FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH PEARSON, No. 08-55728
Petitioner-Appellee,
D.C. No.
v.
2:05-cv-06937-
MADELENE A. MUNTZ, Acting SGL-OP
Warden,
OPINION
Respondent-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
January 7, 2011—Pasadena, California
Filed April 5, 2011
Before: Stephen Reinhardt, Marsha S. Berzon, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Berzon
4497
PEARSON v. MUNTZ 4499
COUNSEL
Marc Grossman, Law Offices of Marc E. Grossman, Upland,
California, for the petitioner-appellee.
Julie L. Garland, Senior Assistant Attorney General, San
Diego, California, and Amy M. Roebuck, Deputy Attorney
General, San Diego, California, for the respondent-appellant.
OPINION
BERZON, Circuit Judge:
Madelene A. Muntz, the Acting Warden of Chuckawalla
Valley State Prison (hereinafter referred to as “the State”),
4500 PEARSON v. MUNTZ
appeals the district court’s decision granting Appellee Ken-
neth Pearson’s petition for a writ of habeas corpus under 28
U.S.C. § 2254. The district court held that the Governor’s
reversal of the decision of the Board of Prison Terms1 (“the
Board”) to grant Pearson parole was not supported by “some
evidence” that Pearson would be a danger to public safety if
paroled. We have jurisdiction over the State’s appeal pursuant
to 28 U.S.C. § 2253(a) and, in light of Swarthout v. Cooke,
131 S. Ct. 859 (2011) (per curiam), we reverse.
I.
Under California law,2 prisoners like Pearson serving inde-
terminate life prison sentences (i.e., those whose life sen-
tences do not include “without possibility of parole”) “may
serve up to life in prison, but they become eligible for parole
consideration after serving minimum terms of confinement.”
In re Dannenberg, 34 Cal. 4th 1061, 1078 (2005); see also
Cal. Penal Code § 3046(a); Cal. Code Regs. tit. 15
§§ 2000(b)(3), (b)(67). A year before the prisoner’s “mini-
mum eligible parole date,” the Board is required to convene
a panel to consider whether to release the prisoner on parole
and, if so, when. Cal. Penal Code § 3041(a).
1
Since July 1, 2005, the Board has been known as the Board of Parole
Hearings, but its relevant functions have not changed. See In re Olson, 149
Cal. App. 4th 790, 793 n.1 (2007).
2
In November 2008, California voters passed Proposition 9, the “Vic-
tims’ Bill of Rights Act of 2008: Marsy’s Law,” which changed numerous
aspects of California’s parole system, including the availability and fre-
quency of parole hearings for prisoners not initially found suitable for
parole. See Gilman v. Davis, 690 F. Supp. 2d 1105, 1128 (E.D. Cal. 2010)
(granting a preliminary injunction enjoining the enforcement of certain
portions of Proposition 9 as to the named plaintiffs on the basis of their
Ex Post Facto challenge), rev’d sub. nom., Gilman v. Schwarzenegger, ___
F.3d ___, 2011 WL 198435 (9th Cir. 2011). Because Pearson’s parole
suitability hearing occurred well before the passage of Proposition 9, the
changes it made to the California parole system are irrelevant for purposes
of this appeal.
PEARSON v. MUNTZ 4501
At its meeting, the Board first considers whether the inmate
is “suitable” for parole release. Id. §§ 3041(b), 3041.5(a)(6).
California law provides that the Board “shall set a release date
unless . . . consideration of the public safety requires a more
lengthy period of incarceration for this individual, and that a
parole date, therefore, cannot be fixed at this meeting.” Id.
§ 3041(b). In making this suitability determination, “the fun-
damental consideration . . . is public safety . . . [which]
involves an assessment of an inmate’s current dangerous-
ness.” In re Lawrence, 44 Cal. 4th 1181, 1205 (2008). Regu-
lations promulgated by the Board provide that “[a]ll relevant,
reliable information available to the panel shall be considered
in determining suitability for parole,” including various enu-
merated “circumstances.” Cal. Code Regs. tit. 15 § 2281(b).
The regulations specify a number of “circumstances” that
“tend to show that the prisoner is suitable for release,” id.
§ 2281(d), and others that “tend to indicate unsuitability for
release,” id. § 2281(c). The California Supreme Court has
emphasized that the factors set forth in the regulations are not
the ultimate touchstone of the Board’s inquiry; rather, the reg-
ulations are “designed to guide the Board’s assessment of
whether the inmate poses ‘an unreasonable risk of danger to
society if released from prison,’ and thus whether he or she
is suitable for parole.” Lawrence, 44 Cal. 4th at 1202 (quoting
Cal. Code Regs. tit. 15 § 2281(a)); see also In re Shaputis, 44
Cal. 4th 1241, 1254 (2008) (“[B]ecause the paramount con-
sideration for both the Board and the Governor under the gov-
erning statutes is whether the inmate currently poses a threat
to public safety, and because the inmate’s due process interest
in parole mandates a meaningful review of a denial-of-parole
decision, the proper articulation of the standard of review is
whether there exists ‘some evidence’ that an inmate poses a
current threat to public safety, rather than merely some evi-
dence of the existence of a statutory unsuitability factor.”).
As part of the parole suitability determination, the Board is
required to hold a hearing, which the prisoner has the right to
attend, “to ask and answer questions, and to speak on his or
4502 PEARSON v. MUNTZ
her own behalf.” Cal. Code Regs. tit. 15 § 3041.5(a). If the
Board finds the inmate unsuitable for parole, it provides him
or her “a written statement setting forth the reason or reasons
for refusal to set a parole date, and suggest[s] activities in
which [the inmate] might participate that will benefit him or
her while he or she is incarcerated.” Id. § 3041.5(b)(2). It also
schedules the next parole suitability hearing. Id.
§ 3041.5(b)(3).
If, on the other hand, the Board determines that the inmate
is suitable for parole, it proceeds to set a release date by cal-
culating the prisoner’s “base term.” Cal. Code Regs. tit. 15
§ 2282(a). Unlike the parole suitability determination, the
base term is established “solely on the gravity of the base
offense, taking into account all of the circumstances of that
crime.” Id.; see also In re Bush, 161 Cal. App. 4th 133, 142
(2008) (“[T]he base term reflects an appropriate sentence for
the crime when compared to other comparable offenses.”).
The Board has published matrices enumerating base terms for
various offenses, see Cal. Code Regs. tit. 15 §§ 2282-89, from
which the Board can depart in a particular inmate’s case if
warranted by one or more enumerated factors, see id. § 2404.
If the time the prisoner has already served exceeds the term
the Board calculates, the Board designates the prisoner for
release;3 if the reverse is true, the Board sets a release date
that falls after the completion of the calculated term. See
Bush, 161 Cal. App. 4th at 142.
3
Because the parole suitability determination and the prison term calcu-
lation are directed at different factors, a prisoner may end up serving years
more than the term calculated by the Board once he is found suitable for
parole. See Bush, 161 Cal. App. 4th at 142. In other words, though consid-
eration of only the base offense might suggest an appropriate prison term
of X years, characteristics unique to the inmate properly considered in the
parole suitability determination (such as past criminal record, prison disci-
plinary record, plans for parole, etc.) may lead the Board to conclude that
he is not “suitable” for parole until he has served more than X years.
PEARSON v. MUNTZ 4503
If the inmate was “sentenced to an indeterminate term upon
conviction of murder,” the Governor may reverse or modify
the Board’s parole decision, Cal. Const. Art. V § 8(b); see
also Cal. Penal Code § 3041.2, though he may do so only “on
the basis of the same factors which the parole authority is
required to consider.” Cal. Const. Art. V § 8(b); see also In
re Rosenkrantz, 29 Cal. 4th 616, 663-64 (2002).
For prisoners convicted of most crimes, the term of parole
is a set number of years (ranging up to 20 years), see Cal.
Penal Code § 3000(b)(1)-(4), although it can be discharged
early under certain circumstances, see id. § 3001(a)-(c). In the
case of inmates sentenced to a maximum term of life impris-
onment for first or second degree murder, however, the period
of parole (if parole is granted) is “the remainder of the
inmate’s life.” Id. § 3000.1(a)(1). But here again, parole can
be discharged early: The relevant statute provides that once an
individual convicted for second degree murder who was sen-
tenced to an indeterminate life sentence has been on parole for
five continuous years (or seven years for someone convicted
of first degree murder), “the [B]oard shall . . . discharge that
person from parole, unless the [B]oard, for good cause, deter-
mines that the person will be retained on parole.” Id.
§ 3000.1(b). If a parolee is retained on parole pursuant to this
process, he is entitled to a new parole discharge review “each
year thereafter.” Id. § 3000.1(c).
II.
On October 6, 1985, Pearson, 21 years-old at the time,
exchanged gunfire with a crowd of rival gang members while
riding in a car being driven by his best friend and fellow
member of the East Coast Crips, Lamont Grant. One of Pear-
son’s shots struck a member of the rival gang, paralyzing him,
while a shot fired by an unknown individual hit Grant in the
head, killing him. Pearson fled the scene on foot, but was
arrested the next day. He ultimately pled guilty to second-
4504 PEARSON v. MUNTZ
degree murder for Grant’s death and was sentenced to 15
years to life in prison.
Pearson had six parole suitability hearings between 1993
and 2001, all of which found him unsuitable for parole. The
Board granted Pearson parole at the conclusion of his seventh
parole hearing, held in June 2002, but Governor Gray Davis
reversed the Board’s decision. Pearson’s eighth parole suit-
ability hearing, which forms the basis of this appeal, was held
on November 19, 2003. The Board again found Pearson suit-
able for parole, highlighting several factors as indicating that
Pearson “is suitable for parole and would not pose an unrea-
sonable risk of danger to society or a threat to public safety
if released from prison,” including significant vocational pros-
pects; an “extremely limited” prison disciplinary record; signs
of remorse; significant family ties; and a psychological report
indicating that if released to the community, Pearson’s pro-
pensity for violence “would be no greater than the average cit-
izen.” In accordance with Cal. Code Regs. tit. 15 §§ 2282(a)
and 2403(c), the Board set a tentative release date and
imposed several special conditions of parole.
Governor Schwarzenegger reversed the Board in a decision
dated April 14, 2004. The Governor gave three reasons for his
decision: that Pearson had not demonstrated sufficient
remorse for his actions; that his post-prison plans were not
realistic—in particular, his plan to live with either his aunt or
mother, both of whom live relatively close to Pearson’s “old
gang-infested neighborhood”; and that the commitment
offense demonstrated a callous disregard for human suffering.
Pearson immediately filed a petition for habeas corpus in
California Superior Court, which was denied on December
15, 2004. The Superior Court rejected the Governor’s first
two proffered reasons for denying Pearson parole, but held
that “[t]here is . . . ‘some evidence’ [that] Petitioner is unsuit-
able for parole based on the circumstances of the commitment
offense.” On appeal, the California Court of Appeal affirmed
PEARSON v. MUNTZ 4505
in a one-paragraph order. Pearson’s petition for review to the
California Supreme Court was summarily denied on June 8,
2005, with two Justices dissenting.
Three months later, Pearson filed a habeas petition in fed-
eral district court under 28 U.S.C. § 2254, arguing that the
Governor’s decision had violated his right to due process
under the Fourteenth Amendment by denying him parole
despite the absence of “some evidence” that he would be a
threat to public safety. Magistrate Judge Parada issued a
Report and Recommendation on July 3, 2007, holding that in
light of the other record evidence, “the commitment offense
is no longer reliable evidence of [Pearson’s] unsuitability for
parole.” Magistrate Judge Parada therefore recommended that
Pearson’s petition be granted. The Report and Recommenda-
tion was subsequently adopted by District Judge Larson.
Judge Larson ordered that Pearson be released within 30 days
of the entry of judgment, but granted the State a temporary
stay to allow it to seek a stay from this Court pending its
appeal on the merits.
[1] The State filed a timely notice of appeal on April 29,
2008, followed three weeks later by an emergency motion for
a stay. On June 3, 2008, the State was granted a stay pending
the resolution of Hayward v. Marshall, a case that was taken
en banc to decide, inter alia, “whether federal constitutional
law imposes on the states a requirement for some quantum of
evidence to support a state’s denial of parole,” and, “even if
there is no general federal quantum of evidence requirement,”
whether “applicants for parole in California . . . may obtain
federal habeas review of whether there is ‘some evidence’
supporting a negative parole decision.” 603 F.3d 546, 549
(9th Cir. 2010) (en banc).
Hayward ultimately declined to answer the first question,
reasoning that:
Because the California “some evidence” standard is
exactly the same as the one Hayward urges as a fed-
4506 PEARSON v. MUNTZ
eral constitutional standard, the doctrine of constitu-
tional avoidance counsels not deciding whether the
California parole scheme establishes a predicate for
imposing it as a matter of federal constitutional law.
State law already does what Hayward would have
federal constitutional law do. We therefore do not
decide whether a right arises in California under the
United States Constitution to parole in the absence of
some evidence of future dangerousness.
Id. at 562 (footnote omitted). As to the latter question, how-
ever, Hayward answered in the affirmative, holding that
courts in this circuit should evaluate whether a particular
inmate’s parole denial was “an ‘unreasonable application’ of
the California ‘some evidence’ requirement, or was ‘based on
an unreasonable determination of the facts in light of the evi-
dence.’ ” Id. at 563 (quoting 28 U.S.C. § 2254(d)(1)-(2)).
[2] Following the en banc decision in Hayward, we issued
an order dissolving the stay in this case.4 Approximately a
week later, the State filed an emergency motion for reconsid-
eration, which we denied in a published order on May 24,
2010. Pearson v. Muntz, 625 F.3d 539 (9th Cir. 2010) (per
curiam). The State argued that because Pearson’s right to
parole is created by state law, his parole denial cannot be
reviewed by way of a federal habeas petition. We disagreed,
pointing out that Hayward permitted the very review that the
State argued it prohibited. See id. at 547-49. We explained,
moreover, that “[i]n California, the ‘some evidence’ require-
ment is a component of [the] liberty interest” in parole that is
protected by federal procedural due process. Id. at 439.
4
Several months later, Pearson was granted parole on the basis of a
more recent decision of the Board. Pearson argues, on the basis of
McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003), that he could
still be afforded relief in this case—namely, a reduction of his term of
parole equal to the amount of time he was unconstitutionally imprisoned.
Given our holding, we do not reach the question.
PEARSON v. MUNTZ 4507
[3] A few months later, however, the Supreme Court
issued a per curiam decision in Cooke, 131 S. Ct. 859. Cooke
did not disturb our precedent that “California law creates a
liberty interest in parole.” Id. at 861. But it held that, under
the Fourteenth Amendment’s Due Process Clause, the protec-
tions to which a California inmate is entitled prior to a denial
of parole do not include a showing of some evidence of future
dangerousness. Id. While the Court did not define the mini-
mum process required by the Due Process Clause for a denial
of parole under the California system, it made clear that the
Clause’s requirements were satisfied where the inmates “were
allowed to speak at their parole hearings and to contest the
evidence against them, were afforded access to their records
in advance, and were notified as to the reasons why parole
was denied.” Id. at 862.
III.
[4] Pearson has never argued that he was denied an oppor-
tunity to speak at his hearing and contest the evidence against
him, that he was denied access to his record in advance, or
that he was not notified of the reasons why parole was denied.5
His complaint has been all along that there was not “some
evidence” of future dangerousness in his case, resulting in a
violation of his rights to due process guaranteed by the Con-
stitution. Cooke makes clear that we cannot consider whether
“some evidence” of dangerousness supported a denial of
parole on a petition filed under 28 U.S.C. § 2254.
Nonetheless, Pearson argues that Cooke “does not affect
the resolution of this case” because it did not decide “whether
5
Following Cooke’s issuance, Pearson did argue for the first time, in a
letter filed pursuant to Rule 28(j) of the Federal Rules of Appellate proce-
dure, that the Governor’s decision to deny him parole violated due process
because the Governor did not afford Pearson a hearing before making his
decision. As this argument comes too late, the issue is not properly before
us. See United States v. Gomez-Mendez, 486 F.3d 599, 606 n.10 (9th Cir.
2007).
4508 PEARSON v. MUNTZ
a right arises in California under the United States Constitu-
tion to parole in the absence of some evidence of future dan-
ger.” In other words, Pearson argues that Cooke, like
Hayward, did not decide whether the Constitution imposes on
the states a requirement that its decisions to deny parole be
supported by a particular quantum of evidence, independent
of any requirement imposed by state law.
[5] We disagree. Cooke was unequivocal in holding that if
an inmate seeking parole receives an opportunity to be heard,
a notification of the reasons as to denial of parole, and access
to their records in advance, “[t]hat should . . . be[ ] the begin-
ning and the end of [the] inquiry into whether [the inmate]
received due process.” Id. at 862. To reiterate, Pearson has not
questioned whether those procedures were provided, and
therefore, after Cooke, our inquiry is at its end.
The district court’s decision to grant Pearson’s petition
must be REVERSED.