                                                                               FILED
                             NOT FOR PUBLICATION                                JUN 18 2010

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS



                             FOR THE NINTH CIRCUIT



 ELIJAH CLAY,
                                               No. 07-55377
                Petitioner - Appellee,
                                               D.C. No. CV-04-8663-VAP
           v.

 A. P. KANE, Warden,                           MEMORANDUM *

                Respondent - Appellant.

                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                     Argued and Submitted February 7, 2008
                 Submission Vacated and Deferred April 18, 2008 **
                           Resubmitted June 18, 2010
                              Pasadena, California

     Before: PREGERSON and WARDLAW, Circuit Judges, and
LEIGHTON ***, District Judge.




       *
               This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
               After oral argument, we vacated and deferred submission of this case
pending decision of the California Supreme Court in two cases, In re Lawrence, 190 P.3d
535 (Cal. 2008) and In re Shaputis, 190 P.3d 573 (Cal. 2008), and awaited this Court’s en
banc decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010)(en banc).
       ***
              The Honorable Ronald B. Leighton, United States District Judge for the
Western District of Washington, sitting by designation.
       The California Board of Prison Terms (“Board”)1 found state prisoner

Elijah Clay suitable for parole. Then-Governor Gray Davis reversed the Board’s

decision. Clay petitioned the California state courts for a writ of habeas corpus

challenging the Governor’s decision. The Los Angeles Superior Court, the Court

of Appeals, and the California Supreme Court all denied the petition in turn. Clay

then filed a petition for writ of habeas corpus in federal court. The district court

granted the writ and the state now appeals that decision. WE AFFIRM.

       The Board found that Clay would not pose an unreasonable risk of danger

to society or a threat to public safety if released from prison, noting that a prison

psychologist found that “his violence potential is considered to be no more than

that of the average citizen in the community.” It also found that Clay showed

remorse and took responsibility for the death of the victim. The Board also

favorably noted Clay’s extensive participation in educational and therapeutic

programs while in prison. The Board granted parole subject to review by the

Governor. See Cal. Const. art. V, § 8(b); Cal. Penal Code § 3041.2(a).

       In reversing the Board’s decision, the Governor relied on four main factors.

First, he found that “the gravity of Mr. Clay’s crime is alone, sufficient to conclude

that he is not suitable for release at this time.” Second, he noted that “Mr. Clay has

not sufficiently participated in self-help in order to further delve into the causative



       1
       On July 1, 2005, California created the Board of Parole Hearings to replace the
Board of Prison Terms. Cal. Penal Code § 5075(a).

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factors for his participation in the life crime” and “that until further progress is

made, Mr. Clay continues to be unpredictable and a threat to others.” [Id.] Third,

he criticized the Board for giving “inadequate consideration to Mr. Clay’s

extensive criminal history.” [Id.] Finally, he said that Clay’s parole plans –

specifically the fact that he “has a job offer in San Diego, yet his offer of housing

is in Los Angeles” – were unrealistic. [Id.]

       The Los Angeles County Superior Court denied Clay’s habeas petition,

concluding that the Governor’s findings were supported by “some evidence” and

the Court of Appeal and California Supreme Court summarily denied the petition.

As a matter of California state law, “some evidence” of future dangerousness is

essential for denial of parole. Hayward v. Marshall, 603 F.3d at 562 (citing In re

Lawrence, 190 P.3d 535, 549 (Cal. 2008) and In re Shaputis, 190 P.3d 573, 582

(Cal. 2008)).

       If the Governor relies on the aggravated nature of the commitment offense

to deny parole, as he did here, he may do so only if “the record also establishes

that something in the prisoner’s pre- or post-incarceration history, or his or her

current demeanor and mental state” related to the commitment offense is

“probative . . . of a continuing threat to public safety.” In re Lawrence, 190 P.3d at

555. Here, there is no evidence in the record that would indicate that Clay poses a

danger to the community if released. He committed the offense while in his

twenties in 1976 and in 1978 was sentenced to a term of seven years to life. Clay

                                           -3-
is now over sixty years old. Clay’s criminal history is unremarkable, consists

mostly of misdemeanor offenses and theft crimes, and is over forty years old. He

has not received any disciplinary infractions in prison since 1990. Prison

psychiatrists and psychologists unanimously found Clay suitable for parole.

       The remaining factors relied on by the Governor – Clay’s alleged need for

participation in even more therapeutic programming and the “unrealistic” nature of

his parole plans – are also plainly contradicted by the record. Clay has participated

extensively in therapeutic and educational programming, and the prison

psychologist found that Clay presented no more of a threat to the public than the

average citizen. Further, Clay has secured a job and housing in Southern

California and has developed his marketable skills while incarcerated.

       The Los Angeles County Superior Court’s decision denying Clay’s petition

for a writ of habeas corpus upholding the Governor’s decision was an

unreasonable application of California’s “some evidence” rule and was an

unreasonable determination of the facts in light of the evidence presented.

Hayward, 603 F.3d at 562-63; 28 U.S.C. § 2254(d)(1) and (2).

       The district court’s grant of the writ is AFFIRMED.




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