                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CARL MERTON IRONS, II,                     No. 05-15275
              Petitioner-Appellee,
                                              D.C. No.
U.S. ATTORNEY GENERAL,                    CV-04-00220-LKK
                       Intervenor,        Eastern District
                v.                          of California,
                                             Sacramento
TOM   L. CAREY, Warden,
             Respondent-Appellant.
                                              ORDER


                  Filed November 6, 2007

       Before: Stephen Reinhardt, John T. Noonan, and
           Ferdinand F. Fernandez, Circuit Judges.

                           Order;
                 Dissent by Judge Kleinfeld


                          ORDER

  The panel has voted to deny the petitions for rehearing and
petitions for rehearing en banc.

   The full court was advised of the petitions for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
reconsideration. FED. R. APP. P. 35.

  The petitions for rehearing and rehearing en banc are
denied.



                            14647
14648                         IRONS v. CAREY
KLEINFELD, Circuit Judge, with whom Circuit Judge Bea
joins, dissenting from denial of rehearing en banc:

   I dissent from denial of rehearing en banc.

   Our panel decision in Irons v. Carey1 makes two significant
legal errors. The legal errors are (1) the application of circuit
law instead of Supreme Court law to habeas corpus petitions,
and (2) the application of “good time” law to parole. These
legal errors are likely to lead to practical harm by requiring
parole boards to release prisoners on parole, no matter what
their crime, if they behave themselves in prison.

   The opinion in Irons is particularly mischievous because of
an oddity in the way our court treats the traditional distinction
between holdings and dicta. In our court, two judges on a
panel make law for 20% of Americans as a “supervisory”
matter, even where the case does not require the matter to be
decided.2 Our en banc decision in Barapind v. Enomoto says
that an issue presented for review and addressed and decided
in a panel opinion “became law of the circuit, regardless of
whether it was in some technical sense ‘necessary’ to our dis-
position of the case.”3 We characterized this rejection of the
traditional distinction between holdings and dicta as an exer-
cise of our “supervisory function . . . by instructing three-
judge panels and district courts about how to determine what
law is binding upon them.”4 The traditional view, which we
seem to have rejected in Barapind, is that since we are
empowered only to decide cases, not to legislate, only those
principles necessary to the decision are binding law of the cir-
  1
     Irons v. Carey, No. 05-15275, 2007 WL 2027359 (9th Cir. July 13,
2007).
   2
     Barapind v. Enomoto, 400 F.3d 744, 751 n.8 (9th Cir. 2005).
   3
     Id. at 751. The dissent in Barapind says that “the discussion about dicta
is dicta,” id. at 758, but the majority claims it is nevertheless binding, id.
at 751 n.8.
   4
     Id. at 751 n.8.
                           IRONS v. CAREY                        14649
cuit. Thus, under Barapind, the statements of law made in
Irons that were unnecessary to the decision may nevertheless
be construed by subsequent three judge panels, district courts
and the state courts as binding law of the circuit.

   Irons v. Carey was a petition for a writ of habeas corpus,
challenging a state denial of parole, for a murderer who had
served sixteen years of his seventeen-years-to-life sentence
for murder. Irons fired twelve shots into his housemate,
stabbed him twice in the back, hid his body in the room for
ten days, then dumped it in the ocean. In prison, though, “his
conduct has been exemplary.”5

   Irons says that deprivation of parole for this murderer
would violate due process of law under “clearly established”
Supreme Court law, unless it was supported by “some evi-
dence in the record.” Irons cites previous circuit law and the
Supreme Court decision in Superintendant v. Hill for this propo-
sition.6 Irons nevertheless allows denial of parole to this pris-
oner, during the sixteenth year of his 17-to-life sentence,
noting that the parole board thought he needed therapy, that
his crime was “carried out in an especially cruel and callous
manner,” and he was himself equivocal about his rehabilita-
tion. When asked whether this especially cruel and callous
crime would happen again, Irons said “I don’t think so”
instead of a definite “no.”

   Irons did not stop there. We went on to “note” that in all
cases, including Irons, where we upheld denial of parole on
the basis of the crime, the inmate had not yet served even the
minimum period of his sentence. After that (one more year for
Irons), “indefinite detention based solely on the inmate’s
  5
   Irons at *2.
  6
   See Sass v. California Board of Prison Terms, 461 F.3d 1123 (9th Cir.
2006); Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir. 2003); Jancsek v.
Oregon Board of Parole, 833 F.2d 1389, (9th Cir. 1987); Superintendant
v. Hill, 472 U.S. 445 (1985).
14650                      IRONS v. CAREY
commitment offense, regardless of the extent of his rehabilita-
tion, will at some point violate due process.”7 Irons seems to
say that no matter how monstrous the crime, a prisoner
against whom there is no evidence adverse to parole and sub-
sequent to the crime, has a constitutional right to be paroled
after serving the bottom end of his sentence.

   The first thing wrong with Irons is that it arrogates to our
court more authority than we have. The Supreme Court in
Carey v. Musladin8 reversed us in another habeas case, where
we applied circuit law (as Irons does) without a Supreme
Court decision to the same effect. The federal habeas statute
says that we cannot overturn a state decision as contrary to
federal constitutional law, unless the federal law is “as deter-
mined by the Supreme Court of the United States.”9 That
phrase carries a negative pregnant, an exclusion of federal law
as determined by a circuit court but not the Supreme Court.
The Court held in Musladin that the statutory phrase “refers
to the holdings . . . of [the Supreme] Court’s decisions.”10
Where, as here, the Supreme Court “has not broken sufficient
legal ground to establish an asked-for constitutional princi-
ple,” our court “cannot [itself] establish such a principle with
clarity sufficient to satisfy the AEDPA bar.”11

   The second thing wrong with Irons is that it inaccurately
claims that the Supreme Court has “clearly established that a
parole board’s decision” must be supported by “some evi-
dence” in Superintendant v. Hill.12 Irons errs because Hill
requires “some evidence” to deprive a prisoner of “good
time,” not parole.
  7
    Irons at *6.
  8
    Carey v. Musladin, 549 U.S. ___ (2006).
  9
    28 U.S.C. § 2254(d)(1)
  10
     Carey v. Musladin, 549 U.S. *4 (2006).
  11
     Williams v. Taylor, 529 U.S. 362, 381 (2000).
  12
     Superintendant v. Hill, 472 U.S. 445 (1985).
                              IRONS v. CAREY                            14651
   “Good time” and parole are different kinds of decisions.
Good time is retrospective, looking to whether the prisoner
has misbehaved. Parole is prospective, looking to whether the
prisoner, if no longer confined in a total institution, is likely
to misbehave in the future. The first kind of decision must be
based on evidence, the second requires discretion, judgment,
and experience. Evidence of behavior in prison may be insuf-
ficient for predictions of behavior outside of prison.

   “Good time” is a prison discipline device. Prisons need
some way to get prisoners, who are after all felons, to leave
the recreation yard or mess hall, go into their cells, quit fight-
ing and keeping contraband in their cells, and so forth. Other-
wise the prisoners could taunt the guards, “What are you
going to do about it, send me to jail?” Many prison rule viola-
tions are not crimes. Prisons use reductions in “good time”
credits, among other sanctions, to induce compliance. For
example, federal law generally credits prisoners with 54 days
per year, starting with the second year of imprisonment, for
compliance with prison disciplinary and educational regula-
tions.13 The California scheme allows for reductions of up to
one-third of the sentence for good behavior and participation
in assigned programs.14

   Parole, on the other hand, is a discretionary and prospective
decision about whether it is prudent and appropriate to let the
prisoner out early.15 The Supreme Court has characterized
  13
      18 U.S.C. § 3624.
  14
      Cal. Penal Code §§ 2930 et seq.
   15
      See Cal Pen. § 3041(“One year prior to the inmate’s minimum eligible
parole release date, a panel . . . shall . . . set a parole release date . . . .
The panel . . . shall set a release date unless it determines that the gravity
of the current convicted offense . . . is such that consideration of the public
safety requires a more lengthy period of incarceration . . . .”); Cal. Code
of Regulations Tit. 15 § 2281 (“Regardless of the length of time served,
a life prisoner shall be found unsuitable for a denied parole if in the judg-
ment of the panel the prisoner will pose an unreasonable risk of danger to
14652                        IRONS v. CAREY
parole decisions as “necessarily subjective in part and predic-
tive in part.” Release on parole is “essentially an experienced
prediction based on a host of variables.”16 Requiring “some
evidence” for a subjective prediction is dangerous. The pris-
oners who are the subjects of parole decisions have already
proved to be dangerous. Some people behave better in the
total institution of prison than outside. It is striking that the
panel felt moved to expound on the likely future entitlement
of parole to Irons, an especially vicious murderer.

   Wolff v. McDonnell, the Supreme Court’s seminal “good
time” revocation case, holds that due process requires, inter
alia, “that there must be a ‘written statement by the factfinders
as to the evidence relied and reasons’ for the disciplinary
action.”17 Wolff explains that “the provision for a written
record helps to insure that administrators, faced with possible
scrutiny by . . . perhaps even the courts, where fundamental
constitutional rights may have been abridged, will act fairly.”18
Relying on Wolff’s procedural requirements for revoking
good time, the Supreme Court, in Superintendent v. Hill, con-
cluded that, to take away a prisoner’s good time, due process
requires there to be “some evidence” of a disciplinary infrac-
tion.19

society if released from prison.”); see also FRED E. INBAU, ET AL., CRIMINAL
LAW AND ITS ADMINISTRATION, 13 (1990) (“A penitentiary sentence of a . . .
number of years does not necessarily mean that a convicted person will
remain in the penitentiary for that particular period of time. Under certain
. . . circumstances he may be released earlier ‘on parole.’ . . . [A] person
who has been given an indeterminate maximum-minimum sentence, such
as 5 to 10 years . . . , may be eligible for parole after he has served the
5 year minimum, less time off for good behavior.”).
    16
       Greenholtz v. Inmates of the Nebraska Penal and Correctional Com-
plex, 442 U.S. 1, 13, 15-16 (1978).
    17
       Wolff v. McDonnell, 418 U.S. 539, 564-65 (1973), quoting Morrisey
v. Brewer, 408 U.S. 471, 489 (1972).
    18
       Id. at 565.
    19
       Superintendent v. Hill, 472 U.S. 445, 454 (1984).
                           IRONS v. CAREY                       14653
   No Supreme Court case holds that the “some evidence”
rule applies to parole determinations. Two Supreme Court
cases suggest the opposite.20 Despite these two Supreme Court
decisions, Irons inappropriately applies the Hill “good time”
rule to what the Supreme Court has said are the quite different
decisions made by parole boards.

   The Court in Greenholtz v. Inmates of the Nebraska Penal
and Correctional Complex holds that “nothing in the due pro-
cess clause . . . requires the Parole Board to specify the partic-
ular ‘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.”21 Greenholtz explains
that the parole decision “is necessarily subjective” and
demands “experimentation involving analysis of psychologi-
cal factors combined with fact evaluation guided by practical
experience.”22 Thus, “to require the parole authority to pro-
vide a summary of the evidence would [incorrectly] tend to
convert the process into an adversary proceeding and to
equate the parole-release determination with a guilt determina-
tion.”23

   Greenholtz specifically notes that the “procedures designed
to elicit specific facts, such as those required in . . . Wolff [the
good time case] are not necessarily appropriate . . . .”24 The
panel ought to have noticed that the Supreme Court expressly
distinguished the procedures that are appropriate in parole
board decisions from what procedures are appropriate in good
time decisions. Under Greenholtz, all that is required for due
process is “an opportunity to be heard” and “inform[ing] the
  20
      See Greenholtz v. Inmates of the Nebraska Penal and Correctional
Complex, 442 U.S. 1 (1978); Wilkinson v. Austin, 545 U.S. 209 (2005).
   21
      Greenholtz v. Inmates of the Nebraska Penal and Correctional Com-
plex, 442 U.S. 1, 15 (1978).
   22
      Id. at 13.
   23
      Id. at 15-16.
   24
      Id. at 14.
14654                      IRONS v. CAREY
inmate in what respects he falls short of qualifying for parole
. . . as a guide to the inmate for his future behavior.”25

   In Wilkinson v. Austin, the Supreme Court confirmed the
distinction between the requirements of due process for the
revocation of good time credits and the requirements of due
process for parole determinations.26 Wilkinson rejected a chal-
lenge to the administrative decision to transfer a prisoner to
a maximum security facility.27 Wilkinson held that the pris-
oner transfer decision is more like a parole decision than a
revocation of good time credits, and thus requires only the
“nonadversary procedures set forth in Greenholtz,” not the
“more formal adversary-type procedures” set forth in Wolff.28
Again, the Supreme Court expressly distinguished between
procedures for good time revocation and procedures for
parole.

   Irons says that after a certain time, the crime committed by
the prisoner does not amount to “some evidence.”29 According
to the panel, the savagery of the murder committed by Irons
only counts as “some evidence” because he had not yet satis-
fied the “minimum” of his 17-to-life sentence.30

   Implicit in Irons is a psychological theory, untested, not
especially likely to be true, and dangerous. If we were to pre-
dict Irons’ behavior based on how he behaved when he was
last free, we would regard him as dangerous, but if we made
our prediction based only on how he behaved in prison, we
would regard him as much less dangerous. The theory implicit
  25
     Id. at 15-16.
  26
     Wilkinson v. Austin, 545 U.S. 209, 228-29 (2005).
  27
     Id.
  28
     Id.
  29
     Irons v. Carey, 479 F.3d 658, 664-65 (9th Cir. 2007).
  30
     “Minimum” is a California word, because in California (but not many
other states anymore) some sentences are “25 to life” instead of “25” or
“40” or “99” or “life.”
                         IRONS v. CAREY                    14655
in Irons is that past conduct in freedom does not, after a
while, predict future conduct in freedom, and if long enough
ago, is not even “some evidence” of how a prisoner will con-
duct himself if free. That could be true. It could also be false.
It may be that especially savage conduct in freedom better
predicts future dangerousness in freedom, than behavior in
prison. The Irons psychological theory is not Supreme Court
law and there is no particular reason to assume its truth. We
have no justification for forcing this unproved theory upon the
states in the guise of constitutional law.

   In addition to the predictive, empirical concern with recidi-
vism, states may have a moral concern with parole of prison-
ers who have committed especially savage crimes. Even if
there is not “some evidence” of likely recidivism, and even if
parole boards are satisfied that there is no likelihood of recidi-
vism, states may justifiably deny parole. States are free to take
the view that vindication of principles of right and wrong, and
a decent respect for the victims of crime, require denial of
parole to especially vicious criminals. States are entitled to
deny parole and require prisoners to serve their full sentences
less “good time,” even without “some evidence” beyond the
crimes for which the sentences were imposed.
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