Free Response to Habeas Petition - District Court of California - California

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EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYA M. BINSACCA Supervising Deputy Attorney General AMANDA J. MURRAY, State Bar No. 223829 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5741 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent Robert Horel 10 11 12 13 14 GEORGE RUIZ, 15 Petitioner, 16 v. 17 ROBERT HOREL, Warden, 18 Respondent. 19 20 As an Answer to the Petition for Writ of Habeas Corpus filed by California state inmate 21 George Ruiz, proceeding pro se in this habeas corpus action, Respondent Warden Robert Horel V 22 admits, denies, and alleges as follows: 23 1. Ruiz is in the lawful custody of the California Department of Corrections and 24 1. The proper respondent in this action is Warden Robert Horel. Stanley v. Cal. Supreme 26 Court, 21 F.3 d 359, 360 (9th Cir. 1994) (holding that the warden where the petitioner is incarcerated is the proper respondent); Rule 2(a), 28 U.S.C. § 2254. Because the actions complained of in this 27 petition concern aparole consideration hearing, the Board ofParole Hearings is used interchangeably with Respondent in this Answer and supporting Memorandum of Points and Authorities for 28 convenience only.
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.
Ruiz v. Horel

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION C07-4804 JSW ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; . MEMORANDUM OF POINTS AND AUTHORITIES Judge: The Honorable Jeffrey S. White

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Rehabilitation (CDCR) serving an indeterminate life sentence following his 1981 conviction in San Diego County for robbery and kidnaping to commit robbery. (Ex. A, Abstract of Judgement.) 2. Ruiz's Petition does not challenge his conviction; instead, he challenges

5 the Board of Parole Hearings' May 9, 2006 decision finding him unsuitable for parole. 6 Specifically, he alleges that his federal due process rights were violated because there is no

7 evidence supporting the Board's decision. (See generally, Petn.) He also alleges that the Board 8 is requiring him to become a confidential gang informantzl in order to be found eligible for parole 9 and that the Board has a no-parole policy for inmate's housed in the prison's secured housing 10 unit (Ibid.) 11 3. On December 2, 1980, Bruce Peckham exited The Village Liquor Store and got into

12 his car after visiting his two friends who were the store's clerks. (Ex. B, Probation Officer's 13 Report, at 2-3; Ex. C, Life Prisoner Evaluation Report, at 1; Ex. D, Subsequent Parole

14 Consideration Hearing, at 10-12; Ex. E, Decision, Court of Appeal of the State of California, 15 Fourth Appellate District, No. 13350, at 2-4.) Ruiz approached Mr. Peckham's car on the 16 driver's side and pointed a gun through the open window, telling Mr. Peckham not to move or he 17 would "blow [his] fucking head all over the inside of the car." (Ibid.). Ruiz told Mr. Peckham 18 that they were going to rob the liquor store and if anything went wrong, "he was gong to be the 19 first to go." (Ex. B at 2.) 20 21 Inside the store, Mr. Peckham told Scott Hoff (one of the clerks) that Ruiz had a gun and was going to rob the store. (Ex. E at 3.) Mr. Hoff and the other clerk, Mark Mariot, did not

22 initially believe Mr. Peckham. (Ibid.) Ruiz then pulled out his gun and said "[y]eah, I'm gong to 23 blow your friend away if you don't do what I say." (Ibid.) He also warned that if there was an 24 alarm, Mr. Peckham would be the "first to go." (Ibid.) 25 26 27 28 2. Ruiz is validated as a Mexican Mafia gang member. (Ex. D at 19-20.) He refuses to "debrief," which he interprets as becoming a confidential informant for CDCR. Ruiz. does not appear to challenge his gang validation in this Petition. (See generally, Petn.)
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A. Ruiz v. Horel C07-4804 JSW

Ruiz told Mr. Mariot to put the money in the bag and told Mr. Hoff to get him some

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cigarettes. (Ex. E at 3.) Fearing for their friend's safety, both men complied with Ruiz's order.
(Ibid.) Ruiz grabbed Mr. Peckham and left the store. (Ibid.) Returning to Mr. Peckham's car,

Ruiz released Mr. Peckham and told him go back to the store and "not to look back." (Ibid.) 4. On May 9, 2006, Ruiz was provided an opportunity to be heard during his parole

consideration hearing (Ex. D at 10-45), and the Board issued a decision explaining why Ruiz was unsuitable for parole. (Ex. D at 46-51.) Inmates of Neb. Penal & Corr. Complex v. Greenholtz, 442 U.S. 1, 16 (1979) (federal due process requires inmates being considered for release on parole to receive an opportunity to be heard and a reasoned decision). Specifically, the Board found that Ruiz's programming in prison was insufficient to ensure the Board that he would not

10 pose an unreasonable risk of danger to society if he were released from prison. (Ex. D at 46-49.) 11 The Board recommended that Ruiz obtain additional work skills, participate in self-help

12 programs, and complete his GED to increase the likelihood he would be paroled. (Id. at 48-50.) 13 Although the Board advised Ruiz - a validated Mexican Mafia gang member - that becoming 14 an inactive gang member would allow him the opportunity to participate in a wider-variety of 15 prison programs, the Board never told Ruiz that he was required to become a confidential '16 informant to fulfill the requirements necessary to be found eligible for parole. (Id. at 47-48.) 17 Indeed, the Board indicated that it understood Ruiz did not want to debrief because he feared 18 retaliation against his family. (Id. at 46-47.) Finally, the Board noted opposition from the San ' 19 Diego District Attorney's Office. (Id. at 48.) 20 21 5. Ruiz filed a petition with the San Diego County Superior Court raising substantially

the same challenges to the Board's 2006 decision that he now asserts in his federal Petition. (Ex.

22 F, Superior Court Pet. & Denial$ The superior court denied Ruiz's claims on October 11, 2006 23 in a seven-page reasoned decision. (Id.) In finding the Board's decision was supported by some

24 evidence in the record, the court noted that Ruiz did not express remorse or concern for the 25 victims of his crimes (Ex. D at 39) and questioned Ruiz's alleged reasons for not wanting to 26 27 3. To avoid repetition and unnecessary volume, the exhibits attached to Armstrong's state court petitions have been removed. Respondent will provide these documents upon the Court's 28 request.
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debrief. (Ex. F at 6.) Specifically, the court found that Ruiz indicated that he did not want to

2 debrief to protect his family, but that he also claimed that he was not associated with the Mexican 3 Mafia gang and would "not make up stuff about other people." (Id.) Moreover, the court

4 concluded that there was some evidence supporting the Board's conclusion that Ruiz needed to 5 educate himself and obtain marketable skills for employment, especially considering the potential 6 for Ruiz's return to substance abuse if he did not have adequate parole plans. (Id. at 6-7.) 7 8 6. Ruiz pursued his claims by filing substantially the same petition for writ of habeas

corpus in California's Fourth Appellate District, which was denied on February 27, 2007 in five-

9 page reasoned decision. (Ex. G, Appellate Court Pet. & Denial.) In denying his petition, the 10 appellate court found that there was some evidence supporting the Board's conclusion that Ruiz 11 was not yet suitable for parole. (Id.) Specifically, the appellate court noted Ruiz's extensive

12 criminal history (id. at 2), his limited prison programming (id. at 2-3), his limited job skills (id.), 13 and his status as validated gang member. (Id. at 3.) Regarding Ruiz's gang status, the court

14 noted that although Ruiz refused to debrief to protect his family and that he denies ever being 15 involved in gang-related criminal activities, Ruiz was re-validated as a Mexican Mafia gang 16 member and that his administrative appeals of that decision were unsuccessful. (Id.) 17 The court also found that there was no evidence that the Board had a no-parole policy for

18 inmates housed in the prison's security housing unit. (Ex. G at 5.) Indeed, the court concluded 19 that the Board considered Ruiz's individual circumstances in assessing his parole suitability and 20 recommended several self-help options used by inmates in the security housing unit to help Ruiz 21 22 23 24 increase his chances for parole. (Id.) Accordingly, the court concluded that the Board considered and relied on the appropriate factors in reaching its decision and that it was supported by some evidence. (Ex. G at 5.) 7. Ruiz pursued his claims by filing substantially the same petition for writ of

25 habeas corpus in the California Supreme Court, which was denied on August 29, 2007. (Ex. H, 26 27 Supreme Court Pet. & Denial.) 8. Respondent admits that Ruiz has exhausted his state court remedies regarding

28 his challenges to the sufficiency of the evidence and his allegations that the Board is requiring
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.
Ruiz v. Horel

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him to become a confidential gang informant before being found suitable for parole and that the Board has a no-parole policy. Respondent denies that Ruiz has exhausted his claims to the extent that they are more broadly interpreted to encompass any systematic issues beyond this particular review of parole denial. 9. Respondent denies that the state courts' adjudication of Ruiz's claims was

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contrary to, or involved an unreasonable application of, clearly established federal law as

7 determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). 8 10. Respondent denies that the state courts' adjudication of Ruiz's claims was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(2). 11. To preserve the issue, Respondent denies that Ruiz has a federal liberty interest in parole under California Penal Code section 3041, notwithstanding the Ninth Circuit's contrary 13 14
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decision in Sass v. Cal. Bd. Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2005). See Greenholtz
v.

Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12 (1979) (finding no federally protected

liberty interest in parole release date unless state creates interest through the unique structure and

16 language of state parole statute); but see also Sandin v. Connor, 515 U.S. 472, 484 (1995) (no 17 federal liberty interest unless the state's action poses an atypical or significant hardship compared 18 with ordinary prison life). Ruiz does not have a federally protected liberty interest in parole 19 under either methodology: first, California's parole scheme is a two-step process that does not 20 impose a mandatory duty to grant life inmates parole before a suitability finding (In re 21 Dannenberg, 34 Cal. 4th 1061, 1087 (2005)), and second, an inmate (such as Ruiz) continuing to 22 serve his life sentence does not pose an atypical or significant hardship compared to ordinary 23 prison life (In re Rosenkrantz,
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Cal.4th 616, 658 (2002) ["parole release decisions concern an

24 inmate's anticipation or hope of freedom"]). Thus, Ruiz does not have a protected liberty interest 25 26 27 28 and fails to assert a basis for federal jurisdiction. 12. To preserve the issue, notwithstanding the Ninth Circuit's contrary decision in Irons v. Carey,
505

F.3d 846, 851 (9th Cir. 2007), Respondent denies that the Supreme Court has ever

clearly established that a state parole board's decision must be supported by some evidence.
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.
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13. Respondent affirmatively alleges that if the some-evidence standard applies to federal

2 review of parole denials, then there is some evidence supporting the Board's 2006 decision to 3 4 deny Ruiz parole. 14. Respondent denies that the Board relied on Ruiz's commitment offense in denying him

5 parole. However, contrary to Ruiz's allegation (Petn. at 18), Respondent alleges that there is no 6 clearly established federal law precluding the Board from relying on the commitment offense as a 7 reason to deny parole. See Carey v. Musladin, _ U.S. _, 127 S. Ct. 649, 654 (2006) (federal 8 habeas relief was improper under AEDPA in absence of United States Supreme Court 9 precedent). 10 11 12 ;

15. Respondent denies that the Board's decision denying parole violated Ruiz's federal due process rights. 16. If the Petition is granted, Ruiz's remedy is limited to a new parole consideration

13 hearing before the Board that comports with due process. Benny v. US. Parole Comm 'n, 295 14 F.3d 977, 984-985 (9th Cir. 2002) (finding that the Board must exercise the discretion in 15 determining whether or not an inmate is suitable for parole); In re Rosenkrantz, 29 Cal.4th at 16 658. 17 17. Respondent denies that an evidentiary hearing is necessary in this matter. 28 U.S.C. §

18 2254(e). 19 18. Respondent admits that Ruiz's claim is timely under 28 U.S.C. § 2244(d)(1), and that

20 the Petition is not barred by the non-retroactivity doctrine. 21 19. Except as expressly admitted in this Answer, Respondent denies the allegations of the

22 Petition. 23 24 20. Ruiz fails to state or establish any grounds for habeas corpus relief. For the reasons stated in this Answer and in the following Memorandum of Points and

25 Authorities, this Court should deny the Petition. 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Ruiz's Petition should be denied because he received the only process due under clearly
r Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A. Ruiz v. Horel C07-4804 JSW

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established Supreme Court authority: the opportunity to be heard and a decision. Thus, the Board's decision did not violate his federal due process rights. Even if the some-evidence test is applicable, and Respondent maintains it is not, Ruiz's Petition should be denied because there is some evidence supporting the Board's decision denying Ruiz parole. 5 6 7 8 A. 9 10 11 ARGUMENT THE STATE COURTS' ADJUDICATION OF RUIZ'S CLAIMS WAS NEITHER CONTRARY TO, NOR INVOLVED AN UNREASONABLE APPLICATION OF, CLEARLY ESTABLISHED FEDERAL LAW, NOR WAS IT BASED ON AN UNREASONABLE DETERMINATION OF THE'FACTS. The Standard of Review for Federal Habeas Petitions Brought by State Prisoners Is Highly Deferential to the State Courts' Rulings.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19,, 24

12 (2002) (per curiam). Indeed, federal habeas relief for state prisoners is tightly constrained under 13 AEDPA and a federal petition must be denied unless the state court's adjudication was contrary 14 to, or involved an unreasonable application of, clearly established Federal law, as determined by 15 the United States Supreme Court; or was based on an unreasonable determination of the facts in 16 light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). In 17. conducting an AEDPA analysis, "[w]hat matters are the holdings of the Supreme Court, not the 18 holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en 19 bane). . 20 Under AEDPA, a state court decision is " contrary to" clearly established Supreme Court

21 precedent "if it `applies a rule that contradicts the governing law set forth in [Supreme Court] 22 cases,' or if it `confronts a set of facts that are materially indistinguishable from a decision"' of 23 the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 573 U.S. 3, 8 24 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). 25 Under the "unreasonable application" clause of § 2254(d) (1), a federal habeas court may

26 grant the writ if the state court identifies the correct governing legal principle from the Supreme 27 Court's decisions, but unreasonably applies that principle to the facts of the case. Williams, 529 28 U.S. at 413. A federal habeas court may not grant the writ "simply because that court concludes
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.
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in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a `firm conviction' that the state court was 'erroneous.')

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The federal court looks to the last reasoned state court decision as the basis for the state

7 court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002); see Ylst v. Nunnemaker, 501 8 U.S. 797, 803-804 (1991). 9 10 The Supreme Court has found that a parole board's procedures are constitutionally adequate 11 if the inmate is given an opportunity to be heard and a decision informing him of the reasons he 12 was not yet suitable for parole. Greenholtz, 442 U.S. at 16. As a matter of "clearly established" 13 federal law then, a challenge to a parole decision will fail if the inmate has received the 14 protections required under Greenholtz. See Wilkinson v. Austin, 545 U.S. at 229 (Supreme Court 15 cited Greenholtz approvingly for the proposition that the "level of process due for inmates being 16 considered for release on parole includes opportunity to be heard and notice of any adverse 17 decision" and noted that Greenholtz remained "instructive for [its] discussion of the appropriate 18 level of procedural safeguards.") Ruiz does not deny that he received an opportunity to be heard 19 or the reasons he was denied parole. (Ex. D.) Thus, the state courts' decisions were not contrary 20 to clearly established federal law. 21 C. 22 23 The Some-Evidence Standard of Review Is Not Clearly Established Federal Law by the United States Supreme Court for Challenging Parole Denials. B. Ruiz's Petition Should Be Denied Because He Received All Process Due: an Opportunity to Be Heard and an Explanation for the Parole Denial.

The some-evidence standard does not apply in federal habeas proceedings challenging

24 parole denials because it is not clearly established federal law. Superintendent v. Hill, 472 U.S. 25 445, 455-56 (1985) (some-evidence standard applies to disciplinary proceedings). Yet, the Ninth 26 Circuit has held that the some-evidence standard governs parole cases, even though the Supreme 27 Court has never extended that test from disciplinary cases to parole cases. See, e.g., Hayward v. 28 Marshall, 512 F.3d 536, 542 (9th Cir. 2007); Irons v. Carey, 505 F.3d at 851; but see Musladin;
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U.S.

, 127 S. Ct. at 654 (federal habeas relief was improper under AEDPA in absence of

2 United States Supreme Court precedent as to specific issue presented). 41 Indeed, both the United 3 States Supreme Court and the Ninth Circuit, have reiterated that there can be no clearly

4 established federal law where the Supreme Court has never addressed a particular issue or applied a certain test to a specific type of proceeding. See e.g., Schriro v. Landrigan,
, U.S.

127 S. Ct. 1933, 1942 (2007) (no federal habeas relief when the issue is an open question in
U.S. ,

the Supreme Court's precedent); Wright v. Van Patten,

2008 WL 59980, at *2 4

(Jan. 7, 2008) (per curiam) (Supreme Court vacated the judgment, and remanded for further consideration in light of Musladin because "No decision of this Court . . . squarely addresses the 10 issue in this case" and, therefore relief under § 2254(d)(1) is "unauthorized"); Crater v. Galaza, 11 491 F.3d 1119, 1126 & n.8 (9th Cir. 2007) (citing Musladin, the Ninth Circuit acknowledged that

12 decisions by courts other than the Supreme Court are "non-dispositive" under § 2254(d)(1)); 13 Cook v. Schriro, _ F.3d _, 2008 WL 441825 *1, *10 (9th Cir. 2008) (citing Musladin, the

14 Ninth Circuit found that because there was no United States Supreme Court precedent 15 establishing the unconstitutionality of the clause in plea agreements, it could not say "that the

16 state court `unreasonably applied clearly established Federal law'). 17 Accordingly, because Hill, 472 U.S. at 455-456 applied the some-evidence standard to a

18 prison disciplinary hearing and Ruiz challenges his 2006 parole consideration hearing, the some19 evidence standard does not apply. Because Greenholtz is the only United States Supreme Court 20 authority describing the process due at a parole consideration hearing when an inmate has a 21 federal liberty interest in parole, the Greenholtz test, not the some-evidence standard, should

22 apply in this proceeding. Regardless, Respondent recognizes that the Ninth Circuit has held 23 otherwise and will argue this case accordingly.

24 // 25 // 26 27 4. Although published after Musladin, neither Irons nor Hayward addressed the Court's 28 discussion of clearly established federal law under AEDPA.
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.
Ruiz v. Horel

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D.

Ruiz's Petition Should Be Denied Because There Is Some Evidence Supporting the Board's Decision and - as Required by AEDPA - the State Court Decision Upholding the Board's Parole Denial Is Based on a Reasonable Determination of the Facts Based on the Evidence Presented.

If this Court finds that the some-evidence standard applies and assuming Ruiz has a federally protected liberty interest, some evidence supports the Board's decision denying Ruiz 6 parole. The some-evidence standard "does not require examination of the entire record, 7 independent assessment of the credibility of witnesses, or weighing of the evidence;" rather, it 8 assures that "the record is not so devoid of evidence that the findings of the . . board were 9 without support or otherwise arbitrary. Hill, 472 U.S. at 455-457 (applying some-evidence

10 standard to prison disciplinary hearing). Thus, both the "reasonable application" standard of 11 12 13 AEDPA and the some-evidence standard of Hill are very minimal standards. Although Ruiz invites the Court to re-examine the facts of his case and re-weigh the evidence presented to the Board, neither AEDPA nor Hill's some-evidence test permit this degree

14 of judicial intrusion. Moreover, in assessing the state court's review of Ruiz's claims, not only 15 should the appropriate deference be afforded to the state court's review under AEDPA, but

16 deference is also due to the underlying Board decision. The Supreme Court has recognized the .17 difficult and sensitive task faced by the Board members in evaluating the advisability of parole 18 release. Greenholtz, 442 U.S. at 9-10. Thus, contrary to Ruiz's belief that he should be paroled 19 based on the evidence in support of his parole (see generally, Petn.), the Supreme Court has 20 stated that in parole release, there is no set of facts which, if shown, mandate a decision favorable 21 to the inmate. Id. Instead, under the some-evidence standard, the court's inquiry is limited solely

22 to determining whether the state court properly found that the Board's decision to deny parole is 23 24 supported by some evidence in the record, i.e., any evidence. Hill, 472 U.S. at 455. In this case, the appellate court concluded that there was some evidence supporting the

25 Board's decision denying Ruiz parole. Specifically, the appellate court found that the Board's 26 decision was supported by Ruiz's extensive criminal history (Ex. G at 2), his limited prison 27 programming (id. at 2-3), his limited job skills (id.), and his status as validated gang member. 28 (Id. at 3; see also Ex. F.) Regarding Ruiz's gang status, the court noted that although Ruiz
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refused to debrief to protect his family, and that he denies ever being involved in gang-related criminal activities, Ruiz was re-validated as a Mexican Mafia gang member and that his administrative appeals of that decision was unsuccessful. (Id.; Ex. F at 6.) Thus, this is a reasonable application of the minimal some-evidence test. Moreover, Ruiz fails to meet his burden of proving that the state courts unreasonably determined the facts regarding his claims that the Board is requiring him to become a 7 confidential informant in order to become eligible for parole and that the Board has a no-parole

8 policy. 28 U.S.C. § 2254(d)(1), (e)(1). First, the appellate court found that there was no 9 evidence that the Board had a no-parole policy for inmates housed in the prison's security

10 housing unit. (Ex. G at 5.) Specifically, the court found that the Board considered Ruiz's 11 individual circumstances in assessing his parole suitability and recommended several self-help

12 options used by inmates housed in the security housing unit to help Ruiz increase his chances for 13 parole. (Ex. D; Ex. G at 5.) Similarly, there is no evidence in the record that the Board is 14 requiring Ruiz to become a confidential informant before he will be found suitable for parole. 15 (Ex. D). Indeed, both the superior and appellate courts noted Ruiz's status as a Mexican Mafia

16 gang member, but also found that there was some evidence supporting the Board's. conclusion 17 that Ruiz's prison programming and job skills were limited and serve as a bases for denying him 18 parole. (Ex. D; Ex. F at 6-7; Ex. G at 2-5.) 19 Thus, if the some evidence test applies, the state court denials were not an unreasonable

20 application of clearly established United States Supreme Court law, nor did the state courts 21 unreasonably determine the facts. Instead, the state court properly determined that there is some

22 evidence in the record supporting the Board's decision, and Ruiz's Petition should be denied. 23 24 25 .26 CONCLUSION Ruiz received all the process he was due under clearly established Supreme Court authority. Moreover, the record reflects that the Board's decision was supported by some evidence and that the state courts reasonably determined the facts. Thus, the state courts'

27 adjudication of Ruiz's claims was not contrary to, nor did it involve an unreasonable application 28 of, clearly established federal law, or an unreasonable determination of the facts. Accordingly,
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Ruiz's Petition should be denied. Dated: April 11, 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 Supervi_ g Deputy Attorney General

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SF2008400470

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Ruiz v. Horel

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I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On April 15, 2008, I served the attached ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: George Ruiz, B-82089 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95532 in pro per I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on April 15, 2008, at San Francisco, California.

M.M. Argarin Declarant
40240843.wpd

/s/ M.M. Argarin Signature