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 DENISE A. YATES, State Bar No. 191073 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5531 Fax: (415) 703-5843 Email: [email protected] Attorneys for Respondent Robert L. Ayers, Jr., Warden at San Quentin State Prison SF2008400405 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

JERRY L. SULLIVAN, Petitioner, v. ROBERT L. AYERS JR., Warden, Respondent.

No. C 07-4963 VRW (PR) RESPONDENT'S ANSWER . TO THE ORDER TO SHOW CAUSE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION Petitioner Jerry Sullivan (C-66878) is a California state prisoner proceeding pro se in this

23 habeas corpus matter in which he challenges the Board of Parole Hearings' July 21, 2006 ' 24 decision denying him parole. -l This Court found cognizable Sullivan's due process claim that the 25 Board's decision was not supported by some evidence in the record. (Order to Show Cause 2.) 26 1. A proper habeas respondent is the person having custody of the petitioner, such as the 27 warden. Rules Governing § 2254 Cases, Rule 2(a). But because the actions complained of in this 28 Petition concern a parole consideration hearing, "the Board" and "Respondent" will be used interchangeably for convenience only.
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Sullivan generally challenges how the Board weighed the evidence, but weighing the

2 evidence is within the Board's exclusive discretion. Further, assuming the some-evidence .3 standard applies, some evidence supports the Board's decision denying Sullivan parole. Thus,

4 the state court's denial of his state habeas petition was not an unreasonable application of United 5 6 7 8 States Supreme Court law, and this Court should deny the Petition. ANSWER Respondent Robert L. Ayers Jr., Warden at San Quentin State Prison, as an Answer to the Order to Show Cause, states: 1. Sullivan is lawfully in the custody of the California Department of Corrections

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10 and Rehabilitation. (Ex. 1.) In January 1983, Sullivan pled guilty to two counts of kidnap for robbery with the use of a gun, for which he was sentence to life in prison with possibility of 12 parole. Sullivan also plead guilty to two counts of robbery, one count of attempted murder, and 13 one count of aggravated assault for which he was sentenced to a total consecutive term of seven

14 years. (Ex. 1.) 15 16 2. Sullivan does not challenge his conviction in this Petition. (Pet., Attached Page .

1.) Rather, Sullivan challenges the Board's decision denying him parole at his July 21, 2006

17 subsequent parole consideration hearing. (Pet., Attached Page 1.) 18 3. Respondent disagrees with the Ninth Circuit's decision in Sass v. California

19 Board of Prison Terms, 461 F.3d 1123, 1128 (9th Cir.2006), and denies that Sullivan has a 20 liberty interest in parole. Greenholtz v. Inmates ofNeb. Penal & Corr: Complex, 442 U.S. 1, 12 21 (1979) (finding that a convicted person does not have a federally protected liberty interest in

22 parole release unless the state creates the interest through the "unique structure and language" of 23 its parole statutes, thereby giving inmates an expectancy in parole release); In re Dannenberg, 34 24 Cal. 4th 1061, 1087-88 (2005) (clarifying that under California Penal Code section 3041, the 25 setting of a parole release date is neither mandatory nor presumed); see also Sandin v. Conner, 26 515 U.S. 472,484 (1995) (finding that an inmate's constitutional liberty interest is "generally 27 limited to freedom from restraint which ., . . imposes atypical and significant hardship on the 28 inmate in relation to the ordinary incidents of prison life"). Accordingly, Respondent preserves
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the argument that because Sullivan is not in custody in violation of federal law, he has not

2 alleged a federal question and this Court does not have subject matter jurisdiction to decide his 3 4 5 6 7 8 Petition. 28 U.S.C. § 2254(a). 4. Even if Sullivan has a federally protected liberty interest in parole, he received

all the process due under clearly established Supreme Court authority. Greenholtz, 442 U.S. at 16. As required by Greenholtz, Sullivan received an opportunity to be heard (e.g., Ex. 2 at8789), and the Board provided a decision informing Sullivan of the bases for denying him parole (Ex. 2 at 90-98). Sullivan also received timely notice of the hearing, and was represented by an

9 attorney at the hearing. (Ex. 2 at 11.) 10 11 12 5. Respondent denies that the Supreme Court has ever clearly established that a state

parole board's decision must be supported by some evidence. See Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) ("What matters are the holdings of the Supreme Court, not the

13 holdings of lower federal courts."); contra Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007). 14 Alternatively, the state courts correctly determined that some evidence supports the Board's July 15 21, 2006 decision. (See Ex. 2); Superintendent v. Hill, 472 U.S. 445, 455-56 (1985) (applying 16 the some-evidence standard to prison disciplinary hearings); In re Rosenkrantz, 29 Cal. 4th 616, 17 677 (2002); Dannenberg, 34 Cal. 4th at 1094-95. 18 6. r

At his tenth subsequent hearing (Ex. 3), the Board found that Sullivan's crimes

19 were a factor supporting his parole denial (Ex. 2 at 91). Sullivan and his crime partners, William ' 20 Buford and an unidentified man, executed an elaborate plan to kidnap for ransom a couple, Mr. 21 and Mrs. Reily. Sullivan and his crime partners met the Reilys, who showed them a house for

22 sale. (Ex. 2 at 13-14; Ex. 4 at 3-4.) Sullivan threatened the couple with a gun, drove them to 23 their house, and played a pre-recorded message demanding $150,000 and threatening the rape

24 and murder of Mrs. Reily. (Ex. 2 at 14; Ex. 4 at 4-6.) Sullivan and Buford accompanied the 25 Reilys to their bank, where Mrs. Reily was instructed to withdraw as much money as she could 26 while Mr. Reily was held hostage. (Ex. 2 at 15; Ex. 4 at 7-8.) In the bank, Mrs. Reily was able 27 to summon assistance and when the police arrived, Sullivan tried to escape in the car with Mr. 28 Reily. (Ex. 2 at 15; Ex. 4 at 7-8.) Sullivan crashed the car and after the crash, Sullivan tried to
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shoot Mr. Reily but the gun did not fire. (Ex. 2 at. 15-16; Ex. 4 at 8-9.) Sullivan then dragged

.2 Mr. Reily out of the car at gunpoint, tried to get away, and was soon arrested. (Ex. .2 at 16; Ex. 4 3 at 9.) Mr. Reily sustained a possible broken nose, moderate abrasions on both elbows,. and pain

4 to his ankles as a result of Sullivan dragging him through the bushes. (Ex. 4 at 9.) The Board 5 found that the crimes were calculated, especially cruel, and reflected an especially callous

6 disregard for human suffering. (Ex. 2 at 91.) In addition, the Board found that the motive for the 7 crimes, namely, acquiring money, was trivial considering Sullivan was merely living beyond his

8 means. (Ex. 2 at 22, 34-36, 51-52, 61, 91.) 9 7. In denying Sullivan parole, the Board advised Sullivan to firm up his parole

10 plans and suggested that Sullivan identify the Narcotics Anonymous and Alcoholics Anonymous 11 programs available where he would be released, as well as to secure a sponsor. (Ex. 2 at 94-97.)

12 The Board was validly concerned with Sullivan's ability to maintain his sobriety outside of 13 prison because the psychologist opined that Sullivan's alcohol abuse most likely "contributed to 14 the overall lack of judgment and erosion of the values with which he was raised." (Ex. 2 at 93; 15 Ex. 5 at 3; accord Ex. 4 at 2 [reflecting Sullivan's 1982 conviction for drunk driving].) In

16 addition, the Board questioned if the job offer Sullivan received in 2004 still existed. (Ex. 2 at 17 64-66, 94-95.) Finally, the Board noted the victim and the district attorney's opposition to 18 19 Sullivan's release. (Ex. 2 at p. 95; 8.
see also

Ex. 2 at 77-83.)

The Board commended Sullivan for his many accomplishments, behavior in

20 prison, and favorable psychological evaluation, but found that the positive aspects of his behavior 21 22 23 did not outweigh the factors of unsuitability. (Ex. 2 at 92-95, 97.) 9. Sullivan filed a habeas petition in the Contra Costa County Supenor Court

challenging his 2006 parole denial, in which Sullivan generally alleged the same claim

24 underlying this federal proceeding. (Ex. 6.) The superior court deferred to the Board's broad 25 discretion and found that the Board's reliance on the commitment offense was amply supported

26 by the evidence. (Ex. 7 at 7-9.) The superior court's decision was not an unreasonable 27 application of clearly established United States Supreme Court law. 28 10. On June 13, 2007 and June 26, 2007, Sullivan filed a petition for writ of habeas
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corpus in the appellate court and a petition for review in the California Supreme Court,

2 respectively. (Exs. 8, 10.) In both petitions, Sullivan generally alleged the same claim 3 underlying this federal proceeding. (Exs. 8, 10.) The appellate and supreme courts summarily 4 denied Sullivan's petitions on June 21, 2067 and September 12, 2007, respectively. (Exs. 9, 11.) 5 11. Respondent admits that Sullivan appears to have exhausted his claim that his due

6 process rights were violated because the Board's decision denying him parole was not supported 7 by some evidence in the record. Respondent does not admit that Sullivan has exhausted this 8 claim to the extent it can be more broadly interpreted. Respondent admits that the Petition does 9 not appear to be barred by any other procedural bar or by the non-retroactivity doctrine. 10 11 12 12. Sullivan fails to state or establish any grounds for federal habeas corpus relief.

28 U.S.C. § 2254(d). 13. Respondent denies that the Board failed to consider relevant and reliable

13 information favorable to Sullivan's suitability. (E.g., Ex. 2 at 92-95, 97.) Respondent further 14 denies that Sullivan has alleged specific facts in support of this allegation. James v. Borg, 24 15 F.3d 20, 26 (9th Cir. 1994); see also Rules Governing § 2254 Cases, Rule 2(c)(2) (requiring 16 petitioner to state the facts supporting each ground). 17 18 14. Respondent denies that the Board denied Sullivan parole based solely on

Sullivan's commitment offenses. (Ex. 2 at pp. 90-98.) Thus, Sullivan's reliance on the dicta in

19 Biggs v. Terhune, 334 F.3d 910, 917 (9th Cir. 2003), and the "particularly egregious" standard 20 established by the California Supreme Court is inapposite: 21 15. Respondent denies that no evidence supported the Board's finding that Sullivan's

22 crimes were calculated, especially cruel, and reflected an especially callous disregard for human 23 suffering. (E.g., Ex. 2 at 13-16; Ex. 4 at 3-9.) Respondent also denies that the Board found that

24 Sullivan's crimes were dispassionate. (Ex. 2 at 91.) Respondent further denies that any clearly 25 established United States Supreme Court law provides that a calculated crime is one which

26 involves premeditation, that Sullivan is not responsible for the actions of his cohorts, or that the 27 Board is prohibited from considering the actions`of Sullivan's cohorts when evaluating his parole 28 suitability. Respondent denies that describing Sullivan's crimes as "especially callous" equates
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to the crimes being "particularly egregious." See In re Dannenberg, 34 Cal. 4th at 1094-95. 16. Except as expressly admitted above, Respondent denies, generally and

specifically, every allegation of the Petition, including but not limited to Sullivan's claim that his

4 due process rights were violated because the Board's decision denying him parole was not supported by any evidence in the record. Respondent further denies that the Board acted arbitrarily and that Sullivan's administrative, statutory, or constitutional rights were violated, including his Fifth and Fourteenth Amendment rights to due process. Respondent respectfully requests that this Court deny the Petition for Writ of Habeas Corpus and discharge the Order to Show Cause. MEMORANDUM OF POINTS ANDAUTHORITIES ARGUMENT I. 13 14 15 SULLIVAN'S FEDERAL DUE PROCESS RIGHTS DO NOT REQUIRE APPLYING THE SOME-EVIDENCE STANDARD OF REVIEW BECAUSE THE SUPREME COURT HAS NOT ESTABLISHED THAT THAT STANDARD IS APPROPRIATE IN THE PAROLE CONTEXT.

The Ninth Circuit has held that the some-evidence standard governs parole cases, even

, 16 though the Supreme Court has never extended that test from disciplinary cases to parole cases. 17 See, e.g., Hayward v. Marshall, 512 F.3d 536, 542 (9th Cir. 2008); Irons v. Carey, 505 F.3d at 18 851; but see Musladin, U.S. , 127 S. Ct. 649, 654 (2006); Schriro v. Landrigan, U.S.

19 _, 127 S. Ct. 1933, 1942 (2007) (no federal habeas relief when the issue is an open question in 20 the Supreme Court's precedent); see also Wright v. Van Patten, 21 U.S. , 128 S. Ct. 743,

745-47 (2008) (per curiam) (reversing decision after having granted certiorari, vacated the

22 judgment, and remanded for further consideration in light of Musladin because "No decision of 23 this Court . . . squarely addresses the issue in this case" and, therefore relief under § 2254(d)(1) is.

24 "unauthorized"); Crater v. Galaza, 491 F.3d 1119, 1126 & n.8 (9th Cir. 2007) (citing Musladin, 25 the Ninth Circuit acknowledged that decisions by courts other than the Supreme Court are 26 "non-dispositive" under § 2254(d)(1)). Consequently, this Court should not grant the Petition . 27 based on a some-evidence analysis. 28 ////
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II. EVEN IF THE SOME-EVIDENCE STANDARD APPLIES, THE PETITION SHOULD BE DENIED BECAUSE THE STATE COURTS DID NOT UNREASONABLY APPLY THAT STANDARD. If this Court finds that the some-evidence standard applies, the state courts did not

5 unreasonably apply that standard. The Board's decision must have a factual basis, but that basis 6 need only consist of "some evidence." Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005). 7 This extremely deferential standard of review is satisfied if "there is any evidence in the record that could support the conclusion reached by the [executive decisionmaker]." Hill, 472 U.S. at 455-56. Consequently, the court does not independently examine the entire record or reweigh the evidence. Id. at 455; accord Sass, 461 F.3d at 1128. Here the superior court properly denied Sullivan's petition based on his crimes. (Answer 12 supra, ¶ 9.) The superior court did not specifically acknowledge the Board's reliance on 1-3 Sullivan's insufficient parole plans, or opposition by the victim and District Attorney's office.
If

14 (Answer supra, 15

7.) But this Court can still consider these factors because under AEDPA, this

Court's review only addresses whether the state court's decision, as opposed to its reasoning, is

16 an unreasonable application of federal Supreme Court law. Hernandez v. Small, 282 F.3d 1132, 17 18 1140 (9th Cir. 2002) (determining in habeas proceedings that "the intricacies of the state court's analysis need not concern us; what matters is whether the decision the court reached was contrary

19 to controlling federal law"). Moreover, the Board properly relied on these factors to deny parole. 20 Cal. Code Regs,; tit. 15, § 2402(b) & (c)(1); Cal. Penal Code §§ 3042(a) & (f)(3), 3043;5(b), 21 22 3046(c). In summary, the superior court did not unreasonably apply the some-evidence standard

23 because more than the modicum of evidence required by this standard exists in this case. Thus, 24 this Court should deny the Petition. 25 26 CONCLUSION Sullivan does not have a federally protected liberty interest in parole and, even if he does,

27 he received all the process due. Further, the some-evidence standard does not apply, but even if 28 it does, the state courts did not unreasonably apply that standard because some evidence supports
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the Board's decision denying Sullivan parole. Accordingly, this Court should deny the Petition. Dated: April 14, 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

DENISE A. YATES Deputy Attorney General Attorneys for Respondent Robert L. Ayers, Jr., Warden at San Quentin State Prison

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Sullivan v. Ayers

C 07-4963 VRW

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 14, 2008, I served the attached RESPONDENT'S ANSWER TO THE ORDER TO SHOW CAUSE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Jerry Sullivan, C-66878 San Quentin State Prison 1 Main Street San Quentin, CA 94964 In Pro Per I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on April 14, 2008, at San Francisco, California.

J. Palomino Declarant
40241032.wpd

Signature .