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

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEWIS HAGGARD,  No. 10-16819
Petitioner-Appellee, D.C. No.
v. 3:06-cv-07658-SI
BEN CURRY, Warden,  Northern District of
Respondent-Appellant. California,
San Francisco
 ORDER
Filed October 12, 2010
Before: Richard R. Clifton, Jay S. Bybee and
Sandra S. Ikuta, Circuit Judges.
COUNSEL
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, Califor-
nia, 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
17089
17090 HAGGARD v. CURRY
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 enti-
tled 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 Febru-
ary 2004, the Board issued its thirteenth denial. In its deci-
sion, 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 devel-
oping 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
HAGGARD v. CURRY 17091
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 commit-
ment 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 rele-
vant factors, including the gravity of the commitment offense,
Haggard’s negative institutional behavior, and his psychologi-
cal 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 evi-
dence” 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
On September 30, 2010, this court entered a temporary stay of the dis-
trict court’s August 11, 2010 order, “pending further order of [this] court.”
Our decision today replaces that temporary stay.
17092 HAGGARD v. CURRY
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 success-
ful habeas petitioner pending appeal, Hilton, 481 U.S. at 774
(citing Fed. R. Civ. P. 23(c)), “it may be overcome if the tra-
ditional 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.
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 claim-
ing 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 con-
trary 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 deci-
sion was that of the state superior court, which upheld the
HAGGARD v. CURRY 17093
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 (1979); see Bd. of Par-
dons 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 stat-
ute 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 con-
stitutionally 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 sys-
tem 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) (look-
ing 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)).
17094 HAGGARD v. CURRY
In this vein, our recent en banc decision in Hayward relied on
two 2008 California Supreme Court decisions, In re Law-
rence, 190 P.3d 535 (Cal. 2008), and In re Shaputis, 190 P.3d
573 (Cal. 2008), to delineate the scope of the California pris-
oners’ state liberty interest in parole. In Lawrence and Shapu-
tis, 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’ sup-
ports the determination that a prisoner remains currently dan-
gerous.” In re Prather, 234 P.3d 541, 544 (Cal. 2010). The
California Supreme Court also reaffirmed that the “some evi-
dence” 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).
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 fed-
eral 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 cur-
rent 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
HAGGARD v. CURRY 17095
a state-created liberty interest in parole (including its proce-
dural elements), and the state court rejects that claim, a fed-
eral court may grant the prisoner’s habeas petition if it
concludes that the state court’s 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 Law-
rence and Shaputis, and after our decisions in Hayward, Pear-
son, 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 proceed-
ing further, but, rather, an order directing the Depart-
ment 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 evi-
dence” of current dangerousness are entitled under state law
only to a new parole-suitability decision by the state execu-
tive, and not to release from custody or a judicial parole deter-
mination. See 234 P.3d 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))
17096 HAGGARD v. CURRY
(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 rep-
resents 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 encom-
pass 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
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 neces-
sarily 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” require-
ment, 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
HAGGARD v. CURRY 17097
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.
Second, the state argues that the district court erred by fail-
ing 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 suit-
ability 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 not-
withstanding 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 sen-
tence. 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
17098 HAGGARD v. CURRY
determination by the California 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 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 proceed-
ing. 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,
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.
HAGGARD v. CURRY 17099
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 Hil-
ton 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.