Gutierrez v. Kane

FILED
NOT FOR PUBLICATION JUL 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSEPH P. GUTIERREZ, No. 07-15812
Petitioner - Appellant, D.C. No. CV-05-01537-SI
v.
MEMORANDUM *
A. P. KANE; BOARD OF PRISONS
TERMS COMMISSIONERS,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
California state prisoner Joseph P. Gutierrez appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 2253, and we affirm in part and vacate and remand
in part.
Gutierrez contends that the applicable standard to review parole decisions by
the California Board of Prison Terms (“the Board”) is preponderance of the
evidence. This argument is foreclosed by Hayward v. Marshall, 603 F.3d 546,
562-63, 569 (9th Cir. 2010) (en banc). He further argues that the Board’s 2003
decision to deny him parole did not have evidentiary support. Because the district
court did not have the benefit of this court’s en banc opinion in Hayward at the
time of its decision, we vacate the judgment insofar as the district court concluded
that “some evidence” supports the denial of parole, and remand for further
proceedings and development of the record. See id. (stating that under California’s
parole scheme the paramount consideration is whether the prisoner poses a current
threat to public safety).
Gutierrez maintains that the district court erred by declining to address his
claim that the Board is biased and improperly denies parole on a routine basis. The
record indicates that the district court did not err and Gutierrez fails to show he was
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entitled to an evidentiary hearing as to this claim. See Insyxiengmay v. Morgan,
403 F.3d 657, 669-70 (9th Cir. 2005).
AFFIRMED in part; VACATED in part and remanded for further
proceedings.
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