FILED
NOT FOR PUBLICATION SEP 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT EVERETT JOHNSON, No. 06-17042
Petitioner - Appellant, D.C. No. CV-05-00385-GGH
v.
MEMORANDUM *
CLAUDE E. FINN; BILL LOCKYER,
Attorney General,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Argued and Submitted September 24, 2007
Submission Vacated July 16, 2010
Resubmitted September 2, 2010
San Francisco, California
Before: GIBSON,** BERZON, and BEA, Circuit Judges.
California state prisoner Robert E. Johnson appeals from the district court’s
judgment that denied his 28 U.S.C. § 2254 habeas petition. In 1977, Johnson
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
pleaded guilty to murder in the first degree in violation of California Penal Code
§ 187. He was sentenced to seven years to life in prison with the possibility of
parole.1 In 2001, the California Board of Parole Hearings (“Board”) granted
Johnson parole, but California Governor Grey Davis reversed the Board’s decision.
After Johnson’s state habeas petitions were denied by the San Diego County
Superior Court, California Court of Appeal, and California Supreme Court,
Johnson filed a federal habeas corpus petition, which was denied by the district
court. We have jurisdiction under 28 U.S.C. § 2253. We reverse and remand.
Johnson contends the Governor’s denial of parole violated Johnson’s rights
under the Due Process Clause of the Fourteenth Amendment because there was not
“some evidence” of his future dangerousness to support the Governor’s denial of
parole. “‘[S]ome evidence’ of future dangerousness” is a “sine qua non for denial
of parole in California.” Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2010)
(en banc) (citations omitted). A “prisoner’s aggravated offense does not establish
current dangerousness ‘unless the record also establishes that something in the
1
The parties disagree about the length of Johnson’s sentence. The State
contends Johnson is serving a sentence of twenty-five years to life, while Johnson
contends he is serving a sentence of seven years to life. This dispute does not
affect our analysis because Johnson has already served more than twenty-five years
in prison. Thus, for the purpose of this memorandum disposition, we assume
Johnson was sentenced to seven years to life.
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prisoner’s pre- or post-incarceration history, or his or her current demeanor and
mental state’ supports the inference of dangerousness.” Id. (quoting In re
Lawrence, 190 P.3d 535, 555 (Cal. 2008)). When a state court denies habeas relief
to a state prisoner who was denied parole based solely on the circumstances of his
commitment offense, the prisoner is entitled to a writ of habeas corpus on the
ground that “the state court decision was based on an unreasonable determination
of the facts in light of the evidence.” Cooke v. Solis, 606 F.3d 1206, 1216 (9th Cir.
2010) (citation and internal quotation marks omitted); see 28 U.S.C. § 2254(d)(2).
Here, the last reasoned state court decision—the decision of the California
Court of Appeal—denied Johnson’s state habeas claim on the ground that the
circumstances of the commitment offense—the fact it was premeditated, callous,
and heinous—provided some evidence to support the Governor’s conclusion that
Johnson “would represent an unreasonable threat to public safety if released.” But
the circumstances of the commitment offense “cannot, standing alone, constitute
the requisite evidence of current dangerousness.” Cooke, 606 F.3d at 1216.
The Governor provided two additional reasons for the denial of parole: (1)
Johnson’s “unstable social history,” and (2) his failure “to take full responsibility
for his role” in the murder. However, these reasons, to the extent they are
3
supported by the record, are insufficient to provide some evidence of current
dangerousness.
First, the Governor found Johnson “ha[d] an unstable social history” based
on his history of drug and alcohol abuse, turbulent home life, and behavioral
problems that required psychological treatment. Johnson admitted at his parole
hearing that he had a drinking problem at the time of the murder. However,
Johnson also had been attending Alcoholics Anonymous for ten years at the time
of his parole hearing. There was no evidence he still had a drinking problem or
that he was likely to develop a drinking problem if he were released. The only
evidence of drug use was Johnson’s testimony that he had experimented with
marijuana when he was 12 or 13 years old. That alcohol and drug use evidence
does not support an inference that Johnson was dangerous thirty years later. With
respect to Johnson’s turbulent home life, Johnson’s father was an abusive alcoholic
who left his family when Johnson was young and Johnson’s mother remarried
another alcoholic who was shot and killed when Johnson was 14 years old. But
Johnson’s turbulent home life as a child and adolescent is not evidence of his
current dangerousness. Finally, there is no evidence in the record that Johnson
required psychological treatment as a juvenile. Thus, the conclusion that Johnson
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has an “unstable social history” is not based on “some evidence” of his current
dangerousness.
Second, the Governor explained that Johnson, at his 2001 parole hearing,
“attempted to minimize his culpability by stating that he thought it was ‘like a
game’ and that he ‘didn’t believe any of it would happen.’” But Johnson’s
statements were not an attempt to minimize his culpability; he was describing how
he felt at the time he committed the crime in response to a specific question from a
member of the Board. As the Board explained, “[Johnson] shows signs of remorse.
He has indicated that he understands the nature and the magnitude of the offense
and accepts responsibility for the criminal behavior and has a desire to change
towards good citizenship.” Thus, the Governor’s finding that Johnson failed “to
take full responsibility for his role” in the murder is unsupported by the record.
Therefore, we reverse the district court and remand with instructions to grant
the writ.2
REVERSED and REMANDED.
2
In light of our holding that Johnson is entitled to habeas relief based on the
Governor’s denial of parole without some evidence of future dangerousness, we
need not reach the other claims Johnson raises on appeal.
5