Opposition Brief — Cate v. Pirtle

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QUESTION PRESENTED

Where California has created a liberty interest in parole that, after

two-plus decades of rehabilitation both prohibits parole denial solely on the

basis of the commitment offense or other aged and static factors, and unless

the parole applicant is presently dangerous as determined by application of

specific guiding criteria, may a federal court grant habeas relief under the

Due Process Clause of the United States Constitution where the California

Governor arbitrarily reversed a grant of parole by the parole board based

solely on a 1977 offense committed by a juvenile?

PARTIES TO THE PROCEEDING

The parties listed in the caption of the petition for a wnt of certiorari

and in the caption of this brief are parties in this action. Petitioners filed a

consolidated petition arising out of separate habeas corpus judgments in

the court below concerning the entitlement of five California prisoners to

parole dates. As to one of the five respondents, Ron Mosley, the judgment

has since been withdrawn, and he is no longer a party. Petitioner Matthew

Cate is the Secretary of the California Department of Corrections and

Rehabilitation (CDCR) and has constructive custody of Respondents John

Pirtle, Robert Johnson, and - since the week of February 21, 2011 -

Anthony Sneed, rather than the wardens who had custody during the

pendency of the underlying litigation. Respondent Slater is no longer in the

physical or constructive custody of the CDCR, but Secretary Cate is the state

official serving as a petitioner in this matter.

TOPICAL INDEX

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BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI........ 1

CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS

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THE NINTH CIRCUIT DECISION IN JOHNSON’S CASE

ACHIEVED THE OUTCOME DIRECTED BY THIS COURT'S

CLEARLY ESTABLISHED PRECEDENT AND DOES NOT

VIOLATE ANY PRINCIPLES OF FEDERALISM OR COMITY. ...... 8

A. California Law Gives Indeterminate Life Prisoners a

Liberty Interest in a Parole Date That Is Protected by

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B. This Court’s Cases Clearly Establish That Due Process

Requires “Some Evidence” to Support a Deprivation

ot a Liberty Interest. and Greenholtz Is Not to the

BT RARE CLLR ESSN orp RR UOT RAEN ern OPEN 10

C. The Ninth Circuit Afforded the State Court

Adjudications the Deference Required by 28 U.S.C. §

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IN THE

Supreme Court of the United States

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

CONSTITUTIONAL, STATUTORY,

AND REGULATORY PROVISIONS INVOLVED

Besides the federal statutory provision identified by Petitioners as

relevant, this case also implicates the federal constitutional and state

statutory and regulatory provisions identified below:

United States Constitution, Amendment XIV.

... [NJor shall any State deprive any person of life, liberty, or property

without due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

California Penal Code Section 3041 (a), (b)3.

(a) In the case of any inmate sentenced pursuant to any provision of law,

other than Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2,

the Board of Parole Hearings shall meet with each inmate during the third

year of incarceration for the purposes of reviewing the inmate’s file, making

recommendations, and documenting activities and conduct pertinent to

granting or withholding postconviction credit. One year prior to the

inmate's minimum eligible parole release date a panel of two or more

commissioners or deputy commissioners shall again meet with the inmate

and shall normally set a parole release date as provided in Section 3041.5.

... The release date shall be set in a manner that will provide uniform terms

for offenses of similar gravity and magnitude with respect to their threat to

the public, and that will comply with the sentencing rules that the Judicial

Council may issue and any sentencing information relevant to the setting of

3 Parts of this penal code section irrelevant to Johnson’s case have been

omitted.

parole release dates. The board shall establish criteria for the setting of

parole release dates and in doing so shall consider the number of victims of

the crime for which the inmate was sentenced and other factors in

mitigation or aggravation of the crime. ..

(b) The panel or the board, sitting en banc, shall set a release date unless it

determines that the gravity of the current convicted offense or offenses, or

the timing and gravity of current or past convicted offense or offenses, is

such that 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. After the effective date of this subdivision, any

decision of the parole panel finding an inmate suitable for parole shall

become final within 120 days of the date of the hearing ... unless the board

finds that the panel made an error of law, or that the panel's decision was

based on an error of fact, or that new information should be presented to

the board, any of which when corrected or considered by the board has a

substantial likelihood of resulting in a substantially different decision upon

a rehearing. ...

California Code of Regulations, Title 15, Sections 2280-90.

(See appendix to this opposition for these regulations.)

California Code of Regulations, Title 15, Sections 2400-11.

(See appendix to this opposition for these regulations.)

California Constitution, Article V, Section 8(b).

No decision of the parole authority of this State with respect to the

granting, denial, revocation, or suspension of parole of a person sentenced

to an indeterminate term upon conviction of murder shall become effective

for a period of 30 days, during which the Governor may review the decision

subject to procedures provided by statute. The Governor may only affirm,

modify, or reverse the decision of the parole authority on the basis of the

same factors which the parole authority is required to consider. The

Governor shall report to the Legislature each parole decision affirmed,

modified, or reversed, stating the pertinent facts and reasons for the action.

INTRODUCTORY STATEMENT

The court of appeals granted habeas corpus relief based on a

determination that the State courts unreasonably failed to remedy

Johnson's unconstitutional imprisonment in accordance with clearly

established federal law. The last reasoned state court decision concluded

that the circumstances of the commitment offense alone established that

Johnson “would represent an unreasonable threat to public safety if

released.” Petn. App. p. 94a4.

In order to understand the correctness of the decision below under

this Court’s own precedents, it is necessary to understand certain

fundamentals of California parole law. Under California law, when a

defendant is sentenced to an indeterminate term with a minimum parole

eligibility date (MEPD), a parole date “normally shall” be fixed one year

before the MEPD arrives, Cal. Pen. Code, § 3041 subds. (a) & (b), unless

“the prisoner will pose an unreasonable risk of danger to society if released

from prison.” Cal. Code Regs., tit. 15, § 2402, subd. (a); see also In re

Rosenkrantz, 29 Cal.4th 616, 653-54 (2002) (describing regulatory

scheme).

Under this statutory scheme, the setting of a parole date early in the

prisoner’s incarceration is the rule while deferral of a parole date is the

exception. See In re Lawrence, 44 Cal.4th 1181, 1211 (2008) (“[T}he

Board's authority to make an exception to the requirement of setting a

parole date ... should not operate so as to swallow the rule that parole is

4 Petn. App. refers to the appendix filed with the petition for writ of

certiorari. App. will refer to the appendix filed with this opposition to that

petition.

that they lack probative value on the question. In re Lawrence, 44 Cal.4th

at 1221. That is, the individualized consideration of an inmate's parole

suitability required by statute, Lawrence at 1222, must include the “passage

of time” and changes in the person’s conduct and attitude. /d. 1212-1213.

The parole decision for a prisoner convicted of murder is made by the

Board of Parole Hearings (Board) and the Governor? who must “apply

detailed standards when evaluating whether an individual inmate is

unsuitable for parole on public safety grounds.” See In re Dannenberg, 34

Cal.4th 1061, 1095, n.16 (2005); accord, Rosenkrantz, 29 Cal.qth at 677

(the parole decision must “reflect{ ] due consideration of the specified

factors as applied to the individual prisoner in accordance with applicable

legal standards”); see also Cal. Pen. Code §§ 3040-3042, 3046, 3049, 3052;

Cal. Code Regs., tit. 15, § 2402 (enumerating the detailed standards).

‘The Governor must apply the same factors and review the same

materials as the Board that made the parole decision being reviewed. See

In re Gray, 59 Cal.Rptr.3d 724, 735 (Cal. Crt. App. 2007) (Governor's

5 The agency was called the Board of Prison Terms until 2005, when the

name was changed to the Board of Parole Hearings. Cal. Pen. Code § 5075.

6 Respondent may collectively refer to the Board and Governor as the

“parole authority.” “The governing statutes provide that the Board is the

administrative agency within the executive branch that generally is

authorized to grant parole and fix releases ....” In re Rosenkrantz, 29 Cal.

4th 616, 653 (Cal. 2002). Article V, section 8 (b) of the California

Constitution, as already set forth, gives the Governor power

to review the Board’s decisions for convicted murderers; in doing so,

however, it “placed substantive limitations upon the Governor’s exercise of

that judgment and discretion” by requiring him to rely on the same facts

and factors that control the Board’s decision and subjecting him to the same

legal constraints imposed upon the Board. Id. at 663-64.

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review is "limited to the same considerations [and factors] that inform the

Board's decision" citing Rosenkrantz, 29 Cal.4th at 660-61), and id. at 739

740 (Governor in reviewing, parole grant can only consider evidence before

the Board that made the grant being reviewed).

California’s parole law thus gives life prisoners an “expectation of

parole” that is constitutionally protected. Dannenberg, 34 Cal.4th at 1094.

That expectation of parole includes the expectation that the prisoner will

not be denied parole based on the circumstances of the commitment

offense and other static factors from the distant past once he has

demonstrated consistent reform and rehabilitation as evidenced by good

behavior, academic and/or vocational accomplishments, therapies to

address offense dynamics and causes, psychological health as described by

psychological evaluations that are a required part of the parole authority's

process and must be considered by the decisionmaker, see In re Lawrence,

44 Cal.4th at 1213, and maintenance of a support network and realistic

parole plans outside the prison. See Lawrence, 44 Cal.4th at 1211-1212,

1221-1227; see also Cal. Code Regs., tit. 15 § 2402.

REASONS THE PETITION SHOULD BE DENIED

The petition should be denied because the state courts’ decisions

affirming the parole authority’s denial of parole have arbitrarily deprived

Johnson of his state-created, federally protected liberty interest in parole

under California’s parole law as explained by the California Supreme Court.

See Cal. Penal Code § 3041; In-re Lawrence, 44 Cal.qth at 1211-1212, 1227

(as detailed, ante, at pp. 3-6; see also Beal v. Mississippi, 312 U.S. 45, 50

(1945) (state courts are final arbiters of meaning of state laws).

Petitioners do not dispute that California parole law creates a liberty

interest in parole that is protected by the Due Process Clause. See Petition,

“Question Presented.” The statute establishing parole in California, Penal

Code § 3041, creates such a liberty interest under constitutional rules

clearly established by this Court. See, e.g., Wilkinson v. Austin, 545 U.S.

209 (2005); Sandin v. Conner, 515 U.S. 472 (1995); Bd. of Pardons v. Allen,

482 U.S. 369 (1987); Greenholtz v. Inmates of Neb. Penal and Corr.

Complex, 442 U.S. 1(1979). Such was recognized by the court below.

This Court's own precedents establishing Johnson's federal

constitutional right to be free of an arbitrary deprivation of parole include

Schware v. Board of Bar Examiners, 353 U.S. 232, 239 (1957),

Superintendent v. Hill, 472 U.S. 445 (1985), and Hicks v. Oklahoma, 447

U.S. 343, 346 (1980). Whether the court below specifically relied on those

precedents in granting habeas corpus or not, its ultimate decision granting

relief was correct. This Court can and should deny the petition for writ of

certiorari because the correctness of the decision below when supported on

any ground, even if not specifically relied upon by the court of appeals, can

and should be allowed to stand.

This Court's recent decision in Swarthout v. Cooke, 562 U.S. , 178

L.Ed.2d 732 (2011) does not control this case for a number of reasons.

Swarthout is a per curiam summary disposition made without benefit of

briefing and oral argument that need not be followed here, especially

because the core issue in this case is the State's arbitrary deprivation of a

federally protected liberty-interest in parole. This is not a case where

habeas corpus was granted because the federal court determined that the

state courts erred in applying, a state-law standard of evidentiary sufficiency

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only upon a showing of a specified substantive predicate. See Allen, 48:

U.S. at 378 n.10 (“shall/unless” language of Moniana parole statute

a liberty interest even under the “most restrictive interpretation:

Greenholtz). The Ninth Circuit, in its opinion below, followed this C

precedent by reference to Hayward v. Marshall, 603 F.3d 546 (9th (

2010) (en bance), which affirmed that California’s parole statute creat

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constitutionally protected iiberty interest in parole under Greenholt

Allen. Hayward, 603 F.3d at 561; see Petn. App. 92a-96a. This Court

Swarthout acknowledged as much. Swarthout, 178 L.Ed.2d 736. And

the State admits, “This Court in Greenholtz, 442 U.S. at 12, treated th

question [whether the State created a liberty interest in parole p1

due process] as one of a negative inference drawn trom state statutes

regulations where they compel a certain outcome based upon a certal

factual showing.” Petition at 25. As set forth above, Calitornia’s statu

and regulations “compel a certain outcome” — the setting of a pat

‘upon a certain factual showing” — that the prisoner ts not currently

dangerous pursuant to detailed criteria guiding that considerat

that his release would pose an unreasonable risk to public

Petitioners’ suggestion that Sandin v. Conner, 515 U.S. 4

applies in the context of California's parole scheme, and undercut

conclusion that California’s scheme creates a constitutionally protect

liberty interest in parole, need only be briefly acknowledged in order t

rejected. See Swarthout, 178 L.Ed.2d 736; see also INS v. St. Cy

289, 345-46 (2001) (Scalia, J., dissenting) (explaining, without

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228 (1976) (transfer of inmate to ditterent pmson does not infringe on a

liberty interest protected by due process)

[his Court's jurisprudence over the last century has established that,

at the very least, some evidence must support any action depriving an

individual of a substantial liberty interest protected by due process

In a variety of contexts, the Court has recognized that a

governmental decision resulting in the loss of an

important liberty interest violates due process if the

decision is not supported by any ~~ nee. See, e.g.,

Douglas v. Buder, 412 U.S. 430, 432 (1973) (per curiam)

(revocation of probation); Schware v. Board of Bar

Examiners, 353 U.S. 232, 239 (1957) (denial of t admission

‘

to bar); United States ex rel. Vajtauer v. Commissioner of

Immugration, 273 U.S. 103, 106 (1927) (dey yortation).

Hill, 472 U.S. at 455; see also Dickenson v. United States, 346 U.S. 389

(1953) (requiring some “basis in fact” as a matter of due process to support

Selective Service classifications); see generally Neuman, The Constitutiona!

Requirement of “Some Evidence,” 25 San Diego L. Rev. 631, 688 (1988)

(chronicling since 1912 “the Court's continuing perception of a need to

scrutinize decisions for ‘some evidence’ that supports them” when they

deprive an individual of a protected liberty interest)

Swarthout in a summary statement nonetheless indicates that a

prisoner such as Johnson denied parole under a state-law that creates a

federally protected due process liberty interest in parole, is entitled under

the United States Constitution to the process described in Greenholtz, 442

U.S. at 16, and nothing more. Swarthout, 178 L.Ed.2d at 736. As

atement of reasons for the parole denial. Jd. But Swarthout is only

QUESTION PRESENTED: Whether a federal court may

grant habeas corpus relief to a state prisoner based on its

view that the state court erred in applying the state-law

standard of evidentiary sufficiency governing state parole

decisions. (Emphasis added.)

Because that question did not put in issue the federal constitution’s

historical protection against deprivation of a protected liberty interest, the

Court without the benefit of briefing on the merits or argument, answered

that particular narrow question in the negative in its per curiam summary

disposition: “In granting habeas relief based on its conclusion that the state

courts had misapplied California's ‘some evidence’ rule, the Ninth Circuit

must have assumed either that federal habeas relief is available for an error

of state law, or that correct application of the State's “some evidence”

standard is required by the federal Due Process Clause. Neither

assumption is correct.” Swarthout, 178 L.Ed.2d at 736.

That disposition should not control here, for there are broader

constitutional issues at stake. This Court can uphold the decision of the

court of appeals granting habeas corpus even if that court relied upon a

different basis in doing so. See Leecan v. Lopes, 893 F.2d 1434, 1439 (2d

Cir. 1990) ("[W]e are free to affirm an appealed decision on any ground

which finds support in the record, regardless of the ground upon which the

trial court relied[,]" citing Helvering v. Gowran, 302 U.S. 238, 245 (1937))

(cert. denied, 496 U.S. 929 (1990). Even more so can it decline to gran

certiorari on that basis.

The question whether a right arises in California under the United

States Constitution to parole in the absence of some evidence of future

? See 2010 U.S. Briefs 333; 2010 US. S. Ct. Briefs LEXIS 2517, first page.

dangerousness has already been decided in the affirmative by this Court's

precedents. As set forth ante at 10-11, and further explained below, several

Supreme Court cases provide firmly established authority that the Due

Process Clause of the United States Constitution requires “some evidence”

to support the Governor's action depriving Johnson of his parole grant,

given the federally protected liberty interest in parole created by

California's statutory and regulatory parole scheme. Swarthout held only

that it was not the business of federal habeas courts to determine whether

errors of state law occurred. Its assertion in this regard that “[n]o opinion

of ours supports converting California's ‘some evidence’ rule into a

substantive federal requirement,” 178 L.Ed.2d at p. 737, does not detract

from Johnson's argument here that the Due Process Clause of the United

States Constitution itself requires that the decision depriving Johnson of his

parole grant be supported by “some evidence” that he remains an

unreasonable risk of danger to the public if released. In any event, the

precedential effect of the broad statements in Swarthout indicating the

rights under Greenholtz are all that need be afforded Johnson, see id. 178

L.Ed.2d at 736, and the Court’s failure to recognize that its own precedents

under the Due Process Clause require that “some evidence” support the

denial of parole to him, should have minimum precedential effect where the

case was decided in a per curiam summary disposition without briefing and

oral argument.

In Schware v. Board of Bar Examiners, 353 U.S. at 239, this Court

held that, under the due process clause of the United States Constitution,

“[e]ven in applying permissible [discretionary] standards, officers of a State

cannot exclude an applicant [for reinstatement to the bar to practice law]

14

when there is no basis for their finding that he fails to meet these standards

... 353 US. at 239. There is simply no basis on which this can be said for

applicants to become licensed attorneys, but not for applicants seeking

freedom from incarceration. Again, the very essence of due process is “the

protection of the individual against arbitrary action.” Ohio Bell Tel. Co. v.

P.U.C., 301 U.S. 292, 302 (1937). Freedom from custody or imprisonment

“has always been at the core of the liberty protected by the Due Process

Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S.

71, 80 (1992).

Schware was cited in Superintendent v. Hill, 472 U.S. at 453-55, a

prison good-time-credit case implicating liberty, as a basis for the decision

in Hill that application of the “some evidence” standard was indeed an

independent requirement imposed by the Due Process Clause. See id.

(“revocation of good time does not comport with the minimum

requirements of procedural due process unless the findings of the prison

disciplinary board are supported by some evidence in the record”) (citation

and internal quotation marks omitted). The majority in Hayward, upon

which the court of appeals relied in Johnson’s case to grant habeas corpus,

dedicated a great deal of dicta to distinguishing a parole grant from the

taking of good-time credits, primarily relying on the ground that the latter

does not involve predictive, discretionary decisionmaking. See 603 F.3d at

555-61. The distinctions discerned by the Hayward majority, however,

were entirely irrelevant to this Court’s rationale for viewing the some

evidence standard as mandated by the due process clause in the first place.

Simply put, that clause does not permit the arbitrary deprivation of a

protected liberty interest by a state. As Hill's citation of Schware makes

15

clear, that is every bit as much so when the standard is an elastic one that

requires the exercise of discretion and subjective analysis:

The requirements of due process are flexible and depend

on a balancing of the interests affected by the relevant

government action. Where a prisoner has a liberty interest

in good time credits, the loss of such credits threatens his

prospective freedom from confinement by extending the

length of imprisonment. Thus the inmate has a strong

interest in assuring that the loss of good time credits is

not imposed arbitrarily. Requiring a modicum of evidence

to support a decision to revoke good time credits will help

to prevent arbitrary deprivations without threatening

institutional interests or imposing undue administrative

burdens. In a variety of contexts, the Court has

recognized that a governmental decision resulting in the

loss of an important liberty interest violates due process if

the decision is not supported by any evidence. See, e.¢.,

Douglas v. Buder, 412 U.S. 430, 432 (1973) (per curiam

(revocation of probation); Schwere v. Board of Bar

Examiners, 353 U.S. 232, 239 (1957) (denial of admission

to bar); United States ex rel. Vajtauer v. Commissioner of

Immigration,273 U.S. 103, 106 (1927) (deportation).

Superintendent v. Hill, 472 U.S. at 454-55 (parallel citations omitted); see

also Swarthout, 178 L.Ed.2d at 738 (Ginsburg, J., concurring) (“to comply

with due process, revocation of a prisoner's good time credits must be

supported by "some evidence.” If California law entitled prisoners to parole

upon satisfaction of specified criteria, then Hill would be closely in point.

The Ninth Circuit, however, has determined that for California's parole

system, as for Nebraska's, Greenholtz v. Inmates of Neb. Penal and

Correctional Complex [citation] is the controlling precedent. [Citation.]

Given that determination, I agree that today's summary disposition is in

order.”) But as Johnson has explained, this Court need not grant certiorari

in Johnson’s case on the ground that the court below relied on Hayward

16

and its particular analytical structure, now discredited in Swarthout.

Where this Court’s own precedents provide for the same decision reached

by the court below, as here, it should deny certiorari.

As is apparent, Hill's rationale in no way was dependent on the notion

that good-time credits did not involve subjective, predictive

decisionmaking. It was, rather, the threat to an inmate's “prospective

freedom from confinement by extending the length of imprisonment” that

triggered the imposition of the some evidence standard to provide

protection against the state's arbitrary decisionmaking, precisely the same

threat that exists in parole cases. There is every bit as much predictive and

subjective discretion exercised by the New Mexico Bar Examiners in

deciding whether an applicant to the state bar is of sufficiently good moral

character, at issue in Schware and cited as a basis for the decision in Hill, as

is exercised by the California parole board in determining whether a

prisoner poses an unreasonable risk of danger to the public if released; that,

however, did not stop this Court from imposing the “some evidence”

standard in that case. See Schware, 353 U.S. at 248 (Frankfurter, J.,

concurring) (“No doubt satisfaction of the requirement of moral character

involves an exercise of delicate judgment on the part of those who reach a

conclusion, having heard and seen the applicant for admission, a judgment

of which it may be said ... that it expresses an intuition of experience which

outruns analysis and sums up many unnamed and tangled impressions,

impressions which may lie beneath consciousness without losing their

worth”) (citation and internal quotation marks omitted). There is,

therefore, no basis to distinguish the foregoing some-evidence/due-process

17

cases decided by this Court from Johnson’s case on the basis that there is

discretion inherent in parole decisionmaking that was not present in Hill.

Furthermore, in Board of Pardons v. Allen, 482 U.S. 369 (1987), this

Court did not consider Greenholtz v. Inmates of Nebraska Pen. & Corr.

Complex, 442 U.S. 1, to limit rights in the parole context like Johnson’s to

notice, an opportunity to be heard, and a statement of reasons for a denial.

In Allen, the Court determined that a liberty interest in parole was created

by the Montana statute just as in Greenholtz. Allen, 482 U.S. at 381. In

affirming the lower court’s decision to remand the case to the district court

for consideration of “the nature of the process which is due [the parole

applicants}” and “whether Montana's present procedures accord that due

process,” see Allen, 482 U.S. at 372, the Court demonstrated that

Greenholtz did not create a “one size fits all” analysis of due process for

parole determinations. Otherwise, it would have ordered that, on remand,

the district court need determine only that the Montana prisoners were

afforded the three due process rights listed in Greenholtz for compliance

with federal due process.

All of these cases, i.e., Schware, Hill and Allen, provide established

Supreme Court precedent that “some evidence” is required to support

Johnson’s denial of parole. This Court has stated in Williams v. Taylor,

529 U.S. 362, 407 (2000) that relevant precedents include not only bright-

line rules but also the legal principles and standards flowing from

precedent. Moreover, here there is an additional basis, based on this

Court's precedents, to deny the petition for writ of certiorari. In Hicks v.

Oklahoma, 447 U.S. at 346, this Court held, in response to the State’s

18

argument that “all that is involved in this case is the denial of a procedural

right of exclusively state concern”:

Where ... a State has provided for the imposition of

criminal punishment in the discretion of the trial jury, it is

not correct to say that the defendant's interest in the

exercise of that discretion is merely a matter of state

procedural law. The defendant in such a case has a

substantial and legitimate expectation that he will be

deprived of his liberty only to the extent determined by

the jury in the exercise of its statutory discretion, cf.

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99

S.Ct. 2100, 60 L.Ed.2d 668 (1979), and that liberty

interest is one that the Fourteenth Amendment preserves

against arbitrary deprivation by the State. See Vitek v.

Jones, 445 U.S. 480, 488-489, 100 S.Ct. 1254, 1261, 63

L.Ed.2d 552, citing Wolff v. McDonnell, 418 U.S. 539, 94

S.Ct. 2963, 41 L.Ed.2d 935; Greenholtz v. Nebraska Penal

Inmates, supra; Morrissey v. Brewer, 408 U.S. 471, 92

S.Ct. 2593, 33 L.Ed.2d 484. In this case Oklahoma denied

the petitioner the jury sentence to which he was entitled

under state law, simply on the frail conjecture that a jury

might have imposed a sentence equally as harsh as that

mandated by the invalid habitual offender provision. Such

an arbitrary disregard of the petitioner's right to liberty is

a denial of due process of law.

Here, the State of California has provided for the denial of parole only

when the parole applicant remains currently dangerous, and that finding is

supported by “some evidence.” Like Hicks, Johnson has a substantial and

legitimate expectation that he will be deprived of his liberty only to the

extent a denial of parole is supported by some evidence that he is currently

dangerous, and that liberty interest “is one that the Fourteenth Amendment

preserves against arbitrary deprivation by the State.” See Hicks, 447 U.S. at

346. In this case, the state court decisions denied relief solely on the basis

that Johnson’s commitment offense was egregious. The California “some

19

evidence” standard precludes a finding of current dangerousness based on

an ancient commitment offense alone when the parole applicant has

demonstrated rehabilitation over many, many years. See In re Lawrence,

44 Cal.qth at 1211-1212, 1227. California has therefore arbitrarily and

unreasonably deprived Johnson of a decision denying parole based not

solely on the facts of the commitment offense, but rather based on some

evidence of current dangerousness. Like Hicks, Johnson's right to parole

and liberty were arbitrarily disregarded by California, denying him due

process of law under the United States Constitution.

For all of the foregoing reasons, the decision of the Ninth Circuit in

Johnson’s case is correct under this Court’s precedents. The petition for

writ of certiorari should therefore be denied.

C. The Ninth Circuit Afforded the State Court Adjudications

the Deference Required by 28 U.S.C. § 2254.

Petitioner assumes arguendo “that the state court decisions ... were

‘incorrect’ or ‘unreasonable’ in finding ‘some evidence’ to support the denial

of parole.” Petition at 29-30.8 Petitioner nevertheless asserts that the Ninth

Circuit decisions “erred under § 2254 in granting relicf” because Jolinson’s

constitutional claim that such a substantively arbitrary deprivation of his

liberty interest in parole violated due process “was a novel one of a type

never before endorsed by this Court as applicable to the question of parole

suitability.” Petition at 30. That assertion fails.

* Thus, the State’s claim that the habeas relief granted by the Ninth Circuit

was “based on its own view of a state prisoner's suitability for parole,”

Petition at 31, is irrelevant. It also has no support in the record.

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As noted above in part B, ante, the jurisprudence of this Court has

clearly established that due process requires, at a minimum, some evidence

to support deprivation of an inmate’s protected liberty interest. That these

cases arise in contexts other than parole is irrelevant. The “important

liberty interest in Hill” concerned the shortened prison sentence achieved

by good time, .e., “[the inmate’s] prospective freedom from confinement.”

Hill, 472 U.S. at 454. It breaks no new ground to apply the due process

requirement of some evidence to a California life prisoner's more

dramatically shortened sentence and prospective freedom from

confinement represented by a grant of a parole date. In Hill, Massachusetts

law provided that the State could deprive the prisoner of his liberty interest

in his prospective freedom only if there was some evidence of his

misconduct. Here, California law provides that the State may deprive the

prisoner of his liberty interest in his prospective freedom only if he is

currently dangerous.

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