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 1'1000 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 C07-4927 Sr 15 16 17 18 19 20 21 22 23 24 25 26 .27 28
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Strong v. Curry

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

SYLVESTER STRONG, Petitioner, y. Judge: The . Honorable Susan Illston BEN CURRY, Warden, Respondent. ANSWER TO THE ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES

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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 12 13 2 14 15 16 17 18 19 20 CONCLUSION 21 22 23 24 '25 26 27 28
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THE STATE COURTS' DENIALS OF PETITIONER'S HABEAS CLAIMS WERE NOT CONTRARY TO OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW, NOR BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS. A. The State Court Decisions Were Not Contrary to or an Unreasonable Interpretation of Clearly Established Supreme Court Law. 1. Petitioner received all process due under the only United States Supreme Court law addressing due process in the context of parole suitability. The Ninth Circuit's some-evidence test is not clearly established Supreme Court law. -

7 8

8 9

3.

Even if the some-evidence standard was clearly established federal law in the parole context, the standard was correctly applied by the state courts. 11 The Governor may rely on static factors to deny parole.
The Apprendi-Blakely rule does not apply to Petitioner's case.

4.
5.

11 12 13 14

B.

The State Court Decisions Upholding the Governor's Parole Denial Were Based on a Reasonable Interpretation of the Facts.

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TABLE OF AUTHORITIES

2 3 4 Bd. of Pardons v. Allen 5 482 U.S. 369 (1987 6 Biggs v. Terhune 334 F.3d 910 (9th Cir. 2003) 7 Blakely v. Washington 8 542 U.S. 296 (2004) 9 10 .11 Crater v. Galaza 491 F.3d 119 (9th Cir. 2007) Carey v. Musladin , 127 S. Ct. 649 (2006) U.S. Cases

Page

12 12, 13, 14 6, 9, 10

12 Foote v. Del Papa 492 F.3d 1026 (9th Cir. 2007) 13 Gagnon v. Scarpelli 14 411 U.S. 778 (1973) 15 16 17 18 Himes v. Thompson 19 336 F.3d 848 (9th Cir. 2003) 20 In re Dannenberg 34 Cal. 4th 1061 (2005) 21 Irons v. Carey 22 505 F.3d 846 (2007) 23 Johnson v. Zerbst 304 U.S. 458 (1938) 24 Juan H. v. Allen 25 408 F.3d 1262 (9th Cir. 2005) 26 Kane v. Garcia Espitia 546 U.S. 9 (2005) 27 Maynard v. Cartwright 28 486 U.S. 356 (1998)
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9, 12. 10 5, 6, 8, 10, 14

Greenholtz v. Inmates of Nebraska Penal & Correctional Complex 442 U.S. 1 (1979) Hayward v. Marshall F.3d , 2008 WL 43716 (9th Cir. Jan. 3, 2008) (peen. for rehr'g. pending)

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13 9, 12 8
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TABLE OF AUTHORITIES (continued) 1 2 Miller-El v. Cockrell 3 573 U.S. 322 (2003) Page 10 10 9, 12 8, 12
.

4 Morrissey v. Brewer 408 U.S. 471 (1972) 5 Nguyen v. Garcia 6 477 F.3d 716 (9th Cir. 2007) 7 Plumlee v. Masto F.3d , 2008 WL 151273 at *6 (9th Cir. 2008) 8 Sandin v. Connor . 9 515 U.S. 472 (1995) 10 Sass v. California Board of Prison Terms 461 F.3d 1123 (9th Cir. 2006) 11 Stenson v. Lambert 12 504 F.3d 873 (9th Cir. 2007) 13 14 15 16 17 Superintendent v. Hill 472 U.S. 445 (1985) Wilkinson v. Austin 545 U.S. 2384 (2005)

5, 6 9; 12 6

Williams (Terry) v. Taylor 529 U.S. 362 (2000)

8 10

Wolff v. McDonnell 418 U.S. 539 (1974) 18 19 20 21 Regulations Ylst v. Nunnemaker 501 U.S. 797 (1991)

22 California Code of Regulations, Title 15 § 2402 § 2402(c)(1) 23 24 25 Statutes

11 6

28 United States Code § 2254(d)(1-2) 26 § 2244(d)(1) § 2254(d)(2) 27 § 2254(e)(1) 28
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8 7 13 13

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TABLE OF AUTHORITIES (continued) 1 2 3 4 5 Other Authorities 6 Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) 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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Page . California Penal Code § 190(a) § 3041(b) 13 6

5, 6, 8, 11

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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 C07-4927 SI 15 16 17 18 19 20 21 22 23 INTRODUCTION In a petition for writ of habeas corpus, Petitioner Sylvester Strong alleges that Governor Arnold Schwarzenegger unconstitutionally reversed his 2006 parole grant. Petitioner, who is v. Judge: The Honorable Susan Illston BEN CURRY, Warden,. Respondent. SYLVESTER STRONG, Petitioner, ANSWER TO THE ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES . IN THE UNITED STATES DISTRICT COURT. FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

24 currently serving an indeterminate life sentence for the murder of his wife, alleges that due 25 process precludes the Governor from relying on the commitment offense to deny parole, and that 26 he is being punished for a crime greater than that of which he was convicted. On November 14, 27 2007, this Court issued an order to show cause. Respondent Warden B. Curry answers as 28 follows:
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ANSWER TO THE ORDER TO SHOW CAUSE 2 3 4 In response to the petition for writ of habeas corpus dated September 21, 2007, Respondent admits, denies, and alleges the following: 1. Petitioner is in the lawful custody of the California Department of Corrections and

5 Rehabilitation following his October 25, 1988 conviction of second degree murder and assault 6 with a deadly weapon. (Ex. A, Abstract of Judgment.) He is currently serving an indeterminate 7 term of eighteen years to life. (Ex. B, Appellate Court Judgment at 2.) Petitioner does not 8 challenge his underlying conviction in the current proceeding. 9 2. On December 10, 1987, Petitioner telephoned his ex-wife, victim Dianna Strong, to

10 ask her for money to support his cocaine habit. (Ex. C, Probation Officer's Report, p. 2.) Ms. 11 Strong told Petitioner that she did not have any money to give him. (Id.) A short time later,

12 Petitioner knocked at Ms. Strong's door, but she refused to open it, as she had a restraining order 13 against Petitioner which forbade him from entering her home. (Id. at 3.) Petitioner then rammed

14 his body through the door with such force that the deadbolt flew ten feet down the hallway, and 15 confronted the victim, with a seven-inch kitchen knife. (Id. at 3, 4.) When he saw that victim

16 Lavelle Jones, Ms. Strong's landscaper, was also in the house, Petitioner accused Mr. Jones of 17 "going with his wife" and told Ms. Strong, "Bitch, I am going to kill you.
(Id. at 3.) Ms. Strong

18 tried to run away, but Petitioner grabbed her and began beating her with his hands. (Id.) 19 Although Ms. Strong begged Petitioner not to hurt her, Petitioner stabbed her, then ran after Mr. 20 Jones and slashed at him, cutting Mr. Jones's hand. (Id.; Ex. D, District Attorney's Letter.) 21 After Mr. Jones's escape, Petitioner returned to Ms. Strong, who was staggering toward the front

22 door, and stabbed her through the neck, piercing her jugular vein and killing her. (Ex. D at 8.) 23 An autopsy later revealed three separate stab wounds to Ms. Strong's body: a wound through the 24 left hand, a wound to the left thumb, and a wound passing. fully through the jugular vein. (Id. at 25 7.) 26 3. Respondent affirmatively alleges that Petitioner had a lengthy history of abusing Ms.

27 Strong. Two to three years before the murder, Petitioner began abusing cocaine, which brought 28 his family to financial ruin. (Ex. D.) He depleted their savings account, passed checks from Ms.
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Strong's personal account, and sold her household appliances and jewelry in order to buy drugs. (Id.) Petitioner then became physically abusive toward his wife, and family and friends were aware of many instances of violence ranging from slaps and punches to the use of knives and 4 guns. (Id.) On one occasion, Petitioner tried to pour gasoline on Ms. Strong and light her on 5 fire, in the presence of their five-year-old son. (Id. at 4, Ex. C at 5.) He also made numerous

6 comments to other people about how he was going to kill Ms. Strong because she refused to give 7 him money. (Ex. D at 4.) Ms. Strong enrolled her husband in a live-in drug abuse rehabilitation .8 program, but after he refused to complete it and was arrested for narcotics trafficking, she 9 instituted divorce proceedings. (Id. at 2.) Petitioner continued to physically abuse Ms. Strong 10 until she filed a restraining order against him and the divorce was complete. (Id. at 4-5.) Less 11 than a month after their divorce became final, Petitioner broke into Ms. Strong's house and killed

12 her. (Id. at 5.) This led the appellate court to note that Petitioner displayed a "year-long course 13 of violent conduct" (emphasis in original) and that "[b]y the time he finally murdered her, there

14 was nothing unusual about his domestic problems or his i resorting to violence." (Ex. B at 8.) 15 4. Respondent affirmatively alleges that before committing murder, Petitioner was

16 arrested and convicted of battery and infliction of corporal injury, both against Ms. Strong. (Ex. 17 C at 6-7.) The first conviction involved Petitioner striking Ms. Strong in the eye, and then telling 18 the arresting officer that he did not touch her and that "the next time you (the police) come out, it 19 will be for something." (Id.) The second conviction resulted from Petitioner punching Ms. 20 Strong in the face several times. (Id. at 7.) On that occasion, the reporting officers noted that 21 Ms. Strong's face was completely swollen and puffy, and she was cut and bleeding below her left

22 eye. (Id. at 7.) 23 5. Respondent affirmatively alleges that at his 2006 parole consideration hearing,

24 Petitioner insisted that the target of his knife attack was Mr. Jones, not Ms. Strong. Petitioner 25 further claimed that Mr. Jones started the fight by striking him, and that he picked up the knife in 26 response to the attack from a "larger" man. (Ex. E, Parole Hearing Transcript at 23.) According 27 to Petitioner, "if Mr. Jones had just left there wouldn't have been no confrontation whatsoever." 28
(Id. at 41.)
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6.

Respondent affirmatively alleges that at his 2006 parole consideration hearing,

2 Petitioner claimed that he violated the restraining order and broke down Ms. Strong's door 3 because he hoped to speak with her about reconciliation. (Ex. E at 27.) 7. Respondent affirmatively alleges that at his 2006 parole consideration hearing,

Petitioner claimed to have laid hands on Ms. Strong "three or four" times. (Ex. E at 34.) 8. Respondent affirmatively alleges that while incarcerated, Petitioner has had two

disciplinary violations. for disruptive behavior and threatening staff. (Ex. E at 81.) Petitioner 8 also admitted to using marijuana in 1993, although he was not caught. (Id. at 70.) 9 9. Respondent affirmatively alleges that the District Attorney of Fresno County opposed

10 Petitioner's release on parole. (Ex. E at 55-5.6.) 11 10. Respondent admits that at his May 31, 2006 parole consideration hearing, the Board of

12 Parole Hearings determined that Petitioner would not pose an unreasonable risk of danger to 13 society and found him suitable for parole. (Ex. E at 99-114.) The Board determined that

14 Petitioner had demonstrated "maturation, growth, [and] greater understanding" of his crime, and 15 that "[u]ntil his instant offense [Petitioner] had a stable social history as exhibited by reasonable, 16 stable relationships with others." (Ex. E at 99.) 17 11. Respondent admits that on October 26, 2006, the Governor invoked his authority under

18 the state constitution to reverse Petitioner's parole grant. (Ex. F, Reversal Letter.) The Governor 19 recognized that Petitioner had participated in Narcotics Anonymous and other self-help 20 programs, but found that the gravity of the commitment offense, including the dispassionate and 21 arguably premeditated manner of the crime, and extensive abuse perpetrated by Petitioner on Ms.

22 Strong outweighed any factors tending to show suitability for release. (Id. at 3.) The Governor 23 also determined that Petitioner was lacking in remorse and acceptance of responsibility, as seen

24 through his insistence that the intended target of the knife attack was Mr. Jones and not Ms. 25 26 Strong. (Id.) 12. Respondent admits that on April 6, 2006, the Fresno County Superior Court denied

27 Petitioner's habeas petition; however, the petition did not address the claims put forth in the 28
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current petition. (Ex. G, Superior Court Petition and Denial.'-) 13. Respondent admits that on May 24, 2007, the California Court of Appeal summarily denied Petitioner's petition for writ of habeas corpus, in which he alleged the same general causes of action as in the current petition. (Ex. H, Appellate Court Petition and Denial.) 14. Respondent admits that on August 8, 2007, the California Supreme Court summarily denied Petitioner's request for review, in which he alleged the same general causes of action as in

7 the current petition. (Ex. I, Supreme Court Petition and Denial.) Thus, Respondent admits that 8 Petitioner has exhausted his state court remedies as to the claims raised in the current petition. 9 Respondent denies that Petitioner has exhausted his claims to the extent that they are more 10 broadly interpreted to encompass any systematic issues beyond the review of his 2006 parole 11 12 reversal. 15. Respondent denies that Petitioner has a federally protected liberty interest in parole;

13 hence, Petitioner fails to assert a basis for federal jurisdiction. Greenholtz v. Inmates of Neb. 14 Penal & Corr. Complex, 442 U.S. 1 (1979); Bd. ofPardons v. Allen, 482 U.S. 369, 374 (1987) 15 16 (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

17 (1995) (serving a contemplated sentence is not a significant or atypical hardship). Respondent 18 acknowledges that the Ninth Circuit came to the opposite conclusion in Sass v. California Board 19 of Prison Terms, 461 F.3d 1123 (9th Cir. 2006), but preserves the argument. 20 21 16. Respondent denies that the state court denials of habeas corpus relief were contrary to, or involved an unreasonable application of, clearly established United States Supreme Court law,

22 or that the denials were based on an unreasonable interpretation of facts in light of the evidence 23 presented. Petitioner therefore fails to make a case for relief under the Anti-Terrorism and 24 Effective Death Penalty Act of 1996 (AEDPA). 25 26 27 1. To cut down on volume and avoid repetition, Respondent has omitted the exhibits 28 attached to Petitioner's state court petitions. These exhibits can be provided upon the Court's request.
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17. Respondent affirmatively alleges that Petitioner had an opportunity to present his case,

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and that the Governor provided him with a detailed explanation as to why he was denied parole.

.2 Thus, Petitioner received all process due under Greenholtz, the only clearly established Supreme 3 Court law regarding the due process rights of inmates at parole consideration hearings. 18. Respondent affirmatively alleges that the Governor conducted an individualized assessment of Petitioner's parole suitability and considered all relevant and reliable evidence before it. 19. Respondent denies that this Court must review Petitioner's parole denial under the some-evidence standard. In Carey v. Musladin, U.S. , 127 S. Ct. 649, 653 (2006), the

United States Supreme Court emphasized that under AEDPA, only Supreme Court holdings 10 regarding the specific issue presented may be used to overturn valid state court decisions. As no 11 clearly established Supreme Court law provides that a parole denial must be supported by some

12 evidence, this Court need not review the current matter under the some-evidence standard. 13 20. Respondent affirmatively alleges that if the some-evidence standard does apply to the

14 review of parole denials, the proper standard is that found in Superintendent v. Hill, 472 U.S. 15 445, 455 (1985), which requires that only a "modicum of evidence" support the decision to deny 16 parole. Respondent affirmatively alleges that under this standard, some evidence supports the -17 Governor's parole reversal. 18 21. Respondent denies that this Court must make an independent determination of whether

19 Petitioner currently poses an unreasonable risk of danger to society in order to uphold the state 20 court decisions denying parole. 21 22. Respondent denies that the Governor relied on immutable factors to deny parole, as the

.22 decision was based in part on Petitioner's failure to demonstrate remorse or accept responsibility 23 for the commitment offense. (Ex. F at 3.) Respondent affirmatively alleges that the Governor

24 properly considered the gravity of Petitioner's commitment offense, as required under California 25 Penal Code section 3041(b) and California Code of Regulations title 15, sections 2402(b), (c)(l)26 (2). Respondent further affirmatively alleges that federal due process does not preclude the 27 Governor from relying on static factors to deny parole. Sass, 461 F.3d at 1129. 28 23. Respondent denies that Petitioner is being punished for a crime greater than that to
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which he pled no contest, as. his sentence for second degree murder clearly contemplated an

2 indeterminate life sentence. (Ex. A, B.) 3 24. Respondent denies that the Governor violated Petitioner's due process rights by

4 reversing his 2006 parole grant. . 5 25. Respondent admits that Petitioner's claims are timely under 28 U.S.C. § 2244(d)(1),

6 and that the petition is not barred by the non-retroactivity doctrine. 7 8 26. Respondent denies that an evidentiary hearing is necessary in this matter. 27. Respondent affirmatively alleges that Petitioner fails to state or establish any grounds

9 for habeas corpus relief. 10 11 28. Except as expressly admitted above, Respondent denies, generally and specifically, each allegation of the petition, and specifically denies that Petitioner's administrative, statutory,

12 or constitutional rights have been violated in any way. 13 Accordingly,. Respondent respectfully requests that the petition for writ of habeas corpus be

14 denied: 15 16 17 18 19 20 21 MEMORANDUM OF POINTS AND AUTHORITIES, ARGUMENT THE STATE COURTS' DENIALS OF PETITIONER'S HABEAS CLAIMS WERE NOT CONTRARY TO OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW, NOR BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS. When, as here, the California Supreme Court denies a petition for review without comment, the federal court must look to the last reasoned decision as the basis for the state court's

22 judgment. Ylst v. Nunnemaker, 501 U.S. 797, 803-804 (1991). However, the only reasoned .23 decision in this case addressed claims not made in the current petition. Accordingly, the

24 reviewing court must independently review the record to determine whether the state court 25 decisions were a reasonable application of clearly established federal law. Himes v. Thompson, 26 336 F.3d 848, 853 (9th Cir. 2003). Because there is nothing in the record to indicate that the 27 state court decisions denying habeas relief were either contrary to, or an unreasonable application 28 of, clearly established federal law, or based on an unreasonable interpretation of the facts, the
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provisions of AEDPA mandate that Petitioner's claim for habeas relief be denied. 28 U.S.C. §2254(d)(1-2). A. The State Court Decisions Were Not Contrary to or an Unreasonable Interpretation of Clearly Established Supreme Court Law.

The first standard of AEDPA is that a state court habeas decision may not be overturned unless it is contrary to, or an unreasonable interpretation of, clearly established federal law. "Clearly established federal law" refers to "the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions as of the time of the relevant state-court decision." Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000). As such, for purposes of AEDPA, "[w]hat matters

10 are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. 11 Masto, F.3d , 2008 WL 151273 at *6 (9th Cir. 2008) (attached as Ex. G). Petitioner,

12 however, asks this Court to overturn three valid state court decisions based on Ninth Circuit 13 dicta. Because AEDPA does not permit such a result, and because state court decisions did not

14. violate clearly established Supreme Court law, the Petition must be denied. 15 16 17 It is undisputed that Greenholtz, 442 U.S. 1, is the only Supreme Court decision addressing 1. Petitioner received all process due under the only United States Supreme Court law addressing due process in the context of parole suitability.

18 due process in the context of parole consideration hearings. Greenholtz specifically rejected the 19 idea that the parole authority must specify particular evidence to support its decision, and held 20 that the only process due an inmate at a parole consideration is first, an opportunity to be heard, 21 and second, if parole is denied, an explanation for the denial. Id. at 16. Thus, as a matter of

22 clearly established Supreme Court law, a challenge to a parole decision will fail if the inmate has 23 received the protections required under Greenholtz. See Maynard v. Cartwright, 486 U.S. 356, 24 361-62 (1998); Wilkinson v. Austin, 545 U.S. 2384, 2397 (2005). Because Petitioner received 25 both of these protections, and does not argue otherwise, he received all process due under clearly 26 established Supreme Court law. Accordingly, the state court decision upholding the Governor's 27 parole reversal is not contrary to clearly established federal law, and Petitioner is not entitled to 28 habeas relief.
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2.

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

Petitioner asks this Court to follow the Ninth Circuit's erroneous holding that clearly

4 established federal law requires a parole decision to be supported by some , evidence. Irons v. 5 Carey, 505 F.3d 846, 850-51 (2007). This standard stems from the decision in Superintendent v.

6 Hill, 472 U.S. 445, 455-56, which provides that some evidence must support the decision of a 7 prison disciplinary board to revoke good-time credits. In Irons, the Ninth Circuit took the someevidence standard from the prison disciplinary context, applied it to the parole consideration context, and deemed this new application "clearly established Supreme , Court law" for the purposes of AEDPA. In the last two years, the Supreme Court has made it clear that circuit courts may not import a federal standard used for one set of circumstances into an entirely different set of circumstances 13 under the guise of "clearly established federal law." In Musladin, the Supreme Court overturned 14 the Ninth Circuit's determination that a prejudice test regarding one type of case could was the 15 clearly established standard of review used for a similar but factually distinct case. In doing so,

16 the Musladin court held that clearly established federal law refers only to the holdings of the 17 Supreme Court on the specific issue,presented. Musladin,
U.S. , 127 S. Ct. at 653; see

18 also Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005) (prisoner denied access to law library has no '19 relief under AEDPA absent a Supreme Court decision addressing that issue). The Ninth Circuit 20 has affirmed this principle in Nguyen v. Garcia, 477 F.3d 716, 718, 727 (9th Cir. 2007), Crater v. 21 Galaza, 491 F.3d 119, 1126, n. 8 (9th Cir. 2007), Foote v. Del Papa, 492 F.3d 1026, 1029-30 F.3d

22 (9th Cir. 2007), Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007); and Plumlee, 23

, 2008 WL 151273 at *6, all of which acknowledge that decisions by courts other than the

24 Supreme Court are non-dispositive under AEDPA standards. 25 Contrary to the holding in Irons, a prison disciplinary hearing and a parole consideration

26 hearing are not identical, and thus not subject to the same level of judicial review. Although both 27 hearings can affect the duration of an inmate's confinement, only prison disciplinary hearings 28 involve a finding of guilt; consequently, the process due in disciplinary hearings is greater than
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that required in parole hearings. Greenholtz, 442 U.S. at 15-16. In fact, the Greenholtz court

2 specifically distinguished a parole consideration hearing from a prison disciplinary hearing, 3 4 5 stating that "[p]rocedures designed to elicit specific facts, such as those required in Morrissey, Gagnon, and Wolffare not necessarily appropriate" in a parole suitability determination zi Id. at 14. While disciplinary hearings are adversarial proceedings, "the parole-release decision ... is

6 more subtle and depends on an amalgam of elements, some of which are factual but many of 7 which are purely subjective appraisals by the Board members based upon their experience with 8 the difficult and sensitive task of evaluating the advisability of parole release." Id. at 9-10. Thus, 9 unlike a prison disciplinary hearing, in a parole consideration hearing "there is no set of facts 10 which, if shown, mandate a decision favorable to the individual." Id. at 10. It follows that the 11 two types of hearing are not the same, and a Supreme Court decision applicable to one does not U.S. , 127 S. Ct. at 653. As such, Petitioner is entitled

12 apply to the other. Musladin, 13

only to the due process protections outlined in Greenholtz, and this Court need not review the

14 basis of the Governor's decision under the some-evidence standard. 15. Any argument that due process requires a more stringent standard of review than that

1'6 provided in Greenholtz is without merit. The California courts have already evaluated the 17 substantive merits of Petitioner's claims; The absence of further evidentiary review does not 18 diminish Petitioner's due process rights; rather, it merely defers to the state courts' evaluation of

19 those rights, consistent with AEDPA's stated purpose of "further[ing] comity, finality, and 20 federalism." Miller-El v. Cockrell, 573 U.S. 322, 337 (2003). 21 Thus, Petitioner is entitled to only the protections provided in Greenholtz, the only clearly

22 established federal law describing the process due at a parole consideration hearing. Because he 23 received these protections, the state court decisions upholding his the Governor's parole reversal

24 are not contrary to clearly established federal law. 25 /I/ 26 2. See Morrissey v. Brewer, 408 U.S. 471 (1972) (establishing process due in parole 27 revocation hearings); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (establishing process due in 28 probation revocation hearings) ; Wolffv. McDonnell, 418 U.S. 539 (1974) (establishing process due in prison disciplinary hearings).
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Even if the some-evidence standard was clearly established federal law in the 3. 1 parole context, the standard was correctly applied by the state courts. 2 3 Even if the some-evidence standard was clearly established federal law in the parole

4 context for the purposes of AEDPA, Petitioner's claim would nonetheless fail because the state 5 courts correctly applied the standard to deny habeas relief. The some-evidence standard "does .6 not require examination of the entire record, independent assessment of the credibility of 7 witnesses, or weighing of the evidence;" rather, it is satisfied if there is "any evidence in the 8 record that could support the conclusion made by the [initial decision-maker]." Hill, 472 U.S. at 9 455-57; see also Sass, 461 F.3d at 1129 ("Hill's some evidence standard is minimal.") Here, 10 there is some evidence to support the Governor's findings that Petitioner's commitment offense 11 was especially heinous, that he had an extensive history of violence and abuse toward the victim,

12 and that he failed to show remorse or appropriate insight into his crime. As each of these factors 13 tends to indicate parole unsuitability under California law, the state courts correctly denied 14 Petitioner's claims. See Cal. Code Regs. tit. 15, § 2402. Thus, to the extent that Hill's some15 evidence test is clearly established federal law, it was reasonably applied by the state courts, and 16 Petitioner's claim must be denied. The Governor may rely on static factors to deny parole. 4. 17 18 Petitioner argues that due process precludes the Governor from relying on his

19 commitment offense and past criminal behavior to deny parole. This argument fails for a number 20 of reasons. First, the Governor did not rely solely on static factors-on the contrary, he 21 specifically cited his disbelief of Petitioner's version of events and questioned whether Petitioner

22 showed remorse or insight into the crime. Second, California's parole provisions explicitly state 23 that parole may be denied based on the factors of an inmate's commitment offense. Dannenberg, 24 34 Cal. 4th at 1094; Cal. Penal Code § 3401; Cal. Code Regs. tit. 15, § 2402(c)(1). 25 Finally, and most importantly, no clearly established federal provides that a state

26 executive cannot base a parole denial on the factors of an inmate's commitment offense or 27 criminal history. Moreover, the Supreme Court has never held that after a certain period of time, 28 a criminal's past behavior is no longer predicative of his future actions. Although the Ninth
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Circuit held in Biggs v. Terhune, 334 F.3d 910, 917 (9th Cir. 2003) that continuing reliance on an

2 unchanging factor to deny parole "may result in a due process violation," AEDPA does not 3 permit the use of circuit court dicta to overturn a valid state court decision. Musladin, 4 5 U.S.

, 127 S. Ct. at 653; Kane, 546 U.S. at 10; Nguyen, 477 F.3d at 718, 727; Crater, 491 F.3d at 1126, n. 8 (9th Cir. 2007), Foote, 492 F.3d at 1029-30, Stenson, 504 F.3d at 881; Plumlee, , 2008 WL 151273 at *6. The recent case Hayward v. Marshall, F.3d , 2008 WL 43716 (9th Cir. Jan. 3,

6 F.3d 7

8 2008) (pet'n. for rehr'g. pending), in which the Ninth Circuit ordered the release of an inmate .9 who had, been denied parole by the Governor, also does not constitute clearly established 10 11 Supreme Court law and may not be used to overturn a valid state court decision under AEDPA standards. Furthermore, the Hayward court emphasized that "certain conviction offenses may be

12 so `heinous, atrocious, or cruel' that a prisoner's due process rights might not be violated if he or 13 she were denied parole solely on the basis of the conviction offense. We need not identify those

14 offenses here. We confine our holding to the facts of this case and the nature of Hayward's 15 particular conviction offense." Hayward, F.3d , 2008 WL 43716 at *8, n. 10. As such,

16 the decision in Hayward has no impact on Petitioner's case. 17 18 19 Because the dicta from Biggs and subsequent cases cannot be used to overturn a valid state court decision. Petitioner fails to prove that the state court decisions denying parole. were contrary to, or an unreasonable application of, clearly established federal law. The petition must

20 be denied accordingly. 21 22 5. The Apprendi-Blakely rule does not apply to Petitioner's case.

Finally, Petitioner argues that the Governor's decision is invalid under Apprendi v. New

23 Jersey, 530 U.S. 466 (2000) because the Governor used factors not specifically found by a 24 jury-in this case, evidence of premeditation-to reverse the parole grant and increase 25 Petitioner's time in custody. InApprendi, the Supreme Court held that "[o]ther than a prior 26 conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be

27 submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. In California, the 28 statutory maximum for second degree murder-and the sentence that Petitioner received-is 15
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years to life. Cal. Penal Code § 190(a). Because the decision to deny parole increases neither the

2 maximum penalty for second degree murder nor Petitioner's sentence, the Apprendi rule does not 3 4 5 apply. Furthermore, in Blakely v. Washington, 542 U.S. 296, 308 (2004), the Supreme Court specifically held that the Apprendi rule does not invalidate indeterminate sentencing schemes.

6 The Court reasoned that the purpose of the Sixth Amendment is to preserve the power of juries, 7 and that while indeterminate sentencing may increase the power of a judge (or the parole 8 authority) it does not do so at the expense of the jury. Id. at 309. The Court went on to explain,

9 "[i]n a system that says the judge may punish burglary with 10 to 40 years, every burglar knows 10 he is risking 40 years in jail." Id. It follows that in California, where a judge may punish second 11 degree murder with fifteen years to life, every murderer knows he is risking a lifetime in prison.

12 Thus, the decisions in Apprendi and Blakely have no bearing in Petitioner's case, and Petitioner 13 fails to show that the state court decisions denying relief were contrary to clearly established

14 federal law. 15' 16 17 18 The second standard under AEDPA is that a state court habeas decision must be based on a reasonable determination of the facts in light of the evidence presented. 28 U.S.C. § B. The State Court Decisions Upholding the Governor's Parole Denial Were Based on a Reasonable Interpretation of the Facts.

19 2254(d)(2). Petitioner bears the burden of proving that it was objectively unreasonable for the 20 state courts to conclude that the Governor acted in accordance with due process and that some 21 evidence supported the factual basis of the Governor's parole denial. 28 U.S.C. § 2254(e)(1);

22 Juan H. v. Allen, 408 F.3d 1262, 1270 (9th Cir. 2005). Petitioner fails to meet this burden, as 23 some evidence in the record supports the Governor's finding; furthermore, he does not provide

24 any evidence to show that the Governor's determination of parole suitability violated federal due 25 process. Petitioner may disagree with the Governor's analysis, but that is not sufficient to prove 26 that the state courts' decisions were objectively unreasonable. Thus, because Petitioner fails to 27 show that the state courts' factual determinations were unreasonable under AEDPA standards,

28 the petition must be denied.
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CONCLUSION In order for this Court to grant habeas relief, Petitioner must prove that the state court

3 holdings were contrary to, or an unreasonable application of, clearly established federal law-not 4 Ninth Circuit dicta-or that the decisions were based on an unreasonable interpretation of the 5 facts. Petitioner fails to make such a showing. First, he received all the protections provided in 6 Greenholtz, the only clearly established federal law regarding the process due at parole

7 consideration hearings. Second, the some-evidence standard does not apply to Petitioner's case; 8 however, even if it did, the Governor's decision is supported by some evidence of parole 9 unsuitability. Third, clearly established federal law does not preclude the Governor from relying 10 on static factors to determine parole suitability. Finally, the Apprendi-Blakely rule is inapplicable 11 12 13 14 15 16 17 18 19 20 21 22 23 24
40218901.wpd

to Petitioner's case. Accordingly, the petition for writ of habeas corpus should be denied Dated: February 15, 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. WIP LER Deputy Attorney General Attorneys for Respondent

25 26 27 28

SF2007403218

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DECLARATIONOFSERVICEBY 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 February 15, 2008, I served the attached Strong v. Curry i C07-4927 SI

ANSWER TO THE ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES (W/EXHIBITS A-I)
by placing a true copy thereof enclosed in a sealed envelope with postage thereon fullyprepaid, 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: Sylvester Strong D-99287 Correctional Training Facility P.O. Box 686 Soledad, CA. 93960-068 . 6 In Pro Se. · D-99287 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 February 15, 2008, . at San Francisco, California. r

S. Redd Declarant .
40219179.wpd

` Signature