Pearson v. Muntz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH PEARSON,  No. 08-55728

Petitioner-Appellee,

D.C. No.

v.

 2:05-cv-06937-

MADELENE A. MUNTZ, Acting SGL-OP

Warden,

OPINION

Respondent-Appellant.



Appeal from the United States District Court

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Argued and Submitted

January 7, 2011—Pasadena, California

Filed April 5, 2011

Before: Stephen Reinhardt, Marsha S. Berzon, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Berzon

4497

PEARSON v. MUNTZ 4499

COUNSEL

Marc Grossman, Law Offices of Marc E. Grossman, Upland,

California, for the petitioner-appellee.

Julie L. Garland, Senior Assistant Attorney General, San

Diego, California, and Amy M. Roebuck, Deputy Attorney

General, San Diego, California, for the respondent-appellant.

OPINION

BERZON, Circuit Judge:

Madelene A. Muntz, the Acting Warden of Chuckawalla

Valley State Prison (hereinafter referred to as “the State”),

4500 PEARSON v. MUNTZ

appeals the district court’s decision granting Appellee Ken-

neth Pearson’s petition for a writ of habeas corpus under 28

U.S.C. § 2254. The district court held that the Governor’s

reversal of the decision of the Board of Prison Terms1 (“the

Board”) to grant Pearson parole was not supported by “some

evidence” that Pearson would be a danger to public safety if

paroled. We have jurisdiction over the State’s appeal pursuant

to 28 U.S.C. § 2253(a) and, in light of Swarthout v. Cooke,

131 S. Ct. 859 (2011) (per curiam), we reverse.

I.

Under California law,2 prisoners like Pearson serving inde-

terminate life prison sentences (i.e., those whose life sen-

tences do not include “without possibility of parole”) “may

serve up to life in prison, but they become eligible for parole

consideration after serving minimum terms of confinement.”

In re Dannenberg, 34 Cal. 4th 1061, 1078 (2005); see also

Cal. Penal Code § 3046(a); Cal. Code Regs. tit. 15

§§ 2000(b)(3), (b)(67). A year before the prisoner’s “mini-

mum eligible parole date,” the Board is required to convene

a panel to consider whether to release the prisoner on parole

and, if so, when. Cal. Penal Code § 3041(a).

1

Since July 1, 2005, the Board has been known as the Board of Parole

Hearings, but its relevant functions have not changed. See In re Olson, 149

Cal. App. 4th 790, 793 n.1 (2007).

2

In November 2008, California voters passed Proposition 9, the “Vic-

tims’ Bill of Rights Act of 2008: Marsy’s Law,” which changed numerous

aspects of California’s parole system, including the availability and fre-

quency of parole hearings for prisoners not initially found suitable for

parole. See Gilman v. Davis, 690 F. Supp. 2d 1105, 1128 (E.D. Cal. 2010)

(granting a preliminary injunction enjoining the enforcement of certain

portions of Proposition 9 as to the named plaintiffs on the basis of their

Ex Post Facto challenge), rev’d sub. nom., Gilman v. Schwarzenegger, ___

F.3d ___, 2011 WL 198435 (9th Cir. 2011). Because Pearson’s parole

suitability hearing occurred well before the passage of Proposition 9, the

changes it made to the California parole system are irrelevant for purposes

of this appeal.

PEARSON v. MUNTZ 4501

At its meeting, the Board first considers whether the inmate

is “suitable” for parole release. Id. §§ 3041(b), 3041.5(a)(6).

California law provides that the Board “shall set a release date

unless . . . consideration of the public safety requires a more

lengthy period of incarceration for this individual, and that a

parole date, therefore, cannot be fixed at this meeting.” Id.

§ 3041(b). In making this suitability determination, “the fun-

damental consideration . . . is public safety . . . [which]

involves an assessment of an inmate’s current dangerous-

ness.” In re Lawrence, 44 Cal. 4th 1181, 1205 (2008). Regu-

lations promulgated by the Board provide that “[a]ll relevant,

reliable information available to the panel shall be considered

in determining suitability for parole,” including various enu-

merated “circumstances.” Cal. Code Regs. tit. 15 § 2281(b).

The regulations specify a number of “circumstances” that

“tend to show that the prisoner is suitable for release,” id.

§ 2281(d), and others that “tend to indicate unsuitability for

release,” id. § 2281(c). The California Supreme Court has

emphasized that the factors set forth in the regulations are not

the ultimate touchstone of the Board’s inquiry; rather, the reg-

ulations are “designed to guide the Board’s assessment of

whether the inmate poses ‘an unreasonable risk of danger to

society if released from prison,’ and thus whether he or she

is suitable for parole.” Lawrence, 44 Cal. 4th at 1202 (quoting

Cal. Code Regs. tit. 15 § 2281(a)); see also In re Shaputis, 44

Cal. 4th 1241, 1254 (2008) (“[B]ecause the paramount con-

sideration for both the Board and the Governor under the gov-

erning statutes is whether the inmate currently poses a threat

to public safety, and because the inmate’s due process interest

in parole mandates a meaningful review of a denial-of-parole

decision, the proper articulation of the standard of review is

whether there exists ‘some evidence’ that an inmate poses a

current threat to public safety, rather than merely some evi-

dence of the existence of a statutory unsuitability factor.”).

As part of the parole suitability determination, the Board is

required to hold a hearing, which the prisoner has the right to

attend, “to ask and answer questions, and to speak on his or

4502 PEARSON v. MUNTZ

her own behalf.” Cal. Code Regs. tit. 15 § 3041.5(a). If the

Board finds the inmate unsuitable for parole, it provides him

or her “a written statement setting forth the reason or reasons

for refusal to set a parole date, and suggest[s] activities in

which [the inmate] might participate that will benefit him or

her while he or she is incarcerated.” Id. § 3041.5(b)(2). It also

schedules the next parole suitability hearing. Id.

§ 3041.5(b)(3).

If, on the other hand, the Board determines that the inmate

is suitable for parole, it proceeds to set a release date by cal-

culating the prisoner’s “base term.” Cal. Code Regs. tit. 15

§ 2282(a). Unlike the parole suitability determination, the

base term is established “solely on the gravity of the base

offense, taking into account all of the circumstances of that

crime.” Id.; see also In re Bush, 161 Cal. App. 4th 133, 142

(2008) (“[T]he base term reflects an appropriate sentence for

the crime when compared to other comparable offenses.”).

The Board has published matrices enumerating base terms for

various offenses, see Cal. Code Regs. tit. 15 §§ 2282-89, from

which the Board can depart in a particular inmate’s case if

warranted by one or more enumerated factors, see id. § 2404.

If the time the prisoner has already served exceeds the term

the Board calculates, the Board designates the prisoner for

release;3 if the reverse is true, the Board sets a release date

that falls after the completion of the calculated term. See

Bush, 161 Cal. App. 4th at 142.

3

Because the parole suitability determination and the prison term calcu-

lation are directed at different factors, a prisoner may end up serving years

more than the term calculated by the Board once he is found suitable for

parole. See Bush, 161 Cal. App. 4th at 142. In other words, though consid-

eration of only the base offense might suggest an appropriate prison term

of X years, characteristics unique to the inmate properly considered in the

parole suitability determination (such as past criminal record, prison disci-

plinary record, plans for parole, etc.) may lead the Board to conclude that

he is not “suitable” for parole until he has served more than X years.

PEARSON v. MUNTZ 4503

If the inmate was “sentenced to an indeterminate term upon

conviction of murder,” the Governor may reverse or modify

the Board’s parole decision, Cal. Const. Art. V § 8(b); see

also Cal. Penal Code § 3041.2, though he may do so only “on

the basis of the same factors which the parole authority is

required to consider.” Cal. Const. Art. V § 8(b); see also In

re Rosenkrantz, 29 Cal. 4th 616, 663-64 (2002).

For prisoners convicted of most crimes, the term of parole

is a set number of years (ranging up to 20 years), see Cal.

Penal Code § 3000(b)(1)-(4), although it can be discharged

early under certain circumstances, see id. § 3001(a)-(c). In the

case of inmates sentenced to a maximum term of life impris-

onment for first or second degree murder, however, the period

of parole (if parole is granted) is “the remainder of the

inmate’s life.” Id. § 3000.1(a)(1). But here again, parole can

be discharged early: The relevant statute provides that once an

individual convicted for second degree murder who was sen-

tenced to an indeterminate life sentence has been on parole for

five continuous years (or seven years for someone convicted

of first degree murder), “the [B]oard shall . . . discharge that

person from parole, unless the [B]oard, for good cause, deter-

mines that the person will be retained on parole.” Id.

§ 3000.1(b). If a parolee is retained on parole pursuant to this

process, he is entitled to a new parole discharge review “each

year thereafter.” Id. § 3000.1(c).

II.

On October 6, 1985, Pearson, 21 years-old at the time,

exchanged gunfire with a crowd of rival gang members while

riding in a car being driven by his best friend and fellow

member of the East Coast Crips, Lamont Grant. One of Pear-

son’s shots struck a member of the rival gang, paralyzing him,

while a shot fired by an unknown individual hit Grant in the

head, killing him. Pearson fled the scene on foot, but was

arrested the next day. He ultimately pled guilty to second-

4504 PEARSON v. MUNTZ

degree murder for Grant’s death and was sentenced to 15

years to life in prison.

Pearson had six parole suitability hearings between 1993

and 2001, all of which found him unsuitable for parole. The

Board granted Pearson parole at the conclusion of his seventh

parole hearing, held in June 2002, but Governor Gray Davis

reversed the Board’s decision. Pearson’s eighth parole suit-

ability hearing, which forms the basis of this appeal, was held

on November 19, 2003. The Board again found Pearson suit-

able for parole, highlighting several factors as indicating that

Pearson “is suitable for parole and would not pose an unrea-

sonable risk of danger to society or a threat to public safety

if released from prison,” including significant vocational pros-

pects; an “extremely limited” prison disciplinary record; signs

of remorse; significant family ties; and a psychological report

indicating that if released to the community, Pearson’s pro-

pensity for violence “would be no greater than the average cit-

izen.” In accordance with Cal. Code Regs. tit. 15 §§ 2282(a)

and 2403(c), the Board set a tentative release date and

imposed several special conditions of parole.

Governor Schwarzenegger reversed the Board in a decision

dated April 14, 2004. The Governor gave three reasons for his

decision: that Pearson had not demonstrated sufficient

remorse for his actions; that his post-prison plans were not

realistic—in particular, his plan to live with either his aunt or

mother, both of whom live relatively close to Pearson’s “old

gang-infested neighborhood”; and that the commitment

offense demonstrated a callous disregard for human suffering.

Pearson immediately filed a petition for habeas corpus in

California Superior Court, which was denied on December

15, 2004. The Superior Court rejected the Governor’s first

two proffered reasons for denying Pearson parole, but held

that “[t]here is . . . ‘some evidence’ [that] Petitioner is unsuit-

able for parole based on the circumstances of the commitment

offense.” On appeal, the California Court of Appeal affirmed

PEARSON v. MUNTZ 4505

in a one-paragraph order. Pearson’s petition for review to the

California Supreme Court was summarily denied on June 8,

2005, with two Justices dissenting.

Three months later, Pearson filed a habeas petition in fed-

eral district court under 28 U.S.C. § 2254, arguing that the

Governor’s decision had violated his right to due process

under the Fourteenth Amendment by denying him parole

despite the absence of “some evidence” that he would be a

threat to public safety. Magistrate Judge Parada issued a

Report and Recommendation on July 3, 2007, holding that in

light of the other record evidence, “the commitment offense

is no longer reliable evidence of [Pearson’s] unsuitability for

parole.” Magistrate Judge Parada therefore recommended that

Pearson’s petition be granted. The Report and Recommenda-

tion was subsequently adopted by District Judge Larson.

Judge Larson ordered that Pearson be released within 30 days

of the entry of judgment, but granted the State a temporary

stay to allow it to seek a stay from this Court pending its

appeal on the merits.

[1] The State filed a timely notice of appeal on April 29,

2008, followed three weeks later by an emergency motion for

a stay. On June 3, 2008, the State was granted a stay pending

the resolution of Hayward v. Marshall, a case that was taken

en banc to decide, inter alia, “whether federal constitutional

law imposes on the states a requirement for some quantum of

evidence to support a state’s denial of parole,” and, “even if

there is no general federal quantum of evidence requirement,”

whether “applicants for parole in California . . . may obtain

federal habeas review of whether there is ‘some evidence’

supporting a negative parole decision.” 603 F.3d 546, 549

(9th Cir. 2010) (en banc).

Hayward ultimately declined to answer the first question,

reasoning that:

Because the California “some evidence” standard is

exactly the same as the one Hayward urges as a fed-

4506 PEARSON v. MUNTZ

eral constitutional standard, the doctrine of constitu-

tional avoidance counsels not deciding whether the

California parole scheme establishes a predicate for

imposing it as a matter of federal constitutional law.

State law already does what Hayward would have

federal constitutional law do. We therefore do not

decide whether a right arises in California under the

United States Constitution to parole in the absence of

some evidence of future dangerousness.

Id. at 562 (footnote omitted). As to the latter question, how-

ever, Hayward answered in the affirmative, holding that

courts in this circuit should evaluate whether a particular

inmate’s parole denial was “an ‘unreasonable application’ of

the California ‘some evidence’ requirement, or was ‘based on

an unreasonable determination of the facts in light of the evi-

dence.’ ” Id. at 563 (quoting 28 U.S.C. § 2254(d)(1)-(2)).

[2] Following the en banc decision in Hayward, we issued

an order dissolving the stay in this case.4 Approximately a

week later, the State filed an emergency motion for reconsid-

eration, which we denied in a published order on May 24,

2010. Pearson v. Muntz, 625 F.3d 539 (9th Cir. 2010) (per

curiam). The State argued that because Pearson’s right to

parole is created by state law, his parole denial cannot be

reviewed by way of a federal habeas petition. We disagreed,

pointing out that Hayward permitted the very review that the

State argued it prohibited. See id. at 547-49. We explained,

moreover, that “[i]n California, the ‘some evidence’ require-

ment is a component of [the] liberty interest” in parole that is

protected by federal procedural due process. Id. at 439.

4

Several months later, Pearson was granted parole on the basis of a

more recent decision of the Board. Pearson argues, on the basis of

McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003), that he could

still be afforded relief in this case—namely, a reduction of his term of

parole equal to the amount of time he was unconstitutionally imprisoned.

Given our holding, we do not reach the question.

PEARSON v. MUNTZ 4507

[3] A few months later, however, the Supreme Court

issued a per curiam decision in Cooke, 131 S. Ct. 859. Cooke

did not disturb our precedent that “California law creates a

liberty interest in parole.” Id. at 861. But it held that, under

the Fourteenth Amendment’s Due Process Clause, the protec-

tions to which a California inmate is entitled prior to a denial

of parole do not include a showing of some evidence of future

dangerousness. Id. While the Court did not define the mini-

mum process required by the Due Process Clause for a denial

of parole under the California system, it made clear that the

Clause’s requirements were satisfied where the inmates “were

allowed to speak at their parole hearings and to contest the

evidence against them, were afforded access to their records

in advance, and were notified as to the reasons why parole

was denied.” Id. at 862.

III.

[4] Pearson has never argued that he was denied an oppor-

tunity to speak at his hearing and contest the evidence against

him, that he was denied access to his record in advance, or

that he was not notified of the reasons why parole was denied.5

His complaint has been all along that there was not “some

evidence” of future dangerousness in his case, resulting in a

violation of his rights to due process guaranteed by the Con-

stitution. Cooke makes clear that we cannot consider whether

“some evidence” of dangerousness supported a denial of

parole on a petition filed under 28 U.S.C. § 2254.

Nonetheless, Pearson argues that Cooke “does not affect

the resolution of this case” because it did not decide “whether

5

Following Cooke’s issuance, Pearson did argue for the first time, in a

letter filed pursuant to Rule 28(j) of the Federal Rules of Appellate proce-

dure, that the Governor’s decision to deny him parole violated due process

because the Governor did not afford Pearson a hearing before making his

decision. As this argument comes too late, the issue is not properly before

us. See United States v. Gomez-Mendez, 486 F.3d 599, 606 n.10 (9th Cir.

2007).

4508 PEARSON v. MUNTZ

a right arises in California under the United States Constitu-

tion to parole in the absence of some evidence of future dan-

ger.” In other words, Pearson argues that Cooke, like

Hayward, did not decide whether the Constitution imposes on

the states a requirement that its decisions to deny parole be

supported by a particular quantum of evidence, independent

of any requirement imposed by state law.

[5] We disagree. Cooke was unequivocal in holding that if

an inmate seeking parole receives an opportunity to be heard,

a notification of the reasons as to denial of parole, and access

to their records in advance, “[t]hat should . . . be[ ] the begin-

ning and the end of [the] inquiry into whether [the inmate]

received due process.” Id. at 862. To reiterate, Pearson has not

questioned whether those procedures were provided, and

therefore, after Cooke, our inquiry is at its end.

The district court’s decision to grant Pearson’s petition

must be REVERSED.