McQuillion v. Duncan

Decision Date25 September 2002
Docket NumberNo. 00-55182.,00-55182.
Citation306 F.3d 895
PartiesCarl D. McQUILLION, Petitioner-Appellant, v. William DUNCAN, Warden; Attorney General of the State of California, Respondents-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Monica Knox, Federal Public Defender's Office, Los Angeles, CA, for the petitioner-appellant.

Jane Catherine Malich, Attorney General's Office, Los Angeles, CA, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV-98-03680-DT.

Before WARDLAW, W. FLETCHER, Circuit Judges, and WHYTE,* District Judge.



California state prisoner Carl McQuillion appeals the district court's denial of his two consolidated petitions for writs of habeas corpus, brought under 28 U.S.C. § 2254. McQuillion alleges that his due process rights were violated when the California Board of Prison Terms, in 1994, rescinded as "improvidently granted" his parole date, which had been set in 1979. We hold that, under clearly established Supreme Court precedent, the parole scheme in California under which McQuillion was given his parole date in 1979 gave rise to a constitutionally protected liberty interest. The process that is due before a prisoner can be deprived of such an interest is a showing that there is "some evidence" in the record to support a later rescission of that date. Because the Board's grounds for its later rescission reflect nothing more than a disagreement with the ultimate determination reached by the earlier granting panel, the "some evidence" standard has not been met. Accordingly, we reverse.


In 1973, McQuillion was convicted of two counts of murder and sentenced to seven years to life with the possibility of parole. In May 1979, a hearing panel of the Community Release Board, the California parole authority that has since been renamed the Board of Prison Terms ("the Board"), found McQuillion suitable for parole. It calculated his total term of confinement to be 336 months (28 years). The 1979 panel reached its finding of suitability for parole after a three-hour hearing. At the hearing, the panel addressed the particulars of the commitment offenses, read from a probation officer's report, heard additional details from the deputy district attorney, and questioned McQuillion about the specifics of his actions at the murder scene and in the aftermath of the crime. The panel discussed McQuillion's criminal history, questioning McQuillion thoroughly regarding his actions and his motivations. McQuillion answered all of the panel's questions, giving detailed accounts of all of his prior offenses, including crimes for which he could still have been charged. The panel discussed with McQuillion every psychiatric report completed on him since his imprisonment, reading aloud both positive and negative comments by evaluators. McQuillion and others told the panel of his activities since incarceration, and McQuillion discussed at length his plans for employment if he were paroled. In both its oral discussion of its findings and its subsequent written report, the 1979 panel referred to the seriousness of McQuillion's crimes, his criminal history, his psychiatric evaluations, and his post-conviction activities.

The panel granted McQuillion 32 months of post-conviction credit against his 28-year term, making his initial parole date October 7, 1998, and informed McQuillion that he could earn credit that would further advance his release date. At six progress hearings held after the grant of parole, McQuillion was granted this credit and his parole date was moved up. By his November 1991 progress hearing, McQuillion's release date had been advanced to March 7, 1995. McQuillion had consistently received the standard credit of four months for every year served. If he had received this same credit at his May 1994 progress hearing, he would have received 10 months credit for the two and a half years between November 1991 and May 1994, and his parole date would have been advanced to May 7, 1994, making the May 1994 progress hearing his last.

However, at the May 1994 progress hearing, the panel of the Board reviewing McQuillion's case did not advance his parole date. Instead, it voted to refer the matter to the en banc Board for a vote as to whether a rescission hearing should be held. In a closed executive meeting on July 12, 1994, the Board voted to schedule a parole rescission hearing for McQuillion. The Board indicated that the hearing was to "determine whether an improvident grant of parole occurred as a result of the May 16, 1979 hearing panel's failure to appropriately consider the following factors: (1) Gravity of the commitment offense; (2) The prisoner's prior criminal history; (3) The prisoner's ambiguous psychiatric reports; (4) No indications of remorse for the victims; (5) Lack of vocational programming."

In September 1994, the rescission hearing was held before a panel of three Board members. After McQuillion's counsel objected to issue four on the ground that remorse was not a factor for parole before 1977, the presiding commissioner eliminated the issue. The remaining four issues were addressed in questioning by the panel at the hearing. In his closing statement, the deputy district attorney, who argued in favor of rescission, acknowledged that each of the four factors addressed by the rescission panel had been considered by the granting panel.

California parole rescission proceedings take place in two phases. In the first phase, the panel determines only whether there is "good cause" to rescind the grant of parole. Cal.Code Regs. tit. 15 § 2450 (2000). If good cause is found, the panel moves to the second phase to determine whether, given that finding, the parole date should in fact be rescinded because an independent evaluation of the prisoner's suitability for parole so dictates. See Cal Code Regs. tit. 15 §§ 2467, 2281.

After a 27-minute deliberation in the first phase, the panel announced that it had found good cause for rescission on all four grounds. After a 13-minute deliberation in the second phase, the panel announced that McQuillion's parole date, granted 15 years earlier, was rescinded. McQuillion's challenge focuses on the panel's action in the first phase.

McQuillion filed a petition for a writ of habeas corpus in a California state trial court, alleging that the rescission panel acted without good cause and thereby violated his due process rights. That petition was denied, and the California Court of Appeal and California Supreme Court also summarily denied McQuillion's habeas petitions. After these denials, McQuillion filed two separate habeas petitions in federal district court that ultimately were consolidated. In his federal petitions, McQuillion again claimed, as he had claimed in state court, that the Board violated federal due process in rescinding his previously granted parole date. The district court denied habeas relief, and McQuillion timely appealed. We granted a Certificate of Appealability on the issue of whether McQuillion's due process rights were violated when the Board, in 1994, rescinded as "improvidently granted" the parole date that had been established in 1979. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the district court's decision to deny a 28 U.S.C. § 2254 habeas petition. See Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001).


As an initial matter, McQuillion argues that the State deprived him of due process by refusing to allow him to call the members of the granting panel as witnesses in his hearing before the rescission panel. McQuillion is correct that due process demands that he have a general right to call witnesses at his rescission proceeding. See Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (holding, in the context of prison disciplinary proceeding, that an inmate has a right to call witnesses unless doing so would be "unduly hazardous to institutional safety or correctional goals"); see also John v. United States Parole Comm'n, 122 F.3d 1278, 1284 (9th Cir.1997) (holding that blanket prohibition of right to call adverse witnesses at an institutional revocation hearing, without any specific determination of good cause, violated parolee's right to due process). However, we hold that McQuillion was not deprived of his due process rights by the Board's refusal to allow him to call these particular individuals as witnesses.

A right to call witnesses does not ordinarily encompass a right to call a factfinder-decisionmaker to the stand. McQuillion's request at the rescission hearing was the functional equivalent of seeking to call a judge from his earlier trial as a witness. Cf. Fed.R.Evid. 605 (stating that a judge is not competent to testify as a witness). Even in cases in which the question posed is whether a particular judge abused his or her discretion, we do not call the judge to the stand to analyze his or her deliberative process; rather, we examine the record. The rescission panel did not have a transcript of the actual deliberations of the granting panel. But, as the presiding commissioner on the rescission panel noted, there was sufficient evidence in the record (including both the full transcript of the grant hearing and the granting panel's official written decision), to allow the rescission panel to determine whether the parole date had been improvidently granted because the granting panel had failed to adequately consider particular factors. California law presumes that each piece of evidence presented to the granting panel was considered by it. See In re Caswell, 92 Cal. App.4th 1017, 1031, 112 Cal.Rptr.2d 462 (2001). Moreover, at several points in the transcript, the granting panel explicitly stated what it intended to...

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