Cooke v. Solis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAMON COOKE, 

Petitioner-Appellant,

No. 06-15444

v.

JOSE SOLIS, Warden, California  D.C. No.

CV-04-04439-MJJ

Training Facility - Central;

OPINION

BOARD OF PRISON TERMS; A. KANE,

Respondents-Appellees.



Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued and Submitted

April 16, 2007—San Francisco, California

Submission Vacated August 7, 2007

Resubmitted May 28, 2010

Filed June 4, 2010

Before: Stephen Reinhardt, Kim McLane Wardlaw and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reinhardt

8661

COOKE v. SOLIS 8665

COUNSEL

Michael Satris (argued), Law Office of Michael Satris,

Bolinas, California; Amy F. Morton, Morton & Russo, Val-

lejo, California, for the petitioner-appellant.

Jessica Nicole Blonien (argued), Office of the California

Attorney General, Sacramento, California; Elizabeth S. Kim,

Office of the California Attorney General, Oakland, Califor-

nia, for the respondents-appellees

OPINION

REINHARDT, Circuit Judge:

In 1991, Damon Cooke was convicted of attempted first

degree murder. He was sentenced to seven years to life in

prison with the possibility of parole, plus a four-year enhance-

ment for using a firearm. In November 2002, the California

Board of Prison Terms1 held a hearing to determine whether

Cooke was suitable for parole. At the conclusion of the hear-

ing, the Board denied him parole, relying primarily on the cir-

cumstances of the commitment offense.

Cooke sought a writ of habeas corpus in state court, assert-

ing that the Board’s decision violated his right to due process.

Finding that the Board’s decision was supported by “some

evidence” of unsuitability, the state courts denied the petition.

Cooke then sought a writ of habeas corpus in federal court.

The district court denied the petition, and Cooke timely filed

a notice of appeal on October 14, 2005.

We now conclude that, under the standard announced in

1

On July 1, 2005, the California Board of Parole Hearings replaced the

Board of Prison Terms. Cal. Penal Code § 5075(a).

8666 COOKE v. SOLIS

Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc),2

Cooke is entitled to federal habeas relief. Accordingly, we

reverse the decision of the district court and remand with

instructions to grant the writ.

I.

A.

On February 12, 1991, Cooke’s friend Padriac Ryan came

to visit him at his apartment in Los Angeles. After Ryan

returned to his own home in Berkeley, Cooke noticed that a

necklace was missing from the apartment.3

That night, Cooke traveled from Los Angeles to Berkeley

with his cousin LeAndre and his friends Alexander Bush and

Steve Huynh. When Cooke and his companions confronted

Ryan about the theft of the necklace, Ryan denied responsibil-

ity, and an argument ensued. LeAndre pulled out a .38 caliber

pistol, which Cooke took from him. Cooke then fired a single

shot, which struck Ryan on the right side of the head. Ryan

fell to the ground and pretended to be dead, and Cooke,

LeAndre, Bush, and Huynh fled the scene.

2

Hayward, 603 F.3d at 561-63 (holding that federal habeas courts

reviewing a due process challenge to the denial of parole in California

must determine “whether the California judicial decision approving the

[Board’s] decision rejecting parole was an ‘unreasonable application’ of

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

sonable determination of the facts in light of the evidence.’ ” (quoting 28

U.S.C. 2254(d)(1)-(2)). We note that the district court did not have the

benefit of our en banc decision in Hayward when it decided Cooke’s peti-

tion.

3

This description of the offense is drawn primarily from the California

Court of Appeals’ opinion affirming Cooke’s conviction. People v. Cooke,

16 Cal. App. 4th 1361, 1364-67, 1375 (1993). The opinion states that the

missing item was a $10,000 necklace. Id. Before the Board, Cooke stated

that, in fact, $10,000 in cash and a necklace were missing from his apart-

ment.

COOKE v. SOLIS 8667

The shooting was not fatal.4 After the four men had fled,

Ryan got up, locked his door, and called 911. The police

stopped Cooke and his companions a few blocks away. Cooke

was subsequently arrested and charged with attempted first-

degree murder.

On October 2, 1991, Cooke was convicted of attempted

first-degree murder with an enhancement for use of a firearm.

On December 18, 1991, he was sentenced to seven years to

life in prison with the possibility of parole for the attempted

murder conviction, plus four additional years for the firearm

enhancement.

B.

On November 19, 2002, the California Board of Prison

Terms held a hearing to evaluate Cooke’s suitability for

parole. During the hearing, the Board heard evidence regard-

ing Cooke’s life history, his commitment offense, his behav-

ior and achievements while incarcerated, his mental health,

and his post-release plans.

With respect to Cooke’s background, the Board learned

that Cooke had never been arrested prior to the commitment

offense. He did not drink or use drugs, and he had never been

involved in gang activity. He has close and stable relation-

ships with his mother, who is a financial consultant, and his

stepfather, who is a retired Los Angeles County Probation

Officer.

Cooke attended El Dorado High School in Placentia, Cali-

fornia and graduated with a 3.5 GPA. He then enrolled in an

ROTC program, through which he attended the New Mexico

Military Institute. Thereafter he pursued a degree in finance

at the University of New Mexico. During his final year of col-

4

Ryan suffered a fractured cheekbone and partial hearing loss in one ear

as a result of the shooting.

8668 COOKE v. SOLIS

lege, his mother had bypass surgery, and he left school in

order to care for her. He later passed the National Association

of Securities Dealers exam and began work as a financial con-

sultant.

During his time in prison, Cooke has been both well-

behaved and extremely industrious. He successfully com-

pleted numerous voluntary self-help and educational pro-

grams, including a thirteen-week IMPACT program (“a self-

help group designed to provide an opportunity for education

and awareness as to the profound negative impact of crime on

its victims”) and numerous anger and stress management

classes. Because only limited self-help and therapeutic pro-

gramming was offered in the prisons in which he was incar-

cerated, he took it upon himself to read and write reports

about various self-help books. He also participated in various

Christian and Buddhist groups, and became an ordained min-

ister. At the time of the hearing, he was in the process of

acquiring college credits via correspondence from Coastline

Community College, with the hope that the University of New

Mexico would accept the credits toward completion of his

bachelor’s degree in finance.

Cooke has held numerous jobs while in prison, including

teacher’s aide, education clerk, and personnel clerk. His

supervisors have raved about his job performance, extolling

his “exceptional[ ] diligen[ce],” “positive working attitude,”

“university level writing ability,” “astounding ability under

duress,” “excellent people skills,” and “exceptional work”

product. They have also noted that he “contributes above and

beyond expectations,” is a “positive influence on others,” “al-

ways remains in control of himself,” and “shows a great deal

of respect towards his peers, and staff alike.” A teacher under

whom Cooke worked as an aide for almost two years stated

that

His contribution towards the overall success of my

academic class . . . was both monumental and unself-

COOKE v. SOLIS 8669

ish. . . . [He] was an asset to my program because of

his ability to retain a positive attitude in the face of

adversity. This attribute was and continues to be a

rare and seldom attained commodity in the working

environment of my chosen profession. His social

skills and patience when working with both free staff

and inmates was impeccable.

Various corrections officials have noted that Cooke has

consistently “go[ne] above and beyond to help his fellow

inmates.” For several years Cooke has helped to facilitate the

prison’s literacy and stress management courses. The correc-

tions officer who supervised him in this role noted that

Cooke’s efforts resulted in a “drastic increase in other

inmates’ willingness to work and become productive individ-

uals.” Cooke also participated in the making of an educational

video for juvenile offenders regarding the consequences of

criminal activity. The corrections officer who supervised this

effort stated that Cooke’s “knowledge, insight, and profes-

sional demeanor reflects the epitome of the program.” Fur-

thermore, “using his skills in the area of computers, [Cooke]

was able to establish a self-help curriculum that provided

inmates the opportunity to receive basic computer training,

and ultimately, receive their General Education Diplomas

(GED’s).” Cooke has also helped to organize an annual festi-

val for the children of the inmates at Soledad State Pris-

on,“has been an advisor in various anger management groups,

. . . works closely with ministry groups . . . [and] has been uti-

lized to quell conflicts that have arisen between staff and

inmates.”

In addition to commending his work performance, volun-

teer efforts, and impeccable conduct, numerous corrections

officers placed notations in Cooke’s file expressing their

belief that the Board should find him suitable for parole. For

example, corrections officers made the following statements:

“I can honestly say that Inmate Cooke is one of the

best mentors and positive Inmate Advisors I have

8670 COOKE v. SOLIS

ever experienced in my fifteen (15) year tenure with

the California Department of Corrections. I highly

recommend Inmate Cooke for any parole consider-

ation he may be eligible for . . . .”

“Any consideration you may give with regards to

inmate Cooke’s parole considerations comes with

the endorsement of the undersigned.”

“It has come to my attention that Inmate Cooke is

scheduled for a parole board hearing for consider-

ation of a parole date. I completely recommend

Cooke be given the opportunity to reenter society as

a fully productive citizen.”

“I fully recommend that Inmate Cooke be given

strong consideration for parole. I expect and antici-

pate that he will continue his helpful deeds and

become a positive asset to the community.”

“Any consideration given regarding Inmate Cooke’s

release . . . would be a great service to society.”

“I sincerely believe that if given the opportunity he

would be a productive citizen. I fully recommend his

consideration for parole and release.”

In addition, a Correctional Lieutenant stated, “during my five

year working relationship with him . . . Cooke has exempli-

fied the epitome of a rehabilitated inmate.”

Cooke stated at the hearing that if he were released, he

planned to live with his wife in the home they own in Ontario,

California. Several employers had offered to hire him upon

his release. The offers included a “guaranteed job placement”

with the Clair Foundation, a part-time position as a computer

assistant for a general contractor, and a full-time telemarket-

ing position with Prudential Realty. The Board also reviewed

COOKE v. SOLIS 8671

letters from several of Cooke’s relatives who stated that they

would assist him both financially and emotionally upon his

release from prison. In total, twenty-nine of Cooke’s family

members and close friends wrote letters to the Board request-

ing that he be granted parole. The Board received no letter or

other statement of opposition to parole from the district attor-

ney’s office or any law enforcement agency.

The Board also reviewed two psychological evaluations

prepared by prison psychologists, both of which stated that

Cooke suffers no mental health problems. The first evalua-

tion, dated October 9, 1996, described Cooke as a “self-

motivated person” who “can be counted on to maintain or

improve the gains made while he has been incarcerated.” The

second evaluation, dated February 14, 2000, and specifically

prepared for Cooke’s November 2002 hearing, described

Cooke as “an exemplary inmate” and stated that Cooke would

“not present a problem to society” if released. The evaluation

contained some inaccurate information with respect to

Cooke’s ethnicity and family background.5 Because there

were “so many inconsistent and erroneous statements” in the

second report, the Board determined that it “lack[ed] credibil-

ity,” and thus said that it would order another report.

The Board also reviewed Cooke’s disciplinary record.

Cooke had received only two written disciplinary infractions;

they were issued within five months of each other and both

were issued during the first year and a half of his incarcera-

tion. In September of 1992, he was issued a disciplinary cita-

tion for not following orders when a corrections officer told

5

Specifically, the report stated that Cooke is Polynesian, when in fact

he is of mixed African American and Polynesian descent; identified

Cooke’s family’s religious affiliation as Mormon, when in fact they are

“nondenominational”; and stated that Cooke’s parents divorced when he

was twelve years old, when in fact they divorced when he was five. In

addition, although a later section of the report contained accurate informa-

tion about Cooke’s marital status, the first page of the report described

him as “single married.”

8672 COOKE v. SOLIS

him to remove food from another prisoner’s tray.6 In February

of 1993, he was issued a second citation for refusing to clean

up another inmate’s feces when asked to do so by a correc-

tions officer. Cooke accepted responsibility for both viola-

tions.

The Board also discussed a third disciplinary infraction that

appeared in Cooke’s file, for possession and trafficking of

marijuana. Cooke’s attorney informed the Board that because

prison officials had found that the charge was unfounded, it

had been dismissed, and therefore it should not have been in

Cooke’s file. The Board said that it would look into the issue

further, but nonetheless considered this alleged infraction in

deeming Cooke unsuitable for parole. The record reflects that

the charge was, in fact, dismissed and thus should not have

been considered by the Board.

Finally, the Board reviewed Cooke’s 2002 Life Prisoner

Evaluation, which had been prepared by Cooke’s corrections

counselor and was based on the information before the Board

as well as his own experience supervising Cooke. In the

report, the counselor concluded that

[c]onsidering the commitment offense, prior record

and prison adjustment, the writer believes the pris-

oner would probably pose a low degree of threat to

the public at this time, if released from prison. This

belief is based on Inmate Cooke not having any prior

record of criminal conduct . . . and the circumstances

of the instant offense. He does not appear to be crim-

inally minded and has a good insight into himself.

6

When asked about this disciplinary infraction, Cooke explained to the

Board that “there’s a thing with prisoners that another prisoner shouldn’t

touch another man’s food. And so what happened was my supervisor said,

there is four hot dogs on this tray. Take two off. And I just told him I

really — I said, honestly, I can’t do that. I can’t take food off another

man’s tray.”

COOKE v. SOLIS 8673

Inmate Cooke has been able to maintain himself rel-

atively disciplinary free during the 11 years of incar-

ceration. Inmate Cooke has shown marked progress

toward maintaining an overall positive program and

attitude.

After reviewing the foregoing evidence, the Board deter-

mined that Cooke was unsuitable for parole because he

“would pose an unreasonable risk to society if released from

prison.” The Board based this determination on the following

findings:

Firstly, the commitment offense was carried out in

an especially cruel and callous manner. It was car-

ried out in a premeditated manner. It was carried out

in a manner which demonstrates an exceptionally

callous disregard for human suffering. . . . . Institu-

tionally, [the inmate] has not yet fully participated in

beneficial self-help and/or therapy programming. He

has not yet developed a marketable skill that can be

put to use upon release. He’s had two [disciplinary

violations] . . . One . . . for . . . possession, traffick-

ing marijuana. . . . [A]nother . . . for disobeying rules

and regulations. The psych report dated 2/14/2000 is

. . . favorable. But it lacks credibility with myself

and with the Panel. . . . [T]he prisoner does need

self-help and/or therapy programming in order to

face, discuss, understand, and cope with stress in a

nondestructive manner. And to face, discuss, and

understand the causative factors that led to the life

crime. Until progress is made, he continues to be

unpredictable and a threat to others. . . . . He needs

to complete a vocation.

After the Board orally stated these findings, Cooke asked

for advice about what he could do “in order to be found suit-

able.” The Board explained that he needed to complete a

vocation because “it not only shows that you . . . can grow as

8674 COOKE v. SOLIS

a person[, it also] . . . shows that you can set goals and com-

plete goals and get something done.”

C.

On December 19, 2003, Cooke filed a petition for a writ of

habeas corpus in Alameda County Superior Court. Three days

later, on December 22, 2003, the court denied the petition. In

its entirety, the order denying the petition reads as follows:

The Court having reviewed the defendant’s Ex Parte

Petition for Writ of Habeas Corpus, filed on Decem-

ber 19, 2003, orders said motion be DENIED.

The Petition fails to state a prima facie case for relief

sought. The record submitted by Petitioner does not

support the Petitioner’s claims that his Constitutional

and statutory rights were violated by the [Board of

Prison Terms]. The record indicates that there was

some evidence, including but certainly not limited to

the life offense, to support the board’s denial of Peti-

tioner’s parole.

Cooke filed a habeas petition with the California Court of

Appeal, and subsequently a petition for review with the Cali-

fornia Supreme Court. Both were summarily denied.

On October 18, 2004, Cooke filed a habeas corpus petition

in federal court. The district court denied the petition and

entered judgment on October 6, 2005. On October 14, 2005,

Cooke timely filed a notice of appeal.

II.

“We review de novo a district court’s decision to deny a

petition for habeas corpus.” Bailey v. Hill, 599 F.3d 976, 978

(9th Cir. 2010).

COOKE v. SOLIS 8675

The State contends that we lack jurisdiction over this

appeal because Cooke has not obtained a certificate of

appealability, as required under 28 U.S.C. § 2253(c). Cooke

originally applied for a certificate of appealability in the dis-

trict court, but withdrew his application in light of our deci-

sion in Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005),

which held that a federal habeas petitioner challenging the

denial of parole was not required to obtain a certificate of

appealability. In Hayward v. Marshall, 603 F.3d 546 (9th Cir.

2010) (en banc), however, we overruled Rosas and held that

a federal habeas petitioner must obtain a certificate of

appealability to invoke appellate jurisdiction over this type of

claim. “We may issue such a certificate sua sponte,” id. at

554, and we do so here. Like the petitioner in Hayward,

Cooke “had followed our prior decisions when he proceeded

without a certificate, and he has ‘made a substantial showing

of the denial of a constitutional right.’ ” Id. at 554-55 (quoting

28 U.S.C. § 2253(c)(2)). We therefore certify for appeal the

issue whether Cooke was denied parole in the absence of

“some evidence” of current dangerousness, and thus in viola-

tion of his federal right to due process.7

Because Cooke filed his habeas petition after the effective

date of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), we may not grant relief unless the state

court’s adjudication of his claim “resulted in a decision that

was either (1) contrary to, or involved an unreasonable appli-

cation of, clearly established Federal law, as determined by

the Supreme Court of the United States, or (2) based on an

unreasonable determination of the facts in light of the evi-

dence presented in the State court proceeding.” Doody v.

Schriro, 596 F.3d 620, 634 (9th Cir. 2010) (en banc) (citation

omitted).

7

Because we resolve this issue in Cooke’s favor, we need not reach the

other issues that he raises on appeal.

8676 COOKE v. SOLIS

[1] The State contends that the constraints imposed by

AEDPA preclude federal habeas relief on Cooke’s claim. This

argument is foreclosed by our recent decision in Hayward v.

Marshall. See also Pearson v. Muntz, ___ F.3d ___, 2010 WL

2108964 (9th Cir. May 24, 2010). In Hayward, we held that

due process challenges to California courts’ application of the

“some evidence” requirement are cognizable on federal

habeas review under AEDPA. Hayward, 603 F.3d at 561-64.

Under the standard announced in Hayward for California

parole cases, federal habeas courts must accord due deference

to the state court decision and thus must determine “whether

the California judicial decision approving the governor’s [or

the Board’s] decision rejecting parole was an ‘unreasonable

application’ of the California ‘some evidence’ requirement, or

was ‘based on an unreasonable determination of the facts in

light of the evidence.’ ” Id. at 563 (quoting 28 U.S.C.

§ 2254(d)(1)-(2)). It is to that question we now turn.

III.

As we have noted, the last reasoned state court decision

addressing Cooke’s claim stated that the record contained

“some evidence, including but certainly not limited to the life

offense, to support the board’s denial of [Cooke’s] parole.”

To determine whether this decision “was an ‘unreasonable

application’ of the California ‘some evidence’ requirement, or

was ‘based on an unreasonable determination of the facts in

light of the evidence,’ ” id. (quoting 28 U.S.C. § 2254(d)(1)-

(2)), we must examine the nature and scope of the federally

enforceable liberty interest created by California’s “some evi-

dence” requirement.

A.

[2] State parole systems “may create liberty interests in

parole release that are entitled to protection under the Due

Process Clause.” Bd. of Pardons v. Allen, 482 U.S. 369, 371

(1987) (citing Greenholtz v. Inmates of Neb. Penal & Corr.

COOKE v. SOLIS 8677

Complex, 442 U.S. 1, 12 (1979)). California’s “some evi-

dence” requirement is a component of the liberty interest cre-

ated by the parole system of that state. In Greenholtz, the

Supreme Court lamented that the absence of litigation of the

issue in state court had “denied [it] the benefit of the

Nebraska courts’ interpretation of the scope of the interest, if

any, the [Nebraska parole] statute was intended to afford to

inmates.” 442 U.S. at 12. Here, in determining whether the

decision of the Alameda County Superior Court was an unrea-

sonable application of California’s “some evidence” require-

ment, we have the benefit of extensive guidance from the

California Supreme Court as to the scope of the liberty inter-

est at issue.

[3] The California Supreme Court has explained that the

“some evidence” requirement is mandated by the state regula-

tory, statutory, and constitutional provisions that govern

parole decisions in California. In re Rosenkrantz, 59 P.3d 174,

201-03 (Cal. 2002). The requirement imposes substantive

rather than purely procedural constraints on state officials’

discretion to grant or deny parole: “a reviewing court . . . is

not bound to affirm a parole decision merely because the

Board or the Governor has adhered to all procedural safe-

guards.” In re Lawrence, 190 P.3d 535, 552 (Cal. 2008).

Rather, the court must ensure that the decision to deny parole

is “supported by some evidence, not merely by a hunch or

intuition.” Id. at 554.

[4] Under California law, “the paramount consideration for

both the Board and the Governor” must be “whether the

inmate currently poses a threat to public safety and thus may

not be released on parole,” id. at 552, and “the facts relied

upon by the Board or the Governor [must] support the ulti-

mate decision that the inmate remains a threat to public safe-

ty.” Id. at 554. Accordingly, for a reviewing court “the

relevant inquiry is whether some evidence supports the deci-

sion of the Board or the Governor that the inmate constitutes

a current threat to public safety.” Id. at 553; see also Hay-

8678 COOKE v. SOLIS

ward, 603 F.3d at 562 (noting that “ ‘some evidence’ of future

dangerousness is indeed a state sine qua non for denial of

parole in California” (citing Lawrence, 190 P.3d at 549; In re

Shaputis, 190 P.3d 573, 582 (Cal. 2008)).

[5] The California Supreme Court has expressly rejected

the argument “that the aggravated circumstances of a commit-

ment offense inherently establish current dangerousness.”

Lawrence, 190 P.3d at 554. Although the Board or the Gover-

nor may consider the circumstances of the commitment

offense when making a decision to grant or deny parole,

the aggravated nature of the crime does not in and of

itself provide some evidence of current dangerous-

ness to the public unless the record also establishes

that something in the prisoner’s pre- or post-

incarceration history, or his or her current demeanor

and mental state, indicates that the implications

regarding the prisoner’s dangerousness that derive

from his or her commission of the commitment

offense remain probative to the statutory determina-

tion of a continuing threat to public safety.

Id. at 555 (cited in Hayward, 603 F.3d at 562). In sum, a

reviewing court must consider “whether the identified facts

are probative to the central issue of current dangerousness

when considered in light of the full record before the Board

or the Governor.” Id. at 560. Thus, there must be more than

the crime or its circumstances alone to justify the Board’s or

the Governor’s finding of current dangerousness.8

8

In Hayward, we used “current dangerousness” and “future dangerous-

ness” interchangeably when referring to the finding for which there must

be “some evidence.” There is no meaningful distinction between the two

terms.

COOKE v. SOLIS 8679

B.

Bearing in mind the foregoing considerations as to the

scope of the federally enforceable liberty interest created by

California’s “some evidence” requirement, we turn now to the

state court decision upholding Cooke’s denial of parole. As

we have noted, the state court found that the Board’s decision

was supported by some evidence “including but certainly not

limited to the life offense.” Because the state court’s decision

does not reveal which of the Board’s findings it believes sup-

ported the denial of parole, other than “the life offense,” and

which, if any, did not, we will examine each of the Board’s

other stated reasons for denying parole.

One of the bases upon which the Board deemed Cooke

unsuitable for parole was the finding that the February 14,

2000 psychological evaluation prepared for the hearing was

unreliable. The record supports the Board’s finding that the

evaluation contained numerous errors and inconsistencies,

and the Board was clearly justified in disregarding it in its

entirety. A properly disregarded piece of favorable evidence,

however, cannot possibly constitute evidence of current dan-

gerousness; that proposition is illogical on its face. Evidence

that is excluded is not probative of anything.

[6] The Board also relied on the disciplinary infractions

contained in Cooke’s file: one for trafficking marijuana, and

two for disobeying prison rules and regulations. As noted

supra, the marijuana trafficking charge had been dismissed as

unsubstantiated, and thus should not have been considered by

the Board. The other two offenses occurred within the first

year and a half of Cooke’s imprisonment; one was based on

Cooke’s refusal to clean up another’s man’s feces, and the

other on his refusal to take food off another man’s tray. These

two minor and non-violent occurrences, which occurred in

1992 and 1993, cannot reasonably be viewed as evidence that

Cooke posed an unreasonable risk to public safety in 2002,

especially as he had been discipline-free for nearly a decade.

8680 COOKE v. SOLIS

Accordingly, Cooke’s disciplinary record does not provide

evidence of current dangerousness.

[7] Next, the Board found that Cooke “has not yet fully

participated in beneficial self-help and/or therapy program-

ming,” and that he needed more of such programming to

“cope with stress in a nondestructive manner” and to “face,

discuss, [and] understand the causative factors that led to the

life crime.” The Board, however, failed to identify any evi-

dence that supports such a conclusion. Cooke has received

numerous accolades for his extensive participation in self-

help groups and programming; indeed, he has designed such

programming and is now leading such groups. Nothing in the

record so much as hints at the possibility that Cooke might

need further programming in order to become non-dangerous,

or even that he suffered from stress of any kind while in

prison. Accordingly, the Board’s bare assertion that Cooke

needs additional programming cannot reasonably be viewed

as providing evidence that supports a finding of current dan-

gerousness.

[8] Similarly, the Board found that Cooke needed to obtain

certification in a trade to make himself marketable after his

release and to demonstrate that he “can grow as a person . . .

can set goals, . . . complete goals and get something done.”

This finding, again, is wholly without evidentiary support.

The record before the Board demonstrates that Cooke has a

strong educational background — he graduated from high

school with a high grade point average, attended the Univer-

sity of New Mexico, and was close to completing a bachelor’s

degree in finance — and possesses many marketable skills.

Nothing in the record suggests that Cooke would have any

difficulty obtaining employment upon release; to the contrary,

the Board recognized that he had several standing job offers

in a range of fields, from counseling to information technol-

ogy to real estate. Moreover, the record was full of praise for

Cooke’s ability to grow as a person, to set goals for himself,

and to complete tasks. Indeed, the record was replete with

COOKE v. SOLIS 8681

glowing praise from Cooke’s supervisors regarding his excep-

tional diligence, positive attitude, and strong work ethic. No

evidence suggests that Cooke’s certification in a trade would

have any benefit, let alone that such certification is necessary

to render him non-dangerous. Accordingly, the Board’s

wholly unsupported sua sponte finding with regard to

Cooke’s failure to obtain certification in a trade does not pro-

vide evidence of current dangerousness.

[9] The remaining findings the Board deemed supportive

of a denial of parole all relate to the circumstances of Cooke’s

commitment offense. We need not decide whether these find-

ings are themselves supported by the record, however,

because they cannot, standing alone, constitute the requisite

evidence of current dangerousness. As the California Supreme

Court has held, the circumstances of a commitment offense

cannot constitute evidentiary support for the denial of parole

“unless the record also establishes that something in the pris-

oner’s pre- or post-incarceration history, or his or her current

demeanor and mental state, indicates that the implications

regarding the prisoner’s dangerousness that derive from his or

her commission of the commitment offense remain probative

to the statutory determination of a continuing threat to public

safety.” Lawrence, 190 P.3d at 555. Cooke had no pre-

incarceration history suggesting dangerousness; no history

during his time in prison that would support such a finding;

no testimony, report, or other evidence regarding a hostile

demeanor; and no indication of a disturbed mental state or a

mental state that would otherwise suggest current dangerous-

ness. Accordingly, assuming the validity of the Board’s find-

ings as to the circumstances of the commitment offense, there

is no other evidence that would, as required by Lawrence, rea-

sonably support the finding of “some evidence” of current

dangerousness.

[10] In sum, each of the Board’s findings (other than those

regarding the circumstances of the commitment offense)9

9

As we have explained, we need not and do not decide whether the

Board’s findings with regard to the circumstances of the commitment

8682 COOKE v. SOLIS

lacked any evidentiary basis. Nothing in the record supports

the state court’s finding that there was “some evidence” in

addition to the circumstances of the commitment offense to

support the Board’s denial of Petitioner’s parole. The Parole

Board’s findings were individually and in toto unreasonable

because they were without evidentiary support. When habeas

courts review the “some evidence” requirement in California

parole cases, both the subsidiary findings and the ultimate

finding of some evidence constitute factual findings. Here,

there was no evidence that reasonably supports either the nec-

essary subsidiary findings or the ultimate “some evidence”

finding. Accordingly, we hold that the state court decision

was “ ‘based on an unreasonable determination of the facts in

light of the evidence.’ ” Hayward, 603 F.3d at 563 (quoting

28 U.S.C. § 2254(d)(2)). Cooke is entitled to a writ of habeas

corpus.

IV.

[11] For the foregoing reasons, we reverse the district

court and remand with instructions to grant the writ.

REVERSED and REMANDED.

offense are supported by the record. We simply assume, for purposes of

this opinion, that they are.