Free Response to Order to Show Cause - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANER. GILLETTE Chief Assistant Attorney General 3 JULIE L. GARLAND Senior Assistant Attorney General 4 ANYAM. BINSACCA Supervising Deputy Attorney General 5 BRIAN C. KINNEY, State Bar No. 245344 Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415),703-5255 Fax: (415) 703-5843 8 Email: [email protected] 9 Attorneys for Respondent Ben Curry, Warden at the Correctional Training Facility 10 11 12 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Darryl Dawson, 15 Petitioner, C07-4821 WHA
ANS~RTOTHEORDERTO

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v.. 17 Ben Curry, Warden, 18 Respondent. 19 20 21 22 23 24 25

SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES Judge: The Honorable William Alsup

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TABLE OF CONTENTS
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3 ANSWER TO THE ORDER TO SHOW CAUSE 4 MEMORANDUM OF POINTS AND AUTHORITIES 5 ARGUMENT 6 7

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10 10

I.

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THE STATE COURT'S DENIAL OF DAWSON'S HABEAS CLAIM WAS NEITHER CONTRARY TO, OR AN UNREASONABLE APPLICATION OF, CLEARLY ESTABLISHED FEDERAL LAW, NOR BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS. A. The California Supreme Court's Decision Was Not Contrary to Clearly Established Federal Law. 1. Dawson 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 standard is not clearly established federal law and, therefore, Dawson is only entitled to the process established in Greenholtz - not some-evidence federal review. Even ifthe some-evidence standard were clearly established federal law, the California Supreme Court's decision did not violate this standard. The some-evidence standard only requires some evidence to support the Board's decision to deny parole - not evidence indicating that the inmate presented a current risk to society if released. The Board may rely on static factors to deny parole. Dawson's claim regarding California's sentencing matrices does not implicate a question of federal law.

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5. 6. B.

22 23 24 CONCLUSION 25 26 27 28
Answer to Order to Show Cause; Memorandum of Points and Authorities
1

The California Supreme Court's Decision Upholding the Board's Parole Denial Reasonably Determined the Facts.

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TABLE OF AUTHORITIES (continued)
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3 Statutes 4 28 United States Code § 2244(d)(I) § 2254(d)(1-2) 5 § 2254(d)(2)
6 California Code of Regulations, Title15 § 2282 7 § 2402, subd. (b) § 2402, subd. (c)(1)(A) 8 § 2402, subd. (c)(1)(B) § 2402, subd. (c)(I)(C) 9 § 2402, subd. (c)(1)(D) 10 California Penal Code § 3041, subdivision (b) 11 12

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10 19 9, 19 18 15 15 15 15 18

Other Authorities 13 Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)
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7,8,10-14,16-19,21

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANER. GILLETTE Chief Assistant Attorney General 3 JULIE L. GARLAND Senior Assistant Attorney General 4 ANYAM. BINSACCA Supervising Deputy Attorney General 5 BRIAN C. KINNEY, State Bar No. 245344 Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5255 Fax: (415) 703-5843 8 Email: [email protected] 9 Attorneys for Respondent Ben Curry, Warden at the Correctional Training Facility 10
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IN THE UNITED STATES DISTRICT COURT 12 FOR THE NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO DIVISION 14 15 16 17 18 19 20 21 Petitioner Darryl Dawson, an inmate at the Correctional Training Facility and serving an

Darryl Dawson,
Petitioner,

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v.
Ben Curry, Warden,
Respondent.

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

Judge: The Honorable William Alsup

22 indeterminate sentence for first-degree murder, represents himself in this habeas action. 23 Petitioner alleges that the Board of Parole Hearings unconstitutionally denied him parole at his 24 October 5, 2006 first-subsequent-parole-consideration hearing. Specifically, Dawson argues that 25 the Board violated his due process rights because sufficient evidence did not support the Board's 26 denial. The Court summarily dismissed Dawson's second claim- challenging the Board's 27 failure to provide reasons for the two-year denial- because it is not a cognizable claim for 28 federal habeas relief.
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The Court issued a September 25,2007 Order to Show Cause why Dawson's petition

2 should not be granted. Respondent Warden Ben Curry answers as follows:

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4

ANSWER TO THE ORDER TO SHOW CAUSE
In response to the Petition for Writ of Habeas Corpus filed on September 19,2007,

5 Respondent hereby admits, denies, and alleges the follows: 6 1. Dawson is lawfully in the custody of the California Department of Corrections and

7 Rehabilitation (CDCR) following his 1981 conviction for first-degree murder, with an 8 enhancement for being armed with a firearm, and thirteen counts of robbery with the use of a 9 firearm. (Ex. A, Judgement.) Dawson received a twelve-year sentence for the 13 robbery counts, 10 and in 1987 he began serving twenty-five years to life for the first-degree murder. (Id.; Ex. B, 11 2003 Life Prisoner Evaluation Report, at p. 1.) Dawson does not challenge his underlying 12 convictions in the current proceeding. 13 2. Respondent affirmatively alleges that in 1980 Dawson committed a string of armed

14 robberies with his crime partner, Kenneth Lamart Jordan. (Ex. B, at pp. 1-3; Ex. C, Appellate 15 Court Opinion, at pp. 3-5, 11-20; Ex. D, Probation Officer's Report, at pp. 6-8; Ex. E, 16 Supplemental Probation Officer's Report, at pp. 2-4.) Dawson received his first-degree murder 17 conviction for his participation in the last robbery the two committed before apprehension, 18 wherein Dawson's crime partner shot a market security guard trying to use a phone. (Ex. C, at 19 pp. 16-17.) After his partner shot the security guard, Dawson directed the store's assistant 20 manager at gunpoint down three check stands, and demanded money from each grocery checker.

21 (Id. at pp. 17-18.) The security guard later died from blood loss. (Id. at p. 17; Ex. E, at p. 4.) A
22 month before this murder-robbery, evidence links Dawson to another murder-robbery, which the 23 State convicted Jordan of, but not Dawson. (Ex. C, at pp. 14-15.) The various robberies

24 transpired on two nights, January 30, 1980, and February 29, 1980. (Id. at pp. 11-20.) 25 26 27 More specifically, on January 30, 1980, Jordan, Dawson's crime partner, robbed people at a Safeway at approximately 7:30 p.m., at an Alpha Beta Market at 10:30 p.m., at a Jack-in-the-Box Restaurant at approximately 10:40 p.m., and at Norm's Restaurant at approximately 10:50 p.m. where Jordan shot and killed a patron. (Ex. C, at pp. 11-14; Ex. E, at p. 3.) Dawson was only
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1 convicted for the armed robberies occurring at the Jack-in-the-Box Restaurant. (Ex. C, at p. 3.) . 2 However, a witness identified Dawson as Jordan's accomplice during the Norm's Restaurant 3 robberies, and other witnesses also identified Dawson's involvement in the Safeway and Alpha 4 Beta Market robberies. (Id. at pp. 11-15.) Jordan received a first-degree murder conviction for 5 the Norm's Restaurant killing. (Id. at p. 4.) 6 On February 29, 1980, Dawson and Jordan committed five armed robberies at McCoy's

7 Market at approximately 8:00 p.m., and six armed robberies at Boy's Market at approximately 8 9:00 p.m. - where Jordan shot and killed a uniformed security guard. (Id. at pp. 3-4, 15-18.) 9 Jordan also received a first-degree murder conviction for this shooting, as did Dawson. (Id. at 10 pp.3-4.) 11 During the Jack-in-the-Box Restaurant robberies, Dawson pointed a handgun at the assistant

12 manager while at the drive-up window. (Ex. B, at p. 1; Ex. C, at p. 13.) The assistant manager 13 ducked behind the grill, and Jordan told the assistant manager to come out or there would be 14 shooting. (Id.) At gunpoint, Jordan ordered the assistant manager to have another employee 15 admit Dawson through the back door. (Id.) Dawson entered and walked the assistant manager to 16 the front of the restaurant. (Id.) Jordan ordered the assistant manager to open the safe. (Id.) As 17 the assistant manager reached for his wallet to obtain the safe combination, Jordan cocked his 18 handgun, which he was aiming at the man. (Id.) The assistant manager explained his purpose 19 and was allowed to remove his wallet. (Id.) Dawson took the wallet, and removed the 20 21 22 23 24 25 26 combination. (Id.) Dawson then gave back the combination to the assistant manager so he could open the safe, and Dawson kept the wallet. (Id.) In addition to the wallet, Dawson and Jordan left with all the coins from the safe, the money from the cash register, and the cashier's wallet at the drive-up window. (Id.) In total, the crime duo stole $170. (Ex. B, at p. 1.) On February 29, 1980 at approximately 8:00 p.m., Jordan entered McCoy's Market, and asked a checker the whereabouts of the security guard, mentioning him by name. (Ex. B, at p. 1; Ex. C, at p. 15.) Some minutes later, Jordan approached the checker from behind and ordered

27 him to remain at his check stand, remove the cash from the register, and place it in a paper bag.
28 (Id.) The checker complied and then turned around to see that Jordan was holding a gun. (Id.)
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1 Dawson pointed his gun at the floor and ordered a second checker to empty her register. (Id.) 2 Dawson also directed this checker to empty the till from two closed check stands. (Id.) A third, 3 unidentified accomplice joined Jordan and Dawson during this robbery. (Id.) Dawson 4 approached the snack-bar operator while he was attempting to call the sheriffs department on a 5 telephone outside the store. (Ex. C, at p. 16.) Dawson asked him if he was notifying the police.
6 (Id.) The snack-bar operator claimed he was not, and Dawson ordered him to hang up the phone

7 and to return to the store. (Id.) In addition to the clerks, the assailants robbed the liquor clerk, 8 the snack bar operator, and his wife. (Ex. B, at p. 1.) Before the three robbers left the store, 9 Jordan placed a gun in the side ofthe uniformed but unarmed security guard and ordered him to 10 the rear of the store. (Id. at pp. 1-2.) Dawson and the other two carried off $2,000. (Id.at p. 2.) 11 Approximately an hour later, Jordan entered Boy's Market. (Ex. B, at p. 2; Ex. C, at p. 16.)

12 Jordan immediately came back outside and walked around the comer toward the telephones. 13 Shortly before, a uniformed security guard, Dwight Cousins, armed with a fake gun, had walked 14 to the telephones. (Ex. C, at p. 17; Ex. E, at p. 3.) At point-blank range and without any warning, 15 Jordan shot the security guard, who was clutching the telephone receiver in his hand. (Id.) 16 Jordan demanded the guard's gun, and then took it. (Ex. C, at p. 17.) Jordan reentered the store, 17 where Jordan and Dawson proceeded to rob all the cashiers in the store at gunpoint. (Ex. E, at 18 pp.3-4.) Dawson approached the assistant manager, pointed a gun at him, and told him that he 19 would be shot ifhe did not do as he was told. (Ex. C, at p. 17-18.) Dawson then marched the 20 assistant manager to check stands 6, 5, and 2 in succession (number 3 and 4 were closed), and

21 demanded money from each ofthe checkers. (Id. at 18.) Jordan demanded food stamps and 22 change from the checker at check stand8. (Id.) Thereafter, Jordan called across the room to 23 Dawson and proceeded to the next check stand. (Id.) A box boy attempted to call for help, and 24 Jordan said, "I've already killed one person, do you want to be next?" (Id.) Dawson and Jordan 25 left the store with $1,200. (Ex. B, at 2.) The security guard later died due to blood loss. (Ex. E, 26 at p. 4; Ex. C, at p. 17.) 27 3. Respondent affirmatively alleges that prior to his commitment offense, the Los

28 Angeles Police Department arrested Dawson for assault with a deadly weapon, and possession of
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1 marijuana. (Ex. D, at p. 5; Ex. B, at p. 4; Ex. F, Parole Hearing Transcript, at pp. 7-9.) He was 2 not convicted on either charge. (Id.) Dawson was arrested and convicted for driving under the 3 influence of alcohol in 1979. (Id.)

4

4. . Respondent affirmatively alleges that prior to the commitment offense, Dawson

5 struggled with alcohol use, and smoked marijuana. (Ex. D, at p. 4; Ex. F, at pp. 14-16.) In 6 addition, Dawson had a PCP problem in high school, which he smoked for several years. (Id.; 7 Ex. F, at p. 36; Ex. G, Psychological Evaluation Report, dated March 21,2003, at p. 2.)
8 Dawson's parents convinced him to live with his relatives in Texas to avoid the influence of

9 drugs in the neighborhood. (Ex. D, at p. 4; Ex. F, at p. 15.) However, Dawson's drug-use 10 continued, and from age twenty-one until his incarceration he used cocaine. (Id.) 11 5. Respondent affirmatively alleges that during incarceration, Dawson has received two

12 disciplinary violations. (Ex. B, at p. 6.; Ex. F, at p. 23; Ex. H, 2006 Life Prisoner Evaluation
13 Report, at p. 2.) Dawson fought his cell mate in 1982, and, in 2002, he engaged in inappropriate

14 sexual behavior with his wife in the prison's visiting room. (Id.; Ex. F, at p. 24.) 15 6. Respondent affirmatively alleges that in prison Dawson does not regularly attend

16 meetings for Alcoholics Anonymous and/or Narcotics Anonymous. (Ex. F, at p. 37.) During his 17 parole hearing, Dawson indicated that he had not attended a single meeting in about a year. (Id. 18 at p. 38.) 19 20 21 22 23 24 25 26 27
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7.

Respondent affirmatively alleges that the Los Angeles County District Attorney's

Office opposed Dawson's parole. (Id. at pp. 59-60.) Deputy District Attorney Bashing attended the parole hearing and commented that Dawson's discussion of his remorse for the crimes centered more on himself than the victims involved. (Id. at p. 60.) 8. Respondent affirmatively alleges that the Board denied Dawson parole at his October

6, 2006 first-subsequent-parole-consideration hearing. (Id. at pp. 67-78.) In denying parole, the Board based its decision on several factors. (Id.) First, the Board relied on the gravity of the commitment offense, noting that multiple victims were attacked, and one was killed during the course of three separate acts of violence.
(Id. at p. 69.) Also, Dawson and his crime partner carried out these violent acts in a
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1 dispassionate and calculated manner. (Id.) The Board further noted that the offense was carried 2 out in a manner which demonstrates an exceptionally callous disregard for human suffering. (Id.) 3 The Board also touched upon the very trivial motive for the murder-robbery, commenting that 4 Dawson's half of all the stolen money from the various robberies was between $1,600 and 5 $1,700. (Id.) 6 7 Second, the Board relied on Dawson's lack of remorse and insight into the crime. (Id. at pp. 68, 75-76.) The Board addressed that Dawson could not identify the number of victims he

8 affected in the various robberies, and commented that he displayed a lack of remorse for those he 9 impacted. (Id. at p. 68.) The Board further comtnented that Dawson should participate in self10 help programs to help develop remorse for his victims. (Id. at 69.) The Board also denied parole 11 because Dawson needs to develop insight into the commitment offense. (Id. at pp. 75, 76.) Even 12 though Dawson refused to discuss the offense, he periodically discounted the severity of his 13 conduct during the parole hearing. (Id. at pp. 20,21,51,65, 75.) For instance, on three separate 14 instances Dawson stated that the reason he committed the crime was because he was "out of [his] ,15 character." (Id. at p. 21, 51, 65, 75.) Also, Dawson refused to appreciate and acknowledge his

16 responsibility for the victim's death stating, "my crime partner decided to take it upon his self 17 [sic]to shoot and kill the security guard." (Id. at p. 20.) The Board recommended that self-help

18 programs could assist Dawson in developing the insight he lacks. (Id. at p. 76). 19 20 21 22 23 24 25 26 27 28 Third, the Board denied parole because Dawson requires more programming to assist in the transition to life outside of prison. (Id. at pp. 70, 76-77.) As noted by the Board, Dawson received his GED and a vocation early during his incarceration, but lacks current growth. (Id. at p. 70.) The Board recommended a variety of self-help programs to address Dawson's shortcomings. (Id. at p. 70, 76-77.) Specifically, the Board observed that Dawson requires consistent participation in Alcoholics Anonymous, or substance abuse programming because of his prior drug-use problems. (Id. at p. 71, 72, 77.) The Board also recommended that Dawson focus on attending classes and/or reading books specific to helping with relationships. (Id. at p. 76-77.) The Board explained that such activities would be especially helpful for Dawson once he is paroled and begins living with his wife. (Jd.) The Board acknowledged that Dawson's parole
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1 plans were "pretty good," but recognized that Dawson needed to create a resume and further 2 develop his support systems outside of prison. (Id. at pp. 71-72, 77; see also id. at pp. 54-56 3 [discussion of supporting influences ifparoled].) 4 9. Respondent admits that Dawson filed a habeas petition in the California Supreme

5 Court alleging the same causes of action that he alleges here. (Ex. I, Supreme Court Petition.) 6 Respondent further admits that the court denied the petition. Hence, Dawson exhausted his state 7 court remedies in regard to the issues currently before this Court. However, Respondent denies 8 that Dawson exhausted his claims to the extent that they are more broadly interpreted to 9 encompass any systematic issues beyond this particular review of the October 2006 parole denial. 10 10. Respondent preserves the argument that Dawson does not have a federally protected

11 liberty interest in parole. See Greenholtz v. Inmates ofNeb. Penal & Corr. Complex, 442 U.S. 1, 12 12 (1979) (liberty interest in conditional parole-release date created by unique structure and 13 language of state parole statute); Sandin v. Connor, 515 U.S. 472, 484 (1995) (no federal liberty 14 interest in parole because serving a contemplated sentence does not create an atypical or 15 significant hardship compared with ordinary prison life); and In re Dannenburg, 34 Cal. 4th
I

16 1061, 1087 (2005) (California's parole scheme is a two-step process that does not impose a 17 mandatory duty to grant life inmates parole before a suitability finding); contra Sass v. Cal. Ed. 18 ofPrison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006) (holding that California inmates have a 19 federally protected liberty interest in parole date). 20 11. Respondent denies that the state court's denial of habeas corpus relief was contrary to,

21 or involved an unreasonable application of, clearly established United States Supreme Court law, 22 or that the denial was based on an unreasonable interpretation of facts in light ofthe evidence 23 presented. Dawson therefore fails to make a case for relief under the Anti-Terrorism and 24 Effective Death Penalty Act of 1996 (AEDPA). 25 12. Respondent affirmatively alleges that Dawson received an opportunity to present his

26 case to the Board, and the Board provided him with a detailed explanation for its parole denial. 27 (Ex. F.) Thus, Dawson received all process due under Greenholtz, the only clearly established 28 federal law regarding due process rights of inmates at parole consideration hearings.
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1

13. Respondent affirmatively alleges that the Board considered all relevant and reliable

2 evidence before it, and that some evidence supports its decision. However, Respondent further 3 affirmatively alleges that the some-evidence standard does not apply in federal habeas 4 proceedings challenging parole denials, and that the some-evidence standard is only clearly 5 established federal law in the prison disciplinary context. 6 14. Respondent denies that clearly established federal requires this Court to determine

7 whether some evidence supports a finding that Dawson currently poses an unreasonable risk of 8 danger to society. 9 15. Respondent denies that the Board improperly relied on Dawson's commitment offense,

10 or relied solely on Dawson's commitment offense. Respondent affirmatively alleges that the 11 Board also relied on other factors in determining parole suitability, such as Dawson's lack of 12 insight into the nature ofthe commitment offense, his lack of remorse for the victims of his 13 crimes, and his lack of self-help programming. (Ex. F, at pp. 67-78.) Respondent denies that the 14 Board's 2003 decision to deny Dawson parole relied solely on Dawson's commitment offense. 15 (Petn. at Ex. D.) However, Respondent affirmatively alleges that federal due process does not 16 preclude the Board from relying on immutable factors to deny parole. Sass, 461 at 1129. 17 Respondent further affirmatively alleges that the argument that the Board may not continue to 18 rely on the circumstances of Dawson's commitment offense to deny parole is not cognizable 19 under AEDPA because it relies on circuit court dicta in Biggs v. Terhune, 334 F.3d 910 (9th Cir. 20 2003), rather than clearly established United States Supreme Court precedent. 21 16. Respondent affirmatively alleges that the Board reviewed and discussed Dr. Gamard's

22 2003 Psychological Evaluation Report of Dawson. (Ex. F, at pp. 39-40.) Respondent denies that 23 the Board disregarded the report. Respondent further denies that Dawson maintains a clearly 24 established federal right to have the Board rely on his psychological evaluation report when 25 conducting his parole consideration hearing. 26 17. Respondent denies that the Board ignored or failed to consider evidence tending to

27 show Dawson's parole suitability. Respondent denies that Dawson maintains a clearly 28 established federal right to have the Board consider or acknowledge all factors indicative of his
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1 suitability for parole. 2 18. Respondent denies that the Board failed to consider Correctional Counselor Peabody's

3 2003 Life Prisoner Evaluation Report. Respondent denies that Dawson maintains a clearly 4 5 established federal right to have the Board consider his Life Prisoner Evaluation Report. 19. Respondent denies that, based on Dawson's housing classification, CDCR determined

6 that he is not a threat to society. Respondent denies that the Board ignored his classification 7 level and custody status. (See Ex. F at p. 22.) Respondent denies that Dawson maintains a 8 clearly established federal right to have the Board review his classification level or custody status 9 at his parole hearing. 10 20. Respondent admits that California's parole regulations contain a matrix of suggested

11 base terms that prisoners wit~ life sentences should serve before released on parole. See Cal.

12 Code Regs. tit. 15, § 2282. However, under California law, an inmate's base term can be set 13 only after the Board finds the inmate suitable for parole, because the statutory scheme places 14 individual suitability for parole above a prisoner's expectancy in an early setting of a fixed date 15 designed to ensure term uniformity. Dannenberg, 34 Cal. 4th at 1070-71. Accordingly, 16 Respondent denies that the Board violated California law concerning the matrix of suggested 17 base terms. Respondent denies that California law requires the Board to compare Dawson's 18 crimes to other instances of the same crime when deciding whether to grant parole. Additionally, 19 Respondent denies that Dawson maintains a clearly established federal right to have the Board 20 21 22 23 24 25 26 27 28 apply California's matrix of suggested base terms. Respondent further denies that Dawson maintains a clearly established federal right based upon the frequency in which the Board sets parole dates for other inmates. 21. Respondent admits that Dawson's claims are timely under 28 U.S.C. § 2244(d)(1), and are not barred by any other procedural defense. 22. Respondent denies that an evidentiary hearing is necessary in this matter. 23. Respondent affirmatively alleges that Dawson fails to establish any grounds for habeas corpus relief. 24. Except as expressly admitted above, Respondent denies, generally and specifically,
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1 suitability for parole. 2 18. Respondent denies that the Board failed to consider Correctional Counselor Peabody's

3 2003 Life Prisoner Evaluation Report. Respondent denies that Dawson maintains a clearly 4 established federal right to have the Board consider his Life Prisoner Evaluation Report. 5 19. Respondent denies that, based on Dawson's housing classification, CDCR determined

6 that he is not a threat to society. Respondent denies that the Board ignored his classification 7 level and custody status. (See Ex. F at p. 22.) Respondent denies that Dawson maintains a 8 clearly established federal right to have the Board review his classification level or custody status 9 at his parole hearing. 10 20. Respondent admits that California's parole regulations contain a matrix of suggested

11 base terms that prisoners with life sentences should serve before released on parole. See Cal. 12 Code Regs. tit. 15, § 2282. However, under California law, an inmate's base term can be set 13 only after the Board finds the inmate suitable for parole, because the statutory scheme places 14 individual suitability for parole above a prisoner's expectancy in an early setting of a fixed date 15 designed to ensure term uniformity. Dannenberg, 34 Cal. 4th at 1070-71. Accordingly, 16 Respondent denies that the Board violated California law concerning the matrix of suggested 17 base terms. Respondent denies that California law requires the Board to compare Dawson's 18 crimes to other instances of the same crime when deciding whether to grant parole. Additionally, 19 Respondent denies that Dawson maintains a clearly established federal right to have the Board 20 apply California's matrix of suggested base terms. Respondent further denies that Dawson 21 maintains a clearly established federal right based uponthe frequency in which the Board sets 22 parole dates for other inmates. 23 21. Respondent admits that Dawson's claiins are timely under 28 U.S.C. § 2244(d)(I)

24 (2000), and are not barred by any other procedural defense. 25 26 22. Respondent denies that an evidentiary hearing is necessary in this matter. 23. Respondent affirmatively alleges that Dawson fails to establish any grounds for habeas

27 corpus relief. 28 24. Except as expressly admitted above, Respondent denies, generally and specifically,
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1 each allegation of the petition, and specifically denies that Dawson's administrative, statutory, or 2 constitutional rights have been violated in any way. 3 Accordingly, Respondent respectfully requests that the Court deny the Petition for writ of

4 corpus and dismiss these proceedings.
5

6

MEMORANDUM OF POINTS AND AUTHORITIES ARGUMENT

7
8

I.
THE STATE COURT'S DENIAL OF DAWSON'S HABEAS CLAIM WAS NEITHER CONTRARY TO, OR AN UNREASONABLE APPLICATION OF, CLEARLY ESTABLISHED FEDERAL LAW, NOR BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) modified "the role

9
10
11

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13 of federal habeas courts in reviewing petitions filed by state prisoners by placing a new constraint 14 on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas 15 corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 16 U.S. 362,412 (2000) (O'Connor, L, concurring [speaking for a majority of the 'Courtj). Under 17 AEDPA, a federal court may grant a writ of habeas corpus on a claim that a state court already 18 adjudicated on the merits only

if the state court's adjudication was either: (1) "contrary to, or

19 involved an unreasonable application of, clearly established Federal law, as determined by the 20 21 22 Supreme Court ofthe United States;" or (2) "based on an unreasonable determination ofthe facts in light of the evidence presented at the State Court proceeding." 28 U.S.C. § 2254(d)(1-2). Here, the California Supreme Court decision" denying Dawson's claim for habeas relief

23 was neither contrary to, or an unreasonable application of, federal law, nor was it based on an 24 unreasonable determination of the facts in light of the evidence presented. First, Dawson 25 1. When, as here, the state court's holding does not provide a reasoned explanation, the 27 reviewing court must independently review the record to determine whether the state court decision was a reasonable application of clearly established federal law. Himes v. Thompson, 336 F.3d 848, 28 853 (9th Cir. 2003).
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1 received all process required under Greenholtz, the only clearly established federal law 2 specifically addressing the due process rights of inmates in a parole-consideration hearing. 3 Second, the state court decision was not based on an unreasonable determination ofthe facts; 4 rather, the evidence presented supports the state court's holding. Thus, Dawson fails to establish 5 a violation of AEDP A standards, and the state court's decision denying habeas relief must stand. 6

A. 7
8

The California Supreme Court's Decision Was Not Contrary to Clearly Established Federal Law.

Under the first AEDP A standard, a federal court may grant habeas relief if the state court

9 decision was contrary to, or an unreasonable interpretation of, clearly established federal law as 10 determined by the Supreme Court of the United States. Here, Dawson received all process due 11 under Greenholtz, the only clearly established federal law regarding the due process rights of 12 inmates at a parole-consideration hearing. 13

1.
14 15

Dawson received all process due under the only United States Supreme Court law addressing due process in the parole context.

In Greenholtz, the United States Supreme Court established the due process protections

16 required in a state parole system. The Court held that the only process due at a parole consideration 17 hearing is an opportunity for the inmate to present his case, and an explanation for a parole denial. 18 Greenholtz, 442 U.S. at 16. Dawson's claim fails because he received both of these protections at 19 his October 2006 hearing. 20 First, the Board provided Dawson the opportunity to fully present his case. (See generally Ex.

21 F; see also Ex F, at p. 3 [Board explaining Dawson's right to heard and present documents].) 22 Dawson opted to not discuss the commitment offense, but he fully discussed other aspects of his life 23 24 25 26 27 and incarceration. (Ex. E.) Dawson discussed his prior criminal history (id. at pp. 7-9), his prior drug abuse (id. at pp. 14-16), his social history (id. at pp. 16-20), his disciplinary history while incarcerated, (id. at pp. 22-25), his programming while incarcerated (id. at pp. 30-31, 37-38); his vocational achievements (id. at pp. 28-29, 32-34), his plans for employment if paroled (id. atpp. 3436,42-43), and his insight and remorse for the crimes (id. at pp. 41, 47-48, 50). Also, even though

28 he choose not to discuss the specifics of the murder and robberies, Dawson did occasionally discuss
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1 aspects of his commitment offense. (Id. at p. 20.) 2 Second, Dawson received a thorough explanation as to why the Board denied parole. (Id. at

3 pp. 67-78.) .The Board explained that several factors required the denial, including the gravity of the 4 commitment offense, Dawson's lack of insight into the nature ofthe commitment offense, 5 Dawson's lack of remorse for the various victims he affected, and Dawson's insufficient 6 participation in institutional programming, such as self-help classes and substance-abuse programs.
7 (Id.)

8

Therefore, Dawson presented his case to the Board and received an explanation as to why the

9 Board denied him parole. Because Dawson received all process due under Greenholtz, the state 10 court's adjudication of his habeas claim did not violate clearly established Supreme Court 11 precedent. Accordingly, Dawson's claim fails under AEDP A. 12
'13

2.

The Ninth Circuit's some-evidence standard is not clearly established federal law and, therefore, Dawson is only entitled to the process established in Greenholtz - not some-evidence federal review.

14

Dawson challenges the sufficiency ofthe evidence the Board relied on in its decision. (Petn. at

15 p. 11.) While California law requires a reviewing court to apply the some-evidence standard of 16 review, In re Rosenkrantz, 29 Cal. 4th 616,658 (2002), it should not apply to a federal habeas 17 proceeding challenging a parole denial. 18 The United States Supreme Court recently reiterated that for AEDPA purposes, "clearly

19 established federal law" refers only to the holdings ofthe nation's highest court on the specific issue 20 presented. Carey v. Musladin, _ U.S. _, 127 S. Ct. 649, 653 (2006). In Musladin, the Ninth 21 Circuit held that under clearly established federal law courtroom spectators who wore buttons 22 depicting the victim in a murder trial inherently prejudiced the defendant and denied him a fair trial.
23

Id. at 652. In vacating the Ninth Circuit's decision, the Supreme Court explained that the two

24 Supreme Court cases that the Ninth Circuit relied on - one involving a defendant who was 25 required to wear prison clothing during trial and the other concerning a defendant who had four 26 uniformed troopers placed behind him at trial- involved state-sponsored courtroom practices that 27 were unlike the private conduct of the victim's family. Id. at 653-54. As a result; the Court held 28 that "given the lack of applicable holdings from [the Supreme Court], it could not be said that the
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1 state court 'unreasonably appl[ied] ... clearly established Federal law.'" Id. at 653-54. 2 Similarly, the Supreme Court found in Schriro v. Landrigan, _ U.S. _, 127 S. Ct. 1933, 1942

3 (2007) that a federal habeas petitioner maintained no claim under AEDPA because Supreme Court 4 precedent finding ineffective assistance of counsel when an attorney fails to adequately investigate 5 mitigating evidence is factually distinct from a defense attorney failing to investigate mitigating 6 evidence after the client demonstrates a reluctance to assist the investigation, as were the facts in
7 Landrigan. Consequently, the Supreme Court has clearly indicated that circuit courts may not

8 import - under the guise of "clearly established federal law" - a federal standard used in one 9 context for a different factual circumstance. See e.g. id.; and Musladin, S. Ct. at 653 - 654.Y 10 Despite the Supreme Court's guidance in this area, the Ninth Circuit continues to extend the

11 Hill some-evidence standard of review - a Supreme Court holding applicable to prison disciplinary 12 hearings - to habeas petitions challenging denials of parole. Sass v. Cal. Bd. ofPrison Terms, 461 13 F.3d 1123 (9th Cir. 2006) (referencing Superintendent v. Hill, 472 U.S. 445 (1985) 14 disciplinary case a prison

for proposition that Board's denial of parole requires some evidence); Irons v.

15 Carey, _ F.3d _,2007 WL 2027359 (9th Cir. July 13,2007).

16

Furthermore, Greenholtz, the only Supreme Court decision concerning the due process rights

17 of an inmate in the parole context, specifically recognized the procedural distinction between the 18 government denying an inmate parole and the government determining guilt by way of an 19 adversarial proceeding. Greenholtz, 442 U.S. at 15-16. Based of this distinction, the Supreme 20 Court determined that a denial of parole only requires the state to provide an opportunity for the 21 inmate to present his case and an explanation for the parole denial - not additional protections, 22 such as those in an adversarial proceeding. Id. (reasoning that "to require the parole authority to 23 24 25 26 27 28 2. Likewise, the Ninth Circuit has recently affirmed this principle in a number ofcases. See e.g., Foote v. Del Papa, 492 F.3d 1026, 1029 (9th Cir. 2007) (affirming district court's denial of habeas claim alleging ineffective assistance of appellate counsel based on an alleged conflict of interest because the Supreme Court has never held - even though the Ninth Circuit has - that such an irreconcilable conflict violates the Sixth Amendment); and Nguyen v. Garcia, 477 F.3d 716 (9th Cir. 2007) (holding that because the Supreme Court had not extended a defendant's right to counsel -establishedin Wainwrightv. Greenfield, 474 U.S. 284 (1986)-to a competency hearing, federal law was not clearly established for AEDPA purposes).
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1 provide a summary of the evidence would convert the [parole-consideration] process into an 2 adversary proceeding and to equate the Board's parole release determination with a guilt 3 determination'.'). 4 As a result, for AEDPA purposes, the Hill some-evidence standard of review required for

5 prison disciplinary hearings should not apply to a federal-habeas-proceeding challenging a parole 6 denia1. However, Respondent recognizes that the Ninth Circuit has held otherwise, most recently in
7 Irons v. Carey, 2007 WL 2027359, and will argue this case accordingly.
8

3.

9

Even if the some-evidence standard were clearly established federal law, the California Supreme Court's decision did not violate this standard.

10

Assuming the some-evidence test is clearly established Supreme Court law for parole denials,

11 Dawson's claim fails under AEDPA because the state court's decision was not contrary to, and did 12 not involve an unreasonable application of, the some-evidence requirement.
13

California law requires that some evidence supports the parole authority's underlying factual

14 findings made in support of this determination. Rosenkrantz, 29 Ca1. 4th at 616. The California 15 Supreme Court presumably applied this standard of review here. And, therefore, the state court's 16 decision was not contrary to clearly established federal law. However, when, as here, the state court 17 holding fails to provide a reasoned explanation, the reviewing court must independently review the 18 record to determine whether the state court's decision was a reasonable application of federal law. 19 . Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). 20 Assuming the some-evidence standard applies, this standard ofreview "does not require

21 examination of the entire record, independent assessment of the credibility of the witnesses, or 22 weighing of the evidence;" rather, it is satisfied ifthere is "any evidence in the record that could 23 support the conclusion reached by the [Board]." Hill, 472 U.S. at 455-56; see also Sass, 461 F3d at 24 1129 (stating that "Hill's some evidence standard is minima1.") 25 Here, some evidence supports the Board's decision. The Board based its denial on several

26 factors, each containing evidentiary support. 27 First, the Board relied on the gravity of the commitment offense. (Id. at p. 69). The Board

28 noted that Dawson's crimes involved attacks on multiple victims, one of whom was killed, during
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1 the course of three separate acts of violence. (Id. [relying on Cal. Code Regs. tit. 15,2402, subd. 2 (c)(1)(A)].) Also, the Board explained that Dawson and his crime partner carried out these violent 3 acts in a dispassionate and calculated manner. (Id. [relying on Cal. Code Regs. tit. 15,2402, subd. 4 (c)(I)(B)].) This finding also contains significant evidentiary support. As addressed in the 5 California Court of Appeals decision upholding Dawson's felony-murder conviction, the court 6 stated, "it appears clear that an integral part of [Dawson and Jordan's] robbery scheme was to 7 neutralize security guards and to prevent the raising of any alarm until they completed their crimes. 8 Further, it is readily inferable that both [Dawson and Jordan] were prepared to kill in the face of 9 non-cooperation or any threat to the smooth completion oftheir aims." (Ex. C, at p. 42, see also Ex. 10 C, at pp. 41-43 [detailing evidentiary support for court's findings].) 11 The Board further noted that the offense was carried out in a manner which demonstrates an

12 exceptionally callous disregard for human suffering. (Id. [relying on Cal. Code Regs. tit. 15,2402, 13 subd. (c)(1)(C)].) Indeed, Dawson proceeded to methodically rob every cashier in Boy's Market at 14 gunpoint, while the security guard lay bleeding to death outside the store. (Ex. D, at pp. 3-4.) In 15 addition, Dawson frightened several victims with a loaded handgun on several occasions, including. 16 when he pointed his loaded gun at an assistant manager and told him that he would be shotif he did 17 not do as he was told. (Id.; Ex. C, at p. 17.) And finally the Board touched upon the very trivial 18 motive for the crime, commenting that Dawson's half of all the stolen money from the several 19 robberies was between $1,600 and $1,700. (Ex. F, at p. 69 [relying on Cal. Code Regs. tit. 15, 20 2402, subd. (c)(1)(D)].) 21 Second, the Board relied on Dawson's lack of remorse and insight into the crimes. (Id. at pp.

22 68, 75-76.) The Board identified that Dawson failed to even grasp the number of victims he 23 affected in the various robberies he committed. (Id. at p. 68.) The Board suggested that Dawson 24 participate in self-help programs in order to better appreciate how his conduct deeply impacted his 25 victims. (Id. at p. 69.) The Board also denied parole because Dawson needs to develop insight into 26 the nature and magnitude of the commitment offense. (Id. at pp. 75, 76.) Again, the record 27 supports the Board's finding. Dawson periodically discounted the severity of his conduct during the 28 parole hearing. (Id. at pp. 20, 21, 51, 75.) For instance, on three separate instances Dawson's
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1 explanation for why he committed the crime was because he was "out of [his] character." (Id. at pp. 2 21,51,65, 75.) Also, Dawson refused to appreciate and aclrnowledge his responsibility for the 3 victim's death stating, "my crime partner decided to take it upon his self [sic] to shoot and kill the 4 security guard." (Id. at p. 20.) The Board recommended that institutional self-help programs could 5 assist Dawson in developing insight regarding the magnitude of his criminal conduct. (fd. at p. 76.) 6 Third, the Board denied parole because Dawson requires more programming to assist in the

7 transition from prison life to living in a less-restrictive environment. (Id. at pp. 70, 76-77.) As 8 noted by the Board, Dawson received his GED and a vocation early during his incarceration, but 9 lacks current growth. (Id. at p. 70.) The Board recommended a variety of self-help programs to 10 address Dawson's shortcomings. (Id. at p. 70, 76-77.) Specifically, the Board observed that 11 Dawson requires consistent participation in Alcoholics Anonymous, or substance abuse 12 programming because of his prior drug-use problems. (Id. at pp. 71, 72, 77.) Indeed, this 13 conclusion is also supported by the record. Dawson aclrnowledged that he did not regularly attend 14 Alcoholics Anonymous or Narcotics Anonymous. (Id. at p. 37.) Dawson also indicated that he had 15 not attended a class in about a year. (Id. at p. 38.) The Board's recommendation in this regard is 16 particularly relevant because the Probation Officer's Report notes that Jordan, Dawson's crime 17 partner, may have influenced Dawson to participate in the robberies by supplying drugs to him. 18 (Ex. D, at p. 10.) The Board also recommended that Dawson focus on attending classes and/or

19 reading books specific to helping with relationships. (Ex. F, at pp. 76-77.) The Board explained 20 that such activities would be especially helpful for Dawson once he is paroled and begins living' 21 with his wife. (Id.) The Board aclrnowledged that Dawson's parole plans were "pretty good," but 22 recognized that Dawson needed to create a resume and further develop his support systems outside 23 of prison. (Id. at pp. 71-72, 77; see alsoid. at pp. 54-56 [discussion of supporting influences if

24 paroled].) 25 In summary,the Board identified several reasons why the state should not parole Dawson.

26 Every reason contained factual support within the record. As a result, some evidence supports the 27 Board's decision to deny parole. Therefore, the state court's decision did not involve an 28 unreasonable application of the some-evidence standard, and Dawson's claim fails under AEDPA.
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1

4.

2
3 4

The some-evidence standard only requires some evidence to support the Board's decision to deny parole - not evidence indicating that the inmate presented a current risk to society if released.

Dawson suggests that the Board violated his due process rights because it presented no evidence to support a finding that he posed a current risk to society if released from prison. (petn.

5 at p. 9.) At most, clearly established federal law requires that some evidence support the Board's 6 decision to deny parole. (See supra Part A.2-3.) Neither clearly established Ninth Circuit 7 precedence, Biggs v. Terhune, 334 F.3d 910,915, nor clearly established California law, In re 8 Rosenkrantz, 29 Cal. 4th 616,658, imposes a judicial review requiring some evidence to support a 9 finding that the inmate poses a current risk to society if released. As a result, the California 10 Supreme Court's decision denying Dawson's petition was not an unreasonable application of clearly 11 established federal law. Therefore, Dawson's claim fails under AEDPA. 12
13

5.

The Board may rely on static factors to deny parole.

Dawson argues that the Board violated his due process rights because it based its decision on

14 the commitment offense. (Petn. atp. 9.) Dawson's argument fails for several reasons. 15 First, there exists no "clearly established federal law" that prohibits the Board's ability to rely

16 on static factors, such as Dawson's commitment offense, to deny parole. The Ninth Circuit has 17 stated in dicta that the Board's continued reliance on one unchanging factor to deny parole "could 18 result ina due process violation." Biggs v. Terhune, 334 F.3d 910,917 (9th Cir. 2003). However, 19 the Biggs court did not definitively indicate that reliance on an unchanging factor necessarily 20 violates due process, only that it possible could. Id. In Biggs, the court praised Biggs for being "a 21 model inmate," and found that the record was "replete with the gains Biggs has made," including a 22 master's degree in business administration. Id. at 919. Nonetheless, the court denied habeas relief 23 because the Board's decision to deny parole, which relied solely on the commitment offense, was 24 25 26 supported by some evidence. Although the Ninth Circuit recently revisited this issue again in Irons in dicta, it held there that despite "substantial" evidence of the inmate's rehabilitation in the case, the Board acted properly

27 within its discretion in continuing to rely on the circumstances of the inmate's offense to deny 28 parole. Irons v. Carey, 2007 WL at 2027359 at 6. Accordingly, the Ninth Circuit has never held
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1 that a Board's reliance on a static factor to deny parole violates due process. Thus, a Board's mere 2 consideration of a static factor is not contrary to clearly established United States Supreme Court 3 jurisprudence. 4 Second, California Penal Code section 3041, subdivision (b), requires that the Board examine

5 the commitment offense, as the Board "shall set a release date unless it determines that the gravity 6 of the current offense or offenses, is such that consideration of the public safety requires a more 7 lengthy period of incarceration." Indeed, the California Supreme Court held in Dannenberg, 34 8 Cal. 4th at 1094, that the Board may rely solely on the circumstances of the commitment offense. 9 Furthermore, California Code of Regulations, title 15, section 2402(b), requires the Board to 10 consider "[a]ll relevant, reliable information" which includes the base and other commitment 11 offenses. Therefore, California law not only permits the Board's reliance on the commitment 12 offense, it mandates that the Board examine it. 13 Lastly, the Board, in denying parole, did not rely solely on Dawson's commitment offense.

14 The Board's denial also incorporated Dawson's lack of insight into the severity of the crime, his 15 lack of remorse for the victims involved, and his insufficient participation in self-help programs, 16 such as Narcotics Anonymous. (Ex. F, at pp. 69-78.) Therefore, the Board did not base its decision 17 merely on the commitment offense, but rather relied on behavioral and competency issues that 18 Dawson may remedy before his next parole-consideration hearing. 19 Consequently, Dawson's argument that the Board violated his due processrights by using his

20 commitment offense to support the parole denial is without merit. Neither federal law nor 21 California law dictates that the Board cannot rely on the commitment offense. Regardless, the 22 Board's decision did not rely solely on the commitment offense. Accordingly, Dawson's claim fails 23 under AEDPA. 24 25 26 27 Dawson alleges that the Board failed to set a uniform parole date in accordance with California's sentencing matrices. (Petn. at p. 9.) Dawson's argument again fails to implicate

6.

Dawson's claim regarding California's sentencing matrices does not implicate a question of federal law.

28 federal habeas relief.
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1

First, assuming the Board misapplied California law, mere violations of state law are not

2 cognizable under federal habeas law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). 3 Second, the Board did not violate California law. California's parole regulations contain a

4 matrix of suggested base terms that prisoners with life sentences should serve before they are 5 released on parole. See Cal. Code Regs. tit. 15, § 2282. However, in Dannenberg, 34 Cal. 4th at 6 1070-71, the California Supreme Court held that an inmate's base term can be set only after he has

7 been found suitable for parole, because the statutory scheme places individual suitability for parole 8 above a prisoner's expectancy in an early setting of a fixed date designed to ensure term uniformity. 9 As a result, "the Board, exercising its traditional broad discretion, may protect public safety in each 10 discrete case by considering the dangerous implications of a life-maximum prisoner's crime 11 individually." Id. at 1071. As this Court is bound by a state court's interpretation of state law,
I

12 Dawson's claim that California's parole regulations require the setting of a uniform parole date does 13 not state a colorable federal claim. Hicks v. Feiock, 485 U.S. 624, 629 (1998). Accordingly, the 14 state court decision denying Dawson's habeas petition was not contrary to, or an unreasonable 15 application of, clearly established federal law. 16

B.
17 18

The California Supreme Court's Decision Upholding the Board's Parole Denial Reasonably Determined the Facts.

Under the second AEDPA standard, a federal court may grant habeas relief if the state court

19 decision was based on an unreasonable determination of the facts in light of the evidence presented 20 21 at the State Court proceeding. 28 U.S.C. § 2254(d)(2). Here, the evidence presented to the California Supreme Court is identical to the evidence

22 presented to this Court. (Compare Ex. I, at Ex. A-D; with Petn. at Ex. A-D.) The state court failed 23 24 to render a reasoned decision addressing its factual findings. Nonetheless, an independent review 0 the record demonstrates that the Board relied on accurate documentation of Dawson's history and

25 the commitment offense. 26 27 28 With regard to the commitment offense, the Board relied on the summaries of the crime from the 2003 Life Prisoner Evaluation Report, which relied on the Probation Officer's Report and the California Court of Appeals Opinion upholding Dawson's convictions. (See Ex. F, at p. 6.) With
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1 regard to Dawson's institutional and pre-commitment history, the Board relied on the 2003 Life 2 Prisoner Evaluation Report, the 2006 Life Prisoner Evaluation Report, the 2003 Psychological 3 Evaluation, and Dawson's own testimony. (Id. at pp. 6,22,38.) Dawson does not allege nor 4 provide any evidence to suggest that these documents contained inaccurate information. 5 Accordingly, the record indicates that the Board relied on accurate information. And, as

6 addressed earlier, the Board's findings, based on this accurate factual information, is supported by 7 some evidence. 8 9 10
11

III III III III III III III III III III III III III III III III III III III III III
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1
2

CONCLUSION
Dawson fails to demonstrate a basis for relief under AEDPA's two standards permitting a

3 habeas remedy after a state court has already adjudicated the same issue. Under the first standard,
4

the California Supreme Court's adjudication of Dawson's claim was not contrary to, or an

5 unreasonable application of, clearly established federal law, as determined by the United States

6 7

Supreme Court. Dawson received all process entitled under Greenholtz, and established federal law -

although not clearly

some evidence supports the Board's decision. Under the second

8 AEDPA standard, the record reflects that the evidence presented at the parole hearing, such as
9 Dawson's testimony, the 2003 and 2006 Life Prisoner Evaluation Reports, and the 2003 10 Psychological Evaluation Report, accurately reflected the facts concerning Dawson. Thus,

11 Respondent respectfully requests that the petition be denied.
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
DawsonAnswer.wpd

Dated: December 26, 2007

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 ANYAM. BINSACCA Supervising Deputy Attorney General

/S/ BRIAN C. KINNEY BRIAN C. KINNEY Deputy Attorney General Attorneys for Respondent

27 28

SF2007200806

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: Case 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 December 26, 2007, I served the attached ANSWER TO THE 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: Darryl Dawson (C-30679) Correctional Training Facility P.O. Box 689 Soledad, CA 93960-0689 III pro per Darryl Dawson v. Ben Curry, Warden C07-4821 WHA

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 December 26, 2007, at San Francisco, California.

R. Panganiban Declarant
40200644.wpd