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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 JENNIFER A. NEILL 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]

9 Attorneys for Respondent 10 11 12 13 14 ELKIN GOMEZ, 15 Petitioner, 16 v. 17 B. CURRY, Warden, BOARD OF PRISON TERMS, 18 Respondents. 19 20 21 22 23 24 25 26 27 28
Answer and Supporting Memorandum of Points and Authorities
Gomez v. Curry

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION C 07-4833 MMC ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES Judge: The Honorable Maxine M. Chesney

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1 2 3 '4 5 6 7 A. 8 9 10 11 12 13 14 15 II. B.

TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION ARGUMENT I, GOMEZ HAS NOT SHOWN THAT HE IS ENTITLED TO RELIEF UNDER AEDPA. Gomez Has Not Shown that the State Court Decisions Was Contrary to Clearly Established Federal Law. Gomez Has Not Shown that the State Courts Unreasonably Applied Clearly Established Federal Law. 7 5 5 5 5

C. Gomez Has Not Shown that the State Court Decisions Were Based on an Unreasonable Determination of the Facts. GOMEZ HAS NOT SHOWN THAT THE BOARD FAILED TO CONSIDER THE STATUTORY CRITERIA FOR SETTING A PAROLE RELEASE DATE.

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III. GOMEZ HAS NOT SHOWN THAT THE BOARD DENIED HIM PAROLE BECAUSE HE IS AN ILLEGAL IMMIGRANT OR THAT THE DECISION VIOLATED HIS EQUAL PROTECTION RIGHTS.

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16 CONCLUSION 17 18 19 20 21 22 23 24 25 26 27 28
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1 2 Cases 3 Nguyen v. Garcia 4 477 F.3d 716 (9th Cir. 2007) 5 Baja v. Ducharme 187 F.3d 1075 (9th Cir. 1999) 6 Benny v. US. Parole Comm 'n 7 295 F.3d 977 (9th Cir. 2002)

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6 4 4 6, 7 5, 6 6, 7

8 Biggs v. Terhune 334 F.3d 910 (9th Cir. 2003) 9 Carey v. Musladin U.S. , 127 S. Ct. 649 (2007) 10 11 12 ·13 Duhaime v. Ducharme 200 F.3d 597 (9th Cir. 2000) Crater v. Galaza 491 F.3d 1119 (9th Cir. 2007)

1'4 Earp v. Ornoski 431 F.3d 1158 (9th Cir. 2005) 15 Foote v. Del Papa '16 492 F.3d 1026 (9th Cir. 2007) 17 18 Gutierrez v. Griggs 19 695 F.2d 1195 (1983) 20 Hayward v. Marshall 527 F.3d 797 (9th Cir. 2008) 21 In re Dannenberg 22 34 Cal. 4th 1061 (2005) 23 In re Rosenkrantz 29 Cal. 4th 616 (2002) 24 Irons v. Carey 25 505 F.3d 846 (9th Cir. 2007) 26 Johnson v. Zerbst 304 U.S. 458 (1938) 27 Langford v. Day 28 110 F.3d 1380 (9th Cir. 1984)
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Greenholtz v. Inmates of Neb. Penal & Corr. Complex 442 U.S. 1 (1979)

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TABLE OF AUTHORITIES (continued) 1 2 Lockyer v. Andrade 3 538 U.S. 63 (2003) 4 Middleton v. Cupp Cir. 1985) 768 F.2d 1083 (9th 5 Pulley v. Harris 465 U.S. 37 (1984) 6 Rose v. Hodges 7 423 U.S. 19 (1975) 8 Sandin v. Connor 515 U.S. 472 (1995) 9 Sass v. California Board of Prison Terms 10 461 F.3d 1123 (9th Cir. 2006) 11 Schriro v. Landrigan U.S., 127 S. Ct. 1933 (2007) 12 13 14 15 Superintendent v. Hill 472 U.S. 445 (1985) Wilkinson v. Austin 545 U.S. 209 (2005) Page .5, 7 9 4, 9

3, 6 3, 6 6 6-8 3,6,7 5, 7

Williams v. Taylor 16 529 U.S. 362 (2000) 17 Wright v. Van Patten 128 S. Ct. 743 (2008) U.S. 18 Ylst v. Nunnemaker 19 501 U.S. 797 (1991) 20 21 Statutes 22 United States Code, Title 28 § 2244(d)(1) § 2254 23 § 2254(a) § 2254(d) 24 § 2254(d)(1-2) § 2254(e)(1) 25 of 26 California Code (a) Regulations, Title 15 § 2281 § 2402 27 28
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TABLE OF AUTHORITIES (continued) 1 2 Other Authorities 3 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 4 5 6 7 8 9 10 11 12 13 14. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General JENNIFER A. NEILL 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]

9 Attorneys for Respondent 10 11 12 13 14 ELKIN GOMEZ, . 15 Petitioner, 16 v. 17 B. CURRY, Warden, BOARD OF PRISON TERMS, 18 Respondents. 19 20 21 22 23 As an Answer to the Petition for Writ of Habeas Corpus filed by inmate Elkin Gomez, Respondent, admits, alleges, and denies that: 1. Gomez is in the lawful custody of the California Department of Corrections and Judge: The Honorable . Maxine M. Chesney ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES C 07-4833 MMC IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

Rehabilitation following his 1988 conviction for kidnaping to commit robbery. (Order to Show

24 Cause at 1.) Gomez is serving a sentence of seven years to life in prison. (Id.) 25 26 2. In 2006, Gomez filed a petition for writ of habeas corpus in Los Angeles County

Superior Court, alleging that the Board of Parole Hearings' 2005 decision denying him parole

,27 violated his due process and equal protection rights. (Ex. A, Super. Ct. Pet.; Ex. B, Super. Ct. 28 Order.) Specifically, Gomez alleged that there was no evidence supporting the Board's parole
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denial, that the Board failed to consider the statutory criteria for setting a parole release date, '-

.2 and that the denial was based on his status as an illegal immigrant. The superior court denied the 3 petition, finding that there was some evidence in the record supporting the Board's finding that 4 the offense was carried out in a dispassionate and calculated manner, that the motive for the 5 crime was trivial in relationship to the offense, and that Gomez lacked remorse and

6 understanding regarding the nature and magnitude of his offense. (Ex. B at 1.) The Court also 7 found that the additional factors relied on by the Board to deny parole were supported by some 8 9 evidence (Id.) 3. Gomez then raised the same claims in petitions to the California Court of Appeal and

10 the California Supreme Court. (Ex. C, Ct. App. Pet.; Ex. D, Ct. App. Order; Ex. E, Sup. Ct. Pet; 11 12 13 Ex. F, Sup. Ct. Order.) Both petitions were summarily denied. (Ex. D; Ex. F.) 4. Respondent admits that Gomez exhausted his state court remedies regarding his claims

that there was no evidence supporting the Board's parole denial, that the Board failed to consider

14 the statutory criteria for setting a parole release date, and that the denial was based on his status 15 as an illegal immigrant. Respondent denies that Gomez has exhausted his claims to the extent

16 they are interpreted more broadly to encompass any systematic issues beyond this claim. 17 5. Respondent admits that the Petition is timely under 28 U.S.C. § 2244(d)(1).

18 Respondent admits that the Petition is not subject to any other procedural bar. 19 6. Respondent denies that Gomez is entitled to federal habeas relief under 28 U.S.C. §

20 2254 because the state court decisions were not contrary to, or an unreasonable application of 21 clearly established federal law as determined by the United States Supreme Court, or based on an' -

22 unreasonable determination of the facts. 23 7.

Respondent denies that Gomez has a federally protected liberty interest in parole and,

24 therefore, alleges that he has not a stated a federal question invoking this court's jurisdiction.. 25 The Supreme Court has not clarified the methodology for determining whether a state has created 26 1. Respondent interprets this claim as including Gomez's allegations that the Board has a predetermined, no-parole policy, that the Board's denial must be based on "new" evidence, and that 28 the Board failed to set a parole release date based on its regulatory matrices. 27
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a federally protected liberty interest in parole. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12 (1979) (liberty interest in conditional parole release date created by

'3 unique structure and language of state parole statute); Sandin v. Connor, 515 U.S. 472, 484 4 (1995) (federal liberty interest in correctional setting created only when issue creates an "atypical 5 or significant hardship" compared with ordinary prison life); Wilkinson v. Austin, 545 U.S. 209,

6 229 (2005) (Sandin abrogated Greenholtz's methodology for establishing the liberty interest). 7 California's parole statute does not contain mandatory language giving rise to a protected liberty 8 interest in parole under the mandatory-language approach announced in Greenholtz. In re 9 Dannenberg, 34 Cal. 4th 1061, 1087 (2005) (California's parole scheme is a two-step process 10 that does not impose a mandatory duty to grant life inmates parole before a suitability finding). 11 And continued confinement under an indeterminate life sentence does not impose an "atypical or

12 significant hardship" under Sandin since a parole denial does not alter an inmate's sentence, 13 impose a new condition of confinement, or otherwise restrict his liberty while he serves his

14 sentence. Thus, Respondent asserts that Gomez does not have a federal liberty interest in parole 15 under either Greenholtz or Sandin. Respondent acknowledges that in Sass v. California Board of 16 Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006) the Ninth Circuit held that California's parole 17 statute creates a federal liberty interest in parole under the mandatory-language analysis of 18 Greenholtz, but preserves the argument, which is pending en bane in Hayward v. Marshall, 527 .

19 F.3d 797 (9th Cir. 2008). 20 21

8. . Even if Gomez has a federal liberty interest in parole, he received all due process to which he is entitled under clearly established federal law because he was provided with an

22 opportunity to be heard and a statement of reasons for the Board's decision. Greenholtz, 442 23 U.S. at 16. 24 9. Respondent denies that the some-evidence test is clearly established federal law in the

25 parole context. 26 10. Respondent denies that the Board's 2005 decision violated Gomez's federal due

27 process rights. 28 11. Respondent denies that the Board failed to consider the statutory criteria for setting a
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parole release date. Moreover, Respondent alleges that Gomez fails to present a federal question 2 when he contends that the state courts improperly applied or interpreted state law. Alleged errors 3 in the application of state law are not cognizable in federal habeas corpus. Pulley v. Harris, 465

4 U.S. 37, 41 (1984); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1984). 5 12. Respondent denies that the parole denial was based on his status as an illegal immigrant

6 or that it violated his equal protection rights. 7 8 13. Respondent submits that an evidentiary hearing is not necessary because the claims can be resolved on the existing state court record. Baja v. Ducharme, 187 F.3d 1075, 1078 (9th

9 Cir. 1999). 10 11 14. Respondent denies that Gomez is entitled to an order requiring that the Board set a release date. Gomez's remedy is limited to the process that is due, which is a new review by the

12 Board comporting with due process. See Benny v. US. Parole Comm 'n, 295 F.3d 977, 984-85 . 13 (9th Cir. 2002) (a liberty interest in parole is limited by the Board's exercise of discretion, and a

14 due process error does not entitle an inmate to a favorable parole decision). 15 16 15. Gomez fails to state or establish any grounds for habeas corpus relief 16. Except as expressly admitted in this Answer, Respondent denies the allegations of the

17 Petition. 18 /// 19 /// 20 /// 21 /// .

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Gomez claims that the Board's 2005 decision finding him unsuitable for parole violated his

4 due process rights. But Gomez merely alleges a disagreement with the Board's decision, and 5. fails to establish that the state court decisions denying his due process claims were contrary to, or 6 7 8 9 10 11 12 13 14 Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a federal court an unreasonable application of clearly established federal law as determined by the United States Supreme Court,. or were based on an unreasonable determination of the facts. Moreover, as to his other claims, Gomez fails to state any grounds for federal habeas relief. Thus, Gomez's Petition should be denied. ARGUMENT I. GOMEZ HAS NOT SHOWN THAT HE IS ENTITLED TO RELIEF UNDER AEDPA.

15 may not grant a writ of habeas corpus unless the state court's adjudication was either: 1) 16 "contrary to, or involved an unreasonable application of, clearly established Federal law, as 17 determined by the Supreme Court of the United States;" or 2) "based on an unreasonable r 18 determination of the facts in light of the evidence presented at the State Court proceeding." 19 28 U.S.C. § 2254(d)(1-2). Gomez has not demonstrated that he is entitled to relief under this 20 standard. 21 22 23 As a threshold matter, the Court must decide what, if any, "clearly established Federal law" A. Gomez Has Not Shown that the State Court Decisions Was Contrary to Clearly Established Federal Law.

24 applies. Lockyer v. Andrade, 538 U.S. 63, 71 (2003). In making this determination, the Court 25 may look only to the holdings of the United States Supreme Court governing at the time of the 26 state court's adjudication. Carey v. Musladin, 27 28
U.S. ,

127 S. Ct. 649, 653 (2007) (quoting

Williams v. Taylor, 529 U.S. 362 (2000)). The only case in which the Supreme Court has addressed the process due in state parole proceedings is Greenholtz. Greenholtz, 442 U.S. 1.
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The Supreme Court there held that due process is satisfied when the state provides an inmate an

2 opportunity to be heard and a statement of the reasons for the parole decision. Id. at 16. "The 3 Constitution does not require more." Id. zl No other Supreme Court holdings require more at a

4 parole hearing. 5 Gomez does not contest that he received the Greenholtz protections. (See generally Pet.) Because Greenholtz was satisfied and Greenholtz is the only Supreme Court authority regarding an inmate's due process rights during parole proceedings, the state court decision upholding the Board's decision was not contrary to clearly established federal law. Thus, the Petition should be denied. 10 11 12 13 Although Gomez alleges that the Board's decision must be supported by some evidence, there is no clearly established federal law applying this standard to parole decisions. The Supreme Court has held that under AEDPA a test announced in one context is not clearly established federal law when applied to another context. Wright v. Van Patten, U.S. 128

14 S. Ct. 743, 746-47 (2008); Schriro v. Landrigan, 15

U.S., 127 S. Ct. 1933 (2007);_Musladin,

127 S. Ct. at 652-54; see also, Foote v. Del Papa, 492 F.3d 1026, 1029 (9th Cir. 2007); Nguyen

16 v. Garcia, 477 F.3d 716, 718, 727 (9th Cir. 2007); Crater v. Galaza, 491 F.3d 1119, 1122 (9th 17 18 Cir. 2007). The. Supreme Court developed the some-evidence standard in the context of a prison disciplinary hearing, Superintendent v. Hill, 472 U.S. 445, 457 (1985), which is a fundamentally

,19 different context than a parole proceeding. Because the tests and standards developed by the 20 21 Supreme Court in one context cannot be transferred to distinguishable factual circumstances for AEDPA purposes, it is not appropriate to apply the some-evidence standard of judicial review to

22 parole decisions. 23 Thus, the Ninth Circuit's application of the some-evidence standard to parole decisions is

24 improper under AEDPA. See, e.g., Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003); Sass, 461 25 2. 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, although Sandin abrogated Greenholtz's methodology for establishing the liberty interest, Greenholtz remained "instructive for [its] 28 discussion of the appropriate level of procedural safeguards." Austin, 545 U.S. at 229. 26
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F.3d at 1128; Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007). Moreover, AEDPA does not

2 permit relief based on circuit caselaw. Crater, 491 F.3d at 1123, 1126 (§ 2254(d)(1) renders 3 4 5 decisions by lower courts non-dispositive for habeas appeals); Earp v. Ornoski, 431 F.3d 1158, 1182 (9th Cir. 2005) ("Circuit court precedent is relevant only to the extent it clarifies what constitutes clearly established law." . . ."Circuit precedent derived from an extension of a

6 Supreme Court decision is not clearly established federal law as determined by the Supreme 7 Court."); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000). Therefore, the Ninth 8 Circuit's use of the some-evidence standard is not clearly established federal law and is not

9 binding on this Court. 10 11 Similarly, Gomez's related claim that the Board's reliance on the immutable factor of his commitment offense violates due process finds no support in Supreme Court precedent.

12 Although the Ninth Circuit has suggested that this might amount to an additional due process 13 claim, Biggs, 334 F.3d at 917, because there is no clearly established federal law precluding

14 reliance on unchanging factors federal habeas relief is not available. 28 U.S.C. § 2254(d). 15 In sum, the only clearly established federal law setting forth the process due in the parole

16 context is Greenholtz. Gomez does not allege that he failed to receive these protections. 17 Therefore Gomez has not shown that the state court decisions denying habeas relief were 18 19 20 21 Habeas relief may only be granted based on AEDPA's unreasonable-application clause contrary to clearly established federal law. B. Gomez Has Not. Shown that the State Courts Unreasonably Applied Clearly Established Federal Law.

22 where the state court identifies the correct governing legal rule from Supreme Court cases but 23 unreasonably applies it to the facts of the particular state case. Williams, 529 U.S. at 406. The ; . 24 petitioner must do more than merely establish that the state court was wrong or erroneous. Id. at 25 410; Lockyer, 538 U.S. at 75. Respondent recognizes that the Ninth Circuit applies the some26 evidence standard as clearly established federal law, but even accepting that premise, Gomez is 27 not entitled to federal habeas relief. Indeed, the California Supreme Court has adopted Hill's 28 some-evidence test as the judicial standard to be used in evaluating parole decisions, In re
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Rosenkrantz, 29 Cal. 4th 616 (2002), and Gomez has not shown that the state courts

2 unreasonably applied the standard. 3 Here, the superior court issued a reasoned decision finding that the facts of Gomez's

4 commitment offense, the trivial motive for his crime, and evidence that he lacked remorse and 5 understanding regarding the nature and magnitude of his offense was some evidence to support 6 denying him parole. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991) (federal court looks to the 7 last reasoned state court decision as the basis for the state court judgment); (Ex. B at 1-2.) 8 Although Gomez invites the Court to re-examine the facts of his case and re-weigh the

9 evidence presented to the Board, there is no Supreme Court law permitting this degree of judicial 10 intrusion. Indeed, the Supreme Court has recognized the difficult and sensitive task faced by the 11 Board in evaluating the advisability of parole release. Greenholtz, 442 U.S. at 9-10. Thus,

12 contrary to Gomez's belief that he should be paroled based on the evidence in support of his 13 parole (see generally, Pen.), the Supreme Court has stated that in parole release, there is no set of 1.4 facts which, if shown, mandate a decision favorable to the inmate. Id. Thus, the state court 15 reasonably applied the minimal some-evidence test. Hill, 472 U.S. at 457. 16 17 18 Under § 2254(d)(2), habeas corpus can not be granted unless the state courts' decisions . C. Gomez Has Not Shown that the State Court Decisions Were Based on an Unreasonable Determination of the Facts.

19 were based on an unreasonable determination of the facts in light of the evidence presented in the 20 state court. The state court's factual determinations are presumed to be correct, and the petitioner 21 has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. §

22 2254(e)(1). 23 Although Gomez alleges that the Board's decision is not supported by the evidence, he

24 does not show that the state court made factual errors. The superior court found that there was 25 some evidence in the record supporting the Board's,finding that Gomez's offense was carried out

26 ina dispassionate and calculated manner and that the motive for the crime was very trivial in 27 relationship to the offense. (Ex. B at 1.) The court also noted that the Board was concerned with 28 Gomez's truthfulness regarding his involvement in the crime because, although Gomez testified
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that he merely acted as an interpreter, there was evidence that he made statements showing

2 "initiative and freedom of action" during the crime, and that he admittedly had been involved in 3 4 the drug trade since his first illegal entry into the United States in the 1980's. (Id. at 2.) The Court noted that Gomez's version of the crime was some evidence that he lacked remorse and

5 understanding regarding the nature and magnitude of his offense. (Id.) Finally, the Court found 6 that there was some evidence supporting the other factors cited by the Board to deny parole. (Id. 7 8 at 1.) Thus, for the foregoing reasons, Gomez has not alleged by clear and convincing evidence

9 that the factual determinations are incorrect. Gomez simply disagrees with the weight the Board 10 assigned to the evidence. This disagreement does not entitle Gomez to federal habeas relief. 11 12 13 14 II. GOMEZ HAS NOT SHOWN THAT THE BOARD FAILED TO CONSIDER THE STATUTORY CRITERIA FOR SETTING A PAROLE RELEASE DATE. Gomez did not show that the Board failed to consider the statutory criteria for setting a

15 parole release date in violation of his federal due process rights. 16 17 18 19 First, Gomez fails to allege a federal claim to the extent his allegations are based on a construction of the state statutes and regulations regarding the manner in which the parole authority determines suitability for parole. Accordingly, his claims are predicated on state law and not cognizable in federal habeas corpus. 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19,

20 21 (1975); Gutierrez v. Griggs, 695 F.2d 1195, 1197-98 (1983). Moreover, even if Gomez is 21 22 23 alleging that the state court erroneously rejected these claims, a federal court may not challenge a state court's interpretation or application of state law, Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), or grant relief "on the basis of a perceived error of state law." Pulley v. Harris,

24 465 U.S. 37, 41 (1984). 25 Second, Gomez's allegation that the Board failed to set a parole release date based on the

26 regulatory matrices fails because there is no United States Supreme Court law mandating that a 27 release date be calculated before an inmate is found suitable for parole. Indeed, while the 28 Board's regulations set forth a matrix of factors used in setting a parole date (Cal. Code Regs., tit.
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15, § 2402), they also specify that the matrix is invoked only after a life inmate is "found suitable 2 for parole." (Id. at § 2402 (a), § 2281 (a).) Similarly, there is no United States Supreme Court 3 law requiring that the Board's parole denial be based only on "new" evidence. Accordingly,

4 Gomez cannot state a claim for relief under AEDPA. 5 Finally, Gomez has not shown any evidence that the Board's decision denying him parole

6 was based on a predetermined, no-parole policy. Gomez's general allegations are insufficient to 7 prove that the Board was biased or that it has a no-parole policy. See Johnson v. Zerbst, 304 U.S. 8 458, 468-69 (1938) (the petitioner bears the burden of proving his allegations in a habeas corpus 9 proceeding). Thus, because Gomez fails to state a claim for federal habeas relief, the Petition 10 must be denied. 11 GOMEZ HAS NOT SHOWN THAT THE BOARD DENIED HIM PAROLE BECAUSE HE IS AN ILLEGAL IMMIGRANT OR THAT THE DECISION VIOLATED HIS EQUAL PROTECTION RIGHTS. Gomez fails to prove that the Board denied him parole because he is an illegal immigrant or that the decision violated his equal protection rights. Indeed, the state courts provided Gomez 16 with individualized consideration regarding his suitability for parole and concluded that there 17 was some evidence in the record supporting the Board's decision to deny parole. (Ex. B.) Thus, 18 because Gomez fails to prove that he was denied parole based on his status as an illegal 19 immigrant or that his equal protection rights were violated, he fails to state a claim for federal 20 habeas relief and his Petition should be denied. 21 ///

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CONCLUSION Gomez has not demonstrated that the state court decisions denying habeas relief were contrary to, or an unreasonable application of, United States Supreme Court authority, or based

4 on an unreasonable determination of the facts. Thus, the Petition should be denied. 5 6 7 8 9 10 11 12 13 14 15 16 17
20126218.wpd

Dated: July 21, 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

A J. MURRA eputy Attorney Ge Attorneys for Responsent

18 19 20 21 22 23 24 25 26 27 28

SF2008401346

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

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I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On July 22, 2008, I served the attached ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; 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: Elkin Gomez, E-44776 Correctional Training Facility F-205 L P.O. Box 689 Soledad, CA 93960-0686 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 July 22, 2008, at San Francisco, California.

M.M. Argarin Declarant
20126543.wpd