Haggard v. Curry

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LEWIS HAGGARD,  No. 10-16819
Petitioner-Appellee, D.C. No.
v. 3:06-cv-07658-SI
BEN CURRY, Warden, Northern District of
Respondent-Appellant. California,
San Francisco
ORDER
 AMENDING
ORDER AND
DENYING
MOTION FOR
RECONSIDERA-
TION EN BANC
AND AMENDED
OPINION AND
 ORDER

Filed October 12, 2010
Amended December 9, 2010

Before: Richard R. Clifton, Jay S. Bybee and
Sandra S. Ikuta, Circuit Judges.

Per Curiam Opinion

19633
19636 HAGGARD v. CURRY
COUNSEL

Steven G. Warner, Deputy Attorney General, Office of the
California Attorney General, San Francisco, California, for
the appellant.

Steve M. Defilippis, Picone & Defilippis, San Jose, Califor-
nia, for the appellee.

ORDER

The panel has voted to deny the petitioner’s motion for
reconsideration en banc. Pursuant to General Order 6.11, the
full court has been advised of the Motion for Reconsideration
En Banc, and no judge has requested a vote on whether to
rehear the matter en banc.

The Motion for Reconsideration En Banc is accordingly
DENIED, and the court’s Order of October 12, 2010 is
AMENDED to appear as set forth below. No further motions
for reconsideration or reconsideration en banc will be consid-
ered.

OPINION AND ORDER

PER CURIAM:

In this case, the California Board of Parole Hearings
(“Board”) denied state prisoner Lewis Haggard’s request for
release on parole, and the state court upheld the parole denial.
In his federal habeas petition, Haggard argued that the
Board’s decision was erroneous because the record lacked
evidence of his current dangerousness. The district court
agreed, and ordered the state to release Haggard while the
state’s appeal of the district court’s decision was pending. The
 HAGGARD v. CURRY 19637
state moved for a stay of the release order. Because a prisoner
who receives a defective parole denial determination from the
Board is entitled under California law only to a new parole
decision, we conclude that the state will likely prevail on its
claim that the district court erred in ordering Haggard’s
immediate release. We therefore grant the state’s stay motion.1

I

In 1979, Lewis Haggard was convicted in California state
court of kidnaping for the purpose of committing robbery. He
received a sentence of seven years to life in state prison. The
Board denied Haggard parole on twelve occasions. In Febru-
ary 2004, the Board issued its thirteenth denial. In its deci-
sion, the Board determined that Haggard was “not yet suitable
for parole, and would pose an unreasonable risk of danger to
society or a threat to public safety if released from prison.”
The Board based this conclusion on a number of factors. It
found that Haggard’s commitment offense was carried out in
a calculated and cruel manner that showed a lack of regard for
the suffering of others and the life of others. Further, Haggard
had a criminal history, and had exhibited continued negative
behavior while in confinement. Next, the Board noted that
while one psychological evaluation stated that Haggard was
not a risk for future violence, a slightly earlier psychological
evaluation stated that Haggard posed a “high risk of violence
within the community or over the next ten years.” Finally, the
Board found that Haggard needed continued work on devel-
oping skills that would allow him to deal with stress in a non-
destructive manner.
1
While we generally do not issue published opinions when sitting as a
motions panel, we have previously determined that in circumstances such
as these, when we must promptly adjudicate a state’s motion for stay of
a prisoner’s release on parole pending appeal during a time of rapid
changes in the controlling state law, we may publish an opinion and order
to clarify or explain the law we must apply. See Pearson v. Muntz, 606
F.3d 606, 608 n.2 (9th Cir. 2010); see also General Order 6.3(g)(3)(ii).
19638 HAGGARD v. CURRY
Haggard filed a habeas petition in state superior court,
claiming that the Board’s denial of release on parole violated
his federal due process rights. The state court held that the
Board had not abused its discretion in denying Haggard
release on parole. Among other things, the state court rejected
Haggard’s argument that the Board had relied on the commit-
ment offense alone in making its decision to deny a parole
release date. The state court found that the record contained
“some evidence” of current dangerousness that supported the
Board’s decision, and that the Board had considered the rele-
vant factors, including the gravity of the commitment offense,
Haggard’s negative institutional behavior, and his psychologi-
cal evaluations. Therefore, the court upheld the Board’s denial
of parole. The state appellate court and California Supreme
Court summarily denied Haggard’s habeas petition.

After exhausting his state remedies, Haggard filed a habeas
petition in district court. The district court independently
reviewed the evidence before the Board, and concluded that
the circumstances of Haggard’s offense, institutional history,
and psychological evaluation did not constitute “some evi-
dence” supporting the conclusion that Haggard’s release
would unreasonably endanger public safety. Therefore, the
district court granted Haggard’s habeas petition and ordered
the Board to set a parole date for Haggard not more than 30
days from the date of the district court’s decision. This order
required the state to release Haggard on parole until the state’s
appeal of the district court’s decision was finally resolved.

The state appealed the district court’s order granting the
petition and concurrently moved to stay that order pending
appeal.2
2
On September 30, 2010, this court entered a temporary stay of the dis-
trict court’s August 11, 2010 order, “pending further order of [this] court.”
Our decision today replaces that temporary stay.
 HAGGARD v. CURRY 19639
II

[1] We may reverse or modify a district court’s decision to
release a prisoner pending appeal of his successful habeas
petition “for special reasons shown.” Fed. R. App. P. 23(d);
Hilton v. Braunskill, 481 U.S. 770, 774 (1987). Although
there is a “presumption of release from custody” of a success-
ful habeas petitioner pending appeal, Hilton, 481 U.S. at 774
(citing Fed. R. Civ. P. 23(c)), “it may be overcome if the tra-
ditional stay factors tip the balance against it.” Id. at 777.
Accordingly, we consider the following factors:

(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.

Id. at 776. The most important factor is the first, that is,
whether the state has made a strong showing of likely success
on the merits of its appeal of the district court’s decision. See
id. at 778.

In considering the state’s likely success on the merits, we
must apply the framework we have developed for the purpose
of analyzing habeas petitions from California prisoners claim-
ing that a parole denial violates their federal due process
rights. We begin with the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which precludes a federal
court from granting a habeas petition unless the state court’s
adjudication of a claim “resulted in a decision that was con-
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1). To apply this
standard, a federal court must “look through unexplained state
court decisions . . . to the last reasoned state court decision to
address the claim at issue.” Medley v. Runnels, 506 F.3d 857,
19640 HAGGARD v. CURRY
862 (9th Cir. 2007); accord Ylst v. Nunnemaker, 501 U.S.
797, 804-06 (1991). Here, the last reasoned state court deci-
sion was that of the state superior court, which upheld the
Board’s parole denial decision because the record included
“some evidence” of Haggard’s current dangerousness.

[2] We review a denial of parole through the lens of the
federal Due Process Clause. E.g., Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979); see Bd.
of Pardons v. Allen, 482 U.S. 369, 373 & n.3 (1987). In gen-
eral, parties claiming that their due process rights were vio-
lated must establish “two distinct elements: (1) a deprivation
of a constitutionally protected liberty or property interest, and
(2) a denial of adequate procedural protections.” McQuillion
v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002) (quoting Brew-
ster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d
971, 982 (9th Cir. 1998)) (internal quotation marks omitted).
While “[t]here is no constitutional or inherent right of a con-
victed person to be conditionally released before the expira-
tion of a valid sentence,” Greenholtz, 442 U.S. at 7, a state
parole statute may create an “expectancy of release” on parole
that “is entitled to some measure of constitutional protection,”
id. at 12. In other words, it is possible for an inmate to have
a constitutionally protected liberty interest in parole, but only
to the extent that state law creates that interest. Id.; see Allen,
482 U.S. at 373. Moreover, the state law giving rise to that
liberty interest not only creates the interest but also defines its
scope and prescribes its limits. See, e.g., Pearson v. Muntz,
606 F.3d 606, 611 (9th Cir. 2010) (analyzing the California
parole system to discern the scope of the prisoners’ liberty
interest in parole); cf. Bishop v. Wood, 426 U.S. 341, 344 &
n.7 (1976); Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir.
1989) (looking to state law to define the scope of Washington
state inmates’ interest in parole).

When a California court upholds a parole denial decision,
our precedents require us to determine whether such a denial
was an unreasonable application of the decisions establishing
 HAGGARD v. CURRY 19641
and defining the scope of that state-created liberty interest in
parole. See Pearson, 606 F.3d at 611 (interpreting Hayward
v. Marshall, 603 F.3d 546, 561-63 (9th Cir. 2010) (en banc)).
In this vein, our recent en banc decision in Hayward relied on
two 2008 California Supreme Court decisions, In re Law-
rence, 190 P.3d 535 (Cal. 2008), and In re Shaputis, 190 P.3d
573 (Cal. 2008), to delineate the scope of the California pris-
oners’ state liberty interest in parole. In Lawrence and Shapu-
tis, the California Supreme Court “concluded that the standard
governing judicial review of parole decisions made either by
the Board or by the Governor is whether ‘some evidence’ sup-
ports the determination that a prisoner remains currently dan-
gerous.” In re Prather, 234 P.3d 541, 544 (Cal. 2010). The
California Supreme Court also reaffirmed that the “some evi-
dence” standard is a procedural protection required by the
state constitution’s due process clause, “because the inmate’s
due process interest in parole mandates a meaningful review
of a decision denying parole.” Id. at 252; see also Lawrence,
190 P.3d at 547-49, 552-54; In re Rosenkrantz, 59 P.3d 174,
203-05 (Cal. 2002).

Based on the rationale of Lawrence and Shaputis, we held
that the procedural protection afforded to parole applicants by
California’s “some evidence” standard is part of the state-
created liberty interest in parole that is protected by the fed-
eral Due Process Clause. See Hayward, 603 F.3d at 561-63;
see also Pirtle v. Cal. Bd. of Prison Terms, 611 F.3d 1015,
1020 (9th Cir. 2010) (holding that California’s liberty interest
in parole “encompasses the state-created requirement that a
parole decision must be supported by ‘some evidence’ of cur-
rent dangerousness”) (citations omitted). In light of this
understanding, we concluded that a parole denial by the Board
or Governor may violate a prisoner’s federally protected due
process right if the denial does not satisfy the state-created
“some evidence” requirement, because that requirement is
part of California prisoners’ state-created expectation of
parole release. Hayward, 603 F.3d at 561-63. If a state court
19642 HAGGARD v. CURRY
denies a prisoner’s appeal of such a deficient ruling, we may
grant the writ. See Pearson, 606 F.3d at 611-12.

[3] In sum, our precedent dictates that when a prisoner
raises a claim that he or she has been deprived of the full
scope of a state-created liberty interest in parole (including its
procedural elements), and the state court rejects that claim, a
federal court may grant the prisoner’s habeas petition if it
concludes that the state court’s decision was an unreasonable
application of the state’s “some evidence” standard. See id.;
see also Pirtle, 611 F.3d at 1020-25.

[4] After the California Supreme Court’s decisions in Law-
rence and Shaputis, and after our decisions in Hayward, Pear-
son, and Pirtle, which relied on them, the California Supreme
Court issued In re Prather, 234 P.3d 541 (Cal. 2010), which
further clarified the scope of a prisoner’s state-created interest
in parole. In Prather, the California Supreme Court explained
that, under the California constitution, “[t]he power to grant
and revoke parole is vested in the Department of Corrections,
[an arm of the state executive,] not the courts.” 234 P.3d at
550-52 (citations omitted). Prather continued:

Thus, where the Department of Corrections has
failed to accord a prisoner due process of law in
revoking his parole, the relief to which the prisoner
is entitled on habeas corpus is not an order forever
barring the Department of Corrections from proceed-
ing further, but, rather, an order directing the Depart-
ment of Corrections to vacate its order of revocation
and thereafter to proceed in accordance with [state]
due process of law.

Id. (citation omitted). Said otherwise, Prather determined that
where the Board denies parole without “some evidence” of
current dangerousness, the prisoner in question is entitled
under state law only to a new parole-suitability decision by
 HAGGARD v. CURRY 19643
the Board,3 id. at 553-54, and not to release from custody or
a judicial parole determination. See 234 P.3d at 552 (“[A]
prisoner is not entitled to have his term fixed at less than max-
imum or to receive parole, [but] he is entitled to have his
application for these benefits duly considered based upon an
individualized consideration of all relevant factors.” (quoting
Lawrence, 190 P.3d at 559)) (internal quotation marks omit-
ted); see id. at 552-54 (applying the “some evidence” standard
to two lower-court decisions, reversing those decisions, and
ordering remand to the Board for a new parole-suitability
determination). Prather thus represents a further refinement
by the California Supreme Court of the scope of state prison-
ers’ liberty interest in parole. Because Prather clarifies that a
California prisoner’s “right of personal liberty,” Pirtle, 611
F.3d at 1025, does not encompass the right to release on
parole if the Board denied parole without “some evidence” of
current dangerousness, Prather corrects our prior implicit
assumption that a federal habeas court could enforce Califor-
nia’s state-created liberty interest by ordering the release of
the prisoner. Cf. id.

[5] Given our duty to enforce liberty interests as they are
defined by state law, see Bergen, 881 F.2d at 721; see also
Greenholtz, 442 U.S. at 11-16, and because California has
refined the scope of the liberty interest it has created in parole,
see Prather, 234 P.3d at 547-52, we, too, must adjust our
understanding of the scope of the interest protected under the
federal Due Process clause. Just as we determined that the
procedures mandated by Lawrence and Shaputis were part of
3
At least one published California appellate opinion has addressed the
issue of defective parole denials by the Governor rather than the Board,
see, e.g., In re McDonald, ___ Cal. Rptr. 3d ___, 2010 WL 4296703 (Ct.
App. Nov. 2, 2010), and has held that reinstatement of the Board’s release
order, rather than remand to the Governor, is appropriate when the Gover-
nor’s veto decision fails to meet the state’s “some evidence” standard. Id.
at *9-10. Because Haggard’s parole request was denied by the Board
rather than the Governor, we need not consider the contours of inmates’
federally protected liberty interest in cases involving gubernatorial vetoes.
19644 HAGGARD v. CURRY
California’s state-created liberty interest in parole, see Pirtle,
611 F.3d at 1020-21; Cooke, 606 F.3d at 1213-14, we must
read Prather’s further revision to those procedures as neces-
sarily limiting the state-created liberty interest in parole under
California law, see 234 P.3d at 547-52. We therefore hold that
where the Board’s parole denial decision is not based on
“some evidence” of current dangerousness, the California-
created, but federally enforceable, liberty interest in parole
gives the prisoner only the right to a redetermination by the
Board consistent with the state’s “some evidence” require-
ment, not the right to release on parole.

III

Having determined the scope and extent of the state-created
liberty interest at issue, we now turn to the state’s motion in
light of the first and most important of the Hilton factors:
whether the state is likely to succeed in its argument that the
district court erred in granting Haggard’s habeas petition and
ordering the state to release Haggard on parole.

The state makes three main arguments. First, the state
argues that the “some evidence” requirement is a state-created
procedure that is not part of the state liberty interest in parole,
and is not a procedural protection required under Greenholtz
as a matter of federal due process. We have already rejected
this argument. See Pearson, 606 F.3d at 608-10.

[6] Second, the state argues that the district court erred by
failing to apply Prather’s revised scope of the parole liberty
interest, which requires that Haggard be afforded only a new
parole suitability determination, not unconditional release.
According to the state, the district court should have deferred
to the Board’s authority in determining Haggard’s parole suit-
ability instead of usurping that power and granting parole for
Haggard. We agree. Even assuming that the district court was
correct in undertaking an independent review of the record
and holding that the Board’s parole denial decision was not
 HAGGARD v. CURRY 19645
supported by “some evidence” (a conclusion it reached not-
withstanding evidence of factors in addition to Haggard’s
commitment offense), Prather makes clear that the state-
created liberty interest in this context does not encompass
actual release. Instead, where the Board errs in applying the
“some evidence” standard, the only expectation a prisoner has
under California law is that of a new, properly conducted
parole-suitability determination by the Board; setting aside
the Governor’s veto authority, no other organ or entity in the
State of California has the statutory or constitutional authority
to prescribe an end date to a prisoner’s indeterminate sen-
tence. Accordingly, even if the district court was correct in
determining that the Board’s decision was not based on “some
evidence,” the Board’s error deprived Haggard only of the
state-created liberty interest in a proper parole determination
by the California executive.4 Although “[f]ederal courts have
the latitude to resolve a habeas corpus petition ‘as law and
justice require,’ ” Pirtle, 611 F.3d at 1025 (quoting 28 U.S.C.
§ 2243), a federal habeas court addressing an alleged due pro-
cess violation may not grant a remedy that exceeds the bounds
of the liberty interest, as that interest is actually defined and
limited by the state. See Bergen, 881 F.2d at 721; see also
Greenholtz, 442 U.S. at 12. The district court erred in con-
cluding otherwise and in granting relief that exceeded the
scope of the liberty interest created by the state. Due to these
errors, the state will likely succeed on the merits of its appeal
of the district court’s order.5
4
Because the state will likely succeed on its claim that Haggard had no
entitlement to release on parole, we need not address the state’s prospects
for success on its broader claim that the district court erred in its AEDPA
analysis of the state court’s ruling.
5
Because we decide on this ground, we need not reach the state’s third
argument: that the district court erred in retroactively applying the “some
evidence” standard established by the California Supreme Court’s 2008
decisions in Lawrence and Shaputis to the California superior court’s 2005
decision at issue here.
19646 HAGGARD v. CURRY
IV

The remaining Hilton factors support granting a stay. See
481 U.S. at 776. The issuance of a stay does not irreparably
injure Haggard because he is not entitled to immediate release
under California law; rather, he is entitled only to a new
parole-suitability determination that will proceed in keeping
with the state’s due process requirements. See Prather, 234
P.3d at 552. Nor does the record reflect that issuing a stay will
substantially injure any other party interested in the proceed-
ing. Finally, the public interest weighs in favor of a stay. The
parole release decision requires “purely subjective appraisals
that turn on a discretionary assessment of a multiplicity of
imponderables,” Hayward, 603 F.3d at 557 (internal quotation
marks omitted), including the key determination whether “an
inmate continues to pose a threat to public safety,” Prather,
234 P.3d at 552. California has determined that the public
interest is best served when the decision on this crucial issue
is made by the Board, after a hearing and testimony from the
prisoner, with veto power vested in the Governor. See id. at
552-54. We defer to the state’s reasonable determination as to
where the public interest lies in California, and agree that in
this case it lies in allowing the responsible state agency to
determine Haggard’s parole suitability in a procedurally
proper proceeding.

[7] Because the state is likely to succeed on the merits of
its appeal of the district court’s order, and because the other
Hilton factors weigh in the state’s favor, we grant the state’s
motion for a stay pending appeal of the district court’s August
11, 2010 order directing Haggard’s release on parole.

GRANTED.