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Gary Swarthout, Warden v. Damon Cooke

January 24, 2011

GARY SWARTHOUT, WARDEN
v.
DAMON COOKE MATTHEW CATE, SECRETARY, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION
v.
ELIJAH CLAY



ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Per curiam.

562 U. S. ____ (2011)

I California's parole statute provides that the Board of Prison Terms "shall set a release date unless it determines that . . . consideration of the public safety requires a more lengthy period of incarceration." Cal. Penal Code Ann. §3041(b) (West Supp. 2010). If the Board denies parole, the prisoner can seek judicial review in a state habeas petition. The California Supreme Court has explained that "the standard of review properly is characterized as whether 'some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous." In re Lawrence, 44 Cal. 4th 1181, 1191, 190 P. 3d 535, 539 (2008). See also In re Shaputis, 44 Cal. 4th 1241, 1253--1254, 190 P. 3d 573, 580 (2008); In re Rosen-krantz, 29 Cal. 4th 616, 625--626, 59 P. 3d 174, 183 (2002).

A.

Respondent Damon Cooke was convicted of attempted first-degree murder in 1991, and a California court sentenced him to an indeterminate term of seven years to life in prison with the possibility of parole. In November 2002, the board determined that Cooke was not yet suitable for parole, basing its decision on the "especially cruel and callous manner" of his commitment offense, App. to Pet. for Cert. 50a; his failure to participate fully in rehabilitative programs; his failure to develop marketable skills; and three incidents of misconduct while in prison. The board admitted that Cooke had received a favorable psychological report, but it dismissed the report as not credible because it included several inconsistent and erroneous statements.

Cooke filed a petition for a writ of habeas corpus in State Superior Court. The court denied his petition. "The record indicates," it said, "that there was some evidence, including but certainly not limited to the life offense, to support the board's denial." Id., at 42a. Cooke subsequently filed a habeas petition with the California Court of Appeal and a petition for direct review by the California Supreme Court. Both were denied.

In October 2004, Cooke filed a federal habeas petition pursuant to 28 U. S. C. §2254 challenging the parole board's determination. The District Court denied his petition. The Ninth Circuit reversed, holding that California's parole statute created a liberty interest protected by the Due Process Clause, and that "California's 'some evidence' requirement" was a "component" of that federally protected liberty interest. Cooke v. Solis, 606 F. 3d 1206, 1213 (2010). It then concluded that the state court had made an "unreasonable determination of the facts in light of the evidence" under §2254(d)(2) by finding any evidence at all that Cooke would pose a threat to public safety if released. Id., at 1215.

B.

Respondent Elijah Clay was convicted of first-degree murder in 1978, and a California court sentenced him to imprisonment for seven years to life with the possibility of parole. In 2003, the board found Clay suitable for parole, but the Governor exercised his authority to review the case and found Clay unsuitable for parole. See Cal. Const., Art. 5, §8(b); Cal. Penal Code Ann. §3041.2 (West 2000). The Governor cited the gravity of Clay's crime; his extensive criminal history, which reflected "the culmination of a life of crime," App. to Pet. for Cert. 116a; his failure to participate fully in self-help programs; and his unrealistic plans for employment and housing after being paroled. Regarding the last factor, the Governor concluded that Clay would be likely to return to crime, given his propensity for substance abuse and lack of a viable means of employment.

Clay filed a petition for a writ of habeas corpus in State Superior Court. That court denied Clay's petition, as did the California Court of Appeal. The California Supreme Court denied review.

Clay subsequently filed a federal petition for a writ of habeas corpus, which the District Court granted. The District Court concluded that the Governor's reliance on the nature of Clay's long-past commitment offense violated Clay's right to due process, and dismissed each of the other factors the Governor cited as unsupported by the record. The Ninth Circuit affirmed, agreeing with the District Court's conclusion that "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." Clay v. Kane, 384 Fed. Appx. 544, 546 (2010).

II.

In granting habeas relief based on its conclusion that the state courts had misapplied California's "some evidence" rule, the Ninth Circuit must have assumed either that federal habeas relief is available for an error of state law, or that correct application of the State's "some evidence" standard is required by the federal Due Process Clause. Neither assumption is correct.

As to the first: The habeas statute "unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner 'only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.' " Wilson v. Corcoran, 562 U. S. ___, ___ (2010) (per curiam) (slip op., at 4) (quoting 28 U. S. C. ยง2254(a)). "We have stated many times that 'federal habeas corpus relief does not lie for errors ...


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