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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 SCOTT C. MATHER, State Bar No. 190912 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5709 Fax: (415) 703-5843 Email: Scott.Mather@doj:ca.gov

9 Attorneys for Respondent Ben Curry 10 11 12 13 14 JOSE LUIS FLORES, ' 15 Petitioner, 16 v. 17 BEN CURRY, WARDEN, 18 Respondent. 19 20 21 22 23 24 25 26 27 28
Answer to OSC; Mem. of P. & A.

IN THE UNITED STATES DISTRICT 'COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION C07-4846 JSW

Judge:

The Honorable Jeffrey S. White

ANSWER TO ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES

Flores v. Curry C07-4846 JSW

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TABLE OF CONTENTS 2 3 INTRODUCTION Page 1 2 7 7

4 ANSWER TO THE ORDER TO SHOW CAUSE 5 MEMORANDUM OF POINTS AND AUTHORITIES 6 7 8 9 10 11 12 13 2. 14 15 16 17 18 19 CONCLUSION 20 21 22 23 24 . 25 26 27 28
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ARGUMENT 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. 1. 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. 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.

7 8

9 10.

3.

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4.

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

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1 2 3 Cases

TABLE OF AUTHORITIES Page

4 Bd. of Pardons v. Allen 482 U.S. 369 (1987) 5 Benny v. US. Parole Comm 'n 6 295 F.3d 977 (9th Cir. 2002) 7 Biggs v. Terhune 334 F.3d 910 (9th Cir. 2003) 8 Carey v. Musladin U.S. 127 S Ct 649 (2006) 9 10 11 Foote v. Del Papa 12 492 F.3d 1026 (9th Cir. 2007) 13 14 Hayward v. Marshall 15 512 F.3d 536 (9th Cir. 2008) 16 In re Dannenberg 34 Cal. 4th 1061 (2005) 17 In re Rosenkrantz 18 29 Cal. 4th 616 (2002) 19 Irons v. Carey 505 F.3d 846 (9th Cir. 2007) 20 Jancsek v. Oregon Board of Parole 21 833 F.2d 1389 (9th Cir. 1987) 22 Juan H. v. Allen 408 F.3d 1262 (9th Cir. 2005) 23 Lockyer v. Andrade 24 583 U.S. 63 (2003) 25 Machado v. Kane No. C 05-01632 WHA, 2006 WL 449146 (N.D. Cal. Feb. 22, 2006) 26 McQuillion v. Duncan 27 306 F.3d 895 (9th Cir. 2002) 28
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Crater v. Galaza 491 F.3d 1119 (9th Cir. 2007)

Greenholtz v. Inmates of Neb. Penal & Corr. Complex 442 U.S. 1 (1979)

6, 7 12, 15 10-12 ,15 8, 17 16 10-12

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TABLE OF AUTHORITIES (continued) 1 2 Miller-El v. Cockrell 3 537 U.S. 322 (2003) v. Dretke 4 Miller-El 231 (2005) 545 U.S. 5 Nguyen v. Garcia '6 477 F.3d 716 (9th Cir. 2007) 7 Sandin v. Connor 515 U.S. 472 (1995) 8 Sass v. California Board of Prison Terms 461 F.3d 1123 (9th Cir. 2006) 9 Schriro v. Landrigan 10 127 S. Ct. 1933 (2007) U.S. 11 Superintendent v. Hill 12 472 U.S. 445 (1985) 13 14 15 16 17 18 Wainwright v. Greenfield 474 U.S. 284 (1986) Wilkinson v. Austin 545 U.S. 2384 (2005) Williams (Terry) v. Taylor 529 U.S. 362 (2000) Ylst v. Nunnemaker 501 U.S. 797 (1991) 11 10 8 Page 8, 12 8

19 Statutes 20 United States Code, Title 28 § 2254(d) § 2254(d)(1-2) 21 § 2254(e) § 2254(e)(1) 22 23 24 25 26 27 28
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California Code of Regulations, Title 15 §2281 § 2402(c)(1) California Penal Code § 3041(b) § 3401

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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 SCOTT C. MATHER, State Bar No. 190912 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5709 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent Ben Curry 10 11 12 13 14 JOSE LUIS FLORES, 15 Petitioner, 16 v. 17 BEN CURRY, WARDEN, 18 Respondent. 19 20 21 INTRODUCTION Petitioner Jose Luis Flores is a California state inmate at the Correctional Training Facility, Judge: The Honorable Jeffrey S. White ANSWER TO ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES C07-4846 JSW IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

22 proceeding pro se in this habeas corpus action. Petitioner, currently serving a prison term of 23 seven years to life plus four years for kidnaping for ransom and lesser related offenses, alleges

24 that the Board of Parole Hearings unconstitutionally denied him parole at his 2006 parole 25 consideration hearing. Specifically, Petitioner claims that the Board's decision is not supported

26 by sufficient evidence. On January 30, 2008, this Court issued an Order to Show Cause. 27 Respondent Warden Ben Curry answers as follows: 28
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ANSWER TO THE ORDER TO SHOW CAUSE In response to the Petition for Writ of Habeas Corpus, 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 November 19, 1993 convictions of kidnaping, kidnaping for ransom, 6 conspiracy to commit kidnaping for ransom, and felon in possession of a firearm. (Ex. A, 7 Abstracts of Judgment; Ex. B, Parole Hearing Transcript, at 1.) He is currently serving an 8 indeterminate sentence of seven years to life plus four years. (Ex. B at 1.) Petitioner does not 9 challenge his underlying conviction or sentence in the current proceeding. Rather, he alleges that 10 the Board unlawfully denied him parole at his June 2006 parole consideration hearing. (See 11 generally Pet.) 12 2. Petitioner's offense occurred on April 13, 1993, at approximately 4:50 p.m., when

13 Angelica Leticia Gonzales (Leticia) went to the home of the victim, eighty-eight-year-old Maria 14 Isordia, and subsequently left. Moments later, three armed men entered the home. One of the 15 men put a gun to Maria's head and forced her to leave. The men also placed a substance over 16 Maria's mouth that caused to feel sleepy and nauseated. In addition, the men placed another 17 unknown substance on her mouth and told her to keep quiet. Witnesses observed one of the men 18 pointing a gun at Maria while another man and Ms. Gonzales drug Maria over to a car and forced 19 her to lie in the car's backseat. Maria was screaming while being drug to the car and then 20 attempted to jump out of the car as it began moving, but was stopped by one of the men inside 21 22 the car. For the next eight days Maria was moved around to several locations in Los Angeles and

23 Tijuana, Mexico. Due to the effect of the substance that had been placed over her mouth, Maria 24 was unable to eat any food for several days. The men told Maria she was being taken to Tijuana 25 to sign papers selling her house. 26 On April 13, 1993, the victim's son, Marcos Isordia, reported to police that he had received

27 a telephone call from the kidnappers requesting $150,000 as ransom for his mother. Marcos was 28 told that if he wanted to see his mother alive, half the money would have to paid within a day and
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the other half by the following day. Approximately ten minutes later, Cecilio Decastro, Leticia's

2 Gonzales's brother, called Marcos and told him that the kidnappers had Maria and her four 3 children. Cecilio told Marcos that these people were not playing around and that he should give

4 them the money they demanded. As Marcos continued to negotiate with the kidnappers in the 5 subsequent days the negotiations began to intensify as the kidnappers threatened to cut off .

6 Maria's ear or kill her if their demands were not met. As Marcos later told police, the kidnaping 7 may have arisen from his prior association with Leticia Angelica in which they had conspired 8 together in a stolen vehicle "rip-off," after which petitioner had kept and spent Leticia's portion 9 of the money. 10 11 On April 19, 1993, Petitioner entered the United States from Mexico. The vehicle he was riding was directed to a secondary inspection, where officials found a loaded and cocked .25

12 millimeter semiautomatic handgun under the driver's front seat. Petitioner was arrested after a 13 background check revealed a prior felony and an outstanding felony warrant. 14 On April 20, 1993, Marcos assisted law enforcement officials by agreeing to meet with the

15 kidnappers to pay the ransom. When three men arrived to meet Marcos, they were promptly 16 arrested. Law enforcement officials located a fully loaded SKS semiautomatic rifle hidden in the 17 back seat of one of the kidnapper's cars. Petitioner was thereafter implicated in this matter, but 18 he declined to make a statement from the county jail were he was being retained following his 19 arrest. 20 21 On April 21, 1993, three kidnappers entered Maria's room and told her she could leave after giving them a five minute head start and her promise not to later identify them. A sheriff's

22 detective subsequently received a call from Marcos, stating that his mother was safe and in good 23 condition. As to the selection of Marcos's mother as the kidnaping victim, one of three

24 kidnappers arrested on April 20 stated that Petitioner had come up with the kidnaping plan to get 25 the money back that Marcos had kept from Leticia, and that Petitioner and Leticia had been in 26 charge of the operation. (Ex. B at 11-20, 34-37; Ex. C, Probation Officer's Report, at 2-9; Ex. D, 27 Dec. 2005 Life Prisoner Evaluation Report, at 1-4.) 28 3. On June 15, 2006, Petitioner appeared before the Board for a subsequent parole
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consideration hearing. At the conclusion of the hearing, the Board found Petitioner unsuitable for parole, stating that his release would pose an "unreasonable risk of danger to society or a threat to public safety." The Board's decision was based in part on the gravity of Petitioner's

4 commitment offense. The Board found that Petitioner's offense was carried out in a manner that 5 was "especially cruel" to the eighty-eight-year-old victim and was also "dispassionate and 6 7 8 calculated" given the planning for the offense and the number of days the victim was held. In addition, the Board found that the motive-solely financial gain-also weighed against parole. (Ex. B at 44-45.) The Board also denied parole in part due to Petitioner's lack of verified parole

9 plans, which it encouraged Petitioner to rectify before his next parole consideration hearing. (Id. 10 at 46-50.) Finally, the Board considered the San Diego County District Attorney's opposition to 11 parole. (Id. at 47. See also ex. B at 38-39 [Deputy District Attorney's statement]; ex. E, District

12 Attorney's June 2, 2006 letter opposing parole.) 13 4. Before filing his federal petition, Petitioner sought relief in the state courts, generally

14 raising the same claims raised in his federal petition. Petitioner initially filed a habeas corpus 15 petition in the San Diego County Superior Court, which was denied in a reasoned decision issued' 16 on February 6, 2007. (Ex. F, Super. Ct. Pet.; Ex. G, Super. Ct. Order.) 17. 18 5. Petitioner then filed a petition for habeas corpus in the California Court of Appeal,

generally raising the same claims as in his federal petition. (Ex. H, Cal. Ct. Appeal Pet.) In a

19 reasoned decision filed on May 29, 2007, the court denied his petition, rejecting Petitioner's 20 claim that based on the declaration he had submitted to the Board stating that he was not 21 involved in the initial planning of the kidnaping nor the actual kidnaping of the victim (see Pet.,

22 ex. 2), the Board should not have denied him parole based in part on the commitment offense. 23 Instead, the court held that the Board's finding that Petitioner's offense was committed in an

24 "especially cruel" manner lasting for "a number of days" was supported by the evidence 25 indicating that Petitioner and the other kidnapers had held the victim for ransom. In addition, the

26 court also referenced the evidence indicating that Petitioner used a loaded weapon during this 27 offense, noting that "he was armed in the presence of the victim" and that he "threatened to harm 28 the victim if the ransom was not paid." The court also found that the Board properly relied on
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the motive of the crime, which was solely "some economic gain." Finally, the court upheld the 2 Board's findings regarding Petitioner's lack of verified "plans for his future, including living 3 arrangements, employment plans and support plans." Accordingly, the court upheld the Board's

4 decision denying parole on the ground that it was supported by some evidence. (Ex. I, Cal. Ct. 5 Appeal Opn.) 6 6. Petitioner then filed a petition for review in the California Supreme Court, generally

7 raising the same claims as,in his federal petition. (Ex. J, Cal. Sup. Ct. Pet.) The court summarily 8 9 denied the petition on August 15, 2007. (Ex. K, Cal. Sup. Ct. Order.) 7. Based on the orders issued in his state court proceedings, Petitioner appears to have

10 exhausted his cognizable claims in the instant petition. Respondent does not admit Petitioner has 11 exhausted his claims to the extent they are more broadly interpreted to encompass any systematic

12 issues beyond this particular parole consideration hearing. 13 8. Respondent denies that Petitioner has shown that the state court's denial of habeas

14 corpus was contrary to, or involved an unreasonable application of, clearly established Supreme 15 Court law, or that the denial was based on an unreasonable determination of facts in light of the

16 evidence presented. Petitioner therefore fails to make a case for relief under the Antiterrorism 17 18 and Effective Death Penalty Act of 1996 (AEDPA). 9. Respondent denies that Petitioner has a federally protected liberty interest in parole;

19 hence, Petitioner fails to assert a basis for federal jurisdiction. Greenholtz v. Inmates of Neb. 20 Penal & Corr. Complex, 442 U.S. 1 (1979); Bd. of Pardons v. Allen, 482 U.S. 369,374 (1987) 21 22 23 (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 (1995) (federally protected liberty interest arises only in connection with conditions of

24 confinement that impose a significant or atypical hardship).. Respondent acknowledges that the 25 Ninth Circuit came to the opposite conclusion in Sass v. California Board of Prison Terms, 461 - 26 F.3d 1123 (9th Cir. 2006), but preserves the argument. 27 28 10. Respondent affirmatively alleges that even if Petitioner has a federally protected liberty interest in parole, Petitioner had an opportunity to appear for his June 2006 hearing and the
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Board provided him with a detailed explanation as to why he was denied parole. (Ex. B at 44-

2 51.) Hence, Petitioner received all the process due under Greenholtz, the only clearly established 3 4 Supreme Court law regarding the due process rights of inmates at parole consideration hearings. 11. Respondent affirmatively alleges that there is no United States Supreme Court decision

5 requiring a state parole decision to be supported by some evidence. See Carey v. Musladin, _ 6 U.S. _, 127 S. Ct. 649, 654 (2006) (holding that the absence of Supreme Court law on a 7 particular issue precludes habeas relief under AEDPA). Thus, Petitioner's challenge to the 8 sufficiency of the evidence supporting the Board's decision fails to raise a cognizable due 9 process claim for relief under clearly established Supreme Court law, as required by AEDPA. 10 11 12. If an evidentiary standard of review applies, Respondent denies that the state court unreasonably determined that it is the some-evidence standard. Respondent denies that the

12 preponderance-of-the-evidence standard, and not the some-evidence standard, is the appropriate 13 standard of review. Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); Biggs v. Terhune, 334

14 F.3d 910, 915 (9th Cir. 2003); see Greenholtz, 442 U.S. at 15 (finding that the executive 15 decisionmaker need not specify the evidence relied on when denying parole); Rosenkrantz, 29 16 Cal. 4th at 658, 665 (adopting the some-evidence test and distinguishing it from "considering 17 whether substantial evidence supports the findings underlying a gubernatorial decision"). 18 13. Respondent affirmatively alleges that the state court reasonably determined that the

19 Board's 2006 decision denying Petitioner parole was supported by some evidence. 20 21 22 23 14. Respondent denies that the Board was precluded from considering the unchanging circumstances of Petitioner's commitment offense as one of the grounds for denying him parole. 15. Respondent denies that the state court unreasonably rejected Petitioner's claim that the evidence in favor of parole mandated that the Board find Petitioner suitable for parole or that the

24 Board did not afford sufficient weight to the evidence in favor of parole. 25 16. Respondent denies that the Board's decision denying parole violated Petitioner's

26 federal due process rights. 27 17. Respondent affirmatively alleges that Petitioner fails to state or establish any grounds

28 for federal habeas corpus relief. 28 U.S.C. § 2254(d).
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18. Respondent affirmatively alleges that if the Petition is granted, Petitioner's remedy is

2 limited to a new parole consideration hearing before the Board that comports with due process. Benny v. US. Parole Comm 'n, 295 F.3d 977, 984-85 (9th Cir. 2002) (finding that the Board must exercise the discretion in determining whether or not an inmate is suitable for parole); In re Rosenkrantz, 29 Cal. 4th 616, 658 (2002) (finding that the proper remedy if a Board decision lacks some evidence is a new hearing that comports with due process). 7 8 9 19. Respondent does not allege that there is any procedural bar to this action, including statute of limitations or non-retroactivity. 20. Respondent denies that an evidentiary hearing is necessary in this matter. 28 U.S.C. §

10 2254(e). 11 21. Except as expressly admitted above, Respondent denies, generally and

12 specifically, each and every allegation of the Petition, and specifically denies that Petitioner's 13 14 administrative, statutory, or constitutional rights have been violated in any way. For the reasons stated in this Answer and in the following Memorandum of Points and

15 Authorities, this Court should deny the Petition. 16 17 18 19 20 21 MEMORANDUM OF POINTS AND AUTHORITIES ARGUMENT 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

22 court, a federal court may grant a writ of habeas corpus on the same claim only if the state court's 23 adjudication was either (1) "contrary to, or involved an unreasonable application of, clearly

24 established Federal law, as determined by the Supreme Court of the United States;" or (2) "based 25 on an unreasonable determination of the facts in light of the evidence presented at the State Court

26 proceeding." 28 U.S.C. § 2254(d)(1-2). 27 "Clearly established federal law, as determined by the Supreme Court of the United States,"

28 refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time
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of the relevant state-court decision." Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is contrary to established federal law if "the state court applies a rule that contradicts the governing law set forth in [United States Supreme Court] cases," or "the state

4 court confronts a set of facts that are materially indistinguishable from a decision of [the United 5 States Supreme] Court and nevertheless arrives at a result different from [the Court's]

6 precedent." Lockyer v. Andrade, 583 U.S. 63, 73 (2003) (citations and internal quotation marks 7 omitted). A state court decision is an unreasonable application of clearly established law "if the 8 9 state court identifies the correct governing legal principle from [the United States Supreme Court's] decision but unreasonably applies that principle to the facts of the prisoner's case. " Id.

10 at 75. It is not enough that the state court applies the law erroneously or incorrectly; rather, the 11 12 13 application must be objectively unreasonable. Id. at 75-76. In order to find that a state court decision involved an unreasonable determination of the facts, the reviewing court must find that the decision was "objectively unreasonable in light of

14 the evidence presented in the state court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 15 (2003). State court factual determinations are assumed to be correct, and a petitioner bears the

16 burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); 17 Miller-El v. Dretke, 545 U.S. 231, 240 (2005). 18 When, as here, the California Supreme Court denies a petition for review without

19 comment, the federal court will look to the last reasoned decision as the basis for the state court's 20 judgment. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). In this case, the last reasoned 21 decision is the California Court of Appeal's May 29, 2007 decision denying habeas relief. (Ex.

22 I.) As this decision is neither contrary to, or an unreasonable application of, clearly established 23 federal law, nor based on an unreasonable interpretation of the facts, Petitioner's claim for

24 habeas relief must be denied. 25 26 27 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.

28 to, or an unreasonable interpretation of, clearly established federal law. Here, Petitioner received
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all process due under Greenholtz, the only clearly established federal law regarding the due 2 process rights of inmates at a parole consideration hearing. Furthermore, clearly established 3 federal law does not require that the Board's decision be supported by some evidence; however,

4 even if it did, the Board's decision is supported by some evidence per the standard set forth in 5 Hill. Finally, due process does not preclude the Board from relying, in part, on the factors of the 6 commitment offense to deny parole. As such, the state court decisions denying habeas relief 7 were not contrary to or an unreasonable interpretation of clearly established federal law, and the 8 petition must be denied. 9 10 11 In Greenholtz, the United States Supreme Court established the due process protections L Petitioner received all process due under the only United States Supreme Court law addressing due process in the parole context.

12 required in a state parole system. The Court held that the only process due at a parole 13 consideration hearing is an opportunity for the inmate to present his case, and if parole is denied,

14 an explanation for the denial. Greenholtz, 442 U.S. at 16. Petitioner received both of these 15 protections in his 2006 hearing. First, Petitioner had the opportunity to fully present his case to 16 the Board, discussing each of the relevant parole consideration addressed by the Board. (Ex. B at 17 1-37.) In addition, Petitioner and his attorney both gave closing statements at the conclusion of

18 the hearing, describing the reasons why Petitioner should be found suitable for parole. (Id. at 3919 43.) Second, when the Board reconvened after a short recess, it provided Petitioner with a 20 thorough explanation as to why he was denied parole. (Ex. B at 44-51.) The Board based its 21 decision on the gravity of the commitment offense, finding that it was "especially cruel," "very

22 dispassionate and calculated," and committed solely for "some economic gain." (Id. at 44-45.) 23 In addition, the Board also stated its decision denying parole was based in part on Petitioner's

24 lack of written verification for his parole plans, and that the Board had considered the San Diego 25 26 County District Attorney's opposition to parole.
(Id. at 46-51.)

Thus, because Petitioner received an opportunity to present his case and an explanation as

27 to why the Board denied him parole-and does not claim otherwise-he received all process due 28 under Greenholtz, the only clearly established Supreme Court law regarding due process at
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parole consideration hearings. Accordingly, the state court decisions upholding the Board's

2 parole denial are not contrary to, or an unreasonable application of, clearly established federal 3 4 5 6 Petitioner states that this Court must determine whether some evidence supports the law. 2. The Ninth Circuit's some-evidence test is not clearly established Supreme Court law.

7 Board's decision to deny parole. However, the some-evidence standard is not the proper 8 standard of federal judicial review. In Greenholtz, the Supreme Court specifically rejected the

9 idea that a parole board must specify particular evidence in the inmate's file or at his interview to 10 support its decision, as that would transform the parole process into an adversarial proceeding 11 and equate the denial of parole to a guilty verdict. Thus, as a matter of clearly established

12 Supreme Court law, a challenge to a parole decision will fail if the inmate has received the ' 13 protections required under Greenholtz. -l 14 The Ninth Circuit, however, has erroneously determined that clearly established federal

15 law requires that a parole decision be supported by some evidence. Jancsek v. Oregon Board of 16 Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 17 2002). This standard stems from the decision in Hill, in which the United States Supreme Court 18 determined that some evidence must support the decision of a prison disciplinary board to revoke 19 good time credits. 472 U.S. at 455. In Jancsek, McQuillion, and subsequent cases, the Ninth 20 Circuit held that the some-evidence standard applies not only in the disciplinary context, but the 21 parole context as well. Id. However, because these holdings are not clearly established federal

22 law under AEDPA standards, they do not apply in federal habeas proceedings which challenge 23 parole denials. 24 25 1. 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). 26
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In Musladin, the United States Supreme Court reiterated that for AEDPA purposes,

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"clearly established federal law" refers only to the holdings of the Supreme Court on the specific

2 issue presented. The Supreme Court's opinion in Musladin arose from the Ninth Circuit's 3, decision holding that under clearly established federal law, courtroom spectators who wore 4 buttons depicting the victim of a murder inherently prejudiced the murder defendant and denied 5 him a fair trial. Id. at 652. In doing so, the Ninth Circuit determined that the prejudice tests used 6 by the Supreme Court in two similar but factually distinct cases constituted clearly established 7. federal law for the purposes of AEDPA. Id. The Supreme Court, however, reversed the Ninth 8 Circuit's decision upon review, holding that the highest court had "never addressed a claim that

9 private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a 10 fair trial." Id. at 653. ' Hence, the Musladin court made it clear that circuit courts may not import 11 a federal standard used for one set of circumstances into a different set of circumstances under
U.S. ,

12 the guise of "clearly established federal law." Id.; see also Schriro v. Landrigan, 13

127 S. Ct. 1933, 1942 (2007) (reversing the Ninth Circuit Court of Appeal's decision regarding

14 an ineffective assistance of counsel claim on the ground that the Supreme Court had not 15 previously address the specific claim presented in this case). 16 1.7 18 19 Several recent Ninth Circuit decisions also emphasize that there can be no clearly established. federal law where the Supreme Court has never addressed a particular issue or applied a certain test to a specific type of proceeding. Crater v. Galaza, 491 F.3d 1119, 1122-23, 1126-27 & n.8 (9th Cir. 2007) (citing Musladin, the Ninth Circuit acknowledged that decisions

20 by courts other than the Supreme Court as "non-dispositive" under §'2254(d)(1)); Foote v. Del 21 22 23 Papa, 492 F.3d 1026, 1029-30 (9th Cir. 2007) (affirming district court's denial of petition alleging ineffective assistance of appellate counsel based on an alleged conflict of interest because no Supreme Court case has held that such an irreconcilable conflict violates the Sixth

24 Amendment); Nguyen v. Garcia, 477 F.3d 716, 718, 727 (9th Cir. 2007) (holding that state .25 court's decision finding Wainwright v. Greenfield, 474 U.S. 284 (1986) did not apply to a state

26 court competency hearing was not contrary to clearly established federal law because Supreme 27 28 Court had not held that Wainwright applied to competency hearings). The Jancsek and McQuillion courts, however, did exactly what the Musladin court
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warned against-they took the some-evidence standard from the prison disciplinary context and

2 applied it to an entirely different situation. Although both prison disciplinary hearings and parole 3 consideration decisions affect the duration of an inmate's confinement, the two situations are not

4 identical. Specifically, prison disciplinary hearings involve a finding of guilt, meaning that the 5 process due in disciplinary hearings is greater than that required in parole hearings. Greenholtz, 6 442 U.S. at 15-16. Thus, the Jancsek and McQuillion courts erred in determining that the some7 evidence standard should apply in the parole hearing context, and subsequent courts have erred in 8 holding that this standard is clearly established federal law for the purposes of AEDPA. See 9 Irons v. Carey, 505, F.3d 846 (9th Cir. 2007); Sass, 461 F.3d 1123; Biggs, 334 F.3d 910. 10 11 Any argument that due process requires a less deferential standard of review is without merit. Neither the some-evidence standard nor any more stringent standard is necessary to

12 protect Petitioner's due process rights, as three California courts have already evaluated the 13 substantive merits of his claims. (Exs. G, I, K.) Therefore, the absence of substantive review

14 under AEDPA does not diminish Petitioner's due process rights-it merely defers to the state 15 court's evaluation of those rights, consistent with AEDPA's stated purpose of "further[ing]

16 comity, finality, and federalism." Miller-El v. Cockrell, 573 U.S. 322, 337 (2003). Thus, neither .17 the some-evidence standard of review nor any higher standard is necessary at the federal level to 18 protect Petitioner's substantive due process rights. 19 In summary, Greenholtz is the only United States Supreme Court authority describing the

20 process due at a parole consideration hearing. As such, Petitioner is entitled to only those 21 protections provided in Greenholtz. Because he received these protections, the state court

22 decisions upholding his parole denial are not contrary to clearly established federal law. 23 24 25 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.

26 purposes, Petitioner's claim would nonetheless fail because the state court correctly applied the 27 standard. The some-evidence standard "does not require examination of the entire record, 28 independent assessment of the credibility of witnesses, or weighing of the evidence;" rather, it is
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satisfied if there is "any evidence in the record that could support the conclusion reached by the [B]oard." Hill, 472 U.S. at 455-57; evidence standard is minimal"). 4 The evidence used by the Board to deny parole was that regarding the egregious nature of
see also Sass,

461 F.3d at 1129 (stating that "Hill's some

5 Petitioner's crime and his lack of verified parole plans, as well as consideration of the San Diego 6 County District Attorney's opposition to parole. (Ex. B at 44-51.) As to the crime, Petitioner 7 participated in the forcible kidnaping for ransom of an eighty-eight-year-old woman from her 8 home, which resulted in her being held captive for a number of days while she was threatened 9 with her life if the ransom was not paid. (Ex. B at 11-20, 34-37, 44-45; Ex. Cat 2-9; Ex. D at 110 4.) As the state court found, the circumstances of Petitioner's kidnaping offense provide "some 11 evidence to support the Board's finding that the kidnaping was cruel and continued for a number

12 of days," Petitioner "admitted he was armed in the presence of the victim," and Petitioner had 13 "threatened to harm the victim if the ransom was not paid." (Ex. I at 2.) In addition, the state

14 court properly upheld the Board's consideration of Petitioner's parole plans given that there was 15 some evidence that Petitioner currently lacked written verification of his plans. (Id.;
see also

Ex.

16 B at 23-27, 46-50.) As a result, the state court found that the Board's decision was supported by 17 some evidence. (Ex. I at 2.) Thus, to the extent that the some-evidence test in Hill is clearly 18 established federal law, it was reasonably applied by the state courts, and Petitioner's claim to the

19 contrary must be denied. 20 21 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

22 commitment offense to deny parole after his initial parole hearing. (Pet. at 16-17.) This 23 argument fails for a number of reasons. First, the Board did not rely solely on the facts of

24 Petitioner's commitment crime to deny parole; rather, the Board also based its decision on 25 Petitioner's lack of verified parole plans and its consideration of the San Diego County District 26 Attorney's opposition to parole. (Ex. B at 44-51.) Petitioner's lack of verified parole plans is not 27 a static factor, but one which Petitioner can address in the future. Indeed, although the Board 28 declined to speculate whether presence of verified parole plans would have made Petitioner
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suitable for parole, it stated that such evidence would have been "persuasive," that Petitioner is "making progress and is getting himself very close to getting out of here," and that Petitioner was "at the cusp of compliance and so [he is] almost there." (Id. at 50.) Second, no clearly

4 established Supreme Court law provides that the Board cannot base a parole denial on the factors 5 of an inmate's commitment offense after a certain length of incarceration. Third, California's

6 parole provisions explicitly state that parole may be denied based on the egregious nature of the 7 8 crime. For instance, California Penal Code section 3401 states that Board "shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the

9 timing and gravity of current or past convicted offense or offenses, is such that consideration of 10 the public safety requires a more lengthy period of incarceration." Similarly, California Code of 11 Regulations title 15, section 2402(c)(1), provides that a crime committed "in an especially

12 heinous, atrocious, or cruel manner" is a factor tending to indicate parole unsuitability. Finally, 13 the California Supreme Court held in Dannenberg that the Board may rely solely on the

14 circumstances of the commitment offense to deny parole. 34 Cal. 4th at 1094. Thus, under both 15 state law and clearly established federal law, the Board properly based its decision, in part, on

16 Petitioner's commitment offense. 17 18 Contrary to Petitioner's argument (Pet. at 16-17), the Ninth Circuit's holding in Biggs does not compel a different result. In Biggs, the Ninth Circuit stated that the Board's continuing

19 reliance on an unchanging factor to deny parole "could result in a due process violation." Id. at 20 21 917. However, the Biggs court did not definitively indicate that reliance on an unchanging factor necessarily violates due process, only that it possibly could. Indeed, the court praised Biggs for

22 being "a model inmate," and found that the record was "replete with the gains Biggs has made," 23 including a master's degree in business administration. Id. at 912. Nonetheless, the court denied

24 habeas relief because the Board's decision to deny parole-which relied solely on the commitment 25 26 27 offense-was supported by some evidence. Id. at 917. Most importantly, the statement in Biggs is merely circuit court dicta, and not clearly established federal law sufficient to overturn a state court decision under AEDPA standards. The

28 Ninth Circuit has emphasized that Biggs does not contain mandatory language, and that "[u]nder
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AEDPA, it is not our function to speculate about how future parole hearings could proceed."

2 Sass, 461 F.3d at 1129. The Sass court then rejected the argument that the Board's reliance on 3 "immutable behavioral evidence" to deny parole violated federal due process. Id. Furthermore,

4 the Ninth Circuit subsequently determined that the Biggs' dicta regarding the possibility of a 5 future due process violation was insufficient to establish a basis for relief because "it is not our 6 function to speculate about how future parole hearings could proceed." Sass, 461 F.3d at 1129; 7 see also Irons, 505 F.3d at 852-54 (holding that despite "substantial" evidence of rehabilitation in 8 that case, the Board acted properly within its discretion in continuing to rely on the circumstances 9 of the inmate's offense to deny parole); but see Hayward v. Marshall, 512 F.3d 536, 547-48 (9th 10 Cir. 2008) [holding that denying parole based solely on the commitment offense violated due 11 12 13 process based on the factual circumstances and factors present in that case].) 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

14 valid state court decision. Accordingly, Petitioner fails to prove that the state court decision 15 denying parole is contrary to or an unreasonable application of clearly established federal law, 16 and the petition must be denied. 17 B. 18 19 The second standard under AEDPA is that a state court habeas decision must be based on The State Court Decision Upholding the Board's Parole. Denial Was Based On a Reasonable Interpretation of the Facts.

20 a reasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 21 2254(d)(2). Petitioner bears the burden of proving that the state court's factual determinations

22 were objectively unreasonable. 28 U.S.C. § 2254(e)(1); Juan H. v. Allen, 408 F.3d 1262, 1270 23 (9th Cir. 2005). Thus, in order to prevail on this claim, Petitioner would need to prove that it was 24 objectively unreasonable for the state courts to conclude that the Board acted in accordance with 25 due process and that some evidence supported the factual basis of the Board's parole denial. 26 Petitioner fails to meet this burden, as some evidence in the record supports the Board's finding; 27 furthermore, he does not provide any evidence to show that the Board's determination of parole 28 unsuitability violated federal due process.
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Petitioner may disagree with the Board's analysis, but that is not sufficient to prove that the state court's decision was objectively unreasonable. For instance, although Petitioner alleges his action were not as culpable as that of the other kidnappers, he is equally culpable for all the actions of his co-conspirators. Cf. Biggs, 334 F.3d at 916 (finding that some evidence supported the Board's reliance on the gravity of the offense to deny Biggs parole because although Biggs did not personally kill the victim, "he was intertwined with the conspiracy from the very beginning"); Machado v. Kane, No. C 05-01632 WHA, 2006 WL 449146, at *5 (N.D. Cal. Feb. 8 22, 2006) (finding that the Board properly relied on the commitment offense to deny parole 9 because although the petitioner did not strike the victim, the petitioner armed himself with a gun, 10 planned a home-invasion robbery, and executed the plan; thus, he was equally responsible for his 11 crime partner's brutality as a reasonably foreseeable act of violence during the crime). Moreover,

12 the applicable Penal Code and regulatory provisions require the Board to consider the entire 13 circumstances of the commitment offense rather than merely the specific actions the prisoner

14 committed during that offense. Cal. Penal Code § 3041(b); Cal. Code Regs., tit. 15, § 2281. The 15 state court thus reasonably upheld the Board's decision based on its factual determinations

16 regarding both Petitioner's specific involvement in the kidnaping for ransom as well as the other 17 circumstances of this offense. 18 Lastly, in assessing the state court's review of Petitioner's claims, not only should the

19 appropriate deference be afforded under AEDPA to the state court's review, but deference is also 20 due to the underlying Board decision. The Supreme Court has recognized the difficult and 21 22 sensitive task faced by the Board members in evaluating the advisability of parole release. Greenholtz, 442 U.S. at 9-10. Therefore, contrary to Petitioner's belief that he should be paroled

23 based on the evidence in support of parole presented at the hearing, the Supreme Court has stated 24 that in parole release, there is no set of facts which, if shown, mandate a decision favorable to the 25 inmate. Greenholtz, 442 U.S. at 9-10. Instead, under the some-evidence standard, the court's 26 inquiry is limited solely to determining whether the state court properly found that the Board's 27 decision to deny parole is supported by some evidence in the record, i.e., any evidence. Hill, 472 28 U.S. at 455. Here, because the state court reasonably applied the some-evidence standard to the
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Board's decision and made a reasonable determination of the facts considered by the Board,

2 Petitioner's claim for federal habeas relief must be denied. 28 U.S.C. § 2254(d)(1-2); Andrade, 3 4 5 583 U.S. at 75-76. CONCLUSION Petitioner's disagreement with the Board's decision is not sufficient to overturn three

6 valid state court decisions denying habeas relief. Rather, in order for his claim to succeed, he 7 must prove that the state court holdings were contrary to, or an unreasonable application of, 8 clearly established federal law, or that the decisions were based on an unreasonable

9 determination of the facts. Petitioner fails to make such a showing. First, he received all process 10 due under Greenholtz, the only clearly established federal law in the parole hearing context. 11 Second, the some evidence standard does not apply to Petitioner's case; however, even if it did,

12 the state court reasonably determined that the Board's decision is supported by some evidence of 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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parole unsuitability. Accordingly, the petition for writ of habeas. corpus must be denied. Dated: March 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 ANYA M. BINSACCA Supervising Deputy Attorney General

:14/1416:
SCOTT C. MATHER Deputy Attorney General Attorneys for Respondent

27 28

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

C07-4846 JSW

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 March27,2008, I served the attached ANSWER TO ORDER TO SHOW CAUSE; 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: Jose Flores, J-03392 Correctional Training Facility P.O. Box 689 Soledad, CA 93960-0689 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 March 27, 2008, at San Francisco, California.

40233384.wpd