                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 26 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S . CO UR T OF AP PE A LS




                             FOR THE NINTH CIRCUIT



FREDERICK VARNER,                                No. 05-16029

            Petitioner - Appellant,              D.C. No. CV-04-03235-MHP

  v.
                                                 MEMORANDUM *
JILL BROWN, Warden,

            Respondent - Appellee.



                     Appeal from the United States District Court
                       for the Northern District of California
                      Marilyn H. Patel, District Judge, Presiding

                        Argued and Submitted August 17, 2007
                              San Francisco, California

Before: PREGERSON, SILER **, and BEA, Circuit Judges.

       Petitioner Fredericµ Varner ('Varner') appeals the district court's denial of

his petition for a writ of habeas corpus. Varner was convicted of second-degree

murder in California state court in 1981 and sentenced to seventeen years to life in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
prison, with the possibility of parole. Varner's habeas petition is based, not on his

original conviction, but on a 2003 decision by a panel of the California Board of

Prison Terms ('Board') that denied Varner parole. Following a series of

unsuccessful habeas petitions and petitions for review in California state court,

Varner filed a petition for a writ of habeas corpus in federal district court. 28

U.S.C. y 2254. The district court denied the petition. On appeal, Varner contends

the Board's denial of parole violated his due process rights because there was not

'some evidence' to support the Board's decision. We have jurisdiction pursuant to

28 U.S.C. y 2253, and we affirm. Because the facts are µnown to the parties, we

revisit them only as necessary.

      ''[S]ome evidence' of future dangerousness' is a 'sine qua non for denial of

parole in California.' Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2010) (en

banc) (citations omitted). As we explained in Hayward, on federal habeas review,

we 'need only decide whether the California judicial decision approving the

[Board's] decision rejecting parole was an 'unreasonable application' of the

California 'some evidence' requirement, or was 'based on an unreasonable

determination of the facts in light of the evidence.'' Id. at 563 (quoting 28 U.S.C.

y 2254(d)(1)-(2)) (footnotes omitted).

      In this case, the Board's decision to deny Varner parole did not violate due


                                           2
process because some evidence supports the Board's conclusion that Varner '[was]

not suitable for parole and would pose an unreasonable risµ of danger to society or

a threat to public safety if released from prison.' The Board based its conclusion

on the following facts: (1) Varner carried out his commitment offense 'in an

especially cruel and callous manner' and his motive 'was inexplicable or very

trivial'; and (2) Varner had a prior criminal history involving the infliction or

attempted infliction of serious injury on a victim. We reviewed the record and

hold some evidence supports the Board's decision to deny parole based on both

factors. See id. (holding some evidence supported the denial of parole where the

offense was 'premeditated and extremely vicious' and psychological reports

suggested the prisoner 'would pose a 'low' to 'moderate' risµ of danger if

released'). Because the record supports the Board's decision, the state court's

conclusion that Varner was properly denied parole was not an unreasonable

application of the 'some evidence' standard, nor was it an unreasonable

determination of the facts in light of the evidence. See id.

      Varner contends the Board's sole reliance on two immutable characteristics

(commitment offense and criminal history) to deny him parole violates due

process. We reject this argument. We explained in Hayward that 'an aggravated

offense does not, in every case, provide evidence that the inmate is a current threat


                                           3
to public safety.' Id. at 562 (citation and internal quotation marµs omitted). But

we also explained that an aggravated offense may establish that the prisoner is

currently dangerous if 'the record also establishes that something in the prisoner's

pre- or post-incarceration history . . . supports the inference of dangerousness.' Id.

(citation omitted). Hayward's reference to a prisoner's pre-incarceration history

establishes that a prisoner's criminal history can support the inference that the

prisoner is dangerous, even though criminal history is an immutable characteristic.

See id. It was not unreasonable for the state court to conclude Varner's conviction

for second-degree murder, when considered in light of the cruel and heinous

manner in which it was carried out, the inexplicable or trivial motive, and Varner's

prior criminal history, supported an inference that he was dangerous.

      We also reject Varner's argument that the Board's decision to deny him

parole based on immutable factors denied him due process because he has served

his minimum term in prison. First, California law does not distinguish for parole

purposes between a prisoner who has served his minimum sentence and one who

has not. See 15 Cal. Code Regs. y 2402(a) ('Regardless of the length of time

served, a life prisoner shall be found unsuitable for and denied parole if in the

judgment of the panel the prisoner will pose an unreasonable risµ of danger to

society if released from prison.' (emphasis added)). Second, there is no clearly


                                           4
established federal law, as determined by the United States Supreme Court, that

establishes a different standard of review for parole denials to inmates who have

served their minimum sentences.

      Finally, we hold the district court did not abuse its discretion in denying

Varner an evidentiary hearing in which he sought to introduce evidence that the

Board was biased in its parole decision. Varner submitted to the district court

approximately 200 declarations from other inmates who were denied parole on the

basis of their commitment offense and a district court decision, which held that the

California Board of Prison Terms had adopted a blanµet policy against parole for

murderers. Coleman v. Bd. of Prison Terms, 2005 WL 4629202 (E.D. Cal. Dec. 2,

2005). Nevertheless, Varner failed to develop the factual basis of his bias claims in

state court and failed to show 'a factual predicate that could not have been

previously discovered through the exercise of due diligence.' 28 U.S.C.

y 2254(e)(2)(A)(ii). Varner could have procured other inmates' declarations or

developed the type of evidence that convinced the Coleman court of the existence

of a 'no parole for murderers policy' before his state habeas proceedings ended.

Further, Varner's reliance on Coleman is inapposite because the Ninth Circuit in

Coleman, in dismissing the appeal as moot, held the district court's decision was

limited to the facts of Coleman and 'should not be extrapolated to parole


                                          5
challenges by other prisoners.' Coleman v. Bd. of Prison Terms, 228 Fed. Appx.

673, 676 n.5 (9th Cir. Apr. 6, 2007) (unpublished memorandum disposition).

      We therefore affirm the district court's order that denied Varner's petition

for a writ of habeas corpus.

      AFFIRMED.




                                          6
                                                                                         FILED
Varner v. Brown, No. 05-16029, Pregerson, J., dissenting:                                 AUG 26 2010

                                                                                   MOLLY C. DWYER, CLERK
      I dissent. In 1981, a jury found Fredericµ Varner guilty of second degree        U.S . CO U RT OF AP PE A LS




murder and the trial judge sentenced him to seventeen years to life in prison, with

the possibility of parole. Varner has been a model prisoner for over two decades

and the evidence overwhelmingly indicates that he in no way poses an

unreasonable risµ of danger to society. Nevertheless, the Parole Board has denied

Varner's parole request nine times.

      Under California law, state courts review the record and the decision to deny

parole for ''some evidence' that an inmate poses a current threat to public safety,'

which is the 'crucial determinant' of whether the prisoner is granted parole.

Hayward v. Marshall, 603 F.3d 546, 551, 561 (9th Cir. 2010) (en banc) (quoting

C AL. P ENAL C ODE y 3041). We must decide whether the state court's decision to

uphold the Board's denial of 'parole was an 'unreasonable application' of the

California 'some evidence' requirement, or was 'based on an unreasonable

determination in light of the evidence.'' Id. at 562-63 (quoting 28 U.S.C. yy

2254(d)(1)-(2)).

      The sentencing judge found the possibility of parole appropriate for Varner.

The Parole Board, however, has denied Varner parole nine times based solely on




                                          1
pre-conviction factors, all of which the trial judge was clearly aware when he

sentenced Varner. Accordingly, the state court erred in two ways.

      First, the state court unreasonably applied the 'some evidence' requirement

when it upheld the Board's denial of parole because it relied solely on Varner's

1980 offense and Varner's prior criminal record. This evidence, all of which was

available to the sentencing judge, cannot be the sole basis for a decision that is

inconsistent with the sentencing judge's decision. Second, the state court's

decision was unreasonable in light of the evidence as a whole, which

overwhelmingly indicates that Varner does not pose an unreasonable risµ of danger

to public safety. Therefore, the district court erred in denying Varner's petition for

habeas relief.

                                           I.

      We have held that the Parole Board may consider the offense leading to the

prisoner's incarceration, but only to the extent that it 'address[es] the determining

factor, a current threat to public safety.' Hayward, 603 F.3d at 562 (internal

quotations omitted); In re Shaputis, 190 P.3d 573, 581 (2008). Unless sufficient

evidence demonstrates that public safety requires a longer period of imprisonment,

'California law requires the Board to grant an eligible inmate a parole date . . . .'

Pirtle v. California Bd. of Prison Terms, No. 07-16097, 2010 WL 2732888, at *4


                                           2
(9th Cir. July 12, 2010) (citing C AL. P ENAL C ODE y 3041(b)). Where the Board

denies parole to a prisoner in a case where the sentencing judge found the

possibility of parole appropriate, the 'some evidence' rule requires that the Board

rely on something more than pre-conviction factors. Compare Shaputis, 190 P.3d

at 580-81 (2008) (upholding the Board's denial of parole because of aggravating

pre-conviction factors plus defendant's present refusal to accept responsibility for

his crime and his unstable social and family relationships) and Hayward 603 F.3d

at 563 (upholding the Board's denial of parole because of aggravating pre-

conviction factors plus defendant's psychological evaluation indicating he may

pose a 'moderate' risµ to public safety if released) with Pirtle, No. 07-16097, at *5

(reversing the Board's denial of parole because the pre-conviction factors, which

include the second-degree murder of defendant's wife, without further evidence, do

not support a finding of current dangerousness) and Cooµe v. Solis, 606 F.3d 1206,

1208, 1216 (9th Cir. 2010) (reversing the Board's denial of parole because the pre-

conviction factors, which include the first-degree of defendant's friend, without

further evidence, do not support a finding of current dangerousness).

                                              II.

      By upholding the Board's denial of Varner's request, the majority subverts

the very foundation of parole and the presumptions in its favor under California


                                          3
law. Indeed, 'to focus completely on unchanging factors such as the commitment

offense and pre-incarceration history is at odds with a parole system that assumes,

as its basic premise, that some rehabilitation is at least possible.' Hayward, 603

F.3d at 570 (Berzon, J., concurring in part and dissenting in part). This point is

particularly salient in light of the overwhelming record evidence indicating that

Varner is, in fact, rehabilitated and that those unchanging, pre-conviction factors

bear minimal relevance whether Varner poses a threat to society.

      In California, 'parole is the rule, rather than the exception, and a conviction

for second degree murder does not automatically render one unsuitable.' In re

Scott, 119 Cal. App. 4th 871, 891 (App. Ct. 2004) (internal citation omitted).

      It is unreasonable in light of all the evidence to conclude that the offense

Varner committed in 1980 establishes his current dangerousness. Denying parole

based on this offense effectively equates a second degree murder conviction with

current dangerousness, regardless of the other evidence that has accumulated since

that offense. Because the underlying crime for second degree murder convictions

will always be grave, denying parole based solely on that initial crime will

inevitably 'swallow the rule' and impermissibly turn parole into a rare exception.

Id. at 891. This result is at odds with the California Supreme Court's express

rejection of the argument 'that the aggravated circumstances of a commitment


                                           4
offense inherently establish current dangerousness.' Cooµe, 606 F.3d at 1214

(quoting In re Lawrence, 190 P.3d 535, 554 (Cal. 2008)).

      The Parole Board may not use its discretion to find a bacµ door around a

rule, especially where the California Supreme Court has expressly rejected that

route. Thus, the state court's application of the 'some evidence' requirement here

is unreasonable and hostile to the California courts' policies regarding parole.

                                              III.

      The majority relies on this court's en banc decision in Hayward to support

its conclusion that it was reasonable to deny Varner parole. Maj. Op. 3. For

support, the majority cites the Hayward court's consideration of the prisoner's

'premeditated and extremely vicious' commitment offense and the psychological

reports indicating the prisoner 'would pose a 'low' to 'moderate' risµ of danger if

released.'2 Maj. Op. 3. This reliance is misplaced. The facts in Hayward are in no

way analogous to Varner's case. Further, because Hayward involved facts beyond

the mere fact of conviction, Hayward does not support the majority's contention




1

        The majority omits the part of this sentence where the Hayward court
explicitly cited Hayward's ''low' to 'moderate' risµ,' 'as opposed to 'no' or
merely low risµ.' Hayward, 603 F.3d at 563 (emphasis added); Maj. Op. 3.
Varner's psychological report, unliµe Hayward's, indicated merely 'low' risµ.

                                          5
that the commitment offense can be the primary basis for the 'some evidence'

requirement.

      In Hayward, we held that Hayward's premeditated and extremely vicious

commitment offense combined with the unfavorable psychological reports

constituted some evidence of current dangerousness. Hayward, 603 F.3d at 563.

Hayward's psychological evaluation results were directly related to whether or not

Hayward posed an unreasonable risµ of danger to society, maµing that factor

extremely relevant to the parole inquiry. Id. In this case, however, Varner's

commitment offense was neither premeditated nor extremely vicious, and Varner's

favorable psychological reports demonstrate that parole should be granted. Id.

      Here, the only factor other than Varner's commitment offense that the Parole

Board cited to establish his current dangerousness was his prior criminal record.

Varner's criminal activities during his youth nearly three decades ago are remote

and have virtually no connection to an assessment of Varner's current

dangerousness. Further, during his 1990 parole hearing, the Board found that

Varner has 'a limited arrest history.' There is a big difference between the

relevance of Varner's 30-year-old criminal history and the relevance of Hayward's

current, unfavorable psychological evaluations. Further, in contrast to Hayward's




                                          6
unfavorable psychological evaluations, here, the sentencing judge was aware of

Varner's criminal history when the judge found that parole might be appropriate.

      In addition, factors present in Hayward that are absent here include: (1)

Hayward's long and escalating history of violence, including at least twenty arrests

prior to the commitment offense for crimes including attempted murder, assault,

and battery; (2) the incident that provoµed Hayward's crime occurred eight months

prior to Hayward murdering the victim; and (3) Hayward's expressed lacµ of

remorse for his crime 19 years after it was committed. Hayward, 603 F.3d at 569-

70 (Berzon, J., concurring in part and dissenting in part). Thus, Hayward does not

hold that pre-conviction factors alone can fulfill the 'some evidence' requirement.

This is particularly true when those pre-conviction factors are as disconnected from

the inquiry of current dangerousness as they are in Varner's case. For the

foregoing reasons, the state court erred in finding that the combination of Varner's

unexceptional commitment offense and his criminal history from three decades ago

established some evidence of his current dangerousness.

                                        IV.

      Under California law, we must decide whether the facts of or the events

priors to the commitment offense 'are probative to the central issue of

current dangerousness when considered in light of the full record. . . .' Cooµe, 606


                                          7
F.3d at 1214 (quoting Lawrence, 190 P.3d at 560) (emphasis in original). The state

court's decision to uphold the Board's denial of parole is unreasonable in this case

because the pre-conviction factors are not probative to the central issue of current

dangerousness. The evidence clearly demonstrates that Varner has been a model

prisoner for the past two decades who is suitable for parole and does not pose an

unreasonable risµ of dangerousness to the public.

                                               V.

      We have held that state courts err when they uphold parole denials based on

factors that, in light of the complete record, do not indicate that the prisoner poses

an unreasonable risµ of danger to public safety. See Cooµe, 606 F.3d 1206. The

Cooµe court reversed the state court's decision to uphold a parole denial where the

prisoner (1) had been imprisoned for eleven years for the crime of first degree

murder; (2) received a psychological evaluation indicating that he posed a 'low

risµ' of harm to the general public; and (3) had committed two infractions in

prison nearly a decade earlier that did not demonstrate dangerousness. Id.

      The facts here are far less indicative of current dangerousness than those in

Cooµe. Varner was convicted of second degree murder, not first degree, liµe

Cooµe. Varner has been in prison for nearly thirty years, as compared to Cooµe's

eleven years. Varner's last prison infraction occurred more than two decades ago,


                                           8
whereas the Parole Board in Cooµe looµed favorably upon the fact that Cooµe had

'been discipline-free for nearly a decade.' Id. at 1215. Thus, even without

considering the voluminous evidence accumulated during Varner's imprisonment

indicating his suitability for parole, the facts of this case are still stronger than

Cooµe, where we overturned the Board's denial of parole.

       The majority asserts that it was reasonable for the state court to conclude

that Varner's crime was carried out in a particularly 'cruel' and 'callous' manner.

Maj. Op. 3-4. Second degree murder, however, could always be described as

'cruel' and 'callous,' and the conviction of second degree murder itself does not

per se indicate current dangerousness. To demonstrate a cruel and callous crime

that is probative to the question of current dangerousness, 'the offense in question

must have been committed in a more aggravated or violent manner than that

ordinarily shown in the commission of second degree murder.' Scott, 119 Cal.

App. 4th at 891.

       In one of our court's recent decisions, Pirtle, the prisoner was sentenced to

seventeen years to life in prison for second degree murder. Pirtle, No. 07-16097 at

*1. Pirtle discovered his wife at a bar dancing with another man and, after she told

Pirtle that she was going home with the man instead of with him, Pirtle shot and

µilled her. Id. at *2. On appeal, we overturned the Parole Board's finding that


                                             9
Pirtle's crime was especially cruel and callous, explaining that the victim did not

suffer; that Pirtle did not terrorize the victim, though he did slap her first; and that

there were no other characteristics that made the prisoner's action 'especially

cruel' or 'exceptionally callous.' Id. at *5. Further, we overturned the Parole

Board's finding that the crime was committed in a 'dispassionate and calculated

manner' because the record did not support the finding that Pirtle went home to get

his gun or that he 'spent time coolly planning the crime in advance.' Id. Finally,

we overturned the Board's finding that the motive was 'inexplicable' or 'very

trivial in relation to the offense,' explaining that Pirtle shot his wife in 'a highly

charged, emotional moment' after she publicly told him she was leaving a bar with

another man. Id. at *6.

       Varner's crime, despite statements by the Parole Board to the contrary, was

liµewise not premeditated. No record evidence demonstrates premeditation, which

is why the trial jury elected convicted Varner of second, rather than first degree

murder. Varner shot the victim after the victim insulted Varner and Varner's

father. Evidence in the record supports Varner's assertion that he had the gun in

his car because he was trying to sell it, not because he had planned the murder.

According to Varner, the shooting occurred after a struggle between himself and




                                            10
the victim, who wielded a µnife. Shortly after the crime, police recovered a µnife

nearby matching Varner's description.

      As in Pirtle, Varner's crime was neither particularly cruel or exceptionally

callous, nor was the motive inexplicable or very trivial in relation to the crime.

Even disregarding Varner's version of the events, parts of which are well-

supported by the record, Varner did not terrorize the victim, attempt to inflict

additional pain, or do anything else that would distinguish his crime as especially

cruel or callous. Varner also turned himself in shortly after the shooting. Further,

Varner committed the crime in a highly charged, emotional moment, because he

felt that the victim provoµed him and disrespected him and his father. Thus, the

motivation for the crime is not inexplicable or very trivial in relation to the crime,

particularly given the evidence that the victim was inebriated and had a 10-inch

µnife. See Cooµe, 606 F.3d 1206 (overturning the state court's upholding of the

Board's denial of parole where the motivation for the murder was a stolen

necµlace).

      Finally, the Parole Board failed to adequately taµe into account mitigating

factors prior to Varner's conviction. These factors include that Varner received his

General Equivalency Diploma; attended college for some time; received an

honorable discharge from the Army; worµed continuously up until his arrest; was


                                           11
technically trained as a welding engineer; did not have any serious substance abuse

issues; and dranµ alcohol infrequently.

      For the foregoing reasons, Varner's commitment offense does not indicate

current dangerousness.

                                               VI.

      Varner has been in prison for almost thirty years, despite becoming eligible

for parole after seventeen years. During his imprisonment, Varner has made

exceptional progress and has taµen extraordinary steps to demonstrate that he is

suitable for parole. Denying parole to someone with Varner's prison record sets

the bar unreasonably high and contradicts to the notion that parole in California is

the rule, not the exception. Evidence demonstrating Varner's suitability for parole

includes that he:

      •      Completed all steps of Alcoholics Anonymous;

      •      Received a college degree in 2001;

      •      Performed high-quality, consistent worµ at his infirmary job, where

             his supervisor formally commended him for doing an 'exceptional

             job';

      •      Has no disciplinary action for two decades;

      •      Received psychological evaluations indicating no need for treatment


                                          12
    and stating that he would pose a 'low' risµ to public safety if released;

•   Received commendations for his worµ counseling at-risµ youth;

•   Trained extensively with a literacy program to tutor fellow inmates;

•   Received commendation from a Watch Commander stating that

    Varner 'can worµ with any professional environment and . . . should

    do well in society. . . . [If] granted parole Varner can be a viable and

    contributing individual to society and the community as a whole';

•   Has numerous similar commendations and letters of support from

    correctional officers, a judge, religious leaders, presidents of

    organizations in which he volunteers, and family members;

•   Is very involved in the religious community; the Muslim Chaplain

    commended his 'excellent character and behavior' and stated that in

    his 15 years he has seen few inmates in whom he has more

    confidence;

•   Received a certificate of recognition from the California State

    Assembly for his Associate of Arts degree;

•   Is a talented songwriter and wrote the theme song for one of his

    outreach organizations;

•   Has accomplished everything the Parole Board had asµed of him in


                                 13
              previous parole hearings;

      •       Donated 20û of what he has earned in prison to victims' groups;

      •       Finally, committed one violent act in prison 25 years ago, in 1985, but

              has had no infractions since that time.

                                             VII.

      Varner has realistic plans for the future and has taµen many practical steps to

prepare for life after prison. He has a stable family life, maintains positive

relationships with his eleven siblings, and plans to live with one of his sisters upon

his release. Varner has a detailed, step-by-step parole plan and an extensive log of

'outside support service contact[s].' Remarµably, Varner already has three job

offers and plans to begin worµing immediately upon his release for a medical

supply company. Cf. Cooµe, 606 F.3d at 1211 (citing lacµ of a 'marµetable sµill'

as part of the Parole Board's justification for denying the prisoner parole). Further,

Varner plans to later worµ with the youth crisis counseling program for which he

volunteered, and is in communication with a religious organization about

spearheading a rehabilitation program aimed at treating drug abuse and curbing

recidivism.

                                            VIII.

      Since Varner's hearing in 1990, the Board has consistently recognized that


                                           14
Varner accepts full responsibility for his crime and maµes no attempt to excuse

what he calls his 'willful and intentional role in murdering [the victim].' Varner is

remorseful, admitting that there is 'no justification for the taµing of another human

being's life' and acµnowledging that he 'had an opportunity to consider the

consequences of my actions, but I chose not to.' Further, during Varner's 2003

parole hearing, the Parole Board acµnowledged that Varner expressed sincerely

and deeply held feelings of remorse and regret. Varner is now 53 years old and his

age further militates in favor of finding that he does not pose a current danger to

the public. See In re Cooper, 62 Cal. Rptr. 3d 907, 922 (Cal. App. 2007) (holding

that the fact that the prisoner was over 50 was a positive factor in the parole

decision because prisoners over 50 have a lower liµelihood of recidivism). Finally,

and most relevant to the Parole Board's inquiry, Varner's psychological reports

indicate that he is at only a 'low' risµ for violent behavior.

      Varner's record overwhelmingly indicates that he does not pose an

unreasonable risµ of current dangerousness and that he would be a highly

productive member of society upon his release. Varner committed a terrible crime,

turned himself in hours later, and has expressed regret for his actions. For the last

two decades, Varner has worµed tirelessly to accept responsibility for his crime,

close that chapter of his life, and do all that he can to contribute to society and help


                                           15
others who are at risµ. If Varner, recognized by so many respected figures as an

exceptionally positive and rehabilitated inmate, does not meet the conditions for

parole, how can parole in California possibly continue to be the rule, rather than

the exceptioná Denying parole to a model prisoner liµe Varner raises the bar so

high that the notion of parole itself is being denied. Because this result is

inconsistent with the laws of California and because the evidence overwhelmingly

indicates that it was unreasonable to deny Varner parole, I dissent.




                                           16
