Hayward v. Marshall

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD HAYWARD,  No. 06-55392
Petitioner-Appellant,
D.C. No.
v.
 CV-05-07239-
JOHN MARSHALL, Warden, GAF(CT)
California Men’s Colony East,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted
June 8, 2007—Pasadena, California
Filed January 3, 2008
Before: Alex Kozinski, Chief Judge, Daniel M. Friedman,*
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
*The Honorable Daniel M. Friedman, Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
35
HAYWARD v. MARSHALL 39
COUNSEL
Joseph V. Camarata, Vallejo, California, for petitioner-
appellant Ronald Hayward.
Bill Lockyer, Attorney General of the State of California,
Mary Jo Graves, Chief Assistant Attorney General, Julie L.
Garland, Senior Assistant Attorney General, Jennifer A. Neill,
Supervising Deputy Attorney General, Jane Catherine Malich,
Deputy Attorney General, Los Angeles, California, for
respondent-appellee John Marshall.
OPINION
GOULD, Circuit Judge:
California state prisoner Ronald Hayward has twice been
granted a parole date by the California Board of Prison Terms
40 HAYWARD v. MARSHALL
(“Board”).1 California’s Governor has twice reversed the
Board’s determination that Hayward was suitable for parole.
Hayward appeals the district court’s denial of his petition for
a writ of habeas corpus.
I
On December 15, 1978, Hayward, with other members of
the Vagos motorcycle gang, traveled to the Buccaneer Bar in
Sierra Madre, California. There, he confronted a man who,
according to conflicting accounts, had either slapped or bat-
tered and attempted to rape Hayward’s girlfriend (who would
later become Hayward’s wife). The confrontation turned
physical and ended after Hayward stabbed the man twelve
times, killing him. In 1980, a California jury convicted Hay-
ward of second degree murder, and the court sentenced Hay-
ward to state prison for a term of fifteen years to life.
Hayward has spent the last twenty-seven years in prison.
He is now sixty-four years old. He retired from the Vagos
motorcycle gang in 1981. In the twenty-seven years Hayward
has spent in prison, he has completed substantial vocational
training in the fields of plumbing, mechanics, welding, meat
cutting, and shoe repair. Hayward obtained a GED in 1981
and has developed typing and computer skills through job
assignments in prison. For the last twenty years, Hayward has
led prison tours for university students studying criminal jus-
tice. He has not had a major disciplinary violation in prison
since 1989, and his last minor disciplinary infraction was in
1997.
Hayward initially denied responsibility for the murder that
led to his imprisonment, claiming that he was at the scene, but
that two of his friends had stabbed and killed the victim.
However, during a parole hearing in 1993, Hayward admitted
1
On July 1, 2005, California created the Board of Parole Hearings to
replace the Board of Prison Terms. Cal. Penal Code § 5075(a).
HAYWARD v. MARSHALL 41
that he was responsible for the murder and has accepted
responsibility for the crime ever since.2
Before Hayward was sent to prison, he had a history of sub-
stance abuse. In a prison psychological evaluation, he stated
the drugs he preferred to use were marijuana and cocaine, but
that he no longer uses drugs. He stated that he stopped smok-
ing marijuana in 1985, that he never purchased drugs himself,
and that he only used drugs when they were available because
someone else had them. He also reported that he used heroin
in prison “a few times” but that “it scared [him] and [he]
didn’t like it.” Hayward stated that he had not had a drink of
alcohol since a 1974 conviction for driving under the influ-
ence.
Hayward has managed to stay free of drug use by taking
advantage of therapy opportunities available to him in prison.
Since 1997, Hayward has participated in Yoke Fellows
groups. These groups follow a “spiritual twelve step”
approach to help members overcome substance abuse prob-
lems. Hayward attends two Yoke Fellows group meetings per
week. Hayward has also participated in the Project Change
substance abuse program, has been a volunteer in the prison’s
Protestant chapel, and has completed a program entitled
Alternatives to Violence.
In a 2002 psychological evaluation and at his 2003 parole
suitability hearing, Hayward discussed what he would do if
granted parole: He planned to move to Monrovia, California,
where he would live with a friend, Robert Sharp. In Monro-
via, Hayward had two job offers, one with a firm that builds
golf carts and another to work as a laborer through the Team-
2
At his most recent parole hearing, Hayward explained his remorse for
the crime: “I feel horrible. . . . I took somebody’s life . . . . How do you
ever adjust to that?” When asked if the victim deserved what he got
because he allegedly attempted to rape Hayward’s wife, Hayward
responded: “No, Ma’am. No, he didn’t. No one deserves that.”
42 HAYWARD v. MARSHALL
sters Union. Hayward also said that his preferred option
would be to obtain a transfer of his probation to Idaho, where
he could be with his ailing parents, two of his daughters, and
six of his grandchildren. Hayward believed that the family
support he could obtain in Idaho would enable him to find
employment. Hayward also noted that he has a carpenters’
pension coming to him and that he should qualify for some
social security benefits resulting from the death of his wife.
Dr. Erich Rueschenberg, who prepared the 2002 psycho-
logical evaluation of Hayward, concluded that “Mr. Hay-
ward’s prognosis for community living seems to be
favorable,” that “he appears to have a viable parole plan,” and
that he “appears to be a strong candidate for a favorable read-
justment in the community.”
On June 27, 2002, after Hayward’s tenth parole consider-
ation hearing, a two-member panel of the Board reached a
split decision regarding Hayward’s suitability for parole. The
panel referred the decision to the en banc Board which found
Hayward suitable for parole by a majority vote.
Then-Governor Gray Davis reviewed the Board’s decision
as article 5, section 8(b) of the California Constitution entitles
him to do.3 On January 10, 2003, the Governor reversed the
parole grant, giving the following reasons for denying Hay-
ward parole: (1) Hayward’s crime was “particularly grave,”
premeditated, and perpetrated against an outnumbered,
3
Article 5, section 8(b) of the California Constitution provides, in rele-
vant part:
No decision of the parole authority of this state with respect to
the granting, denial, revocation, or suspension of parole of a per-
son sentenced to an indeterminate term upon conviction of mur-
der shall become effective for a period of 30 days, during which
the Governor may review the decision subject to procedures pro-
vided 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.
HAYWARD v. MARSHALL 43
unarmed, and inebriated victim; (2) Hayward had refused to
assume adequate responsibility for the victim’s death; (3)
Hayward had a “lifetime of escalating criminality and vio-
lence”; (4) Hayward had an unstable social history, including
an extensive history of alcohol and substance abuse; (5) Hay-
ward had been extensively involved in gangs, both inside and
outside of prison; and (6) Hayward’s psychological evaluators
“remain[ed] convinced that he poses a danger to society.”
A panel of the Board held Hayward’s eleventh parole con-
sideration hearing on June 19, 2003. In addition to reconsider-
ing the evidence with which it had been previously presented,
several letters were submitted to and reviewed by the Board
at that hearing. Randy Cammack, the secretary/treasurer of
Teamsters Local 63 wrote to indicate that he would support
Hayward’s efforts to find work if Hayward was granted
parole. Robert Sharp, Hayward’s best friend for forty-five
years, wrote to say that, if released, Hayward could live with
him and borrow his truck to get to work and for any other
transportation needs Hayward might have. Clifford Rees, the
president and owner of a company called California Golf
Cars, wrote to offer Hayward an entry-level position with his
company. Ralph Steelhead, who was a teacher and coach of
Hayward’s when Hayward was in junior high school (and is
now a chaplain’s assistant at the facility in which Hayward is
imprisoned) wrote to offer his support. Pastor Warren Nielsen
stated his belief that Hayward was ready for parole. Many
other family members and acquaintances wrote to emphasize
that they would be willing to offer emotional and financial
support to Hayward as he readjusts to freedom.
Against the background of this redeeming presentation, the
panel granted Hayward parole, concluding that Hayward
would not pose an unreasonable risk of danger to society if
released from prison. In its decision, the panel noted that Hay-
ward had a stable social history, as evidenced by his stable
relationships with his family, friends, and supporters. The
panel found that, while in prison, Hayward had enhanced his
44 HAYWARD v. MARSHALL
ability to function within the law upon release by educating
himself, receiving vocational training, and participating in
therapy like the Yoke Fellows. The panel found that Hayward
committed the 1980 murder as a result of significant stress in
his life caused by the victim’s attempted rape and violent
beating of Hayward’s future wife. The panel also found that
the victim provoked Hayward by throwing a bottle at him on
the night of the murder. The panel found that Hayward’s
parole plans were realistic and that he now understood the
magnitude of and accepted responsibility for the murder he
committed.
On November 10, 2003, the Governor again reversed the
parole grant. Governor Davis cited the same factors as he had
cited in his reversal of the Board’s previous parole grant. In
addition, the Governor cited the Los Angeles County District
Attorney’s opposition to Hayward’s release from prison as
further justification for his reversal of the Board’s parole grant.4
After the Governor’s second reversal of parole, Hayward
filed a petition for a writ of habeas corpus in the Los Angeles
County Superior Court. On June 30, 2004, the court denied
the petition in a minute order. The court rejected many of the
Governor’s findings, particularly those regarding Hayward’s
failure to accept responsibility, his criminal history, and his
unstable social history. Nonetheless, the court found that the
Governor’s decision to deny parole was supported by “some
evidence.” Hayward then filed a petition for a writ of habeas
corpus with the California Supreme Court. That court denied
the petition without comment on July 27, 2005.
Hayward filed a petition for a writ of habeas corpus in dis-
trict court on October 5, 2005. Hayward contended that Gov-
ernor Davis’s reversal of the Board’s parole grant violated his
4
The district attorney had not previously opposed parole for Hayward,
and the record does not explain why the district attorney chose Hayward’s
eleventh parole suitability hearing to intervene.
HAYWARD v. MARSHALL 45
right to due process of law. In her report and recommenda-
tion, the magistrate judge concluded that, under the United
States Supreme Court’s decision in Greenholtz v. Inmates of
the Nebraska Penal and Correctional Complex, 442 U.S. 1(1979), and the California Supreme Court’s decision in In re
Dannenberg, 104 P.3d 783 (Cal. 2005), Hayward had no
constitutionally-protected liberty interest in parole. The mag-
istrate judge also explained that, even if Hayward had a lib-
erty interest in parole, the Governor’s reversal of the Board’s
parole grant was consistent with due process of law because
“some evidence” supported the Governor’s conclusion that
Hayward posed an unreasonable risk to public safety if
released. See Superintendent v. Hill, 472 U.S. 445 (1985).
Finally, the magistrate judge rejected Hayward’s contention
that the Governor had a “no-parole-for-murderers” policy and
that such a policy violated Hayward’s due process rights.
The district court then accepted the magistrate judge’s rec-
ommendation that it deny Hayward’s habeas petition with
prejudice, and entered judgment on February 16, 2006.5
II
[1] We review de novo the district court’s denial of a
habeas petition. Lambert v. Blodgett, 393 F.3d 943, 964 (9th
Cir. 2004). Because Hayward is in custody pursuant to a state
court adjudication and because Hayward filed his habeas peti-
tion after the effective date of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), we cannot grant a writ of
habeas corpus unless the state court’s adjudication of Hay-
ward’s due process claim resulted in a decision that (a) was
contrary to, or involved an unreasonable application of,
5
Hayward has requested that we take judicial notice of two recent Cali-
fornia Court of Appeal opinions. We construe the request for judicial
notice as a citation of supplemental authorities pursuant to Federal Rule
of Appellate Procedure 28(j), and the opinions shall be considered by us.
We thus deny the request for judicial notice as moot.
46 HAYWARD v. MARSHALL
clearly established federal law as determined by the United
States Supreme Court or (b) was based on an unreasonable
determination of the facts in light of the evidence presented.
28 U.S.C. § 2254(d). Because there was a reasoned state-court
judgment rejecting Hayward’s federal claims—the Superior
Court judgment—we look through the later unexplained order
of the California Supreme Court and analyze whether the rea-
soned state judgment was erroneous under the standard of
§ 2254(d). See Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).6
III
[2] The Supreme Court has instructed us to analyze a pris-
oner’s due process claim in two steps. We first ask whether
the prisoner had a liberty or property interest with which the
State has interfered. And if so, we then ask whether the proce-
dures accompanying that interference were constitutionally
sufficient. Ky. Dep’t of Corrections v. Thompson, 490 U.S.
454, 460 (1989); Sass v. Cal. Bd. of Prison Terms, 461 F.3d
1123, 1127 (9th Cir. 2006). If we determine that the State has
violated the prisoner’s due process rights, we may only grant
habeas relief if the state court’s incorrect decision was con-
trary to or an unreasonable application of the Supreme
Court’s holdings. Carey v. Musladin, 127 S. Ct. 649, 653
(2006); Williams v. Taylor, 529 U.S. 362, 410-12 (2000).
[3] As to the first question, in Sass, 461 F.3d at 1127-28,
we held that California prisoners have a liberty interest in
parole. This interest arises as a result of California Penal Code
section 3041(b), which provides that, at a parole consideration
6
The government argues that we lack jurisdiction because Hayward did
not obtain a certificate of appealability. However, in Rosas v. Nielsen, 428
F.3d 1229, 1232 (9th Cir. 2005), we explicitly held that AEDPA does not
require a petitioner to obtain a certificate of appealability when the federal
claim underlying the petition is that the petitioner was unconstitutionally
denied parole. Because Hayward’s petition challenges the Governor’s
decision that denied him parole, Hayward did not need to obtain a certifi-
cate of appealability to present his claim to us.
HAYWARD v. MARSHALL 47
hearing, the Board “shall set a release date unless it deter-
mines that the gravity of the current convicted offense or
offenses, or the timing and gravity of current or past con-
victed offense or offenses, is such that consideration of the
public safety requires a more lengthy period of incarceration.”
Cal. Penal Code § 3041(b) (emphasis added). Thus, by revers-
ing Hayward’s parole grant, the Governor deprived him of a
constitutionally-protected liberty interest. The primary ques-
tions for us, then, are (1) whether California provided the
constitutionally-required procedural safeguards when depriv-
ing Hayward of his liberty interest, and, if not, (2) whether the
Los Angeles County Superior Court’s conclusion that it did
was contrary to or an unreasonable application of clearly
established federal law as determined by the Supreme Court.
[4] Under California law, the Governor, in considering
whether to reverse a grant of parole by the Board, must con-
sider the same factors the Board is required to consider. See
Cal. Const. art. 5, § 8(b); In re Rosenkrantz, 59 P.3d 174, 210
(Cal. 2002). Accordingly, we review the Governor’s decision
to reverse a parole grant under the same procedural due pro-
cess principles we use to review challenges to the Board’s
denial of parole.
[5] We have held that “the Supreme Court ha[s] clearly
established that a parole board’s decision deprives a prisoner
of due process with respect to this interest if the board’s deci-
sion is not supported by ‘some evidence in the record,’ or is
‘otherwise arbitrary.’ ” Irons v. Carey, No. 05-15275, 2007
WL 2027359, at *3 (9th Cir. July 13, 2007) (quoting Hill, 472
U.S. at 457; Sass, 461 F.3d at 1128-29)). “When we assess
whether a state parole board’s suitability determination was
supported by ‘some evidence’ in a habeas case, our analysis
is framed by the statutes and regulations governing parole
suitability determinations in the relevant state.” Id. Accord-
ingly, we first “look to California law to determine the find-
ings that are necessary to deem a prisoner unsuitable for
parole.” Id. Then, we “must review the record in order to
48 HAYWARD v. MARSHALL
determine whether the state court decision holding that these
findings were supported by ‘some evidence’ . . . constituted
an unreasonable application of the ‘some evidence’ principle
articulated in Hill.” Id.Under California law, prisoners serving an indeterminate
life sentence, like Hayward, become eligible for a parole date
after serving minimum terms of confinement required by stat-
ute. See Dannenberg, 104 P.3d at 785; see also Cal. Penal
Code § 3041(a). California law provides that, at that point, the
Board “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” the pris-
oner. Cal. Penal Code § 3041(b).
Accordingly, regulations promulgated by the Board pursu-
ant to California Penal Code section 3041(a)7 provide that “a
life prisoner shall be found unsuitable for and denied parole
if in the judgment of the panel the prisoner will pose an unrea-
sonable risk of danger to society if released from prison.” Cal.
Code Regs. tit. 15, § 2402(a). The Board decides whether a
prisoner is too dangerous to be suitable for parole by applying
factors it has set forth in the California Code of Regulations.8
7
California Penal Code section 3041(a) instructs the Board to “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.”
8
The following factors tend to show unsuitability for parole: (1) the
prisoner committed the offense in an especially heinous, atrocious, or
cruel manner; (2) the prisoner has a previous record of violence; (3) the
prisoner has an unstable social history; (4) the prisoner has committed
sadistic sex offenses; (5) the prisoner has a history of mental or psycholog-
ical problems; and (6) the prisoner has engaged in serious misconduct
while in prison. Cal. Code Regs. tit. 15, § 2402(c). Factors tending to
show suitability for parole include: (1) the prisoner has no juvenile record;
(2) the prisoner has a stable social history; (3) the prisoner has shown
HAYWARD v. MARSHALL 49
When the Governor reviews a decision of the Board, he must
apply these same criteria.
[6] Even though these suitability and unsuitability factors
are helpful in analyzing whether a prisoner should be granted
parole, California courts have made clear that the “findings
that are necessary to deem a prisoner unsuitable for parole,”
Irons, 2007 WL 2927359, at *3, are not that a particular factor
or factors indicating unsuitability exist, but that a prisoner’s
release will unreasonably endanger public safety. In re Dan-
nenberg, No. H030031, 2007 WL 3408290, at *9 (Cal. Ct.
App. Nov. 16, 2007), modified, 2007 WL 4227229 (Cal. Ct.
App. Dec. 3, 2007); In re Lee, 143 Cal. App. 4th 1400, 1408
(Cal. Ct. App. 2006); In re Scott, 133 Cal. App. 4th 573, 595
(Cal. Ct. App. 2005); see Cal. Penal Code § 3041(b) (provid-
ing that the Board “shall set a release date unless . . . consider-
ation of the public safety requires a more lengthy period of
incarceration for this individual”). For our purposes, then,
“[t]he test is not whether some evidence supports the reasons
the Governor cites for denying parole, but whether some evi-
dence indicates a parolee’s release unreasonably endangers
public safety. Some evidence of the existence of a particular
factor does not necessarily equate to some evidence the paro-
lee’s release unreasonably endangers public safety.” Lee, 143
Cal. App. 4th at 1408 (citations and footnote omitted); see
also In re Elkins, 144 Cal. App. 4th 475, 499 (Cal. Ct. App.
2006) (holding that the “governor, in reviewing a suitability
determination, must remain focused . . . on facts indicating
that release currently poses ‘an unreasonable risk of danger to
society’ ” (citing Cal. Code Regs. tit. 15, § 2402(a))); Scott,
133 Cal. App. 4th at 591 (“The factor statutorily required to
signs of remorse; (4) the prisoner was motivated to commit the crime out
of stress; (5) the prisoner suffered from Battered Woman Syndrome; (6)
the prisoner lacks a significant criminal history; (7) the prisoner’s age
reduces the probability of recidivism; (8) the prisoner has realistic plans
for release; and (9) the prisoner’s behavior in prison indicates an ability
to function within the law upon release. Id. § 2402(d).
50 HAYWARD v. MARSHALL
be considered, and the overarching consideration, is ‘public
safety.’ ” (citing Cal. Penal Code § 3041(b))).
[7] After carefully reviewing the record, we conclude that
the Los Angeles County Superior Court unreasonably applied
the some evidence standard when it concluded that the Gover-
nor’s reversal of the Board’s grant of parole to Hayward was
justified. We conclude that, viewed fairly and in its context,
no evidence in the record supports a determination that Hay-
ward’s release would unreasonably endanger public safety.
[8] Hayward’s initial crime was committed decades ago
and with the type of unusual provocation, the victim’s threat
to or assault of Hayward’s girlfriend, that seems not likely to
recur in the years of life remaining for him. Hayward has
accepted responsibility for his crime and does not seek to
minimize its impact. At the same time, several additional fac-
tors demonstrate persuasively that Hayward can be released
under supervisory conditions presenting no probable danger
to society: his record of education in prison; the lack of any
recent disciplinary offense or misconduct in prison; the many
people who have gone to bat for him in their letters; along
with the considered decisions of the parole board to first grant
Hayward parole on his tenth application in 2001 and then,
despite the Governor’s rejection of the parole board’s 2001
decision, decline to adopt the Governor’s unsuitability find-
ings and grant Hayward parole again upon his eleventh appli-
cation in 2003.
[9] Many of the factual findings upon which the Governor
relied in reversing the Board’s grant of parole have no eviden-
tiary support in the record. First, the Governor asserted that
Hayward was unsuitable for parole because, until relatively
recently, he refused to accept responsibility for his crime and
did not demonstrate any remorse for his crime. However,
Hayward admitted his guilt and took responsibility for his
crime at a 1993 Board hearing, more than ten years before the
Governor reversed the parole grant.
HAYWARD v. MARSHALL 51
Second, the Governor based his reversal of Hayward’s
parole on his finding that Hayward had an extensive record of
alcohol and drug abuse. Hayward, however, has not used
alcohol since 1974, much less abused it. The Governor stated
that Hayward used heroin from 1955 until 1976. To the con-
trary, Hayward experimented with the drug for one month,
while he was in prison, and then immediately quit and has
never used it again. The Governor also expressed his concern
that Hayward had only engaged in limited substance abuse
counseling. However, Hayward has participated in the Yoke
Fellows, Project Change, and other support and counseling
programs for many years.
Third, the Governor relied on Hayward’s “lifetime of
escalating criminality and violence” in reversing his parole.
The Governor stated that Hayward admitted he was responsi-
ble for 75 to 120 very serious crimes for which he was never
arrested. There is simply no basis for such an assertion in the
record.
Fourth, the Governor stated that Hayward’s psychological
“evaluators remain convinced that he poses a danger to soci-
ety.” Again, this is simply not true. The most recent psycho-
logical evaluation, performed by Dr. Rueschenberg in 2002,
concluded that Hayward had a viable parole plan and that he
had a favorable prognosis for adjusting to living in the com-
munity. While Dr. Rueschenberg concluded that Hayward
presented a low-to-moderate risk of danger to society, he also
emphasized that any risk Hayward might pose was adequately
contained.
Having rejected the grounds relied upon by the Governor
that are not supported by evidence in the record, we are left
with only three grounds that the Governor possibly could
have based his reversal of parole on: (1) Hayward’s criminal
history (other than the 75 to 120 alleged crimes not supported
by the record); (2) Hayward’s unstable social history, includ-
52 HAYWARD v. MARSHALL
ing a history of gang involvement; and (3) the nature of Hay-
ward’s commitment offense.9
[10] We have cautioned that a continued reliance on an
unchanging factor such as the circumstances of the commit-
ment offense, pre-conviction criminal history, or other past
conduct, might in some cases result in a due process violation
at some point. Biggs v. Terhune, 334 F.3d 910, 916 (9th Cir.
2003). Biggs upheld the Board’s denial of parole based on the
commitment offense, but cautioned:
[T]he parole board’s sole supportable reliance on the
gravity of the offense and conduct prior to imprison-
ment to justify denial of parole can be initially justi-
fied as fulfilling the requirements set forth by state
law. Over time, however, should Biggs continue to
demonstrate exemplary behavior and evidence of
rehabilitation, denying him a parole date simply
because of the nature of Biggs’ offense and prior
conduct would raise serious questions involving his
liberty interest in parole.
Id. We further noted that the denial of parole based on “[a]
continued reliance . . . on an unchanging factor, the circum-
stance of the offense and conduct prior to imprisonment, runs
contrary to the rehabilitative goals espoused by the prison sys-
tem and could result in a due process violation.” Id. at 915.
9
In addition to the factors we discuss here, the Governor also considered
the opposition of the Los Angeles County District Attorney to Hayward’s
release. Even though the district attorney is permitted to attend parole
hearings and express an opinion on the prisoner’s suitability for parole, see
Cal. Penal Code § 3041.7 (providing that prosecutor may be present at a
parole hearing “to represent the interests of the people”), the district attor-
ney’s opinion, without more, cannot be considered “some evidence” under
Hill that supports the Governor’s reversal of parole. Rosenkrantz v. Mar-
shall, 444 F. Supp. 2d 1063, 1080 n.14 (C.D. Cal. 2006).
HAYWARD v. MARSHALL 53
[11] We restated this point in Irons, noting that “in some
cases, indefinite detention based solely on an inmate’s com-
mitment offense, regardless of the extent of his rehabilitation,
will at some point violate due process, given the liberty inter-
est in parole that flows from the relevant California statutes.”
Irons, 2007 WL 2027359, at *6. “The commitment offense
can negate suitability only if circumstances of the crime reli-
ably established by evidence in the record rationally indicate
that the offender will present an unreasonable public safety
risk if released from prison.” Scott, 133 Cal. App. 4th at 595.
We turn to the three remaining factors that the Governor
cited in support of his reversal of the Board’s grant of parole
and conclude that these factors, whether analyzed individually
or collectively, do not constitute evidence that Hayward
would pose a danger to public safety if released from prison.
[12] First, the Governor cited Hayward’s “long criminal
history.” The Governor specifically noted Hayward’s history
of juvenile mischief and asserted that Hayward was first
placed on probation at age eight. Hayward’s juvenile conduct,
which occurred nearly fifty years ago, provides no basis for
a conclusion that Hayward currently poses a risk to public
safety. Though Hayward was arrested many times before he
committed the murder in this case, these arrests occurred
thirty or more years ago and also do not support a conclusion
that Hayward currently poses any threat to public safety. It
can hardly be doubted that time may attenuate the taint of cer-
tain prior misconduct, and this is particularly true as applied
to consideration of Hayward’s misconduct before he commit-
ted the murder that led to his conviction.
Second, the Governor reversed the Board’s grant of parole
to Hayward because of his unstable social history, including
his history of gang activity both inside and outside of prison.
However, Hayward quit the Vagos gang in 1981 and has not
been involved in any prison gang activity since 1989. Hay-
ward’s social history is, as a whole, quite stable. After Hay-
54 HAYWARD v. MARSHALL
ward committed the murder in this case, he married his
girlfriend. He maintains contact with his children, parents,
and other relatives. As indicated by the letters Hayward’s rel-
atives submitted to the Board, they look forward to welcom-
ing him back into their family if he is released. In concluding
that Hayward had an unstable social history, the Governor
also emphasized that when Hayward was eleven years old, he
impregnated an eleven-year-old girl. This conduct, which
occurred more than fifty years ago, does not provide any evi-
dence that Hayward currently poses a risk to public safety.
[13] The final basis for the Governor’s reversal of Hay-
ward’s parole is based on the gravity of Hayward’s commit-
ment offense, as the Governor found that Hayward’s conduct
was particularly heinous. We conclude, however, that in the
unusual circumstances of this case, including Hayward’s reha-
bilitation by education and conduct while imprisoned and the
Board’s successive favorable views of his application for
release, Hayward’s commitment offense, which occurred
twenty-five years ago, cannot demonstrate that Hayward’s
release will pose an imminent danger to public safety. See
Rosenkrantz v. Marshall, 444 F. Supp. 2d 1063, 1084 (C.D.
Cal. 2006) (“While relying upon petitioner’s crime as an indi-
cator of his dangerousness may be reasonable for some period
of time, in this case, continued reliance on such unchanging
circumstances—after nearly two decades of incarceration and
half a dozen parole suitability hearings—violates due process
because petitioner’s commitment offense has become such an
unreliable predictor of his present and future dangerousness
that it does not satisfy the ‘some evidence’ standard. After
nearly twenty years of rehabilitation, the ability to predict a
prisoner’s future dangerousness based simply on the circum-
stances of his or her crime is nil.”); Scott, 133 Cal. App. 4th
at 595 (“[T]he predictive value of the commitment offense
may be very questionable after a long period of time.”). Hay-
ward is now sixty-four years old. The Governor was review-
ing Hayward’s eleventh parole suitability hearing. Hayward
had been in prison for nearly thirty years and had an exem-
HAYWARD v. MARSHALL 55
plary record of conduct for most of that time. In light of the
extraordinary circumstances of this case—given the provoca-
tion for Hayward’s violent crime in 1978, his incarceration for
almost thirty years with his positive prison record in recent
times, and the favorable discretionary decisions of the Board
in successive hearings, which were reversed by the Governor
on factual premises most of which were not documented in
the record—we conclude that the unchanging factor of the
gravity of Hayward’s commitment offense had no predictive
value regarding his suitability for parole. In the circumstances
of this case, the Governor violated Hayward’s due process
rights by relying on that stale and static factor in reversing his
parole grant.10
The Governor also based his reversal of the Board’s parole
grant on Hayward’s motive to commit the crime. The Gover-
nor concluded that the “official record” indicated that Hay-
ward committed the crime in retaliation for the victim
slapping Hayward’s then-girlfriend. However, the Board con-
cluded that the victim had in fact battered and attempted to
rape Hayward’s future wife, and that Hayward attacked the
victim in retaliation for that incident, after being provoked by
the victim throwing a beer bottle at him. The Governor’s con-
clusion that Hayward committed the crime in retaliation for a
slap is based on the incomplete facts recited in the opinion of
the California Court of Appeal affirming Hayward’s convic-
tion on direct review. Even if the Governor’s interpretation of
the facts is the correct one, the unchanging factor of Hay-
10
We emphasize that Hayward was convicted of second degree murder
for stabbing a man he believed had physically assaulted his girlfriend. In
concluding that Hayward’s conviction offense does not, at this time, after
nearly thirty years of incarceration, accurately predict that Hayward cur-
rently poses a danger to society, we do recognize that certain conviction
offenses may be so “heinous, atrocious or cruel” that a prisoner’s due pro-
cess rights might not be violated if he or she were denied parole solely on
the basis of the nature of the conviction offense. We need not identify
those offenses here. We confine our holding to the facts of this case and
the nature of Hayward’s particular conviction offense.
56 HAYWARD v. MARSHALL
ward’s motive for committing the crime did not provide a fac-
tual basis for the Governor to conclude that Hayward’s
release presented a risk to public safety. The Governor vio-
lated Hayward’s due process rights by relying on the
unchanging factor of motive for the commitment offense in
reversing parole.
Hayward was initially sentenced to a term of fifteen years
to life in prison. Hayward has been in prison for twenty-seven
years. In Irons, we noted that
in all the cases in which we have held that a parole
board’s decision to deem a prisoner unsuitable for
parole solely on the basis of his commitment offense
comports with due process, the decision was made
before the inmate had served the minimum number
of years required by his sentence. Specifically, in
Biggs, Sass, and here, the petitioners had not served
the minimum number of years to which they had
been sentenced at the time of the challenged parole
denial by the Board.
Irons, 2007 WL 2027359, at *6. Therefore, we concluded that
“[a]ll we held in those cases and all we hold today . . . is that,
given the particular circumstances of the offenses in these
cases, due process was not violated when these prisoners were
deemed unsuitable for parole prior to the expiration of their
minimum terms.” Id. Here, by contrast, Hayward has long
served more than his minimum fifteen-year term of imprison-
ment. We hold that the Governor’s reversal of parole in this
case was not supported by any evidence that Hayward’s
release would threaten public safety, and that the Governor’s
reversal of his parole thus violated his due process rights.
[14] For the same reasons, we conclude that the Los Ange-
les County Superior Court unreasonably applied the some evi-
dence standard to Hayward’s petition. The Superior Court
identified two pieces of evidence supporting the Governor’s
HAYWARD v. MARSHALL 57
reversal of parole. First, the Superior Court noted that the
nature of the commitment offense supported the Governor’s
finding that Hayward was unsuitable for parole. However, as
we have explained, in the circumstances of this case, reliance
on Hayward’s commitment offense was not sufficient to pro-
vide some evidence that his release would endanger the pub-
lic. Second, the Superior Court noted that the “somewhat
unfavorable psychological and counselor reports” provided
some evidence to support the Governor’s reversal. However,
as we discussed above, the reports are not “somewhat unfa-
vorable,” but instead give a positive report on Hayward’s
potential to adapt to freedom and to avoid committing crimes
if released. Dr. Rueschenberg, who prepared the most recent
psychological evaluation of Hayward, concluded that “Mr.
Hayward’s prognosis for community living seems to be favor-
able,” that “he appears to have a viable parole plan,” and that
he “appears to be a strong candidate for a favorable readjust-
ment in the community.” The Superior Court’s determination
that Hayward’s psychological and counselor reports were
“somewhat unfavorable” was an unreasonable interpretation
of those reports, and the Superior Court’s conclusion that the
reports provided some evidence to support the Governor’s
determination that Hayward was not suitable for parole was
an unreasonable application of the some evidence standard
articulated in Hill.
[15] In sum, we conclude that, considering all the circum-
stances, the denial of parole to Hayward denied him due pro-
cess. We therefore reverse the district court’s order denying
Hayward’s petition for a writ of habeas corpus, and remand
the case with instructions to grant the writ.
REVERSED AND REMANDED.