                                                                           FILED
                               FOR PUBLICATION                              OCT 12 2010

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




                            FOR THE NINTH CIRCUIT

LEWIS HAGGARD,                                   No. 10-16819

              Petitioner - Appellee,             D.C. No. 3:06-cv-07658-SI
                                                 Northern District of California,
  v.                                             San Francisco

BEN CURRY, Warden,
                                                 ORDER
              Respondent - Appellant.



Before: CLIFTON, BYBEE and IKUTA, Circuit Judges.

       In this case, the California Board of Parole Hearings (“Board”) denied state

prisoner Lewis Haggard’s request for release on parole, and the state court upheld

the parole denial. In his federal habeas petition, Haggard argued that the Board’s

decision was erroneous because the record lacked evidence of his current

dangerousness. The district court agreed, and ordered the state to release Haggard

while the state’s appeal of the district court’s decision was pending. The state

moved for a stay of the release order. Because a prisoner who receives a defective

parole denial determination is entitled under California law only to a procedurally

proper parole decision, and not to actual release on parole, we conclude that the
state will likely prevail on its claim that the district court erred in ordering

Haggard’s immediate release. We therefore grant the state’s stay motion.

                                             I

       In 1979, Lewis Haggard was convicted in California state court of kidnaping

for the purpose of committing robbery. He received a sentence of seven years to

life in state prison. The Board denied Haggard parole on twelve occasions. In

February 2004, the Board issued its thirteenth denial. In its decision, the Board

determined that Haggard was “not yet suitable for parole, and would pose an

unreasonable risk of danger to society or a threat to public safety if released from

prison.” The Board based this conclusion on a number of factors. It found that

Haggard’s commitment offense was carried out in a calculated and cruel manner

that showed a lack of regard for the suffering of others and the life of others.

Further, Haggard had a criminal history, and had exhibited continued negative

behavior while in confinement. Next, the Board noted that while one

psychological evaluation stated that Haggard was not a risk for future violence, a

slightly earlier psychological evaluation stated that Haggard posed a “high risk of

violence within the community or over the next ten years.” Finally, the Board

found that Haggard needed continued work on developing skills that would allow

him to deal with stress in a non-destructive manner.


                                            -2-
      Haggard filed a habeas petition in state superior court, claiming that the

Board’s denial of release on parole violated his federal due process rights. The

state court held that the Board had not abused its discretion in denying Haggard

release on parole. Among other things, the state court rejected Haggard’s

argument that the Board had relied on the commitment offense alone in making its

decision to deny a parole release date. The state court found that the record

contained “some evidence” of current dangerousness that supported the Board’s

decision, and that the Board had considered the relevant factors, including the

gravity of the commitment offense, Haggard’s negative institutional behavior, and

his psychological evaluations. Therefore, the court upheld the Board’s denial of

parole. The state appellate court and California Supreme Court summarily denied

Haggard’s habeas petition.

      After exhausting his state remedies, Haggard filed a habeas petition in

district court. The district court independently reviewed the evidence before the

Board, and concluded that the circumstances of Haggard’s offense, institutional

history, and psychological evaluation did not constitute “some evidence”

supporting the conclusion that Haggard’s release would unreasonably endanger

public safety. Therefore, the district court granted Haggard’s habeas petition and

ordered the Board to set a parole date for Haggard not more than 30 days from the


                                         -3-
date of the district court’s decision. This order required the state to release

Haggard on parole until the state’s appeal of the district court’s decision was

finally resolved.

      The state appealed the district court’s order granting the petition and

concurrently moved to stay that order pending appeal.1

                                           II

      We may reverse or modify a district court’s decision to release a prisoner

pending appeal of his successful habeas petition “for special reasons shown.” Fed.

R. App. P. 23(d); Hilton v. Braunskill, 481 U.S. 770, 774 (1987). Although there

is a “presumption of release from custody” of a successful habeas petitioner

pending appeal, Hilton, 481 U.S. at 774 (citing Fed. R. Civ. P. 23(c)), “it may be

overcome if the traditional stay factors tip the balance against it.” Id. at 777.

Accordingly, we consider the following factors:

      (1) whether the stay applicant has made a strong showing that he is likely
      to succeed on the merits; (2) whether the applicant will be irreparably
      injured absent a stay; (3) whether issuance of the stay will substantially
      injure the other parties interested in the proceeding; and (4) where the
      public interest lies.




      1
        On September 30, 2010, this court entered a temporary stay of the district
court’s August 11, 2010 order, “pending further order of [this] court.” Our
decision today replaces that temporary stay.

                                           -4-
Id. at 776. The most important factor is the first, that is, whether the state has

made a strong showing of likely success on the merits of its appeal of the district

court’s decision. See id. at 778.

      In considering the state’s likely success on the merits, we must apply the

framework we have developed for the purpose of analyzing habeas petitions from

California prisoners claiming that a parole denial violates their federal due process

rights. We begin with the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), which precludes a federal court from granting a habeas petition unless

the state court’s adjudication of a claim “resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

To apply this standard, a federal court must “look through unexplained state court

decisions . . . to the last reasoned state court decision to address the claim at issue.”

Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007); accord Ylst v. Nunnemaker,

501 U.S. 797, 804–06 (1991). Here, the last reasoned state court decision was that

of the state superior court, which upheld the Board’s parole denial decision

because the record included “some evidence” of Haggard’s current dangerousness.

      We review a denial of parole through the lens of the federal Due Process

Clause. E.g., Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7


                                           -5-
(1979); see Bd. of Pardons v. Allen, 482 U.S. 369, 373 & n.3 (1987). In general,

parties claiming that their due process rights were violated must establish “two

distinct elements: (1) a deprivation of a constitutionally protected liberty or

property interest, and (2) a denial of adequate procedural protections.” McQuillion

v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002) (quoting Brewster v. Bd. of Educ. of

Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998)) (internal quotation

marks omitted). While “[t]here is no constitutional or inherent right of a convicted

person to be conditionally released before the expiration of a valid sentence,”

Greenholtz, 442 U.S. at 7, a state parole statute may create an “expectancy of

release” on parole that “is entitled to some measure of constitutional protection,”

id. at 12. In other words, it is possible for an inmate to have a constitutionally

protected liberty interest in parole, but only to the extent that state law creates that

interest. Id.; see Allen, 482 U.S. at 373. Moreover, the state law giving rise to that

liberty interest not only creates the interest but also defines its scope and prescribes

its limits. See, e.g., Pearson v. Muntz, 606 F.3d 606, 611 (9th Cir. 2010)

(analyzing the California parole system to discern the scope of the prisoners’

liberty interest in parole); cf. Bishop v. Wood, 426 U.S. 341, 344 & n.7 (1976);

Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir. 1989) (looking to state law to

define the scope of Washington state inmates’ interest in parole).


                                           -6-
      When a California court upholds a parole denial decision, our precedents

require us to determine whether such a denial was an unreasonable application of

the decisions establishing and defining the scope of that state-created liberty

interest in parole. See Pearson, 606 F.3d at 611 (interpreting Hayward v.

Marshall, 603 F.3d 546, 561–63 (9th Cir. 2010) (en banc)). In this vein, our recent

en banc decision in Hayward relied on two 2008 California Supreme Court

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

573 (Cal. 2008), to delineate the scope of the California prisoners’ state liberty

interest in parole. In Lawrence and Shaputis, the California Supreme Court

“concluded that the standard governing judicial review of parole decisions made

either by the Board or by the Governor is whether ‘some evidence’ supports the

determination that a prisoner remains currently dangerous.” In re Prather, 234

P.3d 541, 544 (Cal. 2010). The California Supreme Court also reaffirmed that the

“some evidence” standard is a procedural protection required by the state

constitution’s due process clause, “because the inmate’s due process interest in

parole mandates a meaningful review of a decision denying parole.” Id. at 252; see

also Lawrence, 190 P.3d at 547–49, 552–54; In re Rosenkrantz, 59 P.3d 174,

203–05 (Cal. 2002).




                                          -7-
      Based on the rationale of Lawrence and Shaputis, we held that the

procedural protection afforded to parole applicants by California’s “some

evidence” standard is part of the state-created liberty interest in parole that is

protected by the federal Due Process Clause. See Hayward, 603 F.3d at 561–63;

see also Pirtle v. Cal. Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th Cir. 2010)

(holding that California’s liberty interest in parole “encompasses the state-created

requirement that a parole decision must be supported by ‘some evidence’ of current

dangerousness”) (citations omitted). In light of this understanding, we concluded

that a parole denial by the Board or Governor may violate a prisoner’s federally

protected due process right if the denial does not satisfy the state-created “some

evidence” requirement, because that requirement is part of California prisoners’

state-created expectation of parole release. Hayward, 603 F.3d at 561–63. If a

state court denies a prisoner’s appeal of such a deficient ruling, we may grant the

writ. See Pearson, 606 F.3d at 611–12.

      In sum, our precedent dictates that when a prisoner raises a claim that he or

she has been deprived of the full scope of a state-created liberty interest in parole

(including its procedural elements), and the state court rejects that claim, a federal

court may grant the prisoner’s habeas petition if it concludes that the state court’s




                                           -8-
decision was an unreasonable application of the state’s “some evidence” standard.

See id.; see also Pirtle, 611 F.3d at 1020–25,

      After the California Supreme Court’s decisions in Lawrence and Shaputis,

and after our decisions in Hayward, Pearson, and Pirtle, which relied on them, the

California Supreme Court issued In re Prather, 234 P.3d 541 (Cal. 2010), which

further clarified the scope of a prisoner’s state-created interest in parole. In

Prather, the California Supreme Court explained that, under the California

constitution, “[t]he power to grant and revoke parole is vested in the Department of

Corrections, [an arm of the state executive,] not the courts.” 234 P.3d at 550–52

(citations omitted). Prather continued:

      Thus, where the Department of Corrections has failed to accord a
      prisoner due process of law in revoking his parole, the relief to which the
      prisoner is entitled on habeas corpus is not an order forever barring the
      Department of Corrections from proceeding further, but, rather, an order
      directing the Department of Corrections to vacate its order of revocation
      and thereafter to proceed in accordance with [state] due process of law.

Id. (citation omitted). Said otherwise, Prather determined that prisoners whose

parole denials were not based on “some evidence” of current dangerousness are

entitled under state law only to a new parole-suitability decision by the state

executive, and not to release from custody or a judicial parole determination. See

234 P.3d at 552 (“[A] prisoner is not entitled to have his term fixed at less than



                                           -9-
maximum or to receive parole, [but] he is entitled to have his application for these

benefits duly considered based upon an individualized consideration of all relevant

factors.” (quoting Lawrence, 190 P.3d at 559)) (internal quotation marks omitted);

see id. at 552–54 (applying the “some evidence” standard to two lower-court

decisions, reversing those decisions, and ordering remand to the Board for a new

parole-suitability determination). Prather thus represents a further refinement by

the California Supreme Court of the scope of state prisoners’ liberty interest in

parole. Because Prather clarifies that a California prisoner’s “right of personal

liberty,” Pirtle, 611 F.3d at 1025, does not encompass the right to release on parole

if the parole denial was not based on “some evidence” of current dangerousness,

Prather corrects our prior implicit assumption that a federal habeas court could

enforce California’s state-created liberty interest by ordering the release of the

prisoner. Cf. id.

      Given our duty to enforce liberty interests as they are defined by state law,

see Bergen, 881 F.2d at 721; see also Greenholtz, 442 U.S. at 11–16, and because

California has refined the scope of the liberty interest it has created in parole, see

Prather, 234 P.3d at 547–52, we, too, must adjust our understanding of the scope

of the interest protected under the federal Due Process clause. Just as we

determined that the procedures mandated by Lawrence and Shaputis were part of


                                          -10-
California’s state-created liberty interest in parole, see Pirtle, 611 F.3d at 1020–21;

Cooke, 606 F.3d at 1213–14, we must read Prather’s further revision to those

procedures as necessarily limiting the state-created liberty interest in parole under

California law, see 234 P.3d at 547–52. We therefore hold that where the Board’s

parole denial decision is not based on “some evidence” of current dangerousness,

the California-created, but federally enforceable, liberty interest in parole gives the

prisoner only the right to a redetermination by the Board consistent with the state’s

“some evidence” requirement, not the right to release on parole.

                                           III

      Having determined the scope and extent of the state-created liberty interest

at issue, we now turn to the state’s motion in light of the first and most important

of the Hilton factors: whether the state is likely to succeed in its argument that the

district court erred in granting Haggard’s habeas petition and ordering the state to

release Haggard on parole.

      The state makes three main arguments. First, the state argues that the “some

evidence” requirement is a state-created procedure that is not part of the state

liberty interest in parole, and is not a procedural protection required under

Greenholtz as a matter of federal due process. We have already rejected this

argument. See Pearson, 606 F.3d at 608–10.


                                          -11-
      Second, the state argues that the district court erred by failing to apply

Prather’s revised scope of the parole liberty interest, which requires that Haggard

be afforded only a new parole suitability determination, not unconditional release.

According to the state, the district court should have deferred to the Board’s

authority in determining Haggard’s parole suitability instead of usurping that

power and granting parole for Haggard. We agree. Even assuming that the district

court was correct in undertaking an independent review of the record and holding

that the Board’s parole denial decision was not supported by “some evidence” (a

conclusion it reached notwithstanding evidence of factors in addition to Haggard’s

commitment offense), Prather makes clear that the state-created liberty interest in

this context does not encompass actual release. Instead, where the Board errs in

applying the “some evidence” standard, the only expectation a prisoner has under

California law is that of a new, properly conducted parole-suitability determination

by the Board; setting aside the Governor’s veto authority, no other organ or entity

in the State of California has the statutory or constitutional authority to prescribe

an end date to a prisoner’s indeterminate sentence. Accordingly, even if the

district court was correct in determining that the Board’s decision was not based on

“some evidence,” the Board’s error deprived Haggard only of the state-created

liberty interest in a procedurally proper parole determination by the California


                                          -12-
executive.2 Although “[f]ederal courts have the latitude to resolve a habeas corpus

petition ‘as law and justice require,’” Pirtle 611 F.3d at 1025 (quoting 28 U.S.C.

§ 2243), a federal habeas court addressing an alleged due process violation may not

grant a remedy that exceeds the bounds of the liberty interest, as that interest is

actually defined and limited by the state. See Bergen, 881 F.2d at 721; see also

Greenholtz, 442 U.S. at 12. The district court erred in concluding otherwise and in

granting relief that exceeded the scope of the liberty interest created by the state.

Due to these errors, the state will likely succeed on the merits of its appeal of the

district court’s order.3

                                           IV

       The remaining Hilton factors support granting a stay. See 481 U.S. at 776.

The issuance of a stay does not irreparably injure Haggard because he is not

entitled to immediate release under California law; rather, he is entitled only to a



       2
         Because the state will likely succeed on its claim that Haggard had no
entitlement to release on parole, we need not address the state’s prospects for
success on its broader claim that the district court erred in its AEDPA analysis of
the state court’s ruling.
       3
       Because we decide on this ground, we need not reach the state’s third
argument: that the district court erred in retroactively applying the “some
evidence” standard established by the California Supreme Court’s 2008 decisions
in Lawrence and Shaputis to the California superior court’s 2005 decision at issue
here.

                                          -13-
new parole-suitability determination that will proceed in keeping with the state’s

due process requirements. See Prather, 234 P.3d at 552. Nor does the record

reflect that issuing a stay will substantially injure any other party interested in the

proceeding. Finally, the public interest weighs in favor of a stay. The parole

release decision requires “purely subjective appraisals that turn on a discretionary

assessment of a multiplicity of imponderables,” Hayward, 603 F.3d at 557

(internal quotation marks omitted), including the key determination whether “an

inmate continues to pose a threat to public safety,” Prather, 234 P.3d at 552.

California has determined that the public interest is best served when the decision

on this crucial issue is made by the Board, after a hearing and testimony from the

prisoner, with veto power vested in the Governor. See id. at 552–54. We defer to

the state’s reasonable determination as to where the public interest lies in

California, and agree that in this case it lies in allowing the responsible state

agency to determine Haggard’s parole suitability in a procedurally proper

proceeding.

      Because the state is likely to succeed on the merits of its appeal of the

district court’s order, and because the other Hilton factors weigh in the state’s

favor, we grant the state’s motion for a stay pending appeal of the district court’s

August 11, 2010 order directing Haggard’s release on parole.


                                          -14-
GRANTED.




           -15-
                                    COUNSEL

Steven G. Warner, Deputy Attorney General, Office of the California Attorney
General, San Francisco, CA, attorney for appellant.

Steve M. Defilippis, Picone & Defilippis, San Jose, CA, attorney for appellee.




                                       -16-
