Hayward v. Marshall, 06-55392.
| Decision Date | 22 April 2010 |
| Docket Number | No. 06-55392.,06-55392. |
| Citation | 603 F.3d 546 |
| Parties | Ronald HAYWARD, Petitioner-Appellant, v. John MARSHALL, California Men's Colony East, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Michael Satris (argued and briefed supplemental brief), Law Office of Michael Satris, Bolinas, CA, and Joseph V. Camarata (briefed opening brief), Vallejo, CA, for the appellant.
Jennifer A. Neill (argued and briefed supplemental brief), Supervising Deputy Attorney General, San Diego, CA, and Jane Catherine Malich (briefed), Deputy Attorney General, Los Angeles, CA, for the appellee.
Monica Knox, Assistant Federal Defender, Sacramento, CA, for amicus Federal Defenders for the Central and Eastern Districts of California.
Before ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, BARRY G. SILVERMAN, RAYMOND C. FISHER, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.
Opinion by Judge KLEINFELD; Concurrence by Judge BERZON.
We address three issues: 1) whether a certificate of appealability is needed to appeal a district court's order denying a writ of habeas corpus arising out of a state's denial of parole; 2) whether federal constitutional law imposes on the states a requirement for some quantum of evidence to support a state's denial of parole; and 3) whether, even if there is no general federal quantum of evidence requirement, applicants for parole in California, under the state's current laws, may obtain federal habeas review of whether there is "some evidence" supporting a negative parole decision.
In 1978, Hayward's girlfriend was out shooting pool on a "girls' night out," while he stayed home. While she was out, a man acted abusively toward her. There are varying accounts. It is not clear whether the man slapped Hayward's girlfriend, or she spat in his face, or he spat in hers, or whether, as Hayward once claimed, the man chased her out into the parking lot, tore off some of her clothes, and tried to rape her. Subsequently, Hayward spent months keeping his eyes open for the man so he could exact revenge.
Several months later, Hayward got a call saying that the man who abused his girlfriend, Tom Strauss (also known as Tom O'Connor), was at the Buccaneer Bar. Hayward enlisted some of his fellow gang members to go with him to the bar because he wanted to "kick his ass." One of Hayward's gang knocked Strauss down. Then Hayward stabbed Strauss twelve times in the back, killing him. In 1980, Hayward was sentenced to fifteen years to life for murder.
Since completing the first fifteen years of his sentence, Hayward has repeatedly been denied parole. He now petitions for a writ of habeas corpus, claiming that he is constitutionally entitled to be paroled.
Hayward phrases his petition for a writ of habeas corpus as a challenge to then-Governor Gray Davis's 2003 decision to overturn a grant of parole by the California Board of Prison Terms.2 That decision was not the end of the state proceedings, but is worth summarizing. The Board of Prison Terms had found Hayward was suitable for parole, but wrote, in accord with California law: "inmate not to be released until Governor exercises review authority."3 The Governor, exercising his discretionary review authority under California law, denied parole and explained his disagreement with the Board of Prison Terms.
After weighing a multitude of discretionary factors, Governor Davis concluded that "Hayward would pose an unreasonable risk to public safety if released at this time." One factor was Hayward's "particularly heinous crime." Hayward stalked his victim for months. When he located the victim he arranged for members of his motorcycle gang to join him. They set out to subdue the victim, who was drunk and recuperating from two broken arms. Hayward stabbed Strauss in the back twelve times, twice to the hilt. After the stabbing, Hayward fled while his victim bled to death. Two witnesses later said that they and their families received death threats intended to keep them from testifying.
Another factor was Governor Davis's concern about the sincerity of Hayward's remorse. For his first fifteen years in prison, Hayward denied responsibility and disparaged the victim, saying "Strauss's family is lucky he's dead." Even after Hayward finally admitted to his crime in 1993, he told a psychological evaluator that he felt good about killing Strauss.
The Governor was also concerned by Hayward's substance abuse and his need for further substance abuse therapy. Hayward began using heroin when he was twelve. He subsequently used LSD, PCP, methedrine (methamphetamine), cocaine, marijuana, and excessive alcohol. Prison did not stop Hayward's criminal drug use. He was disciplined for marijuana possession and admitted that he "ran drugs in prison."
Before this prison stretch for murder, Hayward was active in a gang (the same gang that helped him murder Strauss). Hayward claims he "retired" from his motorcycle gang while in prison. As with the drugs, though, prison did not end Hayward's involvement with gangs. The Governor noted that Hayward "received a serious disciplinary report for leading a white racist organization, using the organization to intimidate inmates, directing assaults and advocating violence against black inmates." Hayward continued his white-racist gang involvement until mid-1989.
The Governor also considered Hayward's extensive criminal history in addition to this murder. The murder was not an aberration. As a juvenile, Hayward was arrested approximately twenty times, starting at age eight. He had about sixteen arrests as an adult. During all the time he was out of prison, he never quit committing serious crimes. Hayward admitted involvement with a criminal group "responsible for 75 to 120 very serious crimes including arson, assault, kidnapping, robbery and possession of a large cache of stolen explosives."
The Governor took Hayward's moderately favorable mental health evaluation into account, but weighed it against other factors. A psychological evaluation of Hayward's mental health found that "historical factors" were on the "negative side." But, "on the positive side is the lack of overt violence during the last twenty years of incarceration, his being disciplinary free for the last thirteen years, an increased level of maturity and insight, his participation in substance abuse recovery, his participation in self help and spiritual activities, and his being older and mature." The psychologist's conclusion was that Hayward posed "a low to moderate risk for future violence in the community." The Governor, however, thought that the risks Hayward posed "remained too high to risk releasing him into our community" because of Hayward's "long criminal history, increasing violence, and gang participation."
The Governor's decision was not the end of the case in California. In the California system, if the Board of Prison Terms recommends that a prisoner be paroled, the Governor reviews the recommendation and makes his own decision. That decision is subject to judicial review via a prisoner's state habeas petition.4 Under California law, the state courts review the Governor's decision and the record for "'some evidence' that an inmate poses a current threat to public safety."5
The Superior Court of California, County of Los Angeles, reviewing the record, determined that Hayward claimed he went to the bar to beat up the victim, rather than to kill him. The Superior Court noted that, prior to his conviction for killing Strauss, Hayward was acquitted of attempted murder, but his prior offenses ranged from armed robbery (as a juvenile) to assault with a deadly weapon on a police officer. The Superior Court also found that Hayward "received four 115 disciplinary violations for `serious' misconduct, the most recent in 1989." It then considered Hayward's expressed remorse, vocational training, and plans for parole. The Superior Court held that although some of the Governor's findings were not adequately supported by the record, others were, and that was sufficient to justify denial of parole.
Hayward petitioned for a writ of habeas corpus in the California Supreme Court,6 which summarily denied his request. He then petitioned for a writ of habeas corpus in federal district court. The district court denied the petition and we now affirm.
Both we and the California Supreme Court have been engaged in modification of the law to determine what limits there are on denial of parole. We have two decisions, Irons v. Carey7 and the panel decision in this case,8 saying that due process requires "some evidence," not merely a discretionary judgment, if parole is denied. We address these propositions below. After oral argument in this case,9 two California Supreme Court cases, In re Lawrence10 and In re Shaputis,11 held that under California law, some evidence of future dangerousness is a necessary predicate for denial of parole. Hayward's appeal addresses what if anything the federal Constitution requires as a condition of denial of parole.12
This case is an appeal from a district court order denying a writ of habeas corpus to a state prisoner who seeks habeas relief after California denied him parole. Our jurisdiction to review the denial arises under 28 U.S.C. § 2253(a).13 However, a petitioner may not appeal a "final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court,"14 unless a "circuit justice or judge issues a certificate of appealability."15 We will only issue a certificate of appealability "if the applicant has made a substantial showing of the denial of a constitutional right."16
Hayward did not request or obtain a certificate...
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