Brian Sass v. California Board of Prison Terms Attorney General of the State of California

(9th claims, attorneys’ Mink, I that an cessful believe 239 F.3d 1140 v. In Sorenson $21,104.24 the is not an abuse of Cir.2001), argued fee award the defendant discretion, in fail- “degree discretion of success” abused its under the court district on award based plaintiffs’ the ing to reduce test. plaintiffs “limited success” at 1147. litigation. Id. in the

achieved claims

However, plaintiffs’ because improving on focused all related—-all

were system— disability determination

Oregon’s plaintiffs were entitled found that

we See id. requested fees. almost all of fact that reasoning on the based our We “ SASS, Petitioner-Appellant, Brian a com- ‘involve[d] claims plaintiffs’ “ ” were ‘based on of facts’ and mon core ” (quoting Id. Hens- legal theories.’ related CALIFORNIA BOARD OF PRISON 1933). Be- 103 S.Ct. ley, 461 U.S. Attorney TERMS; General of counsel’s time will be cause “[m]uch California, Respondents-Ap State litigation as a generally devoted pellees. cannot be ... a lawsuit [s]uch whole discrete claims.” Id. as a series of viewed No. 05-16455. Hensley, 461 U.S.

(quoting Appeals, Court of United States 1933). S.Ct. Ninth Circuit. case, on four Aguirre prevailed In this district that the school claims that asserted 16, 2006. Argued and Submitted March ap- with the provide had failed to Carlos 31, 2006. Aug. Filed technology. compar- propriate assistive twenty-three un- her ing these claims with claims, district court could

successful twenty-seven find that all

reasonably they related sufficiently because

claims failed to alleged that the school district

all compo- necessary her son with

provide public edu- appropriate a free and

nents of two-year peri- of a the course

cation over involved a Aguirre’s lawsuit

od. Because facts” and her various

“common core of legal theo- on related

claims were “based a district

ries,” reasonable for be would portion to award her substantial

court fees. requested

Here, recognized court the district of the benefit the some

Aguirre “achieve[d] Be- bringing the suit.” sought

parties from her a benefit Aguirre

cause obtained quite be substan-

suit—a benefit prevailed she

tial to her and her son—and to her unsuc- that are related

on claims contrary were not parole denials

ing Sass’ to, involve an unreasonable and did not of, federal clearly established application Court. law as determined reason, we affirm. For this I.1 was convicted of second Sass murder, man- gross vehicular death, inju- causing run slaughter, hit and influence, under the and ry driving while driving. He was sentenced felony drunk possibility to life with the years to fifteen Board of Prison The parole. California Board”) (“the pa- initial held Sass’ Terms Satris, Michael and Margaret Littlefield on hearing November role consideration Bolinas, CA, Satris, of Michael Law Offices 25, 1996, him and found unsuitable petitioner-appellant. for the parole. Garland, Deputy Supervising L. Julie 25, 1999, held a the Board On March CA, General, Diego, for the San Attorney hearing, consideration subsequent parole respondent-appellee. parole. unsuitable for and found Sass pose “would found Sass Board danger risk of others —to unreasonable if safety public and a threat society The Board cited prison.” released cruel manner” which his “especially GOODWIN, T. ALFRED Before out, “escalating Sass’ offense was carried REINHARDT, and STEPHEN conduct,” and his “un- pattern of criminal HAWKINS, Circuit DALY MICHAEL criminality” history social with stable Judges. unsuitability determination. its GOODWIN, Judge. Circuit for a writ of habeas petition filed court, con- superior corpus California ap- prisoner Brian Sass state California failure to set a that the Board’s tending peti- denial of his the district court’s peals equal protection his date violated parole corpus. Sass for a writ of habeas tion rights. The court found process due of Prison and Board argues that the California his adminis- deny- not exhausted decisions, in that Sass had Terms’ process remedies, rejected argu- due him violated his Sass’ parole trative rights. pursue futile to it would be ment he ex- remedies because administrative contin- inmates hold that California We appeals from hausted his administrative liberty interest in after to have a ue unsuitability determina- the Board’s 1996 1061, 23 Dannenberg, 34 Cal.4th In re ad- failure exhaust (2005). Despite tion. Sass’ 417, 104 P.3d 783 remedies, the court denied ministrative However, uphold- court decisions the state appeal. on supplement the record tion to deny government's motion for re- We granting Sass’ mo- of the order consideration petition on the merits. The statutory habeas Cali- gives California’s scheme fornia and the Appeals Court California prisoners liberty interest in release on peti- also denied habeas McQuillion Duncan, parole, 306 F.3d challenging unsuitability tions the 1999 de- (9th Cir.2002), and that the Board’s termination. continued reliance on immutable factors to 27, 2000, July deny On the Board held a third could result in a process due hearing, violation, consideration and found Terhune, Biggs v. 334 F.3d Sass unsuitable for (9th Cir.2003). Board However, it should be pose found that Sass “would unreason- noted that Biggs affirmed pa- a denial of able society risk of and a threat holding role after that the circumstances public safety if prison.” released from the offense and conduct prior imprison- The disregard Board cited the “total for ment constituted some support evidence to human suffering” by demonstrated the Parole Board’s decision. Id. manner of previous his offense and Sass’ 15, 2005, On June the district court re history criminal its determina- jected magistrate’s findings and rec tion.2 pursuing After an appeal to the ommendations, and denied Sass’ habeas Board, petition Sass filed a habeas in Cali- petition. The district court held that the superior fornia court again alleging that Supreme California Court had held in In parole Board’s failure to set a release 1061, re Dannenberg, 34 Cal.4th 23 Cal. date equal protection violated his and due 417, Rptr.3d (2005), 104 P.3d 783 that the process rights. The court found that the language of California petition Penal Code supporting and section documentation failed to mandatory. set forth sufficient 3041 is not facts to estab- The district court prima relief, lish a facie case for and de- therefore held that Sass did not have petition. nied the The California Court of liberty associated in parole interest under Appeals and the Supreme California Court clearly established federal law. also petitions denied habeas challenging (1) appeal, On argues Sass section unsuitability the 2000- determination. 3041 creates a liberty interest in parole petition Sass filed a for a writ of habeas (2)-the Board’s denying decisions him corpus in the United States District Court parole violate process his due rights be- for the Eastern District of California chal- they cause are not supported by some 1996, lenging 1999, the Board’s and 2000 evidence. denying decisions him parole date. On 12, September 2002, the district court held II. challenges to the 1996 pro- ceeding were time-barred. remaining We review de novo a district matters were magistrate referred to a court’s decision deny § a 28 U.S.C. 2254 judge. habeas petition. Ignacio, Robinson v. 360 (9th 1044, Cir.2004). F.3d Section 16, 2005,

On March magistrate judge 2254 “is the exclusive for a vehicle habeas recommended that petition Sass’ habeas be petition by a granted prisoner state custody and that given be pursuant date within to a thirty days judgment, of state court adoption even his findings. The magistrate judge’s petitioner when the anal- is not challenging ysis relied on Ninth Circuit holding cases underlying state court conviction.” White Prior to his second murder convic- rate occasions for DUI. tion, Sass had been sepa- convicted on seven (9th (1979). However, Lambert, if 370 F.3d 1009-10 L.Ed.2d Therefore, Cir.2004). ha- review Sass’ mandatory language we a state statute “uses stan- (‘shall’) under the deferential petition a presumption pa- beas to ‘create Effective of the Antiterrorism dard granted’ release will when the des- role be (AEDPA). Act of Penalty Death made,” findings are the statute ignated the state granted be unless petition cannot liberty creates a Bd. interest to, in- contrary or “was court decision Allen, 377-78, Pardons v. 482 U.S. of, application an unreasonable volved 2415, 96 107 S.Ct. L.Ed.2d 303 law, as deter- Federal clearly established Greenholtz, 12, 99 (quoting 442 U.S. at of the United mined 2100). S.Ct. States,” “was based on an unreasonable previously When confronted with light of the facts determination question whether section 3041 creates pro- court presented the State liberty parole, interest in court held this 2254(d). When a 28 U.S.C. ceeding.” “[ujnder the ‘clearly established’ reasoning, its explain state court does Allen, here, ... conduct an framework Greenholtz and the case we must as is review of the record deter- independent gives scheme rise to California’s the decision whether state court’s liberty mine cognizable interest in release on Lewis v. objectively unreasonable. Duncan, McQuillion 306 F.3d parole.” v. Cir.2004). (9th 989, F.3d 996 Mayle, 391 (2002). Furthermore, 895, 902 this “liber assertion, we did Contrary to the dissent’s created, ty upon grant interest is not the rec- independent review of the conduct an date, but incarcera parole upon of a the ord. Terhune, inmate.” 334 Biggs tion of the v. (2003).3 910, 915 F.3d

III. argues that the district court analyze a claim in process due We interpreted In re Dannen erred when first whether there steps. “[T]he two asks 417, 1061, berg, Cal.Rptr.3d 34 Cal.4th 23 liberty property or interest exists a which (2005), that 104 P.3d 783 to hold section State; interfered with the the by has been use mandatory language and 3041 does procedures second examines whether in liberty parole, not create interest does con upon deprivation were attendant McQuillion thereby and superceding stitutionally Ky. Dep’t sufficient.” Corr. of “a court is Biggs. highest Because State’s 454, 460, v. 490 U.S. 109 S.Ct. Thompson, judicial meaning of the final arbiter of the (1989) (citation 1904, 104 L.Ed.2d 506 statutes,” if Supreme state California omitted). hold that does not did section 3041 Court constitutionally have Did Sass hold mandatory this court’s language, use liberty protected parole? interest contrary con longer would no ings “[tjhere no has is Supreme Court held 200, 208, Rhoden, Gurley v. 421 trol. U.S. right or of a con constitutional inherent (1975). 1605,44 L.Ed.2d 110 95 S.Ct. conditionally person to be released victed Dannenberg. court sentence,” The district misread expiration of a valid before Dannenberg ques- narrow addressed the v. Inmates Penal & Greenholtz Neb. in a 1, 7, engage Complex, 442 99 S.Ct. tion whether Board must Corr. U.S. Allen, did not so Despite government’s argument 3. holtz Conner, 472, rejected consistently S.Ct. and this court has v. 515 U.S. 115 hold Sandin See, McQuillion, 2293, (1995), argument. e.g., 306 L.Ed.2d 418 eliminated this 903; Biggs, "mandatory language” at 334 F.3d at 914. approach of Green- F.3d date, comparative proportionality analysis proceed we to examine wheth- pursuant setting parole dates section interest, deprivation er the of this in this 3041(a) determining whether an in before case, process. violated due Ky. See Dep’t parole pursuant mate is suitable for Corr., 460, U.S. 109 S.Ct. 1904. 3041(b). 1077, section 34 Cal.4th at Hill, In Superintendent v. 417, Cal.Rptr.3d 104 P.3d 783. Dannen- Supreme Court held that “revocation of berg “[n]othing in held that the statute good time comport does not with mini ‘the suggests states or the Board must mum requirements procedural pro due evaluate the case under standards of term cess,’ unless the findings prison of the uniformity exercising before authority its disciplinary board supported by some deny grounds date on the 445, 454, evidence the record.” 472 U.S. particular criminality presents offender’s ” 2768, 105 S.Ct. 86 L.Ed.2d 356 continuing public danger. 1070, Id. at 417, 104 (quoting McDonnell, 539, P.3d 418 U.S. Wolff (1974)). 94 S.Ct. 41 L.Ed.2d 935 The California court did not hold that To determine whether the some evidence 3041(b) section does not mandatory use standard is require met “does not exami language. Dannenberg argued that “he record, nation of the entire independent process rights was denied federal due aris- assessment witnesses, of the interest, credibility protected liberty expectation, in weighing Instead, a ‘uniform’ of the release evidence. date.” Id. 1098 n. 23 Cal.Rptr.3d question relevant is whether there 417, 104 explained P.3d 783. The court the record that could support that “he has such a liberty interest and the conclusion reached the disciplinary expectation only to the extent that state 455-56, board.” Id. at 105 S.Ct. 2768. it,” provides law but did not hold that state This court held that although Hill involved law provide liberty does not such a inter- good accumulation of time credits in Instead, est. Id. proceeded the court parole denial, stead of a the some evidence step the second of the process due analy- applies standard in both situations because procedures sis—whether attendant directly “both affect the duration of the upon deprivation were constitutionally prison term.” Jancsek v. Or. Bd. Pa of sufficient. (rejecting Id. Dannenberg’s ar- role, 1389, (9th Cir.1987). 833 F.2d gument “that the Board’s decision lacked ” support evidence,’ of ‘some and not- A. ing that he “does not contend he was The state contends that use of the any procedural denied rights he was con- some evidence parole standard in the con stitutionally due in the course of the text is not clearly by established the Su decision”) McQuillion Board’s (citing with preme Court for AEDPA purposes. The approval). The court would not reach this Supreme Court has held that a state can if it step had held that there liberty was no create a liberty in parole, interest Green Ky. Corr., interest. Dep’t See 490 U.S. holtz, 1, Allen, 369, U.S. 482 U.S. 460, 109 S.Ct. 1904. Dannenberg does 2415, 303, S.Ct. 96 L.Ed.2d and that a explicitly or implicitly hold that there liberty interest is no cannot be constitutionally protected interfered with liberty in- terest in requirements unless the process of due satisfied, Ky. Corr., Dep’t 490 U.S.

IV. 1904, 104 109 S.Ct. L.Ed.2d 506. Although Because we hold that Sass has a Court has not specifically consti- identified tutionally protected liberty interest in a how these requirements are satisfied in context, parole added). it follows from these 334 F.3d at 917 (emphasis Under precedents process that due must be satis- AEDPA it is not our speculate function to fied. about how future hearings could proceed. id. The evidence of Sass’ Hill’s mini- Cf. some evidence standard is prior offenses gravity and the of his con- mal, and assures “the record is not so victed offenses constitute some evidence to findings devoid evidence that the of the the Board’s decision. Conse- disciplinary were without support board quently, the state court uphold- decisions Hill, arbitrary.” otherwise 472 U.S. at ing the denials to, were neither contrary 457, 105 S.Ct. 2768. Hill held that al- nor they did involve an appli- unreasonable though might this standard be insufficient of, cation clearly established Federal law circumstances, in other “[t]he fundamental as determined Supreme Court of guaranteed by fairness the Due Process 2254(d). United States. 28 U.S.C. require Clause does not courts to set aside prison decisions of administrators While the district court decision is have some basis fact.” Id. at 105 correct under the AEDPA standard of re S.Ct. 2768. To hold that less than the view, pointed we have out that the district some required evidence standard is would court based its decision on an erroneous clearly violate established federal law be- reading California cause would mean that a state could Dannenberg. However, under the law of liberty interfere with a interest —that circuit, this “[w]e affirm the district support or an otherwise —without court’s decision on any ground supported arbitrary reject manner. We therefore record, by the even if it differs from the the state’s contention that the some evi- district court’s rationale.” Lambert v. clearly dence standard is not established in (9th Blodgett, Cir.2004). 393 F.3d context. AFFIRMED. B. REINHARDT, Circuit Judge, In making judgment call based dissenting: on pre-conviction evidence of recidivism I am compelled to dissent from the ma- offense, and the nature of the conviction jority’s grant refusal to person relief to a the Board cannot categorized acting be as whose continued incarceration “runs con- arbitrarily. Here, the Board based its trary to the goals espoused rehabilitative finding that Sass was parole unsuitable for by prison system the and could in result the gravity on of his convicted offenses in violation,” process Maj. due Op. at 1129 combination prior with his offenses. Terhune, (quoting Biggs 334 F.3d These elements amount to some evidence (9th Cir.2003) added)) 917 (emphasis —a to support the Board’s determination. person currently who is to entitled relief Sass contends that reliance on this immut application under rational of the law. able behavioral evidence pro violates due offers no reasoned explana- upholding cess. While de unsuitability refusal, tion for this no doubt because its factors, termination based on these same deny decision to relief no in finds previously acknowledged we that “contin either logic. law or ued reliance in the on unchang future factor, I explain why majority’s the Before circumstance the offense the deci- erroneous, prior imprisonment, conduct to sion is it helpful runs be if I set contrary to the goals rehabilitative forth the nature of Brian es Sass’s offense poused by prison system the briefly identify and could and the governing rules result in a due process Biggs, violation.” authority California Parole Board’s

1130 “heinous, Indeed, murder atro- in such must be deny eligibility parole for grant if, here, is or cruel” the offense de- cious as of second was convicted cases. Sass parole the basis for denial.9 In serve as he of a death murder as result gree addition, cases, prisoner in such must influence of driving under the caused while society.10 presently present was sen- July in and he alcohol short, case, in circumstances years prison.1 in to fifteen to life tenced manner surrounding crime or the in successful years of extensive and After it committed must show not which was pro- rehabilitation participation alcohol murder at only degree second alcoholism state of active grams, more than cruel or vicious issue can “cured” an ailment is now as as such murder,11 but ordinary second also be, essentially possesses an and he ever a current risk likely pose that Sass would prison.2 record of conduct unblemished safety if The record in public released. he has notwithstanding, facts These absolutely case contains no evidence this denied The Califor- parole.4 thrice3 been require- that would meet either of the two in murder governing parole nia rules Thus, little ments. there can be doubt cases, parole eligibility provid- is for which applicable the Board violated the statute,5 “[P]arole ed are as follows. solely parole rules when denied Sass on rule, ex- eligibility is the rather than the the basis of his commitment offense and “[Pjarole ‘normally’ to be ception.” pre-offense conduct. rise to the granted.”7 giving The murder “particu- Turning majority’s opinion, brief prisoner’s incarceration must be ninety-plus percent denied.8 it is correct. larly egregious” parole to be but, permissible. previously parole involves He had had seven DUI’s is not One life 1. (L.W.O.P.). inexplicably, apparently previously possibility had never without the jail received sentence. death-eligible involves murders The other capital punishment may imposed. which be disciplinary no- had 2. Sass two minor spoke tices on his record as of 2000. Once he Scott, 871, 891, Cal.App.4th 6. In re par- loudly telephone he too on and once (2004). Cal.Rptr.3d 32 ticipated stoppage. a work The most re- years cent of the notices was six before 3041(a)). (quoting Id. Cal. Pen.Code hearing. 1996, 1999, 3. Sass was denied Rosenkrantz, 616, 683, re 8. In 29 Cal.4th challenges 2000. He the results of both (2002). 59 P.3d 174 parole proceedings. 1999 and 2000 Because if he Sass is entitled the relief he seeks 2402(c)(1). Regs. § 9. 15 Cal.Code prevails challenge on either and because I both, prevail conclude that he is entitled to on 3041(b). Cal. Pen.Code reasons, essentially for the 10. I will discuss same denial, only recent of the the the more two. argued deny be 11. It could that in order parole suitability on basis of the nature the supplemental the 4. The record reflects that offense, degree the murder the second in- persisted Parole Board has in its unlawful be volved must more cruel or vicious than the of conduct in time since its course the denial murder, degree, average first or second rather petition Sass's in 2000. The most recent degree simply average than the second mur- February occurred in of 2006. The denial necessary der. It is not for us consider again application hear un- Board will not his however, argument, driving drunk that as the yet 2008. til as undetermined date in an was, caused death offense that the victim’s as show, more, egregious less than Regs. § Cal.Code California I will the 5. See 15 categories degree also has two of murders for which run-of-the-mill second murder. forty-five percent initial constitutes an ac- some instances constitute a process due curate recitation of the facts. The next Maj. Op. violation. at (quoting Biggs, forty-five plus percent generally describes 917). majority F.3d The makes no applicable correctly the properly law and attempt explain why reliance on these rejects legal positions the state’s basic in factors this case was proper and did not (1) liberty that: there is no interest in violate right to due process. In- parole, and legal the standard for re- deed, majority merely cites Biggs and viewing parole clearly decisions is not es- blithely then ignores it. tablished. It is in its next-to-last majority that paragraph summarily cursory Even a review of the record in and, discusses Brian Sass’s case12 this case demonstrates the state last two sentences of that paragraph, dis- court’s decision was unreasonable under misses his constitutional claim on the the applicable “some evidence” rule. The ground that prior evidence of Sass’ “[t]he simply record any does not contain evi- and gravity offenses of his convicted dence Sass’s act of degree second sup- offenses constitute some evidence to was, murder large contrast to the ma- decision,” port the Board’s and therefore offenses, jority of such particularly egre- “the state court upholding decisions gious. Nor does it any contain evidence contrary to, denials were neither nor did currently that Sass is society. a threat they involve an application unreasonable findings Given that both required by of, clearly established Federal law as de- law, II.B.(l) California see infra, Section termined Court of the there is zero the record to Maj. Op. United States.” at 1129. It is the Board’s decision. Although from this unsupported unsupportable majority says that it “eonduet[ed] majority conclusion of the I must independent review of the record” in light dissent. of the fact that the state court did not cursory majority’s nature relief, explain denying Maj. its reason for treatment of the central issue in this case Op. appears it not to have done so. startling. is expla- offers no least, record, At if it did review the it why nation as to it finds that either Sass’s keeps Indeed, its results a secret. it pre-offense conduct or commitment offense points to not a of evidence in scrap constitutes some evidence that pres- he is record for purpose, and instead mere- ently a danger society, nor does ex- declares, ly any analysis without or expla- plain why degree the second murder he nation, that the offense of which was particularly committed egregious convicted and his conduct constitute comparison to other second mur- Maj. Op. “some evidence.” at 1129. ders. The provide any failure to rationale particular Whether Sass’s offense and his for its conclusion particularly striking, particular conduct can provide “some evi- given that it by only follows two sentences dence,” under California law the Unit- quotation ours, from a recent ease of Constitution, is, course, ed AEDPA, States says decided under that reli- prisoner’s legal ance on a issue in this It offense and on case. is not ac- pre-offense deny conduct to parole ceptable can in simply say, answer to as the ma- paragraph merely repeats, any ground 12. The last supported unnec- decision on in the rec- ord, essarily, a proposition hardly deserving well established and uncontrovert- of consti- legal proposition regarding power tuting ed judi- the of the conclusion to this exercise in appeal courts of responsibilities. the to affirm district court's cial of abdication all, is any explanation at Board deems an inmate suitable a re- does, jority without § Regs. date “they do.” lease set. 15 Cal.Code 22825- Dannenberg, also 34 Cal.4th see In re summary of majority’s dismissal The 1061, 1071, Cal.Rptr.3d 104 P.3d arguments partic- has constitutional Sass’s (2005) (“[A] of determination individual consequences. The fact ularly unfortunate suitability precede setting the of a must DUI’s, and in and offense Sass’s date.”). parole ... The pa- release actual themselves, enough held to of are be may role well be a of release date number necessarily detention justify present his Board years regula- future. Under they enough justify means tions, indefinitely, regardless parole using of the established date is detention it is majority’s protestations as to what matrix that takes into account inmate’s Maj. Op. 1129. Un- actually deciding. of and the imprisonment offense circum- may treat today’s opinion, der Board stances it was committed. 15 which recovering permanent all alcoholics as a matrix Regs. § CahCode 2282. The is in- society, regardless of their level danger to sentencing uniformity tended to ensure recovery and of the state of their reha- among commit similar those who crimes. deny and thus such generally, bilitation all 1078-79, Dannenberg, See 34 Cal.4th at eligibility the re- parole for individuals 104 P.3d 783. Such con- lives, no matter how de- mainder of their course, are, inapplicable siderations they may poli- of release be. The serving the case prisoners deemed unsuitable cy majority declines is that the to overturn parole. for 23 Cal.Rptr.3d Id. cruel, only ignorant not and unconsti- but 417,104 P.3d 783. tutional, majority that the does not point challenged by the 2000 determination deign to discuss. petition, his habeas Board Thus, deemed him unsuitable for

I. require a writ that the simply would Board noting at the that the It is worth outset a parole pursuant set for him date issue before us is whether Brian Sass is procedures regulations. forth in its set parole, suitable for not when he should be sys- parole released. Under the California II.

tem, initial task respect the Board’s with serving an inmate indeterminate sen- A. tence is to determine whether he is suit- is, correct that peti- parole he able for whether —that governed by tion is AEDPA and that we “pose[s] an unreasonable risk of grant therefore the relief he society prison.” if released 15 Cal. seeks § Regs. Only Code 2402.13 after unless state court decisions that he regulations governing pro- bility prisoner 13. committed "[t]he when the of- provide tending heinous, cess six factors nonexclusive especially fense in an atrocious or unsuitability to show and nine non- 2402(c)(1). § cruel manner.” Id. at The fac- tending suitability. exclusive factors to show (1) indicating suitability tors are: tending unsuitability The factors to show are: Record; (2) No Stable Social Juvenile Histo- Offense; (2) (1) Commitment Previous Record Remorse; (3) (4) ry; Signs of Motivation for Violence; (3) (4) History; Unstable Social Crime; (5) Syndrome; Woman Battered Offenses; (5) Psychological Sadistic Sexual (6) (7) (8) History; Age; Lack of Criminal Factors; (6) Institutional Behavior. 15 Future; Understanding and Plans for the 2402(c). Regs. § Cal.Code In terms of the factor, Offense,” Regs. 15 Cal.Code Institutional Behavior. regu- first "Commitment 2402(d). explain lations that it tends show unsuita-

1133 to, nation, challenges “contrary ] state court did not offer involvef of, application clearly unreasonable estab- indication of the basis for its decision. law, by as determined explanation provided lished Federal it is: “The petition Court of the United States.” 28 Supreme supporting documentation fail 2254(d)(1). AEDPA U.S.C. limits the to set forth sufficient facts to establish a clearly prima source of established federal law to facie case for the requested, relief Supreme including precedent, required by Court as plainly law.” This is inade legal principles prece- quate that flow from that to allow us to evaluate the decision.14 Id.; Palmateer, Cooper-Smith circumstance, dent. v. In that “an independent re (9th Cir.2005). 1236, Here, 1242 397 F.3d view of required the record is to determine that, majority agree and I unlike in so whether the state court clearly erred in its cases, many AEDPA controlling Unit- application controlling federal law. Supreme clearly Only by ed States law is examination we deter decision, established: A board’s like mine whether the state court’s decision decision, prison disciplinary board’s de- was objectively reasonable.” Delgado v. Lewis, (9th prives prisoner process 976, Cir.2000) of due if it is not 223 F.3d 982 (internal supported omitted); “some evidence” or is “other- citation see also Pham Hill, 457, Terhune, arbitrary.” 740, (9th wise 472 at U.S. 105 v. 400 F.3d 742 Cir. 2768; Duncan, McQuillion 2005); S.Ct. see 848, Himes v. Thompson, 336 F.3d (9th Cir.2002) (I (9th Cir.2003); F.3d sometimes Morgan, Pirtle v. (9th Cir.2002) (“We refer to this as the “some evidence” rule F.3d have rule.). and sometimes the “Hill” If a state relaxed AEDPA’s strict standard of review court’s that a parole decision board’s de- when the state court reaches decision on supported by termination is both provides “some the merits but reasoning no conclusion.”). evidence” and not arbitrary” “otherwise its constitutes an application unreasonable above, As noted although Hill, the court decision must be reversed independently states that it reviewed the AEDPA grant- under and the writ must be record, Maj. Op. at there is no hint Although majority recognizes ed. opinion actually its that it did so. It fails clearly Court has established to apply Hill’s “some evidence” test to the applies the “some evidence” rule case, merely stating by way facts of this context, Maj. -1129, Op. at 1128 unsupported conclusion that “Sass’ provides explanation it no of how the gravity offenses and the of his convicted Board’s determination this case satisfies offenses constitute sup- some evidence to portion the “some evidence” of the Hill port Maj. the Board’s Op. decision.” rule, and it does not acknowledge even 1129. It reaches this without conclusion arbitrary” portion “otherwise of the rule. factual, any analysis, legal or of the con- record,

The majority correctly notes that we any expla- tents of the and without independent must conduct an review of the nation as to how the can satisfy record to determine why whether the state the Hill standard or Why, does. court decision rejecting challenge does example, particular this conviction parole suitability the Board’s denial of pres- constitute “some evidence” that Sass objectively 2000 constitutes an ently society? unreason- constitutes a application Maj. able Op. of federal law. is this Why “particularly grave?” offense In ratifying 1127. the Board’s determi- particu- How can this offense be deemed preme we simply peti- The decision review is that of the court denied trial both Sass's appeals explanation. court. The state court and state su- tion without 1134 majority’s hold- atrocious, necessary premise of the “heinous, cruel” relative

larly and earlier prior conviction murders? And that Sass’s degree other second “some driving not offenses constitute court decision “arbi- drunk why the state for the earlier and that he is unsuitable mentioned evidence” trary?” As I have later, not all date. I do setting parole eligibility second of a further will discuss constitute in good convictions can that we can conscience murder not think degree elephant is under California’s that the unmentioned pretend “some evidence” contrary, only a small num- system; to the us. not with ber do. (1) of the perfunctory review the most Even majority acknowledges that the in and the determination Board’s upon by factually-supported reasons relied it, justify reveals that rationale it offers suitability 2000 determina the Board its by “some supported is not its decision imprisonment offense of tion were Sass’s “otherwise arbi- that it is evidence” and record. It fails to and his earlier DUI truly majority conducted trary.” Had the however, note, fact of a the mere record, analysis of the independent degree for second murder does conviction no choice but to conclude would have had evi not in and of itself constitute “some constitutes an that the court decision state unsuitability parole. Under dence” of It also application Hill. unreasonable law, may deny the Board California required to undertake would have been solely on the basis that he inmate explaining what the record task of degree murder. convicted of second conviction such as to warrant makes Sass’s Rather, the murder must have been com that, regardless of the ex- the conclusion “heinous, atro mitted in a manner that is rehabilitation, remains, in- he tent of his cious or cruel” for it to constitute “some definitely, parole, or what unsuitable that an inmate is unsuitable for evidence” justifies out case singling the record Sass’s 2402(c)(1). parole. Regs. 15 Cal.Code majority in the vast which individuals explained courts have California convicted of second who have been conviction for murder does not auto “[a] eligible early parole for an murder become matically render one unsuitable for prison conduct that date in the absence Rather, Regulations reveal suitability. a lack of oth- demonstrates gravity of an offense tends to show unsuit words, explain it would have had to er ability the circumstances of the where supports in the record what evidence especially grave.” distinguish crime it as “partic- offense was conclusion Smith, 343, 366, 7 Cal.App.4th In re 114 “heinous, atrocious, ularly egregious” and added) (2003) (emphasis Cal.Rptr.3d 655 majority or cruel.” Because the fails do (internal omitted); citation see also In re so, requisite I now undertake the Hill will Rosenkrantz, 616, 683, 29 Cal.4th 128 Cal. analysis by AEDPA. prescribed as (2002) (“[A] life Rptr.2d 59 P.3d

B. offense or other offenses under term sentence must be lying an indeterminate outset, important As the it is to recall egregious justify the denial particularly that the does not discuss a critical Scott, date.”); of a In re Cal. question underlying Sass’s case—whether 871, 891, Cal.Rptr.3d App.4th past may provide active alcoholism basis (“[PJarole added) rule, is the (emphasis parole, regardless denial of for indefinite exception, rather than the and conviction recovery of the extent the individual’s degree murder does not auto general That it for second and of his rehabilitation. unsuitable.”). case) (and This is matically that it is the render one does this Legislature because “the has whether an inmate is pa- [California] suitable for clearly words, intent that when mur In expressed its role. other the state rules and majority of in great regulations derers —who are dictate the nature of the find- serving ings indeterminate sentences— required mates before a determina- eligible parole their minimum tion can approach be made that an inmate is unsuita- date, normally parole the Board ‘shall set a for parole. Only ble evidence that would authority release date.’ The Board’s to tend to support findings such constitutes exception gravity Thus, make an based on the of “some although evidence.” federal t past a life term inmate’s curren or of law establishes the “some evidence” stan- dard, operate fenses should not so as to swallow state law tells us of what that evi- consist, parole ‘normally’ the rule that to be may dence and to what it must Here, granted.” (quoting pertain. Id. Cal. I Pen.Code. as have explained, 3041(a)). Moreover, where, here, § as the California statute and regulations provide gravity of the offense is the sole basis for a that an offense must be committed an unsuitability, that gravity exceptionally determination callous or particularly egre- gious must also demonstrate that at the time of manner for an inmate’s offense to hearing poses the inmate a present justify a determination that he is unsuita- Also, to society. See Cal. Pen.Code. ble for the inmate must con- 3041; § Dannenberg, In re 34 Cal.4th at stitute present danger society to at the suitability P.3d 783. time of the hearing. According- sum, court, surrounding ly, circumstances as a habeas we must look to crime the manner in which it was whether there is “some evidence” that only committed must show not Sass committed his offense imprison- degree second murder at issue is more ment a manner that distinguishes it callous, ordinary cruel or vicious than the from majority the vast degree second murder, murders, second but that the inmate that shows that Sass’s offense likely pose “heinous, atrocious, would public current risk to was more or cruel” Otherwise, safety released. than the Board most other such offenses. We must if him parole cannot find unsuitable for on also look to see that there is some evidence gravity the basis of the of the offense of that as of date of parole denial imprisonment.15 present danger society. he was a

When we assess whether a parole “gravity” state cites the of the suitability board’s sup- determination is offense not a but offers word as to what ported by “some evidence” in a grave, habeas makes the offense let alone more case, analysis our grave is framed state law. than the run-of-the-mill second de- regulations governing The statute and pa- gree murder. It also fails to offer a clue suitability role in particu- determinations as to it is that what makes Sass current lar state public safety. dictate what factors the threat The state court in that board state consider in ruling decid- suffers the same defects.16 course, 15. Of the Board can find an ord inmate before the Board contained extensive evi- exemplary prison dence unsuitable for on the basis of Sass’s conduct in of factors plans having nothing and his detailed for the future if re- to do with the offense of com mitment, highly probative leased—evidence that is such as his violent institutional be presented present the fact no threat inability adjust havior or demonstrated society hearing. at the time of the 2000 supra societal norms. See note 13. prison Sass’s conduct in and the activities he rulings, majority’s 16. Both state court like participated ''indicat[ed] in while an inmate ruling, acknowledge ability also fail to that the rec- enhanced to function within the law 2402(c)(l)(A)-(E). one of these rec- review of the independent my From in mak- upon that the Board relied Board’s factors ord, however, specifically suitability pro- determination ing its 2000 transcript of the and the decision espe- that an offense is considered only factor that vides that the hearing, plain it is it “was carried out cially egregious for a when provide a basis arguably even could excep- a manner which demonstrates particularly the offense finding human suf- tionally disregard callous for a poses present grave or Regs. fering.” alcoholism at the Cal.Code his active society to 2402(c)(1)(D). that be- factor The Board held criminal offense—the time of the the crime for committed the crime as a result him to commit cause Sass that caused influence, the imprisoned.17 driving a vehicle under which he is in a manner offense was carried out “[t]he the governing regulations disregard a total for which demonstrates to identify five factors process specifically not suffering.” human This conclusion is determining in whether be considered evidence,” by “some and is supported inmate committed his in which the manner II.B.(2), in- clearly arbitrary. See Section egregious as imprisonment is so offense that a Similarly, a conclusion crime fra. unsuitability for to demonstrate by acting a then active alcoholic committed include that: “The offense Those factors under the influence of alcohol over dec- in a manner which demon- was carried out (now generation ade earlier almost a earli- disregard exceptionally an callous strates er) that an in and of itself demonstrates suffering.”; “Multiple victims for human currently pub- a threat to poses individual attacked, injured or killed were safety support in the lic would be without incidents.”; “The offense separate same or arbitrary.” evidence and “otherwise dispassionate carried out in was manner, an execution- calculated such as abused, murder.”; style “The victim was of im- That Sass committed his offense during

defiled or mutilated or after simply alcoholism offense.”; prisonment due to his and “The motive for the crime is evidence” that very does not constitute “some inexplicable or trivial relation Regs. his offense “was carried out a manner offense.” Cal.Code release,” upon develop proceeding of the 2000 and thus that he and allowed him to time put upon skills that can be to use parole eligibility point. "marketable was suitable for release,” that tend to show suita- two factors regula- bility under the California prior Board and 17. The DUIs on which the 2402(d)(8), Regs. § Cal.Code tions. See 15 rely simply manifesta- also above, (9). consid- As discussed record tions of the same alcoholism and thus do not in 2000 demonstrated that ered the Board independent factor on constitute an which essentially prison was with- Sass's conduct in judge egregiousness of Sass’s offense or Furthermore, by out the time of the fault. dangerousness. especially present Ac- hearing, completed vocational Sass had cordingly, separately I do not consider them mechanics, numerous automobile received im- from the circumstances of his offense of relating particular vocational certificates They prisonment. are relevant to that of- mastered, passed the Automotive skills he fense, however, in that it was test, (ASE) Excellence and served as Service jury that allowed the to convict Sass of DUIs apprentice. He also had taken almost two degree of vehicular second murder instead classes, college years worth and a half DUIs, Yet, manslaughter. even with the except all A’s for one B which he received barely qualifies as a second Sass's offense strong minus. evidence also offers affir- This murder, egre- degree particularly and not as mative for Sass’s contention that he gious present public safety such offense. threat to at the was not exceptionally cal- similar streak of which demonstrates extreme callousness or disregard suffering,” for human and it lous cruelty. certainly does not show that his offense recently explained As a California court carried out in a manner that is more in rejecting a determination that an inmate than most second murders. callous committed a crime disregard with callous committing the crime un- Sass’s conduct— for the suffering: victim’s der the influence of alcohol—does even There is no [the inmate] begin approach examples offered cold, calculated, acted with dispassion; parole regulations of conduct which tormented, or that terrorized, he or in- “exceptionally disregard constitutes callous jured deciding [the victim] before suffering.” examples for human Those in- her; shoot or that gratuitously he in- clude: unnecessarily creased or prolonged her “[T]orture,” as where the “[v]ictim pain suffering.... and Was the crime subjected prolonged infliction of However, callous? Yes. are the facts of physical pain through the use of non- the crime some evidence in- [the deadly resulting force to act exceptionally acted with mate] callous death,” trauma,” and “severe as where disregard for suffering; [the victim’s] or “[djeath resulted from severe trauma distinguish do the facts this crime from

inflicted deadly intensity; e.g., with degree other second excep- murders as beating, clubbing, stabbing, strangula- tion, tionally callous? suffocation, No. burning, multiple weapon wounds inflicted with a not re- Smith, In re 114 at Cal.App.4th 7 sulting in immediate death or actions Cal.Rptr.3d 655. calculated to induce terror the vic- The analysis applicable exact same is tim.” Sass’s case. The manner in which he com- Scott, Cal.App.4th In re 119 at 15 (i.e., mitted his offense under the influence Cal.Rptr.3d (quoting Regs. 32 15 Cal.Code alcohol) not did reflect calculation or 2282). § of criminal type conduct Rather, dispassion. it was a manifestation sufficiently high that is callous to meet this alcohol, of his addiction to an addiction standard is illustrated in In re Van Hout profoundly impaired judgment. his en, 339, 10 Cal.App.4th 116 certainly His addiction does not relieve (2004). There, the inmate’s offense of him of criminal it responsibility, but does imprisonment was her involvement in the not demonstrate that his crime was one of stabbing murders of a husband and wife. calculation, dispassion, cold or extreme cal- The victims were multiple stabbed times lousness. did not torment or Sass torture knife, bayonet, carving with a and fork. her, killing the victim before nor he did 351, Cal.Rptr.3d Id. at 406. The court prolong pain suffering her unnecessari- “pecu that the noted husband’s death was words, ly. although might other some cruel, liarly through with a knife stabbed term his criminal act callous because he carving his throat and a fork plunged committed it while under the influence of stomach,” particularly his and that “[a] alcohol, simply Sass’s alcoholism does not cruelty on poignant was inflicted [the callous, exceptionally render the offense wife], struggled who for her life while certainly not more callous than most hearing gruesome her husband meet his second murders —if indeed act fate.” Id. The fact that Sass committed as a result of alcoholism can committed be his crime as a result of his addiction to (rather alcohol, “compulsive”) called “callous” than although undoubtedly regrettable, law, suggest possessed Accordingly, not that he is of a at all. under does California Rath- at the time of the offense. imprisonment does not disorder Sass’s offense er, point at the it must be shown that un- that he is “some evidence” constitute determined, suitability his suitable disorder to

inmate still suffers present extent that he remains a dan- cannot Specifically, the Board estab- ger. . had made his if alcoholism Even recovering present alcoholic is a lish that com at the time was egregious offense society on the of the fact danger basis mitted, of extreme on the basis whether time of he was an active alcoholic - other factors or one of the “callousness” instead, offense; it must show that he it would parole regulations, in the listed time of the is an active alcoholic that he was not constitute “some evidence” determination, suitability or that he is like- safety in 2000. danger public a current ly wagon to fall off the if released. § 3041 and Penal Code Under California rely Board did not on Regulations Code California alcoholic in 2000 or that Sass was an active denied unless parole eligibility may be likely drinking, that he was to resume petitioner pres the record shows that because, so, indeed it could not have done society at the time of his ents a point, unquestionably had Dannenberg, In re parole hearing. See demonstrated that he was as recovered 1071, 417, Cal.4th at 23 104 possible from his alcoholism as it is for an (holding 783 a of suita P.3d denial to be. There is not a scintilla of individual bility “the crime for which the based on suggests evidence in the record that that requires inmate was committed” that the likely drinking he be to resume if he would particular that Board conclude “the facts undisputed was released. It is that time, unsafe, it at that of the offense make entering prison to Sass had an alcohol release”) prisoner’s problem fix for abuse that he refused to acknowl- to a date added) edge and for which he to seek refused (emphasis (citing Cal.Penal Code However, incarcerated, treatment. while 1080, 3041); § id. at see also Cal. possible steps has taken all to ad- Sass Rptr.3d (explaining 104 P.3d 783 that dress and overcome his alcoholism. He 2402(a) Regs. under 15 Cal.Code participated Anonymous has in Alcoholics suitability inquiry requires the Board to (“AA”) January since the earliest “the of a determine whether circumstances pro- in time which he could enroll that particular persuade [it] murder status, given custody gram, his and has it presently who committed is too prisoner sobriety proven his dedication to and his dangerous grant a fixed release ability temptation. to resist As the record date”). shows, before Board the doctors who assessing present In dan- the context of explained treated Sass that he had recov- gerousness, analogous alcoholism is to a greatest possible ered to the extent that an mental disorder: To demonstrate in alcoholic and that he had been that state who committed a due to individual crime recovery many years. By of present such a disorder constitutes a dan- nothing there more that do was Sass could ger, enough it is not for the Board to prison change while in his situation with that respect conclude the inmate suffered to his alcoholism.18 assessment, psychologist’s always possibility ... 18. The ex- a this individual has pressly prior psychological problem positive care based on the eval- taken of this his using language programming being treatment uations and that echoes that in for this previous reports, problem, having sponsor community, contained in the stated that in the support.” Similarly although "[r]elapsing use and lots of a 2002 assess- in the of alcohol is holic, circumstances, any law-abiding previously it not or than is light of Sass’s society.20 of member in explaining in its decision surprising parole, not suitable for that he was result, As a not clear any to cite evidence the Board failed his manner which Sass committed crime likely more to re- would have been not ever evidence could have constituted after he had last abused years twelve lapse justify labeling his offense “ex- would it in appeared he before alcohol than had egregious,” equally it is clear ceptionally five, ten, twenty, fifty or even another provide that his conduct 1987 could not Indeed, all the evidence current years danger hence. any evidence that he was society Board in 2000 was to the available to the the time hearing. unexplained all The Board’s conclu- successfully pursued had effect that he evidentiary contrary sion to the is without would to ensure that he measures available entirely by the rec- support and is belied lapse into alcoholic behavior.19 again alcoholism, ord before us. Besides his (and its to its 2000 decision respect With sug- Board offered no other evidence that no previous year), there was decision the gests danger society that Sass contrary before Accordingly, the state court’s deci- suggesting that Sass’s Board—no evidence suitability de- affirming sion the Board’s him a maximally treated alcoholism left is, question, termination without an unrea- society, that current concerns of the “some evidence” application sonable lengthier period public safety required the Hill rule. portion that, incarceration, if even he remained fur- indefinitely, there were prison to un- Regrettably, the refused could take or treatment he steps ther he legal analysis that would have dertake render him more undergo could that would led it to the conclusion that unquestionably sum, for In the record is suitable unconstitution- being prison Sass is held any testimony, study, or report, ig- of it ally. barren It refused do so because suggest that was other facts Sass nored the admonition of the California exceedingly a dangerous Appeals more over decade that “[t]he accident, deadly any than other nature of the ‘some evidence’ after the deferential judicial review ... does not has ever been an active alco- standard person who ment, 90-day invoking language accepted two sub- similar to that been consecutive also Board, programs that he prior reports presented to stance abuse treatment used in release, upon and he identi- stated that Sass “is no more a to other would attend his actively serve as his AA people any parolee who fied the individual who would than other Furthermore, sponsor prison. recovery when he left involved in their of themselves that, they may explained in addition have.” Sass to the Board whatever addiction AA, would also attend to his work with he days meetings religious group of his five 19. The record before the Parole Board week, help meetings would also him regarding evidence 2000 not contained AA, recovery. his maintain longstanding participation in it Sass's participation also reflected his in numerous any Sass is self-help char- 20. There is also no evidence that other classes. The Board itself now, years dangerous over nineteen af- involvement with these classes more acterized his alcohol, any other ter he last consumed than and the list of classes he had as "extensive” alcoholic; addition, according recovering yet, "very very long.” attended as In record, supplemental the Board has contin- it evidence of the de- the Board had before rely solely ued to on his alcoholism to refuse plans that Sass had made for maintain- tailed parole in the 6 prison. repeatedly to set a date for his recovery when released from his showing years letters that he had since He submitted to realize time soon the Board will come reviewing the denial of court

convert a Scott, In re potted plant.” into a nor the Cali- that neither Constitution .the Cal.App.4th at an parole system permits inmate fornia omitted). (internal so, doing In citation parole solely on the basis of be denied as a habeas responsibility has abdicated its condition that existed mental or addictive court. crime. the Due at the time of the Under cannot, Clause, condition Process more, pres- constitute evidence without suitability determination The Board’s dangerousness.22 ent for disturbing implications highly has future of all other future and the C. imprisoned recovering alcoholics who independent An review of the record as a result of they crimes committed for that the Board’s determination also reveals Because the record be- their alcoholism. arbitrary” in at two is “otherwise least no Board in 2000 offered fore the and that the state court decision respects, him a current that Sass’s alcoholism made ap- an ratifying it constitutes unreasonable threat, safety and because there public of the Hill rule. plication part could have nothing more perfect in 2000 to further his recov- done First, impermissi- the Board’s decision denying for him ery, the Board’s rationale bly punishes Sass on the basis of his status suitability parole suggests that he and for formerly active alcoholic. As dis- as formerly alcoholics be de- all active above, employed by the rationale cussed of their nied for the rest lives. approved by the Board and the state court short, an if the fact that Sass had been deny parole would allow the Board to alcoholic in 1987 constituted “some active any an person who was once active alcohol- public that he was a threat evidence” ic, regardless of the extent of his rehabili- safety though even he was at that Sass, permanently deprive tation. To possible as recovered as it is point inmate, liberty simply other his be- be, past alcoholic to active alcoholism cause he was active alcoholic at the necessarily evi- would constitute “some offense, time of the and alcoholics are parole in unsuitability dence” of his perpetual to be in a of recov- deemed state perpetuity, provide and thus constitu- ery, is an It a untenable result. is also permanent tional basis for the denial of his violation of due process. The would be true in the freedom. The same has made clear that an individual That case of all other former alcoholics. punished cannot be on the basis of status just speculation is not is borne out this alone, including being the status of afflict- and the Board’s supplemental record addiction, ed with an see Robinson Cali- continuing parole eligi- denials to Sass of 1417, fornia, 370 U.S. 82 S.Ct. bility ground.21 on the same The Board’s (1962); yet precisely L.Ed.2d 758 that is it refusal to set a date the basis did ap- at egregiously wrong. hope practice, is I that some what the Board’s least as prohibits punish- report latest Board from the indicates Constitution February preliminarily solely that in of 2006 it de- ment of an individual on the basis of his status, years, including suffering nied Sass two another the status of addiction); 3041(b) hearing (requir- least until a held sometime in 2008. is Cal.Penal Code ing a date to be set unless the Board poses a California, finds an inmate current threat 22. See Robinson v. 370 U.S. safety). (holding public 82 S.Ct. 8 L.Ed.2d 758 case, Indeed, “arbitrary.” fin- there simply does. Sass has is noth- plied Sass’s sentence he would have serving provides any ished the record that evi- finding pres- but for the Board’s served dence that Sass is unsuitable for parole.23 finding solely based dangerousness ent —a Because an status as alcoholic alone can- many years earlier on the fact that he not constitute the basis for determining a crime as a result of his state committed that an parole, inmate is unsuitable for finding That of active alcoholism. consti- completely because the record here is de- quintessentially arbitrary tutes a state ac- any void of showing evidence that Sass’s solely on the of the tion—it relies biases years active alcoholism ago numerous Board, objective justifi- any rather than on him present public makes a threat to safe- cations, it im- permits permanent ty, decision, suitability the Board’s which prisonment solely of Sass for the reason alcoholism, depended entirely on Sass’s is alcoholic. In that he was once an active “arbitrary.” Because the state court deci- Robinson, the Board’s 2000 deci- light of wholly sion likewise is without evidentiary sion, entirely on Sass’s sta- depends which support and because it a validates Parole alcoholic, any an is without constitu- tus as Board decision based on bias and addictive tionally cognizable evidentiary support. status, it ap- constitutes an unreasonable Second, if even an inmate’s active addic- plication clearly of the established “other- tion to alcohol the time the offense arbitrary” part wise of Hill. a an provide could basis for adverse suita- bility determination cases which the CONCLUSION evidence” that the record contains “some majority legal considers none of the prisoner presently presents danger necessary or factual issues to resolve the society, that the case with Sass. The important constitutional issue before us. sup- is devoid of record result, unprecedented As it reaches the Sass, finding that ports the Board’s well and erroneous conclusion that the commis- alcohol, over a decade after he last abused of an resulting sion offense from alcohol- present society. threat constitutes serve, many years ism earlier can without exclusively The Board’s on decision relies more, as “some evidence” that an individu- the fact Sass was active alcoholic at al who has the maximum reached state imprisonment the time of his offense of achieve, recovery presents alcoholic can that, Beyond and on his DUIs. Moreover, society. a current single action on offers no evidence—not my colleagues explain why fail to Sass’s imprisonment, since his not a part than the grievous offense was more vast psychological report discussing medical or murders, appar- of second dangerousness amongst of recidivism ently they recognize do not that in because recovering generally alcoholics or of Sass order to find a prisoner unsuitable specifically support its conclusion that —to parole, his offense must have been more was, at the time of the hear- callous, ordinary than the cruel or vicious ing, public safety. fact, major- In second murder. link- Board’s failure to offer ity respects point anything in all fails past active alcoholism to a state in the record that would its deci- support present dangerousness renders its deci- reasoning. completely explain sion without and thus sion or its addition, ignored present a apparently 23. the Board demonstrated that Sass did not 17, totally present danger society. supra the affirmative evidence in the record See notes contrary irrefutably and 20. —evidence it, before courts As did the California controlling apply fails to governing parole eli- and standards rules making its determination that gibility in supports the Parole “some evidence” Further, majority’s Board’s decision. courts’, decision, con- like the California application of stitutes an unreasonable law. clearly established the ma- Regretfully, I conclude that what without jority produced has decision legal justifica- a rational foundation or day my firmly I that one tion. believe jurists, colleagues, who are both able will regret errone- recognize come to injustice decision and the ousness of their perpetuates. I dissent. respectfully America, UNITED STATES Plaintiff-Appellee, v. ARELLANO-OCHOA, Luis Jose Defendant-Appellant. America, United States of Plaintiff-Appellee, Arellano-Ochoa, Jose Luis Defendant-Appellant. 04-30545, Nos. 05-30328. Appeals, United States Court Ninth Circuit. Argued and 2006. Submitted Jan. Aug. Filed

Case Details

Case Name: Brian Sass v. California Board of Prison Terms Attorney General of the State of California

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 31, 2006

Citation: 461 F.3d 1123

Docket Number: 05-16455

Court Abbreviation: 9th Cir.