LEWIS HAGGARD, Petitioner-Appellee, v. BEN CURRY, Warden, Respondent-Appellant.
No. 10-16819
United States Court of Appeals for the Ninth Circuit
Filed October 12, 2010
17089
Before: Richard R. Clifton, Jay S. Bybee and Sandra S. Ikuta, Circuit Judges.
D.C. No. 3:06-cv-07658-SI Northern District of California, San Francisco
Steven G. Warner, Deputy Attorney General, Office of the California Attorney General, San Francisco, California, for the appellant.
Steve M. Defilippis, Picone & Defilippis, San Jose, California, for the appellee.
ORDER
In this case, the California Board of Parole Hearings (“Board“) denied state prisoner Lewis Haggard‘s request for release on parole, and the state court upheld the parole denial. In his federal habeas petition, Haggard argued that the Board‘s decision was erroneous because the record lacked
I
In 1979, Lewis Haggard was convicted in California state court of kidnaping for the purpose of committing robbery. He received a sentence of seven years to life in state prison. The Board denied Haggard parole on twelve occasions. In February 2004, the Board issued its thirteenth denial. In its decision, the Board determined that Haggard was “not yet suitable for parole, and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” The Board based this conclusion on a number of factors. It found that Haggard‘s commitment offense was carried out in a calculated and cruel manner that showed a lack of regard for the suffering of others and the life of others. Further, Haggard had a criminal history, and had exhibited continued negative behavior while in confinement. Next, the Board noted that while one psychological evaluation stated that Haggard was not a risk for future violence, a slightly earlier psychological evaluation stated that Haggard posed a “high risk of violence within the community or over the next ten years.” Finally, the Board found that Haggard needed continued work on developing skills that would allow him to deal with stress in a non-destructive manner.
Haggard filed a habeas petition in state superior court, claiming that the Board‘s denial of release on parole violated his federal due process rights. The state court held that the
After exhausting his state remedies, Haggard filed a habeas petition in district court. The district court independently reviewed the evidence before the Board, and concluded that the circumstances of Haggard‘s offense, institutional history, and psychological evaluation did not constitute “some evidence” supporting the conclusion that Haggard‘s release would unreasonably endanger public safety. Therefore, the district court granted Haggard‘s habeas petition and ordered the Board to set a parole date for Haggard not more than 30 days from the date of the district court‘s decision. This order required the state to release Haggard on parole until the state‘s appeal of the district court‘s decision was finally resolved.
The state appealed the district court‘s order granting the petition and concurrently moved to stay that order pending appeal.1
II
We may reverse or modify a district court‘s decision to release a prisoner pending appeal of his successful habeas
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Id. at 776. The most important factor is the first, that is, whether the state has made a strong showing of likely success on the merits of its appeal of the district court‘s decision. See id. at 778.
In considering the state‘s likely success on the merits, we must apply the framework we have developed for the purpose of analyzing habeas petitions from California prisoners claiming that a parole denial violates their federal due process rights. We begin with the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), which precludes a federal court from granting a habeas petition unless the state court‘s adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
We review a denial of parole through the lens of the federal Due Process Clause. E.g., Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979); see Bd. of Pardons v. Allen, 482 U.S. 369, 373 & n.3 (1987). In general, parties claiming that their due process rights were violated must establish “two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.” McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002) (quoting Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998)) (internal quotation marks omitted). While “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence,” Greenholtz, 442 U.S. at 7, a state parole statute may create an “expectancy of release” on parole that “is entitled to some measure of constitutional protection,” id. at 12. In other words, it is possible for an inmate to have a constitutionally protected liberty interest in parole, but only to the extent that state law creates that interest. Id.; see Allen, 482 U.S. at 373. Moreover, the state law giving rise to that liberty interest not only creates the interest but also defines its scope and prescribes its limits. See, e.g., Pearson v. Muntz, 606 F.3d 606, 611 (9th Cir. 2010) (analyzing the California parole system to discern the scope of the prisoners’ liberty interest in parole); cf. Bishop v. Wood, 426 U.S. 341, 344 & n.7 (1976); Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir. 1989) (looking to state law to define the scope of Washington state inmates’ interest in parole).
When a California court upholds a parole denial decision, our precedents require us to determine whether such a denial was an unreasonable application of the decisions establishing and defining the scope of that state-created liberty interest in parole. See Pearson, 606 F.3d at 611 (interpreting Hayward v. Marshall, 603 F.3d 546, 561-63 (9th Cir. 2010) (en banc)).
Based on the rationale of Lawrence and Shaputis, we held that the procedural protection afforded to parole applicants by California‘s “some evidence” standard is part of the state-created liberty interest in parole that is protected by the federal Due Process Clause. See Hayward, 603 F.3d at 561-63; see also Pirtle v. Cal. Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th Cir. 2010) (holding that California‘s liberty interest in parole “encompasses the state-created requirement that a parole decision must be supported by ‘some evidence’ of current dangerousness“) (citations omitted). In light of this understanding, we concluded that a parole denial by the Board or Governor may violate a prisoner‘s federally protected due process right if the denial does not satisfy the state-created “some evidence” requirement, because that requirement is part of California prisoners’ state-created expectation of parole release. Hayward, 603 F.3d at 561-63. If a state court denies a prisoner‘s appeal of such a deficient ruling, we may grant the writ. See Pearson, 606 F.3d at 611-12.
In sum, our precedent dictates that when a prisoner raises a claim that he or she has been deprived of the full scope of
After the California Supreme Court‘s decisions in Lawrence and Shaputis, and after our decisions in Hayward, Pearson, and Pirtle, which relied on them, the California Supreme Court issued In re Prather, 234 P.3d 541 (Cal. 2010), which further clarified the scope of a prisoner‘s state-created interest in parole. In Prather, the California Supreme Court explained that, under the California constitution, “[t]he power to grant and revoke parole is vested in the Department of Corrections, [an arm of the state executive,] not the courts.” Id. at 550-52 (citations omitted). Prather continued:
Thus, where the Department of Corrections has failed to accord a prisoner due process of law in revoking his parole, the relief to which the prisoner is entitled on habeas corpus is not an order forever barring the Department of Corrections from proceeding further, but, rather, an order directing the Department of Corrections to vacate its order of revocation and thereafter to proceed in accordance with [state] due process of law.
Id. (citation omitted). Said otherwise, Prather determined that prisoners whose parole denials were not based on “some evidence” of current dangerousness are entitled under state law only to a new parole-suitability decision by the state executive, and not to release from custody or a judicial parole determination. See id. at 552 (“[A] prisoner is not entitled to have his term fixed at less than maximum or to receive parole, [but] he is entitled to have his application for these benefits duly considered based upon an individualized consideration of all relevant factors.” (quoting Lawrence, 190 P.3d at 559))
Given our duty to enforce liberty interests as they are defined by state law, see Bergen, 881 F.2d at 721; see also Greenholtz, 442 U.S. at 11-16, and because California has refined the scope of the liberty interest it has created in parole, see Prather, 234 P.3d at 547-52, we, too, must adjust our understanding of the scope of the interest protected under the federal Due Process clause. Just as we determined that the procedures mandated by Lawrence and Shaputis were part of California‘s state-created liberty interest in parole, see Pirtle, 611 F.3d at 1020-21; Cooke, 606 F.3d at 1213-14, we must read Prather‘s further revision to those procedures as necessarily limiting the state-created liberty interest in parole under California law, see Prather, 234 P.3d at 547-52. We therefore hold that where the Board‘s parole denial decision is not based on “some evidence” of current dangerousness, the California-created, but federally enforceable, liberty interest in parole gives the prisoner only the right to a redetermination by the Board consistent with the state‘s “some evidence” requirement, not the right to release on parole.
III
Having determined the scope and extent of the state-created liberty interest at issue, we now turn to the state‘s motion in
The state makes three main arguments. First, the state argues that the “some evidence” requirement is a state-created procedure that is not part of the state liberty interest in parole, and is not a procedural protection required under Greenholtz as a matter of federal due process. We have already rejected this argument. See Pearson, 606 F.3d at 608-10.
Second, the state argues that the district court erred by failing to apply Prather‘s revised scope of the parole liberty interest, which requires that Haggard be afforded only a new parole suitability determination, not unconditional release. According to the state, the district court should have deferred to the Board‘s authority in determining Haggard‘s parole suitability instead of usurping that power and granting parole for Haggard. We agree. Even assuming that the district court was correct in undertaking an independent review of the record and holding that the Board‘s parole denial decision was not supported by “some evidence” (a conclusion it reached notwithstanding evidence of factors in addition to Haggard‘s commitment offense), Prather makes clear that the state-created liberty interest in this context does not encompass actual release. Instead, where the Board errs in applying the “some evidence” standard, the only expectation a prisoner has under California law is that of a new, properly conducted parole-suitability determination by the Board; setting aside the Governor‘s veto authority, no other organ or entity in the State of California has the statutory or constitutional authority to prescribe an end date to a prisoner‘s indeterminate sentence. Accordingly, even if the district court was correct in determining that the Board‘s decision was not based on “some evidence,” the Board‘s error deprived Haggard only of the state-created liberty interest in a procedurally proper parole
IV
The remaining Hilton factors support granting a stay. See 481 U.S. at 776. The issuance of a stay does not irreparably injure Haggard because he is not entitled to immediate release under California law; rather, he is entitled only to a new parole-suitability determination that will proceed in keeping with the state‘s due process requirements. See Prather, 234 P.3d at 552. Nor does the record reflect that issuing a stay will substantially injure any other party interested in the proceeding. Finally, the public interest weighs in favor of a stay. The parole release decision requires “purely subjective appraisals that turn on a discretionary assessment of a multiplicity of imponderables,” Hayward, 603 F.3d at 557 (internal quotation marks omitted), including the key determination whether “an inmate continues to pose a threat to public safety,” Prather,
Because the state is likely to succeed on the merits of its appeal of the district court‘s order, and because the other Hilton factors weigh in the state‘s favor, we grant the state‘s motion for a stay pending appeal of the district court‘s August 11, 2010 order directing Haggard‘s release on parole.
GRANTED.