Irons v. Carey

• Decision Date: 13 July 2007
• Docket Number: No. 05-15275.,05-15275.
• Citation: 505 F.3d 846
• Parties: Carl Merton IRONS, II, Petitioner-Appellee, U.S. Attorney General, Intervenor, v. Tom L. CAREY, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

505 F.3d 846

Carl Merton IRONS, II, Petitioner-Appellee, U.S. Attorney General, Intervenor, v. Tom L. CAREY, Warden, Respondent-Appellant.

No. 05-15275.

United States Court of Appeals, Ninth Circuit.

Argued May 11, 2005.

Submitted and Filed March 6, 2007.

Amended July 13, 2007.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson,

Chief Assistant Attorney General, Stephen P. Acquisto, Supervising Deputy Attorney General, & Pamela B. Hooley, Deputy Attorney General, for the respondent-appellant.

Quin Denvir, Federal Defender, & Ann C. McClintock, Assistant Federal Defender, for the petitioner-appellee.

Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Senior District Judge, Presiding. D.C. No. CV-04-00220-LKK.

Before: STEPHEN REINHARDT, JOHN T. NOONAN, and FERDINAND F. FERNANDEZ, Circuit Judges.

Opinion by Judge REINHARDT; Concurrence by Judge NOONAN; Concurrence by Judge REINHARDT; Concurrence By Judge FERNANDEZ.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The panel opinion, filed March 6, 2007, is hereby amended as follows:

1. At page 2476 of the slip opinion, line 28, 479 F.3d at 662, insert "At the time that Irons's state habeas petition was before the state courts," before "The Supreme Court."

2. At page 2476 of the slip opinion, line 28, 479 F.3d at 662, change "The" to "the."

3. At page 2476 of the slip opinion, line 28, 479 F.3d at 662, change "has" to "had."

Judge Noonan's concurring opinion is hereby amended as follows:

1. At page 2483, line 23 of the slip opinion, 479 F.3d at 666, delete "More."

2. At page 2488, line 23 of the slip opinion, 479 F.3d at 666, change "fundamentally" to "Fundamentally."

3. At page 2488, line 22 of the slip opinion, 479 F.3d at 666, insert the following new paragraph:

The great writ exists, by negative implication, in Article I of the Constitution of the United States. It was initially understood to extend only to prisoners in the custody of the United States. It was extended by statute in 1867 to embrace prisoners of a state in custody in violation of the Constitution of the United States. It may be that the right to federal review of a claim of unconstitutional incarceration by a state is now to be considered an essential of due process just as the existence of federal courts to hear cases in numbers that it would be impossible for the Supreme Court to handle alone may be viewed as essential to due process. In each case, Congress exercising a power originally designed for application to the national government may lie under a constitutional obligation to exercise it more broadly for the preservation of the Constitution. In each instance, Congress would be called to enact a statute which is necessary. It is not, however, necessary to maintain that habeas corpus today is a requirement of due process. What is most relevant is that if Congress does provide for habeas in the federal courts, Congress cannot then instruct the federal courts, whether acting in a federal or in a state case, how to think, how to ascertain the law, how to judge.

With these amendments the panel has voted to deny the petition for rehearing. The petition for rehearing en banc is still pending.

OPINION

REINHARDT, Circuit Judge.

The state appeals the district court's grant of habeas corpus to Carl Merton Irons II. The district court granted relief after finding that there was insufficient evidence in the record to support the California Board of Prison Term's decision to deem Irons ineligible for parole in 2001. In light of the California Supreme Court's decision in In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005), and our decision in Sass v. California Board of Prison Terms, 461 F.3d 1123 (9th Cir.2006), both decided after the district court issued its order in this case, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In 1985, Irons was convicted of second degree murder in the death of his former housemate and sentenced to seventeen years to life in prison. At the time of the offense, Irons was living in the home of a couple, with another tenant, John Nicholson. The couple suspected that Nicholson was dealing drugs and was stealing from them. Irons shared their suspicions. He confronted Nicholson and an angry argument ensued in which Nicholson denied responsibility for the thefts. Irons went to his room, retrieved his gun, and then went to Nicholson's room where he fired 12 rounds into Nicholson and, after Nicholson complained that he was in pain, stabbed him twice in the back. He then wrapped Nicholson's body in a sleeping bag and left it in the room for the ten days it took him to procure a car. Irons then took the body to the coast, weighed it down, and disposed of it in the ocean.

When the police found the body, their investigation led them to the house where Irons and the victim had lived. Forensic analysis showed that Nicholson had died on the premises, and the police decided to arrest the owner of the house. Irons intervened, explained to the police that they had the wrong person, and confessed to the killing. He was subsequently convicted of second degree murder and sentenced to seventeen years to life in prison with the possibility of parole. Prior to this conviction, Irons had no criminal record.

At the time of his 2001 parole hearing, Irons had been incarcerated for sixteen years. Throughout his confinement, his conduct has been exemplary. From 1988 to the present he has maintained "Medium A" custody status, indicating that prison officials see him as a low threat. He has not engaged in further acts of violence, nor has he received any C.D.C. 128A written disciplinary charges.

Irons suffers no mental health problems, and has received positive evaluations from the psychologists and counselors who have examined and treated him. He has been extremely industrious while in prison, maintaining average to exceptional job performance in every position he has occupied. He has also received certificates of completion in several vocational training programs, and has participated in numerous self-help, substance abuse treatment, violence prevention and stress management programs. Even members of the Board have commented that Irons has "programmed in an exemplary manner in all areas."

Irons also has solid plans for the future. He will live with his mother when he is released and he has a standing job offer from a friend who owns a video production business. He also has the support of Deputy District Attorney Stephen Wagstaffe, the prosecutor assigned to Irons' case from the outset.

These facts notwithstanding, the Board determined that Irons was unsuitable for parole in 1994, 1996, 1998, 1999, and 2001.¹ The Board's decision in 2001, the decision at issue in this case, was based on three factors. "First and foremost was the commitment offense itself." The Board found that Irons' crime was "carried out in an especially cruel and callous manner." It further noted his motivation for the killing was trivial and that Irons was using drugs around the time of the offense. Second, the Board stated that Irons "needs therapy" and recommended "continued participation in self-help programming." Finally, the presiding commissioner stated, "I think you were asked by your counsel whether a situation like this would happen again, whether you would kill somebody. And I think you said, I don't think so . . . [T]hat's not a very convincing reply."

After filing an unsuccessful administrative appeal challenging the Board's decision, Irons filed a state habeas petition in Marin County Superior Court alleging that the Board's 2001 unsuitability determination violated his due process rights. The Superior Court denied the petition, finding that the Board's decision was supported by "some evidence" and thus did not violate due process. Irons appealed, and the California Court of Appeal and the California Supreme Court issued summary denials.

He then filed a petition for writ of habeas corpus in federal district court, and in January of 2005 the district court adopted the magistrate judge's findings and recommendations granting the petition. The district court concluded that the state court unreasonably applied clearly established Supreme Court precedent because the board's decision was without evidentiary support, and further held that the Board's continued reliance on Irons' commitment offense and prior conduct to deem him unsuitable for parole violated Irons' right to due process.

On appeal, the state argues that the district court erred in concluding that the Board's 2001 decision was not supported by "some evidence," and that the district court failed to afford the California state court decision upholding the Board's unsuitability determination the proper degree of deference required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

STANDARD OF REVIEW

We review the district court's decision to grant Irons' petition for habeas corpus de novo. Leavitt v. Arave, 371 F.3d 663, 668 (9th Cir.2004). Because Irons filed his petition after the effective date of AEDPA, his petition for habeas corpus may be granted only if he demonstrates that the state court decision denying relief 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).

DISCUSSION

California Penal Code section 3041 vests Irons and all other California prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause. Sass, 461 F.3d at 1128; Biggs, 334 F.3d at 914; McQuillion v. Duncan, 306 F.3d 895, 903 (9th Cir.2002); see also Bd. of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d...