Robert Laucella v. D. Sisto

FILED
NOT FOR PUBLICATION MAY 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT LAUCELLA, No. 10-15349
Petitioner - Appellee, D.C. No. 2:08-cv-00109-LKK-
CHS
v.
D. K. SISTO; JOHN W. HAVILAND, MEMORANDUM *
Respondents,
and
MATTHEW CATE, Secretary of the
California Department of Corrections and
Rehabilitation,
Respondent - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Submitted May 9, 2011 **
San Francisco, California
*
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).
Before: HUG and PAEZ, Circuit Judges, and O’GRADY,*** District Judge.
The State appeals the district court’s order granting Robert Laucella’s
(“Laucella’s”) federal habeas corpus petition. The California Board of Parole
Hearings (“Board”) found Laucella suitable for parole in 2002. Former Governor
Davis reversed that decision, but Laucella successfully challenged the reversal
through a state habeas corpus petition. The state court remanded the matter to the
Governor’s office; then Governor Schwarzenegger also reversed the Board’s
parole suitability order. After the state supreme court denied Laucella’s state
habeas corpus petition challenging Governor Schwarzenegger’s reversal, he filed
the federal habeas corpus petition at issue here. The district court granted
Laucella’s petition, finding that the Governor’s reversal was not supported by
some evidence in the record, as California law requires.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(a). We review de
novo the district court’s grant of a habeas petition. Lambert v. Blodgett, 393 F.3d
943, 964 (9th Cir. 2004). We review for clear error the district court’s factual
findings. Id.
***
The Honorable Liam O’Grady, District Judge for the U.S. District
Court for Eastern Virginia, Alexandria, sitting by designation.
2
After the district court granted Laucella’s habeas petition, the Supreme
Court issued its opinion in Swarthout v. Cooke, 131 S. Ct. 859 (2011). Cooke
forecloses Laucella’s due process claim. In Cooke, the Court explained that if a
state parole scheme creates a federally protected liberty interest, the Constitution
“does not require more” than a prisoner being “allowed an opportunity to be heard
and [] provided a statement of the reasons why parole was denied.” Id. at 862
(quoting Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S.
1, 16 (1979)).
Here, the California parole scheme creates a liberty interest in parole.
Pearson v. Muntz, --- F.3d --- (9th Cir. 2011), 2011 WL 1238007 at *4 (“California
law creates a liberty interest in parole”) (internal quotation marks omitted);
McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 2002) (“[C]learly established
Federal law, as determined by the Supreme Court of the United States provides that
California prisoners like McQuillion have a cognizable liberty interest in release on
parole.”) (internal quotation marks omitted). We therefore reject the State’s
argument that this court lacks subject matter jurisdiction because Laucella does not
have a federally protected liberty interest in parole.
Cooke instructs that if a state prisoner has a liberty interest in parole, due
process only requires that the prisoner be afforded an opportunity to be heard and
3
be informed of the reasons parole is denied. 131 S. Ct. at 862. This is “the
beginning and the end of the federal habeas courts’ inquiry into whether [a
prisoner] received due process.” Id. Laucella had an opportunity to be heard at his
Board hearing, and the Governor—after considering the same evidence that was
before the Board—provided written reasons for reversing the Board’s finding that
Laucella was suitable for parole. Therefore, even if the district court correctly
found that the Governor’s decision was not supported by some evidence in the
record, Laucella’s due process rights were not violated. See Pearson, 2011 WL
1238007 at *5 (“Cooke makes clear that we cannot consider whether ‘some
evidence’ of dangerousness supported a denial of parole on a petition filed under
28 U.S.C. § 2254.”).
REVERSED.
4