Haggard v. Curry , 631 F.3d 931 ( 2010 )

FILED
FOR PUBLICATION OCT 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LEWIS HAGGARD, No. 10-16819
Petitioner - Appellee, D.C. No. 3:06-cv-07658-SI
Northern District of California,
v. San Francisco
BEN CURRY, Warden,
ORDER
Respondent - Appellant.
Before: CLIFTON, BYBEE and IKUTA, Circuit Judges.
In this case, the California Board of Parole Hearings (“Board”) denied state
prisoner Lewis Haggard’s request for release on parole, and the state court upheld
the parole denial. In his federal habeas petition, Haggard argued that the Board’s
decision was erroneous because the record lacked evidence of his current
dangerousness. The district court agreed, and ordered the state to release Haggard
while the state’s appeal of the district court’s decision was pending. The state
moved for a stay of the release order. Because a prisoner who receives a defective
parole denial determination is entitled under California law only to a procedurally
proper parole decision, and not to actual release on parole, we conclude that the
state will likely prevail on its claim that the district court erred in ordering
Haggard’s immediate release. We therefore grant the state’s stay motion.
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.
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Haggard filed a habeas petition in state superior court, claiming that the
Board’s denial of release on parole violated his federal due process rights. The
state court held that the Board had not abused its discretion in denying Haggard
release on parole. Among other things, the state court rejected Haggard’s
argument that the Board had relied on the commitment offense alone in making its
decision to deny a parole release date. The state court found that the record
contained “some evidence” of current dangerousness that supported the Board’s
decision, and that the Board had considered the relevant factors, including the
gravity of the commitment offense, Haggard’s negative institutional behavior, and
his psychological evaluations. Therefore, the court upheld the Board’s denial of
parole. The state appellate court and California Supreme Court summarily denied
Haggard’s habeas petition.
After exhausting his state remedies, Haggard filed a habeas petition in
district court. The district court independently reviewed the evidence before the
Board, and concluded that the circumstances of Haggard’s offense, institutional
history, and psychological evaluation did not constitute “some 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
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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 petition “for special reasons shown.” Fed.
R. App. P. 23(d); Hilton v. Braunskill, 481 U.S. 770, 774 (1987). Although there
is a “presumption of release from custody” of a successful habeas petitioner
pending appeal, Hilton, 481 U.S. at 774 (citing Fed. R. Civ. P. 23(c)), “it may be
overcome if the traditional stay factors tip the balance against it.” Id. at 777.
Accordingly, we consider the following factors:
(1) whether the stay applicant has made a strong showing that he is likely
to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and (4) where the
public interest lies.
1
On September 30, 2010, this court entered a temporary stay of the district
court’s August 11, 2010 order, “pending further order of [this] court.” Our
decision today replaces that temporary stay.
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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.” 28 U.S.C. § 2254(d)(1).
To apply this standard, a federal court must “look through unexplained state court
decisions . . . to the last reasoned state court decision to address the claim at issue.”
Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007); accord Ylst v. Nunnemaker,
501 U.S. 797, 804–06 (1991). Here, the last reasoned state court decision was that
of the state superior court, which upheld the Board’s parole denial decision
because the record included “some evidence” of Haggard’s current dangerousness.
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
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(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).
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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)). In this vein, our recent
en banc decision in Hayward relied on two 2008 California Supreme Court
decisions, In re Lawrence, 190 P.3d 535 (Cal. 2008), and In re Shaputis, 190 P.3d
573 (Cal. 2008), to delineate the scope of the California prisoners’ state liberty
interest in parole. In Lawrence and Shaputis, the California Supreme Court
“concluded that the standard governing judicial review of parole decisions made
either by the Board or by the Governor is whether ‘some evidence’ supports the
determination that a prisoner remains currently dangerous.” In re Prather, 234
P.3d 541, 544 (Cal. 2010). The California Supreme Court also reaffirmed that the
“some evidence” standard is a procedural protection required by the state
constitution’s due process clause, “because the inmate’s due process interest in
parole mandates a meaningful review of a decision denying parole.” Id. at 252; see
also Lawrence, 190 P.3d at 547–49, 552–54; In re Rosenkrantz, 59 P.3d 174,
203–05 (Cal. 2002).
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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 a state-created liberty interest in parole
(including its procedural elements), and the state court rejects that claim, a federal
court may grant the prisoner’s habeas petition if it concludes that the state court’s
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decision was an unreasonable application of the state’s “some evidence” standard.
See id.; see also Pirtle, 611 F.3d at 1020–25,
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.” 234 P.3d at 550–52
(citations omitted). Prather continued:
Thus, where the Department of Corrections has failed to accord a
prisoner due process of law in revoking his parole, the relief to which the
prisoner is entitled on habeas corpus is not an order forever barring the
Department of Corrections from 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
234 P.3d at 552 (“[A] prisoner is not entitled to have his term fixed at less than
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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)) (internal quotation marks omitted);
see id. at 552–54 (applying the “some evidence” standard to two lower-court
decisions, reversing those decisions, and ordering remand to the Board for a new
parole-suitability determination). Prather thus represents a further refinement by
the California Supreme Court of the scope of state prisoners’ liberty interest in
parole. Because Prather clarifies that a California prisoner’s “right of personal
liberty,” Pirtle, 611 F.3d at 1025, does not encompass the right to release on parole
if the parole denial was not based on “some evidence” of current dangerousness,
Prather corrects our prior implicit assumption that a federal habeas court could
enforce California’s state-created liberty interest by ordering the release of the
prisoner. Cf. id.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
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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 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 light of the first and most important
of the Hilton factors: whether the state is likely to succeed in its argument that the
district court erred in granting Haggard’s habeas petition and ordering the state to
release Haggard on parole.
The state makes three main arguments. First, the state argues that the “some
evidence” requirement is a state-created procedure that is not part of the state
liberty interest in parole, and is not a procedural protection required under
Greenholtz as a matter of federal due process. We have already rejected this
argument. See Pearson, 606 F.3d at 608–10.
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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 determination by the California
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executive.2 Although “[f]ederal courts have the latitude to resolve a habeas corpus
petition ‘as law and justice require,’” Pirtle 611 F.3d at 1025 (quoting 28 U.S.C.
§ 2243), a federal habeas court addressing an alleged due process violation may not
grant a remedy that exceeds the bounds of the liberty interest, as that interest is
actually defined and limited by the state. See Bergen, 881 F.2d at 721; see also
Greenholtz, 442 U.S. at 12. The district court erred in concluding otherwise and in
granting relief that exceeded the scope of the liberty interest created by the state.
Due to these errors, the state will likely succeed on the merits of its appeal of the
district court’s order.3
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
2
Because the state will likely succeed on its claim that Haggard had no
entitlement to release on parole, we need not address the state’s prospects for
success on its broader claim that the district court erred in its AEDPA analysis of
the state court’s ruling.
3
Because we decide on this ground, we need not reach the state’s third
argument: that the district court erred in retroactively applying the “some
evidence” standard established by the California Supreme Court’s 2008 decisions
in Lawrence and Shaputis to the California superior court’s 2005 decision at issue
here.
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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, 234 P.3d at 552.
California has determined that the public interest is best served when the decision
on this crucial issue is made by the Board, after a hearing and testimony from the
prisoner, with veto power vested in the Governor. See id. at 552–54. We defer to
the state’s reasonable determination as to where the public interest lies in
California, and agree that in this case it lies in allowing the responsible state
agency to determine Haggard’s parole suitability in a procedurally proper
proceeding.
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.
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GRANTED.
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COUNSEL
Steven G. Warner, Deputy Attorney General, Office of the California Attorney
General, San Francisco, CA, attorney for appellant.
Steve M. Defilippis, Picone & Defilippis, San Jose, CA, attorney for appellee.
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