FILED
FOR PUBLICATION MAY 24 2010
MO LLY C. DW YER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T O F APPEALS
FOR THE NINTH CIRCUIT
KENNETH PEARSON, No. 08-55728
Petitioner - Appellee, D.C. No. 2:05-cv-06937-SGL-OP
v.
ORDER AND OPINION
MADELENE A. MUNTZ, Acting
Warden,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Filed May 24, 2010
Before: REINHARDT, BERZON, and M. SMITH, Circuit Judges.
PER CURIAM:
California state prisoner Kenneth Pearson filed an action for a writ of habeas
corpus in the district court on September 22, 2005, asserting that the Governor, in
reversing the Parole Board, violated his due process rights by denying him parole
absent “some evidence” supporting the decision. The magistrate judge’s Report
and Recommendation, which the district court adopted in full, noted that “the last
reasoned state court opinions upholding the Governor’s reversal of the [Parole]
Board’s finding of Petitioner’s parole suitability rested on the sole ground of
Petitioner’s commitment offense.” The district court determined that the
circumstances of the commitment offense did not alone constitute “some evidence”
supporting the Governor’s decision,1 and that the state court decisions upholding
the denial of parole were based on an unreasonable determination of the facts in
light of the evidence. Accordingly, the court granted the habeas petition and issued
an order requiring the State to release Pearson within thirty days. The State
appealed and filed an emergency motion to stay the district court’s order.
In support of its motion for a stay, the State contended that “there is no
federally protected liberty interest in parole in California,” that “the some evidence
test does not control in [federal habeas] review of parole cases,” and thus that “it
was erroneous for the district court to apply the some evidence test” on federal
habeas review under AEDPA. Because those same legal questions were presented
in Hayward v. Marshall, in which rehearing en banc had just been granted, on June
1
The court also noted that Pearson had no adult criminal record aside from
the commitment offense, and rejected the State’s contention that his juvenile record
constituted “some evidence” of current dangerousness.
2
3, 2008 we stayed Pearson’s release and suspended proceedings in the State’s
appeal pending our decision in Hayward.
On April 22, 2010, we issued our en banc decision in Hayward, which held
that courts must apply the California “some evidence” test on federal habeas
review under AEDPA. Hayward v. Marshall, No. 06-55392, slip op. 6303, 6330
(9th Cir. Apr. 22, 2010) (en banc). Because Hayward resolved the principal issues
that underlay the State’s request for the stay that we granted, and did so adversely
to the State, we issued an order on May 4, 2010 dissolving our stay of the district
court’s order.
Under our circuit rule governing emergency motions, the State now seeks
reconsideration of our order dissolving the stay and requests relief by today, May
24, 2010. It does so on the basis of a series of fundamental misunderstandings of
Hayward. Its motion for reconsideration is therefore denied.2
I.
Our en banc decision in Hayward establishes the law that governs our
determination of post-AEDPA federal habeas claims in which a California prisoner
2
Although previous motions in this case were appropriately disposed of by
order of one or two judges, see General Order 6.3(f), our rules require that we issue
this published order and opinion as a three-judge motions panel, see General Order
6.3(g)(3)(ii).
3
asserts that he was denied parole in the absence of “some evidence”; i.e., some
evidence that he currently poses a threat to public safety. In such cases, Hayward
held that
courts in this circuit . . . [must] decide whether the California judicial
decision approving the governor’s [or the parole board’s] decision
rejecting parole was an “unreasonable application” of the California
“some evidence” requirement, or was “based on an unreasonable
determination of the facts in light of the evidence.”
Hayward, slip op. at 6330 (quoting 28 U.S.C. § 2254(d)(1)-(2)). That holding is
binding on us.
The State cites Hayward for three propositions that are inconsistent with the
holding set forth above. In reviewing the State’s arguments, we do so with the
understanding that we must look to the en banc court’s holdings, and that others
seeking to understand Hayward’s meaning must, as in all cases, do likewise. In
asserting its arguments, the State fails to follow that elementary principle.
First, although the State concedes that a California prisoner has a right to a
parole decision supported by “some evidence” of current dangerousness as a matter
of state law, it argues that because the “some evidence” rule is not a right that
arises under federal law, “Hayward established that there is no federal right to a
some-evidence review.” In fact, Hayward held just the opposite. It held, as we
have noted, that federal habeas courts must “decide whether the California judicial
4
decision approving the governor’s decision rejecting parole was an ‘unreasonable
application’ of the California ‘some evidence’ requirement, or was ‘based on an
unreasonable determination of the facts in light of the evidence.’” Hayward, slip
op. at 6330. A federal court may, of course, review a habeas petition only on the
ground that the petitioner “is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). What the State fails to
recognize, however, is that state-created rights may give rise to liberty interests that
may be enforced as a matter of federal law. See, e.g., Wilkinson v. Austin, 545 U.S.
209, 221 (2005). Such was the case in Hayward. By holding that a federal habeas
court may review the reasonableness of the state court’s application of the
California “some evidence” rule, Hayward necessarily held that compliance with
the state requirement is mandated by federal law, specifically the Due Process
Clause.
Similarly, the State argues that Hayward precludes relief under AEDPA
because it held that there is no clearly established Supreme Court law under which
compliance with the “some evidence” standard is required. Again, the State clearly
misreads our opinion. What Hayward says is that the Supreme Court has not held
that “some evidence” is a rule that must be applied in all states regardless of state
law. In the case before us, it is the state law that requires “some evidence”; and it
5
is that state law that gives rise to “interests” on the part of state prisoners that may
be enforced as a matter of federal law. The principle that state law gives rise to
liberty interests that may be enforced as a matter of federal law is long-established.
See infra page 10-11. Hayward clearly did not preclude relief under AEDPA. To
the contrary, it not only announced that AEDPA applied but it applied AEDPA to
the case before it – to Hayward’s claim that he was denied parole in the absence of
“some evidence.”
Third, the State contends that Hayward limits federal habeas review to a
cursory examination of whether a state court identified and applied the California
“some evidence” requirement, rather than an examination of how the state court
applied the requirement. Again, the State’s argument is based on a fundamental
misunderstanding of the Hayward holding quoted above. Hayward specifically
commands federal courts to examine the reasonableness of the state court’s
application of the California “some evidence” requirement, as well as the
reasonableness of the state court’s determination of the facts in light of the
evidence. Hayward, slip op. at 6330. That command can only be read as requiring
an examination of how the state court applied the requirement. Moreover, after
examining the particular state court decision at issue, Hayward concluded that the
district court properly denied the writ because “[t]here was some evidence of future
6
dangerousness” justifying the denial of parole, slip op. at 6331, and not merely
because the state court purported to identify some evidence of future
dangerousness. In short, the Hayward court itself performed the function that the
State argues it forbade. Indubitably, Hayward neither announced nor applied the
test now urged by the State.
In sum, notwithstanding the State’s arguments to the contrary, our en banc
holding in Hayward requires federal courts to decide precisely what it announces
that they must decide: “whether the California judicial decision approving the
governor’s decision rejecting parole was an ‘unreasonable application’ of the
California ‘some evidence’ requirement, or was ‘based on an unreasonable
determination of the facts in light of the evidence.’” Slip op. at 6330 (quoting 28
U.S.C. § 2254(d)(1)-(2)). In establishing that rule, Hayward foreclosed all of the
principal arguments made by the State in its original motion to stay the district
court’s order pending appeal, and now repeated to us in its motion for rehearing.
This time, however, because the en banc court has rejected the State’s arguments,
we can no longer allow those arguments to serve as a basis for a stay of the district
court’s decision.
II.
7
It took this court more than four years to resolve the critical question in
Hayward: whether we may review the habeas claims asserted by California
prisoners like Pearson. During this period a number of persons who had been held
eligible for release by parole boards remained in prison while we considered the
legal issues raised by the State. Now that we have issued our en banc decision, we
find once again that the State is raising those same issues as a basis for continuing
to hold individuals in detention, and that in doing so it appears not to comprehend
the opinion at which we arrived so painfully and with such deliberation.
In addition to rejecting the three principal arguments discussed above, we
will try to clarify some closely related arguments suggested by the State, or
perhaps some of the principal arguments merely restated in different forms. The
State’s motion suggests that on the basis of a discussion in Hayward of the
distinction between parole and good time, the State takes the view that unlike good
time, parole is not subject to habeas review. Our discussion on that point,
however, concludes with the statement that “in the absence of state law
establishing otherwise, there is no federal constitutional requirement that parole be
granted in the absence of ‘some evidence’ of future dangerousness or anything
else.” Slip op. at 6327 (emphasis added). The State appears to take the above
quotation to mean that the federal Constitution never requires adherence to a “some
8
evidence” requirement, even if adherence to that requirement is mandated by state
law.
The State is in error. We asserted clearly that the United States Constitution
does not establish a uniform federal requirement of “some evidence” that applies to
parole decisions in every state, and that no such requirement exists “in the absence
of state law establishing otherwise.” We noted that the scope of any federal due
process right to release on parole depends on the “substantive state law” that
defines the attributes of the particular parole system at issue, slip op. at 6317,3 and
we recognized that California law explicitly creates a right to release in the absence
of “some evidence” of current dangerousness. Id. at 6327-30. We emphasized
that, although the California “some evidence” requirement is enforceable on
federal habeas review, the federal Constitution does not “constrain[] other states to
conform to the California system.” Id. at 6330-31.
3
In this portion of Hayward, we expressed concern about a possible
misreading of our prior decisions in Biggs v. Terhune, 334 F.3d 910 (9th Cir.
2003), Sass v. California Board of Prison Terms, 461 F.3d 1123 (9th Cir. 2006),
and Irons v. Carey, 505 F.3d 846 (9th Cir. 2007). We noted that those decisions
should not “be read to imply that there is a federal constitutional right regardless of
whether state law entitles the prisoner to release,” and overruled those decisions
only “to the extent [that] they may be read to mean that.” Hayward, slip op. at
6317. We did not, however, disturb those opinions’ holdings with regard to the
federally protected liberty interest created by the state laws and rules governing the
California parole system.
9
Like many liberty interests that are enforceable under the federal Due
Process Clause, a California prisoner’s right to parole in the absence of “some
evidence” of current dangerousness arises from state law. Slip op. at 6329-30. It is
beyond doubt that state statutes, and a fortiori state constitutions, “may create
liberty interests in parole release that are entitled to protection under the Due
Process Clause.” Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987) (citing
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12 (1979)). In
California, the “some evidence” requirement is a component of that liberty interest.
A state has no duty under the federal Constitution to create any parole system at
all, let alone a parole system in which a prisoner must be released unless certain
requirements have been satisfied. See Greenholtz, 442 U.S. at 7; see also
Hayward, slip op. at 6324-25. Once a state creates such a system, however, it must
operate it in a manner that comports with due process. There is nothing novel or
unusual about the liberty interests created by the state laws and rules governing
parole systems. It is a basic principle of federal due process that “[a] liberty
interest may arise [not only] from the Constitution itself, by reason of guarantees
implicit in the word ‘liberty,’ . . . [but also] from an expectation or interest created
by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
10
Through its state statutory and constitutional law, California has created a
parole system that independently requires the enforcement of certain procedural
and substantive rights, including the right to parole absent “some evidence” of
current dangerousness. Hayward, slip op. at 6327-30 (discussing, inter alia, In re
Lawrence, 190 P.3d 535 (Cal. 2008); In re Shaputis, 190 P.3d 573 (Cal. 2008); and
In re Rosenkrantz, 59 P.3d 174 (Cal. 2002)). California law gives rise to a liberty
interest on the part of its prisoners covered by its parole system. Having
guaranteed the prisoners of the state that they will not be denied a parole release
date absent “some evidence” of current dangerousness, California is not permitted
under the federal Constitution arbitrarily to disregard the “some evidence”
requirement in any particular case.4 It is therefore our obligation, as we held in
Hayward, to review the merits of a federal habeas petition brought by a California
prisoner who asserts that the decision to deny him parole was not supported by
“some evidence” of his current dangerousness. Under AEDPA, this means that we
review “whether the California judicial decision approving the governor’s [or
parole board’s] decision rejecting parole was an ‘unreasonable application’ of the
California ‘some evidence’ requirement, or was ‘based on an unreasonable
4
The California Supreme Court recently recognized that the lower courts of
the state have applied the “some evidence” requirement in a manner that has
produced “arbitrary results.” Lawrence, 190 P.3d at 554-55.
11
determination of the facts in light of the evidence.’” Hayward, slip op. at 6330
(quoting 28 U.S.C. § 2254(d)(1)-(2)).
III.
The California Board of Prison Terms found Pearson suitable for parole in
2003, but the Governor reversed that decision and denied him parole in 2004. The
district court determined on April 1, 2008 that the Governor’s action violated
Pearson’s federal due process rights. If the district court’s decision is correct, as
we are bound to presume at this stage of the proceedings, Hilton v. Braunskill, 481
U.S. 770, 777 (1987), Pearson should have been released on parole more than six
years ago.
We issued a stay of the district court’s order solely because of the pendency
of our en banc decision in Hayward and the issues presented in that case regarding
federal habeas review of California parole decisions, especially the “some
evidence” requirement. When Hayward resolved those issues in a manner contrary
to the State’s arguments here, we concluded that there was no longer any basis for
a stay and therefore dissolved it.
Given our conclusion that the only legal arguments advanced by the State in
its motion for reconsideration are entirely without merit, and because the State has
12
otherwise provided insufficient reason to reinstate the stay, we deny the State’s
motion for reconsideration.
DENIED.
13
Counsel Listing
Marc Grossman, Law Offices of Marc E. Grossman, Upland, California, for
Petitioner-Appellee.
Collette C. Cavalier, Deputy Attorney General, San Diego, California, for
Respondent-Appellant.
14