarly, California Code

24 of Regulations title 15, section 2402(c)(1), provides that a crime committed "in an especially 25 heinous, atrocious, or cruel manner" is a factor tending to indicate parole unsuitability. Finally, 26 the California Supreme Court held in Dannenberg that the Board may rely solely on the 27 28 circumstances of the commitment offense to deny parole. 34 Cal. 4th at 1094. Thus, under both state law and clearly established federal law, the Board properly based its decision, in part, on
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Petitioner's commitment offense. The Ninth Circuit's holding in Biggs does not compel a different result. In Biggs, the

3 Ninth Circuit stated that the Board's continuing reliance on an unchanging factor to deny parole 4 "could result in a due process violation." Id. at 917. However, the Biggs court did not 5 definitively indicate that reliance on an unchanging factor necessarily violates due process, only

6 that it possibly could. Indeed, the court praised Biggs for being "a model inmate," and found that 7 the record was "replete with the gains Biggs has made," including a master's degree in business 8 administration. Id. at 912. Nonetheless, the court denied habeas relief because the Board's 9 decision to deny parole-which relied solely on the commitment offense-was supported by some 10 evidence. Id. at 917. 11 Most importantly, the statement in Biggs is merely circuit court dicta, and not clearly

12 established federal law sufficient to overturn a state court decision under AEDPA standards. The 13 Ninth Circuit has emphasized that Biggs does not contain mandatory language, and that "[u]nder 14 AEDPA, it is not our function to speculate about how future parole hearings could proceed." 15 Sass, 461 F.3d at 1129. The Sass court then rejected the argument that the Board's reliance on 16 "immutable behavioral evidence" to deny parole violated federal due process. Id. 17 18 The Ninth Circuit most recently addressed this issue in Irons. In overturning a district court grant of habeas corpus, the Ninth Circuit held that despite substantial evidence of the

19 inmate-petitioner's rehabilitation, the Board acted properly and did not abuse its discretion by 20 relying on the circumstances of the commitment offense to deny parole. Irons, 505 F.3d at 85221 22 23 853. Thus, the dicta from Biggs and its progeny do not prelude the Board from using circumstances of the commitment offense to deny parole, nor may this dicta be used to overturn a

24 valid state court decision. Accordingly, Petitioner fails to prove that the state court decision 25 denying parole is contrary to or an unreasonable application of clearly established federal law, 26 and the petition must be denied. 27 /// 28 ///
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B.

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

The second standard under AEDPA is that a state court habeas decision must be based on

4 a reasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(2). 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). Thus, in order to prevail on this claim, Petitioner would need to prove that it was objectively unreasonable for the state courts to conclude that the Board acted in accordance with due process and that some evidence supported the factual basis of the Board's parole denial. 10 Petitioner fails to meet this burden, as some evidence in the record supports the Board's finding; 11 furthermore, he does not provide any evidence to show that the Board's determination of parole

12 unsuitability violated federal due process. Petitioner may disagree with the Board's analysis, but 13 that is not sufficient to prove that the state court's decision was objectively unreasonable. Thus, 14 Petitioner fails to prove that the state court's factual determinations were unreasonable under 15 AEDPA standards, and the petition must be denied. 16 17 18 19 Finally, Petitioner argues that his parole denial is the result of the Board's systematic bias II. PETITIONER FAILS TO PROVE THAT THE BOARD IS SYSTEMATICALLY BIASED.

20 against granting parole to life term inmates. The only support Petitioner offers for this claim is a 21 set of unverified statistics showing that the Board denies parole to a large number of prisoners.

22 Petitioner has the burden of proving his allegations in a habeas corpus proceeding. Johnson v. 23 Zerbst, 304 U.S. 458, 468-69 (1938). His generalized grievance against an alleged and 24 unsubstantiated "anti-parole" policy is not sufficient evidence to meet this burden. Furthermore, 25 Petitioner's attorney expressly denied any objections to the members of the Board panel. (Ex. B 26 at 3.) Accordingly, Petitioner fails to provide sufficient evidence to support his claim of bias, 27 and the petition must be denied. 28 ///
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CONCLUSION Petitioner's disagreement with the Board's decision is not sufficient to overturn three valid state court decisions denying habeas relief. Rather, in order for his claim to succeed, he must prove that the state court holdings were contrary to, or an unreasonable application of, clearly established federal law, or that the decisions were based on an unreasonable determination of the facts. Petitioner fails to make such a showing. First, he received all process

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

9 the Board's decision is supported by some evidence of parole unsuitability. Finally, Petitioner 10 does not offer sufficient proof that the Board's decision was based on a systematic bias against 11 12 13 14 15 16 17 18 19 20 21 22 23 24
40206959.wpd

granting parole. Accordingly, the petition for writ of habeas corpus must be denied. Dated: January 22, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYA M. BINSACCA Supervising Deputy Attorney General

AMBER N. WIPFL R Deputy Attorney General Attorneys for Respondent Warden B. Curry

25 26 27 28

SF2007200882

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CERTIFICATE 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 January 22, 2008, I served the following documents: Dyson v. Curry C07-4955 MJJ

ANSWER TO ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES (W/EXHIIBITS A-H)
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: Harold D. Dyson C-80683 Correctional Training Facility P.O. Box 686 Soledad, CA 93960-0686 In Pro Se C-80683

Electronic Mail Notice List
I have caused the above-mentioned document to be electronically served on the following person, who is currently on the list to receive e-mail notices for this case:

NONE

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Manual Notice List
The following are those who are not on the list to receive e-mail notices for this case (who therefore require manual noticing): Harold D. Dyson C-80683 Correctional Training Facility P.O. Box 686 Soledad, CA 93960-0686 In Pro Se C-80683

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 January 22, 2008, at San Francisco, California.

S. Redd Declarant
SF2007200882
40208839.wpd

Signature

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