Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010)

Under California law, the Board of Parole Hearings (replacing the former name of Board of Prison Terms) must grant parole to a state prisoner unless there is “some evidence” of the parolee’s future dangerousness; In re Lawrence, 190 P.3d 535 (Cal. 2008) and In re Shaputis, 190 P.3d 573 (Cal. 2008). Both of these decisions written by the California Supreme Court have engendered numerous appeals in state court and in federal court. Hayward was convicted of second degree murder in state court and sentenced indeterminately to fifteen years to life. The Board granted his application for parole subject to Gubernatorial concurrence. Then-Governor Davis denied parole. Hayward filed habeas corpus in federal court. Two federal courts, Irons v. Carey, 505 F.3d 846 (9th Cir. 2007) and an earlier decision of Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008) held a state prisoner has a “liberty interest” in parole. In the original Hayward case the Ninth Circuit three judge panel held the Governor failed in his duty to grant Hayward parole under the circumstances. The “circumstances” included a second degree murder conviction and 28 arrests including an armed robbery. The Ninth Circuit granted a rehearing in Hayward v. Marshall, vacated the panel holding, and canceled the ruling in Irons v. Carey. The Ninth Circuit cited the Supreme Court case of Greenholtz v. Inmates of Nebraska Penal & Correction Complex, 442 U.S. 1 (1979). “Greenholtz 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.’ The Hayward court continues: The [Supreme] Court distinguishes parole from parole revocation, because revocation is a ‘wholly retrospective factual question,’ but release on parole depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals.’ “Greenholtz emphasizes that parole is a discretionary, predictive decision. Parole decisions are ‘equity type judgment[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 community. “The [Supreme] Court rejects the due process argument for a some evidence standard: Nothing in the due process concepts 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 determination that an inmate is not ready for conditional release. The state parole statute at issue in Greenholtz arguably created 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.” The Ninth Circuit ruled that the California parole process does not violate any federal Constitutional right. Surprisingly, the entire en banc court denied the petition for habeas corpus but the concurring and dissenting judge resorted to personal and abusive remarks about the majority opinion entirely unnecessary and injudicious.
See, subsequent blog on Parole (Swarthout) above