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, California Men’s GAF(CT)
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 24, 20081
Pasadena, California
Filed April 22, 2010
Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,
Sidney R. Thomas, Barry G. Silverman, Raymond C. Fisher,
Richard A. Paez, Marsha S. Berzon, Richard C. Tallman,
Richard R. Clifton, and N. Randy Smith, Circuit Judges.
Opinion by Judge Kleinfeld;
Concurrence by Judge Berzon
1
After oral argument and submission of this case, we ordered three
rounds of supplemental briefing. The last round of supplemental briefing
was completed on November 6, 2008.
6303
6306 HAYWARD v. MARSHALL
COUNSEL
Michael Satris (argued and briefed supplemental brief), Law
Office of Michael Satris, Bolinas, California, and Joseph V.
Camarata (briefed opening brief), Vallejo, California, for the
appellant.
Jennifer A. Neill (argued and briefed supplemental brief),
Supervising Deputy Attorney General, San Diego, California,
and Jane Catherine Malich (briefed), Deputy Attorney Gen-
eral, Los Angeles, California, for the appellee.
Monica Knox, Assistant Federal Defender, Sacramento, Cali-
fornia, for amicus Federal Defenders for the Central and East-
ern Districts of California.
HAYWARD v. MARSHALL 6307
OPINION
KLEINFELD, Circuit Judge:
We address three issues: 1) whether a certificate of
appealability is needed to appeal a district court’s order deny-
ing a writ of habeas corpus arising out of a state’s denial of
parole; 2) whether federal constitutional law imposes on the
states a requirement for some quantum of evidence to support
a state’s denial of parole; and 3) whether, even if there is no
general federal quantum of evidence requirement, applicants
for parole in California, under the state’s current laws, may
obtain federal habeas review of whether there is “some evi-
dence” supporting a negative parole decision.
FACTS
In 1978, Hayward’s girlfriend was out shooting pool on a
“girls’ night out,” while he stayed home. While she was out,
a man acted abusively toward her. There are varying
accounts. It is not clear whether the man slapped Hayward’s
girlfriend, or she spat in his face, or he spat in hers, or
whether, as Hayward once claimed, the man chased her out
into the parking lot, tore off some of her clothes, and tried to
rape her. Subsequently, Hayward spent months keeping his
eyes open for the man so he could exact revenge.
Several months later, Hayward got a call saying that the
man who abused his girlfriend, Tom Strauss (also known as
Tom O’Connor), was at the Buccaneer Bar. Hayward enlisted
some of his fellow gang members to go with him to the bar
because he wanted to “kick his ass.” One of Hayward’s gang
knocked Strauss down. Then Hayward stabbed Strauss twelve
times in the back, killing him. In 1980, Hayward was sen-
tenced to fifteen years to life for murder.
Since completing the first fifteen years of his sentence,
Hayward has repeatedly been denied parole. He now petitions
6308 HAYWARD v. MARSHALL
for a writ of habeas corpus, claiming that he is constitution-
ally entitled to be paroled.
Hayward phrases his petition for a writ of habeas corpus as
a challenge to then-Governor Gray Davis’s 2003 decision to
overturn a grant of parole by the California Board of Prison
Terms.2 That decision was not the end of the state proceed-
ings, but is worth summarizing. The Board of Prison Terms
had found Hayward was suitable for parole, but wrote, in
accord with California law: “[i]nmate not to be released until
Governor exercises review authority.”3 The Governor, exer-
cising his discretionary review authority under California law,
denied parole and explained his disagreement with the Board
of Prison Terms.
After weighing a multitude of discretionary factors, Gover-
nor Davis concluded that “Hayward would pose an unreason-
able risk to public safety if released at this time.” One factor
was Hayward’s “particularly heinous crime.” Hayward
stalked his victim for months. When he located the victim he
arranged for members of his motorcycle gang to join him.
They set out to subdue the victim, who was drunk and recu-
perating from two broken arms. Hayward stabbed Strauss in
the back twelve times, twice to the hilt. After the stabbing,
Hayward fled while his victim bled to death. Two witnesses
later said that they and their families received death threats
intended to keep them from testifying.
2
The Board of Parole Hearings replaced the Board of Prison Terms in
July 2005. Cal. Penal Code § 5075(a). For ease of reference, and because
both entities have performed the same duties, we refer to both as the Board
of Prison Terms, the entity that considered parole for Hayward in 2002.
3
See Cal. Const., art. V, § 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 stat-
ute.”); Cal. Penal Code § 3041.2(a).
HAYWARD v. MARSHALL 6309
Another factor was Governor Davis’s concern about the
sincerity of Hayward’s remorse. For his first fifteen years in
prison, Hayward denied responsibility and disparaged the vic-
tim, saying “[Strauss’s] family is lucky he’s dead.” Even after
Hayward finally admitted to his crime in 1993, he told a psy-
chological evaluator that he felt good about killing Strauss.
The Governor was also concerned by Hayward’s substance
abuse and his need for further substance abuse therapy. Hay-
ward began using heroin when he was twelve. He subse-
quently used LSD, PCP, methedrine (methamphetamine),
cocaine, marijuana, and excessive alcohol. Prison did not stop
Hayward’s criminal drug use. He was disciplined for mari-
juana possession and admitted that he “ran drugs in prison.”
Before this prison stretch for murder, Hayward was active
in a gang (the same gang that helped him murder Strauss).
Hayward claims he “retired” from his motorcycle gang while
in prison. As with the drugs, though, prison did not end Hay-
ward’s involvement with gangs. The Governor noted that
Hayward “received a serious disciplinary report for leading a
white racist organization, using the organization to intimidate
inmates, directing assaults and advocating violence against
black inmates.” Hayward continued his white-racist gang
involvement until mid-1989.
The Governor also considered Hayward’s extensive crimi-
nal history in addition to this murder. The murder was not an
aberration. As a juvenile, Hayward was arrested approxi-
mately twenty times, starting at age eight. He had about six-
teen arrests as an adult. During all the time he was out of
prison, he never quit committing serious crimes. Hayward
admitted involvement with a criminal group “responsible for
[75] to [120] very serious crimes including arson, assault, kid-
napping, robbery and possession of a large cache of stolen
explosives.”
The Governor took Hayward’s moderately favorable men-
tal health evaluation into account, but weighed it against other
6310 HAYWARD v. MARSHALL
factors. A psychological evaluation of Hayward’s mental
health found that “historical factors” were on the “negative
side.” But, “[o]n the positive side is the lack of overt violence
during the last twenty years of incarceration, his being disci-
plinary free for the last thirteen years, an increased level of
maturity and insight, his participation in substance abuse
recovery, his participation in self help and spiritual activities,
and his being older and mature.” The psychologist’s conclu-
sion was that Hayward posed “a low to moderate risk for
future violence in the community.” The Governor, however,
thought that the risks Hayward posed “remain[ed] too high to
risk releasing him into our community” because of Hayward’s
“long criminal history, increasing violence, and gang partici-
pation.”
The Governor’s decision was not the end of the case in Cal-
ifornia. In the California system, if the Board of Prison Terms
recommends that a prisoner be paroled, the Governor reviews
the recommendation and makes his own decision. That deci-
sion is subject to judicial review via a prisoner’s state habeas
petition.4 Under California law, the state courts review the
Governor’s decision and the record for “ ‘some evidence’ that
an inmate poses a current threat to public safety.”5
The Superior Court of California, County of Los Angeles,
reviewing the record, determined that Hayward claimed he
went to the bar to beat up the victim, rather than to kill him.
The Superior Court noted that, prior to his conviction for kill-
ing Strauss, Hayward was acquitted of attempted murder, but
his prior offenses ranged from armed robbery (as a juvenile)
to assault with a deadly weapon on a police officer. The Supe-
rior Court also found that Hayward “received four 115 disci-
plinary violations for ‘serious’ misconduct, the most recent in
1989.” It then considered Hayward’s expressed remorse,
4
Cal. Penal Code § 3041; see, e.g., In re Lawrence, 190 P.3d 535 (Cal.
2008); In re Shaputis, 190 P.3d 573 (Cal. 2008).
5
Cal. Penal Code § 3041; Shaputis, 190 P.3d at 580.
HAYWARD v. MARSHALL 6311
vocational training, and plans for parole. The Superior Court
held that although some of the Governor’s findings were not
adequately supported by the record, others were, and that was
sufficient to justify denial of parole.
Hayward petitioned for a writ of habeas corpus in the Cali-
fornia Supreme Court,6 which summarily denied his request.
He then petitioned for a writ of habeas corpus in federal dis-
trict court. The district court denied the petition and we now
affirm.
ANALYSIS
Both we and the California Supreme Court have been
engaged in modification of the law to determine what limits
there are on denial of parole. We have two decisions, Irons v.
Carey7 and the panel decision in this case,8 saying that due
process requires “some evidence,” not merely a discretionary
judgment, if parole is denied. We address these propositions
below. After oral argument in this case,9 two California
Supreme Court cases, In re Lawrence10 and In re Shaputis,11
held that under California law, some evidence of future dan-
gerousness is a necessary predicate for denial of parole. Hay-
6
California has an unusual appellate procedure for postconviction relief.
Instead of appealing an adverse result, the prisoner files an original peti-
tion for writ of habeas corpus in the appellate court. See Carey v. Saffold,
536 U.S. 214, 222 (2002).
7
505 F.3d 846, 850-51 (9th Cir. 2007).
8
Hayward v. Marshall, 512 F.3d 536, 542 (9th Cir. 2008).
9
We ordered supplemental briefing on these two cases because the deci-
sions were issued after we heard oral argument.
10
190 P.3d 535, 562-64 (Cal. 2008) (concluding “there does not exist
some evidence supporting the conclusion that petitioner continues to pose
a threat to public safety”).
11
190 P.3d 573, 575 (Cal. 2008) (holding that “some evidence in the
record supports the Governor’s conclusion that petitioner remains a threat
to public safety”).
6312 HAYWARD v. MARSHALL
ward’s appeal addresses what if anything the federal
Constitution requires as a condition of denial of parole.12
I. Certificate of appealability.
This case is an appeal from a district court order denying
a writ of habeas corpus to a state prisoner who seeks habeas
relief after California denied him parole. Our jurisdiction to
review the denial arises under 28 U.S.C. § 2253(a).13 How-
ever, a petitioner may not appeal a “final order in a habeas
corpus proceeding in which the detention complained of
arises out of process issued by a State court,”14 unless a “cir-
cuit justice or judge issues a certificate of appealability.”15 We
will only issue a certificate of appealability “if the applicant
has made a substantial showing of the denial of a constitu-
tional right.”16
[1] Hayward did not request or obtain a certificate of
appealability from the district court or, initially, from this
court. He argues that a certificate is unnecessary on the theory
that his detention “arises out of” an administrative determina-
tion, the denial of his parole by the Board of Prison Terms,
not a judicial determination “issued by a State court.”17 He has
support for his theory in our decision in White v. Lambert.18
We held in White that a certificate of appealability is not
required “when a state prisoner challenges an administrative
12
28 U.S.C. § 2254(a).
13
“In a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to review, on appeal,
by the court of appeals for the circuit in which the proceeding is held.” 28
U.S.C. § 2253(a).
14
Id. § 2253(c)(1)(a).
15
Id. § 2253(c)(1).
16
Id. § 2253(c)(2); see also Doe v. Woodford, 508 F.3d 563, 567 (9th
Cir. 2007).
17
28 U.S.C. § 2253(c)(1)(A).
18
370 F.3d 1002, 1010 (9th Cir. 2004).
HAYWARD v. MARSHALL 6313
decision regarding the execution of his sentence,” as opposed
to the fact of his conviction.19 Our sister circuits are divided
on whether a certificate is needed to appeal denial of habeas
relief in such circumstances.20
The standard for a certificate of appealability is lenient.21
Hayward need only “ ‘sho[w] that reasonable jurists could
debate’ ” the district court’s resolution or that the issues are
“ ‘adequate to deserve encouragement to proceed further.’ ”22
This showing requires “something more than the absence of
frivolity,”23 but something less than a merits determination
(which we lack jurisdiction to make, absent a certificate of
appealability).24 The requirement of a certificate of appeala-
bility serves as a threshold requirement, a sine qua non to
screen out prisoner petitions that ought not to take up addi-
tional judicial resources beyond those already consumed
before state courts, federal magistrate judges, and federal dis-
trict judges.25
[2] Hayward was justified, because of our decisions in
White26 and Rosas v. Nielsen,27 in proceeding without seeking
19
Id.20
Compare Walker v. O’Brien, 216 F.3d 626, 637-39 (7th Cir. 2000)
(certificate not required), with Medberry v. Crosby, 351 F.3d 1049, 1063
(11th Cir. 2003), Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1310
(D.C. Cir. 2002), Greene v. Tenn. Dep’t of Corr., 265 F.3d 369, 371-72
(6th Cir. 2001), Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001), and
Montez v. McKinna, 208 F.3d 862, 868-69 (10th Cir. 2000) (certificate
required).
21
See 28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003).
22
Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)).
23
Id. at 338 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
24
Id. at 336-37.
25
Barefoot, 463 U.S. at 892-93.
26
370 F.3d at 1010.
27
428 F.3d 1229, 1231-32 (9th Cir. 2005) (per curiam).
6314 HAYWARD v. MARSHALL
a certificate. The statute requires a certificate of appealability
if “the detention complained of arises out of process issued by
a State court.”28 We reasoned in those cases that a prisoner
challenging denial of parole is challenging confinement
resulting from an administrative decision, not confinement
“arising out of process issued by a State court,” so the statute
does not require the certificate. Our sister circuits have gener-
ally rejected our reasoning.29
The stronger literal argument supports requiring a certifi-
cate. The statutory requirement of a certificate of appeala-
bility turns on “the detention complained of.” On the one
hand, what keeps the prisoner in prison is denial of parole. On
the other hand, what put him there was a state court judgment
convicting and sentencing him. Several of our sister circuits
reason that the “detention” referred to by the statute is the
state court decision that put the would-be parolee in prison,
not the administrative decision not to let him out.30 The Cali-
fornia Board of Prison Terms does not have the authority to
detain prisoners, just to release them from detention (subject
to gubernatorial approval), so its decision cannot be the “de-
tention complained of.”31 Even if one were to treat the power
to release as the power to detain, the administrative decision
by the parole board or by the governor is not the last word in
the California system, and neither can deny release if the
Superior and Supreme Court of California overturn their deci-
sions on review. Thus even if we were to look at what kept
the prisoner confined as opposed to what caused him to be
28
28 U.S.C. § 2253(c)(1)(A).
29
See cases cited supra note 20.
30
Cf. Medberry v. Crosby, 351 F.3d 1049, 1063 (11th Cir. 2003); Mad-
ley v. U.S. Parole Comm’n, 278 F.3d 1306, 1310 (D.C. Cir. 2002); Greene
v. Tenn. Dep’t of Corr., 265 F.3d 369, 371-72 (6th Cir. 2001); Coady v.
Vaughn, 251 F.3d 480, 486 (3d Cir. 2001); Montez v. McKinna, 208 F.3d
862, 868-69 (10th Cir. 2000); contra Walker v. O’Brien, 216 F.3d 626,
637-39 (7th Cir. 2000).
31
28 U.S.C. § 2253(c)(1)(a).
HAYWARD v. MARSHALL 6315
confined in the first place, a court decision is the target of this
habeas petition in federal court.
If we look to function, the better construction of the certifi-
cate of appealability statute likewise requires a certificate of
appealability. We are unable to think of a purpose Congress
might have had for a contrary reading. What the requirement
of a certificate of appealability does, and all it does, is screen
out of the federal appellate courts claims that are not even
debatable among reasonable judges, which is to say, frivolous
claims. We cannot think of a reason why Congress might
want to confer on us jurisdiction to hear frivolous prisoner
challenges to administrative decisions but screen out frivolous
prisoner challenges to court decisions. Neither could the Dis-
trict of Columbia Circuit: “We do not think the Congress
intended to limit federal review of a sentence imposed by a
state court while allowing an unfettered appeal from a parole
decision declining to decrease the time served thereunder.”32
[3] It is also considerably more practical for the petitioners
themselves to have a clear, simple, across-the-board require-
ment. Habeas jurisdiction, more than most, is a maze of curli-
cues and cul-de-sacs, with nowhere near enough straight,
clearly marked roads. Usable law needs to be clear enough so
that people trying to do the right thing can. Prisoners most
often petition pro se, so they especially need clear road signs.
Complicating jurisdiction rules for habeas appeals merely
increases the randomness and decreases the justice of disposi-
tions. The more distinctions and exceptions we build into the
already overly complicated subject of habeas jurisdiction, the
more the outcomes result from chance rather than the merits.
The statute is best read to mean that a state prisoner seeking
to appeal denial of a petition for a writ of habeas corpus to a
federal court of appeals must get a certificate of appealability.
32
Madley, 278 F.3d at 1310.
6316 HAYWARD v. MARSHALL
This simple rule would be troubling if it screened out cases
that ought to get review, but the standard and procedure for
certificates of appealability protects against that. All a pris-
oner needs is an issue debatable by reasonable jurists.33 And
if the prisoner neglects to request a certificate of appealability
before going forward, the court of appeals can grant him one
sua sponte.34
[4] We therefore overrule those portions of White and
Rosas which relieve a prisoner from obtaining a certificate of
appealability from administrative decisions such as denial of
parole and prison transfer. A certificate of appealability is
necessary to confer jurisdiction on this court in an appeal
from a district court’s denial of habeas relief in a § 2254 case,
regardless of whether the state decision to deny release from
confinement is administrative or judicial. Hayward needs a
certificate of appealability if we are to maintain jurisdiction
over this case. We may issue such a certificate sua sponte,35
Hayward 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”36 in the sense that his
claim is debatable among reasonable jurists, so we hereby cer-
tify for appeal the issue of whether “some evidence” was a
constitutional sine qua non for the state’s denial of parole.
33
Miller-El 537 U.S. at 336.
34
See, e.g., Wilson v. Belleque, 554 F.3d 816, 827-28 (9th Cir. 2009);
Morales v. Woodford, 388 F.3d 1159, 1167-68 (9th Cir. 2004); U.S. v.
Martin, 226 F.3d 1042, 1046-47 (9th Cir. 2000).
35
Wilson, 554 F.3d at 827-28; Morales, 388 F.3d at 1167-68; Martin,
226 F.3d at 1046-47.
36
28 U.S.C. § 2253(c)(2).
HAYWARD v. MARSHALL 6317
II. Constitutionality of California’s denial of Hayward’s
parole.
A. No federal “some evidence” rule in the air.
Our decision today arises from Irons v. Carey,37 and our
earlier decision in this case.38 These decisions may be read to
mean that a parole-eligible prisoner has a constitutional right
to be released unless there is “some evidence” of future dan-
gerousness. If there is any right to release on parole, or to
release in the absence of some evidence of future dangerous-
ness, it has to arise from substantive state law creating a right
to release. To the extent our prior decisions including Biggs
v. Terhune,39 Sass v. California Board of Prison Terms,40
Irons v. Carey41 and our panel decision in this case42 might be
read to imply that there is a federal constitutional right regard-
less of whether state law entitles the prisoner to release, we
reject that reading and overrule those decisions to the extent
they may be read to mean that.43
B. Good time.
The proposition that the Supreme Court has required “some
evidence” of anything derives from a misunderstanding of the
differences between “good time” and parole.44 We speak now
37
505 F.3d 846 (9th Cir. 2007).
38
Hayward v. Marshall, 512 F.3d 536, 542 (9th Cir. 2008).
39
334 F.3d 910 (9th Cir. 2003).
40
461 F.3d 1123 (9th Cir. 2006).
41
505 F.3d at 850-51.
42
Hayward v. Marshall, 512 F.3d 536, 542 (9th Cir. 2008).
43
Our panel decision in this case, Hayward v. Marshall, 512 F.3d 536(9th Cir. 2008) is vacated.
44
Compare Superintendent v. Hill, 472 U.S. 445 (1985) (assessing a
Massachusetts good time statute) with Board of Pardons v. Allen, 482 U.S.
369 (1987) (assessing the Montana parole system) and Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1 (1979) (assessing the
Nebraska parole system).
6318 HAYWARD v. MARSHALL
to the commonalities of good time and parole, and address the
particularities of California law in the next section of this
opinion.
Prisoners usually get released before their sentences are
over. In many jurisdictions, there are two paths to early
release, good time and parole. They differ.
Good time is a prison discipline device. Prisoners get a cer-
tain number of days of good time for each month or year of
their terms, and lose days if they misbehave in prison. The
misbehavior does not have to be criminal, and the credit does
not depend on predictions of good behavior outside prison.
For example, federal prisoners serving terms of more than a
year get up to fifty-four days of good time per year, credited
at the end of the year, for “exemplary compliance with institu-
tional disciplinary regulations.”45 Accordingly, a federal pris-
oner sentenced to ten years imprisonment, who obeys the
rules in prison, will be released after serving nine years and
four months.
States likewise typically assign mandatory good time to all
prisoners, which they can lose in increments for discipline
violations in prison. Good time is designed to give prisoners
an incentive to obey prison rules. The right to good time and
the losing of it generally depend on how the prisoner behaves
in prison, not what he did to be sent there or how authorities
think he will behave after he gets out.
[5] Because it is ordinarily a fixed, specific entitlement lost
on the basis of misconduct, good time is a right to liberty, that
is, release from prison, that can be taken from the prisoner
only with due process of law. The “some evidence” standard
is the quantum of due process that a prisoner charged with a
discipline violation that would cost him good time is constitu-
45
18 U.S.C. § 3624(b)(1).
HAYWARD v. MARSHALL 6319
tionally entitled to.46 If his misconduct cannot be proved by at
least some evidence, he is entitled to his good time. This stan-
dard gives the prisoner some protection against the risk of
mistake, losing his good time for misconduct he did not com-
mit.
Many states use good time more or less like the federal sys-
tem.47 For example, Alaska state prisoners, with some excep-
tions, are “entitled to a deduction of one-third of the term of
imprisonment rounded off to the nearest day if the prisoner
follows the rules of the correctional facility.”48 The California
scheme is considerably more complex than the federal or typi-
cal state system and has changed frequently, but generally
prisoners with determinate sentences, “shall be credited with
a one-fourth reduction on their term of imprisonment, unless
all or part of such good behavior credit is denied or forfeited
as a result of disciplinary action in the amounts listed in sec-
tion 3323.”49 The California statute has a schedule of how
much good time can be lost for different offenses, for exam-
ple, up to 360 days for murder or rape, 180 days for other
prison misconduct that could be prosecuted as a felony, 90
46
Hill, 472 U.S. at 454.
47
See, e.g., Ala. Code § 14-9-41; Alaska Stat. § 33.20.010; Ariz. Rev.
Stat. Ann. §§ 41-1604.07, 41-1604.10; Ark. Code Ann. §§ 12-29-201, 12-
29-205; Cal. Penal Code §§ 2932-2933; Colo. Rev. Stat. §§ 17-22.5-201,
-301; Conn. Gen. Stat. § 18-7a; Del. Code Ann. tit. 11, §§ 4381, 4348;
D.C. Code § 24-221.01; Kan. Stat. Ann. §§ 21-4706, -4722; La. Rev. Stat.
Ann. § 15:571.3; Md. Code Ann. Corr. Servs. §§ 3-704; Mass. Gen. Laws
Ann. ch. 127, § 129C; Mo. Ann. Stat. § 558.041; Nev. Rev. Stat.
§§ 209.433, .447; N.H. Rev. Stat. Ann. § 651-A:22; N.J. Stat. Ann. § 30:4-
140; Okla. Stat. tit. 57, §§ 65, 138; Or. Rev. Stat. § 169.110; S.C. Code
Ann. § 24-13-210; Tenn. Code Ann. § 41-2-111; Tex. Gov’t Code Ann.
§§ 498.002 -.004; Va. Code Ann. § 53.1-193 - .196; W. Va. Code Ann.
§ 31-20-5d; Wis. Stat. Ann. § 302.43; Wyo. Stat. Ann. § 7-13-420.
48
Alaska Stat. § 33.20.010(a) (emphasis added).
49
Cal. Code Regs. tit. 15, § 3043 (emphasis added); see also Cal. Penal
Code §§ 2901, 2901.5, 2930-2935, 4091.
6320 HAYWARD v. MARSHALL
days for misdemeanor misconduct, and 30 days for a “serious
disciplinary infraction” as defined by regulation.50
[6] Though the details vary from state to state, good time
statutes and regulations have several things in common. First,
good time is a right, not a discretionary award.51 This “liberty
interest,” as our cases call it, is not a procedural right to be
considered for a discretionary benefit. Rather, this is a liberty
interest of the most fundamental sort, the prisoner’s right to
walk out the prison gate and hear it clang behind him.52 Sec-
ond, good time is lost after discipline proceedings for viola-
tions of prison rules committed while behind bars.53 Third, the
number of days is arithmetically calculable, so a prisoner
knows when he enters prison that if he complies with the
rules, he will be released a certain number of days before the
end of the term to which he was sentenced.54 Fourth, any loss
of good time is historical, not predictive. Good time is taken
away because of something the prisoner has already done, as
adjudicated in a discipline proceeding, not for something he
may do in the future. Prisons use the entitlement to good time,
and reductions in good time, to give the felons in their charge
an incentive to behave themselves while in prison, to avoid a
situation where a prisoner might think he has nothing to lose.55
C. Parole.
[7] Parole, by contrast with good time, typically involves
50
Cal. Penal Code § 2932; see also Cal. Code Regs. tit. 15, § 3323.
51
See Cal. Penal Code § 2931(b); Hill, 472 U.S. at 454.
52
Hill, 472 U.S. at 454.
53
Cal. Penal Code § 2932.
54
Cal. Penal Code § 2930(a) (“The Department of Corrections shall
inform every prisoner . . . not later than 14 days after reception in prison,
of all applicable prison rules and regulations including the possibility of
receiving a one-third reduction of the sentence for good behavior and par-
ticipation.”).
55
See Hill, 472 U.S. at 454.
HAYWARD v. MARSHALL 6321
“purely subjective appraisals” that turn on a “discretionary
assessment of a multiplicity of imponderables.”56 Parole,
unlike good time, has been abolished in the federal system.57
California and many other states still use it.58 In Alaska, for
example, an eligible prisoner may be granted “discretionary
parole”59 after serving one-third of the term of imprisonment
to which he was sentenced.60 Parole is at the discretion of a
board that considers numerous factors, such as whether there
is a “reasonable probability” that the prisoner, once released,
will not violate any laws or parole conditions, “pose a threat
of harm to the public” and “release of the prisoner would not
diminish the seriousness of the crime.”61 Thus in the not atypi-
56
Greenholtz, 442 U.S. at 10 (internal quotation marks omitted).
57
Sentencing Reform Act of 1984, Pub. L. No. 98-473, tit. II,
§ 218(a)(5), 98 Stat. 1837, 2027 (1984).
58
See, e.g., Alaska Stat. §§ 33.16.010, 33.16.090, 33.16.100; Ariz. Rev.
Stat. Ann. §§ 31-411, 31-412, 41-1604.09; Cal. Penal Code §§ 3040-3070;
Colo. Rev. Stat. Ann. §§ 17-2-102, -2-201, -22.5 -104, -22.5 -303 (parole),
-22.5 -403 (parole eligibility), -22.5-404 (parole guidelines); Conn. Gen.
Stat. §§ 54-125a (eligibility), -125g; Del. Code Ann. tit. 11 §§ 4346 (eligi-
bility) — 4347 (parole procedure); Fla. Stat. Ann. §§ 947.16 (parole eligi-
bility), .165 (parole guidelines); Ga. Code Ann. §§ 42-9-40 (parole
guidelines), -9-45 (parole eligibility); Haw. Rev. Stat. §§ 353-61, -72
(parole procedure); Idaho Code Ann. § 20-223; Ill. Comp. Stat. 5/3-3-3
(parole eligibility), -4 (parole hearing); Kan. Ann. Stat. §§ 22-3717 (parole
eligibility); Ky. Rev. Stat. § 439.340 (parole guidelines); La. Rev. Stat.
Ann. § 15:574.4 (parole eligibility); Md. Code Ann. Corr. Servs. §§ 4-305
(parole), 7-301 (parole eligibility); Mass. Gen. Laws Ann. ch. 127 §§ 130
(granting parole), 133 (parole eligibility), 133A (parole eligibility); Mich.
Comp. Laws Ann. §§ 791.233 (granting parole)- .233b (parole eligibility);
Minn. Stat. Ann. § 609.12 (parole); Mo. Code Ann. § 47-7-3 (parole eligi-
bility); Miss. Ann. Stat. § 217.690 (parole eligibility); Mont. Code Ann.
§ 46-23-201 (parole eligibility); Neb. Rev. Stat. Ann. §§ 83-1,112, 83-
4,143; Nev. Rev. Stat. §§ 213.1099-.145; N.J. Stat. Ann. § 30:4-123.51(parole eligibility).
59
Alaska Stat. § 33.16.100.
60
Id. § 33.16.090(b)(1). When a prisoner does not receive “discretionary
parole” he may still be released because of a good time reduction from his
sentence resulting in “mandatory parole.” Id. § 33.16.900(8).
61
Id. § 33.16.100(a).
6322 HAYWARD v. MARSHALL
cal Alaska system, a prisoner may get out in one third of the
time he is sentenced to, if he conforms to prison rules during
that time and appears likely to continue to behave himself
after release.62
Parole statutes differ from good time statutes first, in that
they are at least in part prospective and predictive. Instead of
or in addition to looking back to a fact, whether the prisoner
broke a law or rule, they look forward, based in part on a
judgment about how the inmate is likely to behave if released.
62
Other states in our circuit have varying schemes. In Arizona, once a
prisoner is certified as eligible for parole, the board of executive clemency
decides whether to parole him, but has “sole discretion” to decide whether
“there is a substantial probability that the applicant will remain at liberty
without violating the law and that the release is in the best interests of the
state.” Ariz. Rev. Stat. Ann. § 31-412(A); see also Cooper v. Arizona Bd.
of Pardons and Paroles, 717 P.2d 861, 864, 865 (Ariz. 1986) (holding that
“the age of the victim and the seriousness of the offense” were valid
grounds to deny parole, and stating that the “criterion set forth by the leg-
islature for making such a [parole eligibility] determination is so broad
that it hardly curtails the Board’s discretion at all.”). In Oregon, a prisoner
sentenced as a dangerous offender “shall be given a release date . . . if the
board finds the prisoner no longer dangerous or finds that the prisoner
remains dangerous but can be adequately controlled with supervision and
mental health treatment and that the necessary resources for supervision
and treatment are available to the prisoner.” Or. Rev. Stat.
§ 144.228(1)(b)(A). In Nevada, when determining whether to release an
eligible prisoner on parole, the Board “shall consider” not only “[w]hether
there is a reasonable probability that the prisoner will live and remain at
liberty without violating the laws” but also “[w]hether the release is
incompatible with the welfare of society; [and the] seriousness of the
offense and the history of criminal conduct of the prisoner . . . .” Nev.
Rev. Stat. § 213.1099(2). See also Idaho Code Ann. § 20-223(c) (“best
interests of society”). Hawaii provides that “[p]aroles may be granted by
the Hawaii paroling authority at any time after the prisoner has served the
minimum term of imprisonment,” Haw. Rev. Stat. § 353-68(a), but
“[p]arole shall not be granted unless it appears to the Authority that there
is a reasonable probability that the inmate concerned will live and remain
at liberty without violating the law and that the inmate’s release is not
incompatible with the welfare and safety of society,” Haw. Code R. § 23-
700-33.
HAYWARD v. MARSHALL 6323
Second, they depend on highly subjective and discretionary
judgments, because the future is not yet a fact and can never
be proved like a historical fact. Third, an inmate can control
the outcome of good time credits by behaving himself in
prison, but cannot control the outcome of the parole board
hearing by his behavior (though it may influence their discre-
tionary judgment). He can be turned down for parole at the
parole board’s discretion, even when he would have an abso-
lute entitlement to good time.
For example, suppose a prisoner is imprisoned for commit-
ting a very serious crime. The nature of the crime, his psycho-
logical and psychiatric assessments, and his own letters and
statements to prison authorities, establish that he is highly
likely to commit the same kind of crime or something worse
if he gets out. In a state with good time credits, the felon
would still get out before the end of his term if he complied
fully with all prison rules. But because of the risk to public
safety, he would almost certainly not be paroled. He would
get out only as early as his good time entitled him to, and not
any earlier despite the possibility of parole to a similarly situ-
ated prisoner with a better prognosis.
D. The constitutional distinction between good time
and parole.
[8] The relevant Supreme Court decisions require “some
evidence” for denial of good time, but do not require it for
denial of parole, and they carefully distinguish good time
from parole.63 There is no general federal constitutional “some
evidence” requirement for denial of parole, in the absence of
state law creating an enforceable right to parole.
Hayward argues that the Supreme Court holding requiring
“some evidence” to justify denial of parole is Superintendent
63
See, e.g., Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1, 13 (1979); Wolff v. McDonnell, 418 U.S. 539, 561 (1974).
6324 HAYWARD v. MARSHALL
v. Hill.64 That decision is not on point, because the holding in
Hill addresses good time, not parole. Hill relied on Wolff v.
McDonnell,65 the Supreme Court’s seminal “good time” revo-
cation case. Wolff explains that good time “is qualitatively
and quantitatively different from the revocation of parole or
probation.”66 Wolff holds that revocation of good time
requires, inter alia, “that there must be a ‘written statement by
the factfinders as to the evidence relied on and reasons for the
disciplinary action.’ ”67 Wolff explained that “the provision for
a written record helps to insure that administrators, faced with
possible scrutiny by . . . perhaps even the courts, where funda-
mental constitutional rights may have been abridged, will act
fairly.”68 Relying on Wolff, Hill holds that, to take away a
prisoner’s good time, due process requires there to be “some
evidence” of a disciplinary infraction.69 It does not hold that
“some evidence” is required for denial of parole.70
The Supreme Court decisions addressing parole determina-
tions71 suggest (though they do not explicitly hold) that the
“some evidence” requirement does not apply to denial of
parole. In fact, the court has expressly distinguished good
time from parole.
Greenholtz v. Inmates of Nebraska Penal & Correctional
64
472 U.S. 445 (1985).
65
418 U.S. 539 (1974).
66
Id. at 561.
67
Id. at 564-65 (quoting Morrissey v. Brewer, 408 U.S. 471, 489
(1972)); see also Irons v. Carey, 506 F.3d 951, 954 (9th Cir. 2007) (Klein-
feld, J., dissenting from denial of rehearing en banc).
68
Wolff, 418 U.S. at 565; see also Irons, 506 F.3d at 954.
69
Superintendent v. Hill, 472 U.S. at 454; see also Irons, 506 F.3d at
954-55.
70
See Wolff, 418 U.S. at 561.
71
See Wilkinson v. Austin, 545 U.S. 209 (2005); Bd. of Pardons v. Allen,
482 U.S. 369 (1987); Greenholtz v. Inmates of Neb. Penal & Corr. Com-
plex, 442 U.S. 1 (1979).
HAYWARD v. MARSHALL 6325
Complex, addressing a claimed right to parole, holds that
“[t]here is no constitutional or inherent right of a convicted
person to be conditionally released before the expiration of a
valid sentence.”72 The Court distinguishes parole from parole
revocation, because revocation is a “wholly retrospective fac-
tual question,”73 but release on parole “depends on an amal-
gam of elements, some of which are factual but many of
which are purely subjective appraisals.”74
Greenholtz emphasizes that parole is a discretionary, pre-
dictive decision.75 Parole decisions are “ ‘equity’ type judg-
ment[s] that cannot always be articulated in traditional
findings” because “the choice involves a synthesis of record
facts and personal observation filtered through the experience
of the decisionmaker and leading to a predictive judgment as
to what is best both for the individual inmate and for the commu-
nity.”76 The Court rejects the due process argument for a
“some evidence” standard: “nothing in the due process con-
cepts as they have thus far evolved that requires the Parole
Board to specify the particular ‘evidence’ in the inmate’s file
or at his interview on which it rests the discretionary determi-
nation that an inmate is not ready for conditional release.”77
The state parole statute at issue in Greenholtz arguably cre-
ated a “liberty interest” to “some evidence” because it said
that the prisoner “shall” be paroled “unless” certain negative
conditions applied. But the Court rejected the argument. “The
Constitution does not require more” than an opportunity to be
heard and a statement telling the prisoner why he was not
paroled.78
72
442 U.S. at 7.
73
Id. at 9 (internal quotation marks omitted).
74
Id. at 10.
75
Id. at 13.
76
Id. at 8.
77
Id. at 15.
78
Id. at 16.
6326 HAYWARD v. MARSHALL
Board of Pardons v. Allen79 likewise addresses “shall . . .
unless” language in a parole statute. Though the language
does indeed establish a “liberty interest” protected by the Due
Process Clause,80 the Court nevertheless holds that the parole
board retains discretion to make a subjective decision. Allen
reaffirms that “the release decision is . . . ‘necessarily subjec-
tive . . . and predictive,’ ” and “the discretion of the Board is
‘very broad.’ ”81 The prisoner’s interest in parole ripens into
an entitlement only after the parole board has made the find-
ings 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 deci-
sion that under the state standard he is entitled to parole.82
By way of contrast, good time is neither subjective nor predic-
tive.83 Loss of good time is instead “a sanction for serious
misconduct” in prison, applied after an administrative adjudica-
tion.84 Good time is not, as parole is, a “discretionary assess-
ment of a multiplicity of imponderables, entailing primarily
what a man is and what he may be rather than simply what
he has done.”85 Good time entitlement depends on a straight-
79
482 U.S. 369 (1987).
80
Id. at 381.
81
Id. (quoting Greenholtz, 442 U.S. at 13).
82
Greenholtz controls the due process inquiry for a denial of parole. In
the prison context, however, the Supreme Court has backed away from
“the search for a negative implication from mandatory language in pris-
oner regulations.” Sandin v. Conner, 515 U.S. 472, 483 (1995). “After
Sandin,” then, “it is clear that the touchstone of the inquiry into the exis-
tence of a protected, state-created liberty interest in avoiding restrictive
conditions of confinement is not the language of regulations regarding
those conditions but the nature of those conditions themselves ‘in relation
to the ordinary incidents of prison life.’ ” Wilkinson v. Austin, 545 U.S.
208, 222-23 (2005) (quoting Sandin, 515 U.S. at 484).
83
See Superintendent v. Hill, 472 U.S. 445, 454 (1985).
84
Wolff v. McDonnell, 418 U.S. 539, 561 (1974).
85
Greenholtz, 442 U.S. at 10.
HAYWARD v. MARSHALL 6327
forward historical determination of what the prisoner has
done.
In Wilkinson v. Austin, the Court, addressing prison trans-
fers, distinguishes between parole and good time.86 Wilkinson
likens prison transfer to parole and distinguishes the good
time “some evidence” decisions, because, like parole and
unlike good time, transfer is discretionary.87 Accordingly, a
prison transfer decision requires only the “nonadversary pro-
cedures set forth in Greenholtz,” not the “more formal
adversary—type procedures” set forth in Wolff.88
Thus, in the absence of state law establishing otherwise,
there is no federal constitutional requirement that parole be
granted in the absence of “some evidence” of future danger-
ousness or anything else.
III. The California scheme.
Although the due process clause does not, by itself, entitle
a prisoner to parole in the absence of some evidence of future
dangerousness, state law may supply a predicate for that con-
clusion. “[D]espite the necessarily subjective and predictive
nature of the parole-release decision, state statutes may create
liberty interests in parole release that are entitled to protection
under the Due Process Clause.”89 This poses two questions for
us, whether the California parole scheme creates such an
interest, and, preliminarily, whether it is necessary to decide
whether it does.
The California parole statute provides that the Board of
Prison Terms “shall set a release date unless it determines that
86
545 U.S. 209, 228-29 (2005).
87
Id.88
Id.89
Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987) (emphasis added
and citation omitted).
6328 HAYWARD v. MARSHALL
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 individu-
al.”90 The crucial determinant of whether the prisoner gets
parole in California is “consideration of the public safety.”91
[9] In California, when a prisoner receives an indetermi-
nate sentence of fifteen years to life, the “indeterminate sen-
tence is in legal effect a sentence for the maximum term,
subject only to the ameliorative power of the [parole author-
ity] to set a lesser term.”92 Under the California parole
scheme, the prisoner has a right to a parole hearing and vari-
ous procedural guarantees and rights before, at, and after the
hearing;93 a right to subsequent hearings at set intervals if the
Board of Prison Terms turns him down for parole;94 and a
right to a written explanation if the Governor exercises his
authority to overturn the Board of Prison Terms’ recommen-
dation for parole.95 Under California law, denial of parole
must be supported by “some evidence,” but review of the
Governor’s decision is “extremely deferential.”96
[10] Subsequent to Hayward’s denial of parole, and subse-
quent to our oral argument in this case, the California
Supreme Court established in two decisions, In re Lawrence97
90
Cal. Penal Code § 3041(b).
91
In re Lawrence, 190 P.3d 535, 549 (Cal. 2008); In re Shaputis, 190
P.3d 573, 582 (Cal. 2008).
92
People v. Wingo, 534 P.2d 1001, 1011 (Cal. 1975) (internal quotation
marks and citation omitted); see also In re Dannenberg, 104 P.3d 783, 804
(Cal. 2005).
93
Cal. Penal Code § 3041.5.
94
Id.95
Id. § 3041.2.
96
In re Rosenkrantz, 59 P.3d 174, 210 (Cal. 2002).
97
190 P.3d 535, 549 (Cal. 2008).
HAYWARD v. MARSHALL 6329
and In re Shaputis,98 that as a matter of state law, “some evi-
dence” of future dangerousness is indeed a state sine qua non
for denial of parole in California. We delayed our decision in
this case so that we could study those decisions and the sup-
plemental briefs by counsel addressing them. As a matter of
California law, “the paramount consideration for both the
Board [of Prison Terms] and the Governor under the govern-
ing statutes is whether the inmate currently poses a threat to
public safety.”99 There must be “some evidence” of such a
threat, and an aggravated offense “does not, in every case,
provide evidence that the inmate is a current threat to public
safety.”100 The prisoner’s aggravated offense does not estab-
lish current dangerousness “unless the record also establishes
that something in the prisoner’s pre- or post-incarceration his-
tory, or his or her current demeanor and mental state” sup-
ports the inference of dangerousness.101 Thus, in California,
the offense of conviction may be considered, but the consider-
ation must address the determining factor, “a current threat to
public safety.”102
[11] Because the California “some evidence” standard is
exactly the same as the one Hayward urges as a federal con-
stitutional standard, the doctrine of constitutional avoidance103
counsels not deciding whether the California parole scheme
98
190 P.3d 573, 582 (Cal. 2008).
99
Lawrence, 190 P.3d at 552.
100
Id. at 554.
101
Id. at 555.
102
Id. at 539.
103
Escambia County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)
(“It is a well established principle governing the prudent exercise of this
Court’s jurisdiction that normally the Court will not decide a constitutional
question if there is some other ground upon which to dispose of the
case.”); Lee v. Walters, 433 F.3d 672, 677 (9th Cir. 2005) (“ ‘A fundamen-
tal and longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the necessity of
deciding them.’ ”) (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n,
485 U.S. 439, 445 (1988)).
6330 HAYWARD v. MARSHALL
establishes a predicate for imposing it as a matter of federal
constitutional law. State law already does what Hayward
would have federal constitutional law do. We therefore do not
decide whether a right arises in California under the United
States Constitution to parole in the absence of some evidence
of future dangerousness. Even if Hayward were correct that
he had a federal constitutional right to “some evidence,” it
would make no difference, since he has the right to parole in
the absence of “some evidence” of future dangerousness
under state law.
[12] Since the “some evidence” requirement applies with-
out regard to whether the United States Constitution requires
it, we in this case, and courts in this circuit facing the same
issue in the future, need only decide whether the California
judicial decision approving the governor’s decision rejecting
parole was an “unreasonable application”104 of the California
“some evidence” requirement, or was “based on an unreason-
able determination of the facts in light of the evidence.”105
And that conclusion is one that could not be reached on this
record, regardless of what level of “AEDPA deference” we
applied. The California Superior Court concluded that the
governor’s rejection of parole was based on “some evidence”
of future dangerousness because of “the nature of the commit-
ment offense” and “the somewhat unfavorable psychological
and counselor reports.” The reports that impressed the Supe-
rior Court said that Hayward would pose a “low” to “moder-
ate” risk of danger if released, as opposed to “no” or merely
“low” risk. The court found that the record supported the gov-
ernor’s judgment that the murder was premeditated and
extremely vicious, and could not be attributed merely to
“stress” about Hayward’s girlfriend as the parole board had
suggested. These two factors combined, in the state court’s
view, to establish some evidence of future dangerousness to
the public from this murderer.
104
28 U.S.C. § 2254(d)(1).
105
28 U.S.C. § 2254(d)(2).
HAYWARD v. MARSHALL 6331
CONCLUSION
What we are left with is California law establishing a right
that Hayward contends is a federal constitutional right, a right
to parole in the absence of some evidence of his own future
dangerousness to the public. There was some evidence of
future dangerousness, so his parole was denied, and the dis-
trict court correctly denied the writ. The right in California to
parole in the absence of some evidence of one’s future dan-
gerousness to the public arises from California law. We over-
rule any decisions suggesting that the federal constitution
imposes a requirement of “some evidence” of future danger-
ousness without regard to state law.
We have purposely avoided constraining other states to
conform to the California system. Other states may have dif-
ferent parole systems or, like the federal system, no parole at
all. A state may make parole a matter of grace, or require con-
sideration not only of the inmate’s future dangerousness if
released, but also the need for deterrence of others. Or it may
decide that the imprecision and unreliability of predictions of
future dangerousness make that an inappropriate criterion for
parole boards. Or it may decide that justice, respect for vic-
tims, and reaffirmation of societal norms,106 require denial of
parole to inmates who have committed terrible crimes regard-
less of whether they remain dangerous. Or it may decide that
it is worth freeing dangerous inmates or inmates who have
committed especially heinous crimes to avoid paying medical
expenses during their old age. A state may act on the view
that age diminishes a prisoner’s inclination to harm others, or
that it diminishes only his ability to run fast after he does. It
may decide that post-conviction behavior affords a good basis
for prediction, or that behavior in prison, where he is guarded
and on television monitors 24 hours a day, does not predict
post-release conduct as well as how the prisoner behaved the
last time he was free. It may rely heavily on prison adminis-
106
State v. Chaney, 477 P.2d 441, 446 (Alaska 1970).
6332 HAYWARD v. MARSHALL
trators, psychologists and counselors, or conclude that they
cannot see into the prisoner’s soul and are likely to be misled
by articulate prisoners who have learned what to say.
We do not intimate that any of these policy choices is con-
stitutionally required or prohibited. Procedurally and substan-
tively, the states have considerable room for play in the joints.
The states have “flexibility in deciding what procedures are
needed in the context of postconviction relief,”107 and state
postconviction relief procedures may be upset by a federal
court “only if they are fundamentally inadequate to vindicate
the substantive rights provided.”108
Affirmed.
BERZON, Circuit Judge, with whom Judges THOMAS,
FISHER, and PAEZ join, concurring in part and dissenting in
part:
Hayward contends that the Governor of California denied
him release on parole without “some evidence” of his future
dangerousness and that doing so violated the Due Process
Clause. In the substantive part of its opinion that actually per-
tains to the merits of this case, Part III, the majority declines
to decide whether the federal Constitution independently
establishes a “some evidence” standard as part of the mini-
mum process due to California prisoners denied parole,
because the state’s constitutional law already does so. The
majority then reviews the evidence of Hayward’s future dan-
gerousness and concludes that some evidence supported the
denial of parole. I concur in Part III of the opinion and offer
in Part III of this concurrence some additional bases for the
107
Dist. Attorney’s Office v. Osborne, 129 S. Ct. 2308, 2320 (June 18,
2009).
108
Id.HAYWARD v. MARSHALL 6333
conclusion reached, further explaining, in particular, why fed-
eral district courts and this court in the future may reach
“some evidence” questions arising in California parole cases
on federal habeas, as we do here.
Before it reaches the issues actually raised by Hayward’s
petition, however, the majority offers a lengthy disquisition
on state prisoner release systems in general, apparently to
rebut a constitutional proposition upon which Hayward never
relies — that all state parole systems must impart a protect-
able liberty interest because all “good time” statutes do so.
See Maj. Op. at 6317. But in intimating1 that the opposite is
true — that parole systems do not uniformly create liberty
interests — the majority commits the very error that it pur-
ports to correct, relying on broad generalizations about types
of prisoner release systems instead of focusing on the particu-
lar state scheme at issue.
In fact, the Supreme Court’s precedents make obvious that
the majority knocks down the most feeble of straw men when
it disapproves a uniform federal rule regarding the “some evi-
dence” issue on parole, divorced from the particulars of each
state’s statutory and decisional law. It is clear beyond cavil
that the process due under the United States Constitution
depends not on the label given to a particular early release
program but on its characteristics under state law. The majori-
ty’s disembodied discussion of prisoner release systems in
Part II is thus entirely superfluous.
More importantly, deciding constitutional issues in the air
is simply not our job as judges. We are here to decide cases,
not to issue advisory opinions on questions that may arise in
another state at another time. Moreover, the majority’s
lengthy discussion of the non-issue of a blanket federal “some
evidence” requirement for parole decisions is replete with
1
I say intimating because Part II of the majority opinion contains no
holding.
6334 HAYWARD v. MARSHALL
errors and misdirection. For these reasons, I cannot join Part
II of the opinion. I also part ways with the majority on the
jurisdictional question, to which I turn first.
I.
The majority concludes that 28 U.S.C. § 2253(c)(1)(A)
obliges a state prisoner to obtain a Certificate of Appealability
(COA) to obtain review of a denial of parole. Although the
matter is not free from doubt, for the reasons stated in White
v. Lambert, 370 F.3d 1002 (9th Cir. 2004), I would hold that
“a COA is not required when a state prisoner challenges an
administrative decision regarding the execution of his sen-
tence.” Id. at 1010.
The majority ignores the significance of the statutory lan-
guage of 28 U.S.C. § 2253(c)(1)(A) in the context of a chal-
lenge to prison administrative decisions. As we stated in
White, “[h]ad Congress intended that every state prisoner
obtain a COA before appealing, irrespective of the nature of
the challenge, it easily could have said so.” Id. at 1012.
Instead, the statutory language of § 2253(c)(1)(A) provides
that a COA is necessary only when “the detention complained
of arises out of process issued by a State court,” 28 U.S.C.
§ 2253(c)(1)(A) (emphasis added), indicating that the inquiry
turns on the “target of the prisoner’s complaint,” not merely
his status as a state prisoner. White, 370 F.3d at 1011. As we
explained in White, had Congress intended the COA require-
ment to apply to all state prisoners because the relevant “de-
tention” is “the state court decision that put the would-be
parolee in prison,” see Maj. Op. at 6314, it would have used
the language it used in other provisions of the habeas statute
— for example, in the exhaustion requirement, which applies
to “a person in custody pursuant to the judgment of a State
court,” 28 U.S.C. § 2254(b)(1). That language means pre-
cisely what the majority would hold the quite different lan-
guage of § 2253(c)(1)(A) to mean. See White, 370 F.3d at
1011.
HAYWARD v. MARSHALL 6335
In the parole release context, the most plausible reading of
§ 2253(c)(1)(A) is that the “detention complained of” is the
petitioner’s continued imprisonment as a result of the parole
board or Governor’s denial of parole, an administrative deci-
sion that does not “arise[ ] out of” process issued by a state
court. Accordingly, I would hold that because Hayward chal-
lenges “an administrative decision regarding the execution of
his sentence,” White, 370 F.3d at 1010, he need not have
obtained a COA to invoke this court’s jurisdiction.
I agree with the majority, of course, that if there is a COA
requirement, a COA should issue in this case. In the end, then,
the answer to the COA question does not matter to the out-
come. Moreover, as the majority indicates, it is hard to con-
ceive of a case in which requiring a COA would preclude
review of a meritorious case. This court considers a notice of
appeal as a request for a COA, and a COA issues unless the
case is, in essence, frivolous.
Still, the COA requirement adds steps to the appeal of a
potentially meritorious habeas case for the district court, the
petitioner, and this court. We should not expand this require-
ment beyond what Congress intended. As that is what the
majority has done, I dissent from its COA holding.
II.
The majority next engages in its abstract, superfluous dis-
cussion of state prisoner release systems, surveying a range of
such systems — including, presumably because it is the home
of the author of the opinion, Alaska’s — and distinguishing
between the general categories of “good time” and “parole.”
This extended discussion is dicta of the most objectionable
type. Hayward has never argued that the Due Process Clause
requires some evidence of future dangerousness for every
parole denial without regard to state law. Nor has this court
ever so held. The best the majority can do in explaining its
6336 HAYWARD v. MARSHALL
generic discussion is to indicate that some of our opinions
might “imply” — not hold — that the federal Due Process
Clause on its own imposes procedural requirements for all
state parole decisions, no matter whether the underlying state
law makes the decision purely discretionary or not. Maj. Op.
at 6317. But we don’t usually sit en banc to overrule implica-
tions. In any event, there are no implications in our case law
of the kind the majority conjures up to overrule.
In fact, as I explain, it is beyond dispute that the scope of
due process liberty interests is determined by the attributes of
the particular system created by the particular state, not by
whether the system is designated as “good time” or “parole.”
The upshot is that, if it has any effect at all, Part II of the
majority opinion will only sow confusion.
A.
The Supreme Court has established a two-part framework
for analyzing claims that the state has deprived an individual
of a protected liberty interest without due process, a frame-
work the majority does not acknowledge. First, we are to ask
whether an individual has a protected liberty or property inter-
est with which the state has interfered. Second, if the state has
interfered with such an interest, we are to ask whether the pro-
cedures attending that deprivation of liberty were constitu-
tionally sufficient. See Ky. Dep’t of Corr. v. Thompson, 490
U.S. 454, 460 (1989).
Critically, although an individual claiming a protected lib-
erty interest must have a “legitimate claim of entitlement” to
that interest, the interest typically does not arise from the fed-
eral Due Process Clause itself but from “ ‘the laws of the
States.’ ” Id. at 460-61 (quoting Hewitt v. Helms, 459 U.S.
460, 466 (1983)); see also Vitek v. Jones, 445 U.S. 480, 488
(1980) (“[S]tate statutes may create liberty interests that are
entitled to the procedural protections of the Due Process
Clause of the Fourteenth Amendment.”). Hayward has always
HAYWARD v. MARSHALL 6337
maintained that his liberty interest in parole arises from the
specifics of California’s parole scheme, not — as the majority
would have it — directly from some ephemeral, uniformly
applicable federal law.
To determine whether the California parole scheme gives
rise to a constitutionally protected liberty interest, we are
guided by the Supreme Court’s elucidation in the parole con-
text of generally applicable due process principles. “In the
air,” as the majority states, Maj. Op. at 6317, an inmate does
not have a “constitutional or inherent right . . . to be condi-
tionally released before the expiration of a valid sentence.”
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1, 7 (1979); Maj. Op. at 6324-25. It is equally clear,
however, that when a state’s parole scheme “creates a pre-
sumption that parole release will be granted” when or unless
statutorily designated findings are made, an inmate does have
a constitutionally protected expectancy of release on parole.
See Greenholtz, 442 U.S. at 12; Bd. of Pardons v. Allen, 482
U.S. 369, 377-78 (1987).
Contrary to the majority’s fundamentally misdirected anal-
ysis, then, the scope of federal constitutional liberty interests
is determined by the attributes of the particular system cre-
ated by the state, not by whether the system is designated as
“good time” or “parole” or something else. As the Supreme
Court has emphasized, each state’s parole statute “has [a]
unique structure and language and thus whether [the] state
statute provides a protectible entitlement must be decided on
a case-by-case basis.” Greenholtz, 442 U.S. at 12. It is there-
fore quite irrelevant how Alaska, for example, has structured
its parole system; that the federal system has no “parole” pro-
gram; or that there are differences between “good time” sys-
tems and “parole” systems generically defined. See Maj. Op.
at 6317-27. What would matter for purposes of Hayward’s
claim that some evidence of future dangerousness is a compo-
nent of the minimum process guaranteed by the Due Process
Clause in this context is the nature and scope of the liberty
6338 HAYWARD v. MARSHALL
interest provided by California’s parole system, considered in
detail rather than superficially. See Greenholtz, 442 U.S. at
12; Allen, 482 U.S. at 377-78.
The opinion announces that it overrules a handful of this
Circuit’s decisions recognizing protected liberty interests in
parole release “[to the extent that they] might be read to imply
that there is a federal constitutional right regardless of
whether state law entitles the prisoner to release.” Maj. Op. at
6317. But each of the cited decisions grounded its inquiry and
holding — quite expressly — in the particular characteristics
of the state scheme at issue, which in each case was the Cali-
fornia scheme. See Irons v. Carey, 505 F.3d 846, 850 (9th Cir.
2007) (“[T]he Supreme Court ha[s] clearly established that a
parole board’s decision deprives a prisoner of due process
with respect to this interest [created by California Penal
Code section 3041] if the board’s decision is not supported by
some evidence in the record.” (emphasis added) (internal quo-
tation marks omitted)); Sass v. Cal. Bd. of Prison Terms, 461
F.3d 1123, 1127 (9th Cir. 2006) (“[T]here is no constitutional
or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence . . . . [But]
if a state statute uses mandatory language (‘shall’) to create a
presumption that parole release will be granted when the des-
ignated findings are made, the statute creates a liberty interest
in parole.” (internal citations and quotation marks omitted));
Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir. 2003)
(“Because the California parole scheme vests in every
inmate, a constitutionally protected liberty interest . . . , the
requirements of due process are satisfied if ‘some evidence’
supports the [parole] decision.” (emphasis added)). Accord-
ingly, there is no implication — much less any holding — for
this en banc panel to “overrule.”
B.
The majority’s discussion of parole is an object lesson in
why the due process inquiry — or, for that matter, any judi-
HAYWARD v. MARSHALL 6339
cial inquiry — cannot sensibly be conducted in the air. The
opinion repeatedly asserts that prisoners may be denied parole
at the state’s discretion, whereas good time is nondiscretion-
ary. Maj. Op. at 6320-23. But whether either is so depends on
what state law provides. States may — as California has done
— create an indeterminate sentencing scheme and require that
prisoners who have served their minimum term will be
released if certain circumstances exist. The Supreme Court
has made clear that official discretion in the due process con-
text is not all-or-nothing but relative, and that limitations on
official discretion such as those California has adopted for its
parole release system can give rise to a federal liberty interest.
See Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (“[A]
State creates a protected liberty interest by placing substantive
limitations on official discretion.”). Again, whether there are
such limits on discretion turns on the details of the particular
state scheme. See Allen, 482 U.S. at 375 (“[A]n official has
discretion when the standards set by a statutory or regulatory
scheme cannot be applied mechanically.” (internal quotation
marks omitted)). Divorced from context, then, generalizations
about “discretion” only mislead.
More fundamentally, because the majority does not offer its
general observations on parole and good time in the course of
deciding any question that is actually raised by Hayward’s
petition, the observations are advisory and so useless to the
proper development of the law. See Flast v. Cohen, 392 U.S.
83, 96-97 (1968) (“[T]he rule against advisory opinions
[ensures] that clear concreteness provided when a question
emerges precisely framed and necessary for decision . . . .”).
The opinion announces that the good time and parole contexts
“differ,” and discusses the differences between the two at
some length. But because, as I have explained, neither good
time nor parole creates due process rights without reference
to the particular state system at issue, one is left wondering
what the relevance of this discussion of Platonic ideal types
might be. It is clear — even if little else about Part II is —
that these generalizations do not require future courts to
6340 HAYWARD v. MARSHALL
ignore Supreme Court precedent, our precedent, and the
actual characteristics of the state schemes they are called on
to evaluate.
III.
As I have indicated, I am nevertheless in general agreement
with Part III of the majority opinion, which holds cognizable
on habeas review claims that California parole denials were
made without “some evidence” of future dangerousness. The
majority declines to employ the Supreme Court’s framework
for determining whether California parole statutes create pro-
tected liberty interests, relying instead on the fact that Califor-
nia’s own constitutional law requires that “some evidence”
undergird parole denials. Although I would approach the
question a bit differently, I believe the majority’s ultimate
conclusions sound and offer here some additional consider-
ations in support of them.
The California Supreme Court has held that, as a matter of
state constitutional law, some evidence must support the Gov-
ernor’s decision denying parole. See In re Lawrence, 190 P.3d
535, 547-48 (Cal. 2008); In re Shaputis, 190 P.3d 573, 580
(Cal. 2008). But the Court has consistently refrained from
deciding whether the federal Constitution also so requires.
See, e.g., In re Rosenkrantz, 59 P.3d 174, 205 n.12 (Cal.
2002) (“Because we conclude as a matter of California law
that the ‘some evidence’ standard of review is applicable to
judicial review of a Board’s decision denying parole, we have
no occasion to determine whether the same standard is also
mandated under federal constitutional principles.”). By deny-
ing relief without addressing the federal issues, the California
courts have implicitly determined that the federal Constitution
does not impose procedural or evidentiary standards more
stringent than those imposed by the California Constitution.
Because Hayward does not contend otherwise, and we have
never so held, this case does not present an occasion to disturb
HAYWARD v. MARSHALL 6341
the California Supreme Court’s implicit holding on that ques-
tion.
It is likewise appropriate for the majority to rely on the Cal-
ifornia Supreme Court’s articulation of state constitutional
requirements in determining what the federal Constitution
requires in this case. Federal due process rights typically arise
from state law entitlements, see Thompson, 490 U.S. at 460,
and there is no reason to think that state constitutional law
may not place mandatory limits on official discretion, giving
rise to “a presumption that parole release will be granted” and
creating a protected liberty interest, Allen, 482 U.S. at 377-78
& n.10, just as statutes may do. That is exactly what the Cali-
fornia Supreme Court has determined the California Constitu-
tion does with regard to parole denial, see Lawrence, 190 P.3d
at 548, and the majority correctly relies on that decisional law
as defining a quantum of evidence requirement, without
deciding whether the interest would exist in the absence of
that decisional law. Moreover, the arbitrary disregard of pro-
cess guaranteed by state constitutional law may violate the
federal Constitution’s guarantee of due process. See Hicks v.
Oklahoma, 447 U.S. 343, 346 (1980). For that reason, the
majority is correct to review the state court decision here for
compliance with the California Constitution’s requirement of
“some evidence” of future dangerousness. The federal Due
Process Clause requires at least that much.
Applying the “some evidence” rule in light of the consider-
ation that review of that factual determination is governed by
AEDPA’s deferential standards, see 28 U.S.C. § 2254(d), I
conclude that the state courts’ decision that Hayward was
properly denied parole was not an unreasonable conclusion on
the record of the pertinent parole proceeding. In interpreting
the statutes and regulations governing California’s parole sys-
tem, the California Supreme Court recently held that its
caselaw “recognize[s] that the paramount consideration for
both the Board and the Governor under the governing statutes
is whether the inmate currently poses a threat to public safety
6342 HAYWARD v. MARSHALL
and thus may not be released on parole.” Lawrence, 190 P.3d
at 552 (citing In re Dannenberg, 104 P.3d 783, 786 (Cal.
2005); Rosenkrantz, 59 P.3d at 202). The suitability and
unsuitability factors may guide the Board or the Governor in
their determination that a prisoner remains dangerous to the
public, but “[i]t is not the existence or nonexistence of suit-
ability or unsuitability factors that forms the crux of the parole
decision; the significant circumstance is how those factors
interrelate to support a conclusion of current dangerousness to
the public.” Id. at 553. “Accordingly . . . the relevant inquiry
is whether some evidence supports the decision of the Board
or the Governor that the inmate constitutes a current threat to
public safety, and not merely whether some evidence con-
firms the existence of certain factual findings.” Id.
In light of Shaputis, 190 P.3d at 580, I cannot conclude that
the state trial court unreasonably determined that there is
some evidence to support the Governor’s decision. I note, in
addition to the factors cited by the majority, that the attack
leading to Hayward’s conviction was not an isolated incident
of brutality. The murder was, instead, the culmination of a
long history of violence and criminal activity stretching back
to as early as age eight. See id. at 584 (describing the crime
of conviction as the “culmination” of several years of violent
behavior). Hayward had been arrested at least twenty times
prior to the murder, on charges ranging from armed robbery,
to assault and battery, to attempted murder. He previously
served a prison term for assault with a deadly weapon. As in
Shaputis, these circumstances reasonably establish that the
attack was not committed during a period of “emotional stress
that was unusual or unlikely to recur.” Id. The assault on Hay-
ward’s then-girlfriend occurred eight months before the mur-
der, and Hayward claims that his initial feelings of extreme
rage over the incident subsided as time went on. Ultimately,
according to the evidence, Hayward inflicted the fatal vio-
lence only after the drunk victim lobbed a beer bottle at his
companion. See Cal. Code Regs. tit. 15, § 2402(c)(1)(E) (not-
ing that a factor favoring an unsuitability determination exists
HAYWARD v. MARSHALL 6343
where “[t]he motive for the crime is inexplicable or very triv-
ial in relation to the offense”).
These static historical factors suggest that, without any
doubt, Hayward once was an extreme danger to public safety.
But, after more than fifteen years of denying stabbing his vic-
tim, Hayward ultimately accepted responsibility for the crime
in 1993, more than fifteen years ago. And, although there is
some indication that he made statements suggesting he lacked
remorse in a 1997 psychological evaluation, more than ten
years have elapsed since that time. Moreover, the record does
not reveal any violence or serious discipline within the last
fifteen years of Hayward’s incarceration. As the California
Supreme Court has recently indicated, to focus completely on
unchanging factors such as the commitment offense and pre-
incarceration history is at odds with a parole system that
assumes, as its basic premise, that some rehabilitation is at
least possible. See Lawrence, 190 P.3d at 559 (“[I]t is evident
that the Legislature considered the passage of time — and the
attendant changes in a prisoner’s maturity, understanding, and
mental state — to be highly probative to the determination of
current dangerousness.”). Over time, the ability of the com-
mitment offense and pre-incarceration history to demonstrate
current dangerousness diminishes. See id. at 560.
Still, Hayward’s most recent psychological evaluation rea-
sonably can be read to indicate that Hayward had not yet
reached that point, and the Governor so read it. The evalua-
tion concluded that measures of both static and dynamic risk
factors associated with violence placed Hayward in “a cate-
gory that represents a low to moderate risk for future violence
in the community.” These factors include the violent criminal
history just described, as well as early adjustment problems in
the prison community, “episodes of relationship instability,”
including current estrangement from two of his daughters, and
a history of substance abuse problems, including prior use of
cocaine and marijuana. The evaluations are far from damning
— they cite Hayward’s “increased level of maturity and
6344 HAYWARD v. MARSHALL
insight, his participation in substance abuse recovery” — and
they indicate that the “historical risk factors now seem to be
adequately contained.” Nevertheless, the evaluation concludes
that Hayward presents a “low to moderate risk” of danger to
the community. The state court did not unreasonably deter-
mine that this evaluation, and the evaluation’s assessment of
Hayward’s commitment offense and his violent history, are
evidence that Hayward’s release would pose a possibly “mod-
erate” risk to public safety.2
I accordingly join Part III of the court’s opinion and its
conclusion that the petition for habeas corpus must be denied.
2
I note that the psychological evaluation cited in the Governor’s deci-
sion was conducted in March 2002, more than seven years ago. Over time
one’s psychological status is likely to change, so the 2002 evaluation and
other assessments would in all likelihood not support the conclusion that
Hayward would pose a risk to public safety if released now. But we are
reviewing the parole release decision as of when it was made, not now.
For any future parole release decisions, the Board would likely arrange for
a new psychological evaluation, an evaluation which could well differ
from the 2002 report in both its content and its conclusions. Subsequent
Boards or Governors will therefore be able to reassess Hayward’s then-
current dangerousness in light of more contemporary reports, and could
reach a conclusion different from that of Governor Davis in 2003.