FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED MCCULLOUGH, No. 07-16049
Petitioner-Appellee,
v. D.C. No.
CV-05-02207-MHP
ANTHONY KANE,
OPINION
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted December 3, 2007
Withdrawn December 4, 2007
Resubmitted December 27, 2010
San Francisco, California
Filed December 27, 2010
Before: Betty B. Fletcher, Marsha S. Berzon, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge B. Fletcher;
Dissent by Judge Rawlinson
20611
20614 MCCULLOUGH v. KANE
COUNSEL
Daniel Henry Bookin, O’Melveny & Myers LLP, San Fran-
cisco, California, Attorney for the petitioner-appellee.
Amber N. Wipfler, Office of the California Attorney General,
San Francisco, California, Attorney for the respondent-
appellant.
OPINION
B. FLETCHER, Circuit Judge:
In 1983, at the age of 21, Fred McCullough was convicted
of murder and sentenced to 15 years to life in prison. While
in prison, McCullough earned his GED, his associate’s
degree, and his bachelor’s degree in social work. He partici-
pated in a juvenile offender deterrent program, helping to
keep children out of trouble. He obtained job training and
excelled in his employment placements. He successfully reha-
bilitated himself to the point where his most recent psycho-
logical evaluations indicate he is less likely to commit
violence than the average community citizen. Twice, the Cali-
fornia Board of Prison Terms recommended McCullough for
parole, once in 2002 and again in 2004. Twice, the governor
of California reversed that decision.
MCCULLOUGH v. KANE 20615
In 2007, the district court found that Governor Arnold Sch-
warzenegger’s 2004 reversal of McCullough’s parole recom-
mendation was not supported by “some evidence” of future
dangerousness and granted McCullough’s federal habeas peti-
tion. The state appealed and we ordered McCullough released
pending his appeal while we awaited two California Supreme
Court decisions concerning parole recommendations and
reversals. During that time, our court agreed to rehear en banc
Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), to deter-
mine our ability to review such claims contained in a federal
habeas corpus petition. See Hayward v. Marshall, 527 F.3d
797 (9th Cir. 2008). The en banc court issued an opinion in
Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc).
While the courts sorted out the law, McCullough began his
life outside prison. Within two months of his release he
obtained employment at a furniture manufacturing company
in Gardena, California. McCullough’s manager at that store
has reported to this court that, over the past two years,
McCullough has made outstanding contributions to the com-
pany and been promoted to supervisor.
We now decide whether the governor’s 2004 reversal of
McCullough’s parole recommendation violated due process;
we hold that it did. Our decision is consistent with Hayward
v. Marshall and other prior and subsequent cases holding that
we have jurisdiction to review the “some evidence” determi-
nation under California law. Hayward, 603 F.3d at 562-63.
We thus affirm the district court’s decision granting McCul-
lough’s habeas corpus petition.
I.
One night in July 1982, McCullough hit John Kukish, a
man sleeping in his car, in the head two or three times with
a brick. The blows killed him. McCullough then stole the
money from Kukish’s wallet to buy drugs. McCullough was
found guilty of murder and sentenced to 15 years to life in
prison. During his first few years in prison, McCullough
20616 MCCULLOUGH v. KANE
struggled to adjust. He had several disciplinary violations for
failing to follow orders and numerous minor infractions.
Eventually he decided to turn things around. He began to
work toward his GED, which he earned in 1986. He next
started taking college courses, earning his associate’s degree
and then his bachelor’s degree in social work in 1991. He
developed vocational skills, working as a wood finisher and
obtaining his certificate as a forklift operator, among other
achievements. His supervisors described him as possessing a
good work ethic, rated him as exceptional, and entrusted him
with the responsibility of training other prisoners in the work-
force. McCullough participated in self-help programs, includ-
ing Alcoholics Anonymous. He stated during his parole
hearing that the most valuable part of the 12-step program
was step four, where he took a “personal inventory” to figure
out why he ended up in prison and what he could change.
McCullough also volunteered for the juvenile offender deter-
rent program, speaking to children to help steer them away
from a life of crime.
In 2002, the California Board of Prison Terms found
McCullough suitable for parole, a decision which then-
Governor Gray Davis reversed. Again in 2004, the Board rec-
ommended McCullough for parole. Governor Schwarzeneg-
ger reversed that recommendation in an August 12, 2004
decision.
In his 2004 decision, Governor Schwarzenegger found
McCullough would pose an unreasonable risk of danger to
society upon release. In his decision, the governor referenced
to McCullough’s “escalating criminality,” which included
assaultive behavior as a juvenile, and McCullough’s prison
disciplinary record of a handful of “serious-rules violations”
and counseling for 28 incidents of minor misconduct. The
governor also stated, however, that McCullough had no previ-
ous record as an adult before his incarceration, that he had
“demonstrated considerable progress and increased maturity
by remaining discipline-free since 1985,” and that he “worked
MCCULLOUGH v. KANE 20617
during his 21-year incarceration to enhance his ability to func-
tion within the law upon release,” noting that McCullough
had earned a GED, associate’s and bachelor’s degrees, had
acquired vocational training and skills, and had availed him-
self of self-help and therapy. The governor’s decision found
that “McCullough has favorable staff reports and mental-
health evaluations, seems to fully accept responsibility and
express remorse for his crime, and has made some legitimate
plans for himself upon parole.”
Ultimately, however, the governor relied upon McCul-
lough’s commitment offense to find him unsuitable for parole.
The Governor explained that “McCullough committed an
especially heinous second-degree murder because he preyed
upon and bludgeoned a sleeping, unsuspecting, and unthrea-
tening man — ultimately killing him — for the remarkably
trivial motive of stealing his money.” The governor further
found that the manner was especially vicious because “[n]ot
only did he not need to beat the sleeping Mr. Kukish to rob
him, Mr. McCullough had a clear opportunity in between
each blow to Mr. Kukish’s head to stop but did not do so.” In
addition, the decision noted that the murder was carried out
in the commission of a planned robbery and that McCullough
was originally convicted of first-degree murder. The governor
concluded that “[t]he nature and gravity of the second-degree
murder committed by Mr. McCullough alone is a sufficient
basis on which to conclude his release from prison at this time
would put society at an unreasonable risk of harm.”
McCullough sought relief from the governor’s reversal in
state court. The primary decision, the one issued by the Los
Angeles County Superior Court, held that the record con-
tained “some evidence” to support the governor’s finding that
McCullough was not suitable for parole. The state court held
that the governor properly could have denied parole based
solely on the commitment offense, because the circumstances
of the crime were more than the minimum necessary to sus-
tain a conviction for second-degree murder. It also determined
20618 MCCULLOUGH v. KANE
that the governor’s decision rested in part on the extreme
indifference to human life and the trivial motive for the crime,
but found these assertions unsupported in the record. Finally,
the Superior Court decision contained some puzzling refer-
ences to material not in Governor Schwarzenegger’s decision.
For instance, the Superior Court decision stated that the gov-
ernor had concluded that McCullough was unsuitable in part
“because he has demonstrated a lack of remorse for the
offense and minimizes his responsibility” and “insufficiently
participated in self-help programming,” when, in fact, the
governor’s 2004 decision stated exactly the opposite. None-
theless, the court determined that “even if the governor’s con-
clusion was based on the commitment offense alone, which it
is not, there is no due process violation.” Based on its find-
ings, the state court denied the petition.
The California Court of Appeal denied McCullough’s peti-
tion for a writ of habeas corpus in a one-sentence order. The
California Supreme Court summarily denied his petition for
review. McCullough then filed his federal habeas petition,
asserting that his right to due process had been violated. The
district court granted the petition and ordered McCullough
released from custody in a June 1, 2007 order, holding there
was not “some evidence” to support the California governor’s
reversal of McCullough parole recommendation. The state
timely appealed on June 7, 2007.
II.
We review de novo the district court’s decision granting the
petition for habeas corpus. Bailey v. Hill, 599 F.3d 976, 978
(9th Cir. 2010). Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), a federal court may not grant a writ
of habeas corpus unless the state court decision “resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable determination
MCCULLOUGH v. KANE 20619
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). Because the state
appealed, no certificate of appealability is necessary. Fed. R.
App. Proc. 22(b)(3).
[1] In its initial briefing, before we issued the en banc deci-
sion in Hayward, the state argued that the district court lacked
jurisdiction to consider whether there was “some evidence” to
support the government’s decision to deny McCullough’s
parole. Hayward addressed this issue, considering “whether,
even if there is no general federal quantum of evidence
requirement, applicants for parole in California, under the
state’s current laws, may obtain federal habeas review of
whether there is ‘some evidence’ supporting a negative parole
decision.” Hayward, 603 F.3d at 549. Hayward answered this
question “yes” and proceeded to review the state court deci-
sion with AEDPA deference. Id. at 562-63.
[2] As Hayward recognizes, “[a]lthough the due process
clause does not, by itself, entitle a prisoner to parole in the
absence of some evidence of future dangerousness, state law
may supply a predicate for that conclusion.” Hayward, 603
F.3d at 561. Prior to Hayward, we held in several cases that
“California’s parole scheme gives rise to a cognizable liberty
interest in release on parole.” McQuillion v. Duncan, 306 F.3d
895, 903 (9th Cir. 2002); see also Irons v. Carey, 505 F.3d
846, 850 (9th Cir. 2007) (“California Penal Code section 3041
vests Irons and all other California prisoners whose sentences
provide for the possibility of parole with a constitutionally
protected liberty interest in the receipt of a parole release date,
a liberty interest that is protected by the procedural safeguards
of the Due Process Clause.”); Sass v. Cal. Bd. of Prison
Terms, 461 F.3d 1123, 1127 (9th Cir. 2006) (same); Biggs v.
Terhune, 334 F.3d 910, 914 (9th Cir. 2003) (“Section 3041 of
the California Penal Code creates in every inmate a cogniza-
ble liberty interest in parole which is protected by the proce-
dural safeguards of the Due Process Clause.”). “Stated
simply, ‘a State creates a protected liberty interest by placing
20620 MCCULLOUGH v. KANE
substantive limitations on official discretion.’ ” Ky. Dep’t of
Corr. v. Thompson, 490 U.S. 454, 462 (1989) (quoting Olim
v. Wakinekona, 461 U.S. 238, 249 (1983)). Thus, “a State
creates a liberty interest . . . by establishing ‘substantive pred-
icates’ to govern official decision-making, and, further, by
mandating the outcome to be reached upon a finding that the
relevant criteria have been met.” Id. (quoting Hewitt v. Helms,
459 U.S. 360, 472 (1983)).
[3] Hayward explained that, in California, a state parole
system encompasses the right to parole in the absence of some
evidence of future dangerousness. Hayward, 603 F.3d at 562
(“[A]s a matter of state law, ‘some evidence’ of future dan-
gerousness is indeed a state sine qua non for denial of parole
in California.”). The state regulatory, statutory, and constitu-
tional provisions that govern parole decisions in California
mandate that conclusion. See In re Rosenkrantz, 59 P.3d 174,
201-03 (Cal. 2002). The “some evidence” standard, therefore,
reflects the “substantive limitation[ ] on official discretion,”
Thompson, 490 U.S. at 462, that gives rise to a liberty interest
protected by the Fourteenth Amendment. See Cooke v. Solis
606 F.3d 1206, 1213 (9th Cir. 2010) (“California’s ‘some evi-
dence’ requirement is a component of the liberty interest cre-
ated by the parole system of that state.”); Pearson v. Muntz,
606 F.3d 606, 611 (9th Cir. 2010) (“In California, the ‘some
evidence’ requirement is a component of that liberty inter-
est.”).
We previously have held that we review denials of parole
for California inmates under the “some evidence” standard.
Irons, 505 F.3d at 851 (“[W]e assess whether a state parole
board’s suitability determination was supported by ‘some evi-
dence’ . . . .”); Sass, 461 F.3d at 1129 (applying the “some
evidence” standard because otherwise “a state could interfere
with a liberty interest — that in parole — without support or
in an otherwise arbitrary manner”); Biggs, 334 F.3d at 915
(“[T]he requirements of due process are satisfied if ‘some evi-
dence’ supports the decision.”). Hayward overruled this line
MCCULLOUGH v. KANE 20621
of cases “[t]o the extent . . . [they] might be read to imply that
there is a federal constitutional right regardless of whether
state law entitles the prisoner to release,” but not otherwise.
Hayward, 603 F.3d at 555. But insofar as our prior precedents
held that California law created “an enforceable right to
parole” that is governed by California’s “some evidence”
standard, they remain good law.
[4] In sum, “[w]hen 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 and defining the scope of that state-
created liberty interest in parole.” Haggard v. Curry, ___ F.3d
___, 2010 WL 4978842, at *3 (9th Cir. 2010) (per curiam).
Although we might debate whether we classify the substan-
tive restriction of California’s “some evidence” standard as an
element of the state-created liberty interest, or as part of the
process that is due to protect the liberty interest, or both, the
result is identical. Here, in both circumstances, we review
McCulloch’s parole denial for “some evidence” of future dan-
gerousness.
III.
We now analyze McCullough’s claims as provided for in
Hayward, “decid[ing] 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.’ ” Hayward, 603 F.3d at
563 (quoting 28 U.S.C. § 2254). We hold that the governor’s
decision does not offer “some evidence” that McCullough
poses an unreasonable risk of future dangerousness and that,
therefore, the state court decision upholding the 2004 gover-
nor’s decision was “an unreasonable determination of the
facts in light of the evidence.” Id.
As a threshold matter, the district court determined that no
reasoned state court decision existed and reviewed McCul-
20622 MCCULLOUGH v. KANE
lough’s claim de novo. The district court reached this conclu-
sion because numerous statements in the Superior Court
decision do not accurately reflect the contents of the 2004
governor’s decision. Indeed, in some instances, the Superior
Court’s description of the governor’s bases for reversing
McCullough’s parole recommendation flatly contradicts the
very terms of the decision the state court was purporting to
describe. To determine whether the state courts ever reached
the merits of a federal claim, we “look through” unexplained
state court decisions, such as summary denials, to the last rea-
soned state court decision. Pirtle v. Cal. Bd. of Prison Terms,
611 F.3d 1015, 1020 (9th Cir. 2010). If the state court does
not reach the merits of the claim, “there is no state court deci-
sion on this issue to which to accord [AEDPA] deference.” Id.
(internal citation omitted, alteration in original).
We find it unnecessary to determine whether the state court
decision is a reasoned application of the law for purposes of
AEDPA because, even applying AEDPA deference, the state
court decision was “an unreasonable determination of the
facts in light of the evidence.” 28 U.S.C. § 2254(d)(2). The
state argues that the governor found that McCullough’s crime
was especially heinous, that the motive was trivial, and that
McCullough exhibited an escalating criminality at a young
age that peaked with his conviction for the commitment
offense at age 20. While it is true that the governor’s decision
referenced these factors, the governor relied upon the commit-
ment offense to reverse McCullough’s parole recommenda-
tion. The 2004 decision does list escalating criminality as “a
negative factor weighing against Mr. McCullough’s parole,”
but then proceeds to highlight McCullough’s numerous reha-
bilitative accomplishments as “factors supportive of parole for
Mr. McCullough.” In the final paragraph of the 2004 decision,
the governor concluded “[t]he nature and gravity of the
second-degree murder committed by Mr. McCullough alone
is a sufficient basis on which to conclude his release from
prison at this time would put society at an unreasonable risk
of harm.” The state court determination that “even if the gov-
MCCULLOUGH v. KANE 20623
ernor’s conclusion was based on the commitment offense
alone, which it is not, there is no due process violation” was
therefore unreasonable.
[5] In In re Lawrence, 190 P.3d 535 (Cal. 2008), a decision
we awaited to decide this case, the governor issued a similar
decision. There, the California Supreme Court concluded that:
Although the Governor alluded to other possible
grounds for denying petitioner’s parole, he expressly
relied only upon the nature of petitioner’s commit-
ment offense to justify petitioner’s continued con-
finement, because “the gravity alone of this murder
is a sufficient basis on which to conclude presently
that [petitioner’s] release from prison would pose an
unreasonable public-safety risk.”
Id. at 560. The governor’s 2004 decision here did the same
thing: it alluded to McCullough’s juvenile crimes and early
disciplinary problems, but expressly relied on the commit-
ment offense to deny parole. As was true in Lawrence,
McCullough’s “due process and statutory rights were violated
by the Governor’s reliance upon the immutable and
unchangeable circumstances of her commitment offense in
reversing the Board’s decision to grant parole.” Id.1 Accord-
ingly, we affirm the district court’s decision granting McCul-
lough’s habeas corpus petition.
1
The dissent disagrees with this conclusion. It argues that our reliance
on Lawrence is not appropriate and that we should instead follow Irons,
which upheld “a virtually identical rejection of parole.” Dissent at 20627.
This contention is unpersuasive, as it ignores Hayward’s reliance on Law-
rence’s refinement of the substantive standard applied in parole hearings.
In contrast to when Irons was decided, that standard now dictates that the
nature of the crime of conviction “does not in and of itself provide some
evidence of current dangerousness to the public.” Lawrence, 190 P.3d at
555.
20624 MCCULLOUGH v. KANE
CONCLUSION
[6] McCullough serves as an example of how imprison-
ment can achieve the goal of rehabilitation. After committing
murder as a very young man, McCullough turned his life
around in prison. He became sober and excelled in his voca-
tional training. He obtained not only his GED, but also a col-
lege degree. He has been found to have a lower potential for
violence than not merely the average inmate, but the average
community citizen. The governor’s decision reversing McCul-
lough’s recommendation for parole for the second time was
not supported by “some evidence” of an unreasonable risk of
future dangerousness. California law entitles McCullough to
parole, Lawrence, 190 P.3d at 548, and due process dictates
that result.
AFFIRMED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent. When deciding cases on habeas
review, we apply federal law rather than state law. See Irons
v. Carey, 505 F.3d 846, 850 (9th Cir. 2007), reversed on other
grounds in Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir.
2010) (en banc). However, the majority opinion relies heavily
on a decision from the California Supreme Court to support
its holding. See Majority Opinion, p. 20623, quoting In re
Lawrence, 190 P.3d 535 (Cal. 2008).
I am not persuaded that the majority’s resolution of this
case can be squared with our precedent.
In Irons, we addressed circumstances similar to those we
address in this case. Irons was also convicted of murder and
was sentenced to seventeen years to life imprisonment. At the
time of the parole hearing at issue, Irons had been a model
MCCULLOUGH v. KANE 20625
prisoner for sixteen years. Irons had performed admirably
during his prison employment. He completed several voca-
tional training programs, and participated in self-help, sub-
stance abuse, violence prevention and stress management
programs. See Irons, 505 F.3d at 849.
Despite Irons’ exemplary prison record, he was repeatedly
deemed unsuitable for parole. See id. at 849-50. The Califor-
nia Board of Prison Terms (Board) primarily relied on the
“commitment offense itself” as the basis for denial. Id. at 850.
More specifically, the Board determined that the crime “was
carried out in an especially cruel and callous manner.” Id.
(internal quotation marks omitted). The Board also noted that
the motive prompting the murder was trivial and that Irons
was using drugs during the period when the murder was com-
mitted. See id.
Irons filed an unsuccessful administrative appeal and a
fruitless state habeas petition. See id. However, Irons’ federal
habeas petition was granted on the basis that “the state court
unreasonably applied clearly established Supreme Court pre-
cedent because the Board’s decision was without evidentiary
support . . .” Id. The district court also concluded that “the
Board’s continued reliance on Irons’ commitment offense and
prior conduct to deem him unsuitable for parole violated
Irons’ right to due process.” Id.
On appeal, a panel of this court reversed the district court’s
decision. The panel applied the Supreme Court’s articulated
standard—whether the board’s decision is supported by
“some evidence in the record.” Id. at 851 (citations omitted).
The panel recognized that under California law an inmate’s
offense of conviction may serve as the basis for denying
parole if “the Board can point to factors beyond the minimum
elements of the crime for which the inmate was committed
that demonstrate the inmate, will, at the time of the suitability
hearing, present a danger to society if released.” Id. at 663
(citation and internal quotation marks omitted). Some of the
20626 MCCULLOUGH v. KANE
factors enumerated by the panel that would meet the criterion
included whether the offense was perpetrated calculatedly and
dispassionately, see id., whether the crime was committed in
a manner demonstrating “an exceptionally callous disregard
for human suffering”; and whether the motive was “inexplica-
ble or very trivial in relation to the offense.” Id. (citation
omitted).
Applying these factors to Irons’ parole request, the panel
reversed the district court’s decision granting habeas relief to
Irons. In doing so, the panel relied heavily on our prior deci-
sion in Sass v. California Board of Prison Terms, 461 F.3d
1123 (9th Cir. 2006), reversed on other grounds in Hayward,
603 F.3d at 555. See Irons, 505 F.3d at 853-54. In Sass, the
Board relied on the “total disregard for human suffering dem-
onstrated by the manner of the offense and Sass’ previous
criminal history.” Sass, 461 F.3d at 1126 (footnote reference
and internal quotation marks omitted). In denying habeas
relief, the Sass panel concluded that “evidence of Sass’ prior
offenses and the gravity of his convicted offenses consti-
tute[d] some evidence to support the Board’s decision.” Id. at
1129.
Most recently, in Hayward we clarified that California law
establishes the “some evidence of future dangerousness” stan-
dard as the “state sine qua non” for denial of parole in Califor-
nia. Hayward, 603 F.3d at 562. We cited In re Lawrence, the
case treated as dispositive by the majority only for the propo-
sition that the “some evidence” standard is used to determine
whether the state court decision approving the governor’s
rejection of parole was unreasonable under 28 U.S.C.
§ 2254(d). Id. at 563 & nn. 104, 105. That a California court
granted relief under state law in one case does not mandate
relief for a different inmate. See id. Rather, we must examine
the state court’s analysis of the Governor’s stated reasons for
rejecting the parole request. See id. at 562-63, keeping in
mind that “review of the Governor’s decision is extremely
MCCULLOUGH v. KANE 20627
deferential.” Id. at 562 (footnote reference and internal quota-
tion marks omitted).
In reversing the grant of parole to McCullough, the Gover-
nor referenced the “especially heinous” nature of the murder-
bludgeoning “a sleeping, unsuspecting, and unthreatening
man repeatedly with a brick . . . for the remarkably trivial
motive of stealing his money.”
In Irons, the panel upheld a similar decision by the Gover-
nor, stating that:
[Irons’] commitment offense, standing alone, is a
sufficient basis for deeming a petitioner unsuitable
where, as here there is some evidence to support a
finding that the offense was carried out in a manner
which demonstrates an exceptionally callous disre-
gard for human suffering and the motive for the
crime is inexplicable or very trivial in relation to the
offense.
Irons, 505 F.3d at 852-53 (citation and internal quotation
marks omitted). In this circumstance, the Irons panel ruled
that it could not “say that the state court unreasonably applied
[the] same evidence principle. Id. (internal quotation marks
omitted).
There is no principled way to distinguish this case from the
facts in Irons and the holding that was left undisturbed by
Hayward. The district court in this case expressly acknowl-
edged that the Governor’s determinations regarding the “espe-
cially heinous” nature of the crime and the trivial nature of the
motive were undisputed. In light of the “extreme deference”
due the Governor’s undisputed determinations, Hayward, 603
F.3d at 562, and our precedent upholding a virtually identical
rejection of parole, I would reverse the district court’s deci-
sion granting habeas relief.