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Ninth Circuit: California Lifers Have No Inherent U.S. Constitutional Right to Parole
by John E. Dannenberg
In a major loss for California lifers, the Ninth Circuit U.S. Court of Appeals, in an en banc ruling, held that a second-degree murderer who had served 27 years on a 15-life sentence did not have a right to parole that devolved from either federal law or the U.S. Constitution. Affirming the U.S. District Court’s ruling, and vacating the intervening reversal of that ruling by a panel of the Ninth Circuit in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), the en banc Court of Appeals held that petitioner Ronald Hayward was at most entitled to the rights provided by state law.
The appellate court further held that federal habeas corpus challenges to the denial of parole by California lifers did not fall into the administrative exception that excused the need for a Certificate of Appealability (COA), expressly overrul-ing White v. Lambert, 370 F.3d 1002 (9th Cir. 2004) [PLN, March 2005, p.24] and Rosas v. Nielson, 428 F.3d 1229 (9th Cir. 2005). A COA in such cases may now be obtained only upon an affirmative showing that reasonable minds could differ on the issues adjudicated by the district court.
Lifer parole litigation is rife in California, with over 10,000 parole-eligible prisoners looking to the courts to battle the state’s crushing, politically-orchestrated no-parole-for-lifers policy. [See, e.g., PLN, March 2009, p.44].
California’s Supreme Court recently held in In re Lawrence, 44 Cal. 4th 1181, 190 P.3d 535 (Cal. 2008) [PLN, April 2009, p.30], that the controlling parole statute, California Penal Code § 3041, permits a reviewing court to uphold the de-nial of parole by the Board of Parole Hearings (Board), or to uphold the reversal of the Board’s grant of parole by the Governor, so long as “some evidence” supports the underlying decision. However, that evidence must demonstrate a “ra-tional nexus” between the lifer’s current behavior and his behavior related to the commitment offense.
But when the state courts deny relief to an aggrieved life prisoner, the en banc Ninth Circuit has now held that Califor-nia lifers may not bring a 42 U.S.C. § 2254 federal habeas corpus petition asserting either that federal law or the U.S. Constitution creates a separate, inherent right to parole. The only federal habeas relief now available for California lifers is a claim for denial of due process, predicated upon an assertion that there is no evidence supporting the Board’s or Gov-ernor’s decision to deny parole.
In a tersely-worded conservative opinion uncharacteristic of the Ninth Circuit, the en banc court declined to apply the U.S. Supreme Court’s “some evidence” precedent in Superintendent v. Hill, 472 U.S. 445 (1985), often argued as suppor-tive of parolee due process rights, on the grounds that – upon closer analysis – it was limited solely to consideration of prisoner good conduct credits. Whereas good conduct credits create a liberty interest (i.e., a right) because they are statu-torily guaranteed, parole in California is discretionary and therefore does not enjoy the same liberty interest protection un-der the U.S. Constitution.
Or, as the Court of Appeals sardonically put it, “The prisoner’s interest in parole ripens into an entitlement only after the parole board has made the findings that under the statute entitle him to it, which is to say, perhaps tautologically, that a prisoner is entitled to parole only if the parole authority has made the discretionary decision that under the state stan-dard he is entitled to parole.”
In so ruling, the en banc Ninth Circuit overruled its precedent in Irons v. Carey, 505 F.3d 846 (9th Cir. 2007); Sass v. Board of Prison Terms, 461 F.3d 1123, 1129 (9th Cir. 2006) [PLN, March 2007, p.23]; and Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003) [PLN, June 2004, p.32], to the extent they had inferred a U.S. Constitutionally-created liberty interest in California lifers’ parole based on a “some evidence” analysis.
The en banc court’s denial of relief under the U.S. Constitution left Hayward with only his due process claim, predi-cated upon the absence of any evidence to support then-Governor Gray Davis’ 2003 reversal of Hayward’s grant of parole by the Board. The Ninth Circuit reviewed the record and held there was in fact “some evidence” for the governor’s rever-sal. Accordingly, the district court’s decision to deny Hayward relief was affirmed.
Sadly, Hayward, who had been conditionally released pending the state’s appeal under Fed.R.App.P. 23, must return to the California prison he left two years ago to once again commence the tortuous path to obtaining parole. See: Hay-ward v. Marshall, ___ F.3d ___ (9th Cir. 2010) (en banc); 2010 WL 1664977.
In a major loss for California lifers, the Ninth Circuit U.S. Court of Appeals, in an en banc ruling, held that a second-degree murderer who had served 27 years on a 15-life sentence did not have a right to parole that devolved from either federal law or the U.S. Constitution. Affirming the U.S. District Court’s ruling, and vacating the intervening reversal of that ruling by a panel of the Ninth Circuit in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), the en banc Court of Appeals held that petitioner Ronald Hayward was at most entitled to the rights provided by state law.
The appellate court further held that federal habeas corpus challenges to the denial of parole by California lifers did not fall into the administrative exception that excused the need for a Certificate of Appealability (COA), expressly overrul-ing White v. Lambert, 370 F.3d 1002 (9th Cir. 2004) [PLN, March 2005, p.24] and Rosas v. Nielson, 428 F.3d 1229 (9th Cir. 2005). A COA in such cases may now be obtained only upon an affirmative showing that reasonable minds could differ on the issues adjudicated by the district court.
Lifer parole litigation is rife in California, with over 10,000 parole-eligible prisoners looking to the courts to battle the state’s crushing, politically-orchestrated no-parole-for-lifers policy. [See, e.g., PLN, March 2009, p.44].
California’s Supreme Court recently held in In re Lawrence, 44 Cal. 4th 1181, 190 P.3d 535 (Cal. 2008) [PLN, April 2009, p.30], that the controlling parole statute, California Penal Code § 3041, permits a reviewing court to uphold the de-nial of parole by the Board of Parole Hearings (Board), or to uphold the reversal of the Board’s grant of parole by the Governor, so long as “some evidence” supports the underlying decision. However, that evidence must demonstrate a “ra-tional nexus” between the lifer’s current behavior and his behavior related to the commitment offense.
But when the state courts deny relief to an aggrieved life prisoner, the en banc Ninth Circuit has now held that Califor-nia lifers may not bring a 42 U.S.C. § 2254 federal habeas corpus petition asserting either that federal law or the U.S. Constitution creates a separate, inherent right to parole. The only federal habeas relief now available for California lifers is a claim for denial of due process, predicated upon an assertion that there is no evidence supporting the Board’s or Gov-ernor’s decision to deny parole.
In a tersely-worded conservative opinion uncharacteristic of the Ninth Circuit, the en banc court declined to apply the U.S. Supreme Court’s “some evidence” precedent in Superintendent v. Hill, 472 U.S. 445 (1985), often argued as suppor-tive of parolee due process rights, on the grounds that – upon closer analysis – it was limited solely to consideration of prisoner good conduct credits. Whereas good conduct credits create a liberty interest (i.e., a right) because they are statu-torily guaranteed, parole in California is discretionary and therefore does not enjoy the same liberty interest protection un-der the U.S. Constitution.
Or, as the Court of Appeals sardonically put it, “The prisoner’s interest in parole ripens into an entitlement only after the parole board has made the findings that under the statute entitle him to it, which is to say, perhaps tautologically, that a prisoner is entitled to parole only if the parole authority has made the discretionary decision that under the state stan-dard he is entitled to parole.”
In so ruling, the en banc Ninth Circuit overruled its precedent in Irons v. Carey, 505 F.3d 846 (9th Cir. 2007); Sass v. Board of Prison Terms, 461 F.3d 1123, 1129 (9th Cir. 2006) [PLN, March 2007, p.23]; and Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003) [PLN, June 2004, p.32], to the extent they had inferred a U.S. Constitutionally-created liberty interest in California lifers’ parole based on a “some evidence” analysis.
The en banc court’s denial of relief under the U.S. Constitution left Hayward with only his due process claim, predi-cated upon the absence of any evidence to support then-Governor Gray Davis’ 2003 reversal of Hayward’s grant of parole by the Board. The Ninth Circuit reviewed the record and held there was in fact “some evidence” for the governor’s rever-sal. Accordingly, the district court’s decision to deny Hayward relief was affirmed.
Sadly, Hayward, who had been conditionally released pending the state’s appeal under Fed.R.App.P. 23, must return to the California prison he left two years ago to once again commence the tortuous path to obtaining parole. See: Hay-ward v. Marshall, ___ F.3d ___ (9th Cir. 2010) (en banc); 2010 WL 1664977.
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Related legal case
Hayward v. Marshall
| Year | 2010 |
|---|---|
| Cite | 603 F.3d 546, 2010 WL 1664977 (C.A.9 (Cal.)) |
| Level | Court of Appeals |
| Injunction Status | N/A |