The latest Hayward decision by a nine-judge panel of the U.S. Court of Appeals for the Ninth Circuit represents good news for lifers in California, but bad news for Ronald Hayward.
In a decision based on a review of a three-judge panel’s decision in favor of Hayward, the court determined that California lifers have a right “to parole in the absence of some evidence of one’s future dangerousness.”
The nine-judge panel disagreed with the three-judge panel decision two years ago and ruled that there was some evidence of future dangerousness in Hayward’s case. The court also held that a certificate of appealability is required to appeal a denial of habeas corpus relief by a District Court.
The latest decision, issued in April, held that California lifers have the right to parole in the absence of “some evidence” of future dangerousness. The right is created by state law and was defined by the California Supreme Court by In re Lawrence [190 P. 3d. 535 (Cal. 2008)].
The state Supreme Court held in Lawrence that commitment offense does not establish current dangerousness “unless the record also establishes that something in the prisoner’s pre-or post-incarceration history, or his or her current demeanor and mental state” logically supports a conclusion of current dangerousness.
The federal appeals court adopted the California Supreme Court’s “some evidence” standard and did not decide “whether the California parole scheme establishes a predicate for imposing it as a matter of federal constitutional law.” The Ninth Circuit noted that, “Even if Hayward were correct that he had a federal constitutional right to ‘some evidence,’ it would make no difference, since he had the right to parole in the absence of ‘some evidence’ of future dangerousness under state law.”
The Ninth Circuit found that then-Gov. Gray Davis acted properly in 2003 overturning a parole board decision finding Hayward suitable for parole because of the nature of his commitment offense and a psychological report that stated Hayward would pose a “low” to “moderate” risk of danger if released, “as opposed to ‘no’ or merely ‘low’ risk.” The nine federal judges affirmed the U.S. District Court decision that had denied Hayward’s petition for writ of habeas corpus.
The Ninth Circuit also held that a certificate of appealability (COA) is required to appeal a decision of a District Court denying a petition for a writ of habeas corpus. The court noted that the standard for obtaining a COA is lenient and that this requirement will only screen out frivolous petitions. When an inmate files a notice of appeal, the court considers it as a request for a COA and issues one unless the case is frivolous.
STILL HAVE CLAIMS
The Hayward decision means that lifers challenging denial of parole by the parole board or governor still have claims that are reviewable by the federal courts. The federal courts will apply the “some evidence” standard as defined by Lawrence. The resolution of the issues in Hayward in favor of lifers is significant. The California attorney general made a strong argument against applying the “some evidence” standard of Superintendent v. Hill 472 U.S. 445 (1985) to review decisions denying parole.
Writing in the Berkeley Journal of Criminal Law [14 Berkeley J. Crim L. 251], Blaire Russell observed, “The only entity that can satisfyingly answer whether federal courts should apply Hill in the parole context for federal due process purposes in the U.S. Supreme Court, because under AEDPA (Anti-terrorism Effective Death Penalty Act), only the U.S. Supreme Court can establish ‘clearly established federal law.’”
HUNDREDS OF APPEALS
The Hayward decision gives lifers the benefit of the Lawrence “some evidence” standard while not applying any federal “some evidence” requirement to denial of parole. The Hayward decision means that hundreds of petitions and appeal dealing with parole will move through the federal courts.
Russell observed, “Lawrence and Hayward were both model prisoners who had served almost three decades in prison. The real test will be how the Board, the Governor, California courts, and federal habeas courts apply the current dangerousness approach to the many lifers who have served more average prison terms.”
The decision is Hayward v. Marshall No. 06-55392, April 22, 2010.