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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DAVID BRYAN HART,

Petitioner,

 v.

B. CURRY, warden,

Respondent. 

No. C 08-01498 MHP

MEMORANDUM & ORDER

Re: Petition For Writ of Habeas Corpus

Petitioner David Bryan Hart (“Hart” or “petitioner”), a state prisoner at the Correctional

Training Facility in Soledad, California, filed this federal habeas petition pursuant to 28 U.S.C.

section 2254. In his petition, Hart challenges the decision of the Fresno County Superior Court

upholding California Governor Arnold Schwarzenegger’s reversal of the California Board of Parole

Hearing’s grant of parole to Hart. Having considered the parties’ submissions and arguments, and

for the reasons set forth below, the court enters the following memorandum and order.

BACKGROUND

In 1983, a Fresno County Superior Court jury found Hart guilty of second-degree murder. 

Docket No.1 (Pet.), Exh. B (Judgment) at 1. Hart was convicted of murdering his ex-girlfriend’s

new boyfriend. Pet., Exh. E (Parole Reversal). To commit the crime, Hart hid under a blanket in the

new man’s car; once the man entered his car, Hart ordered him to drive to a nearby orchard, where

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Hart shot him three times in the head. Id. at 3. Pursuant to California’s indeterminate sentencing

structure, Hart was sentenced to fifteen years to life in prison. Pet. at 2.

After having been denied parole on eight prior occasions, on August 17, 2006, a panel of the 

California Board of Parole Hearings (“the Board”) conducted a hearing and recommended that Hart

be granted parole. Pet., Exh. A (Tr. of Parole Hr’g) at 47. The panel concluded that Hart did not

pose an unreasonable risk to public safety for a number of reasons. Firstly, the panel noted that Hart

lacked a significant criminal history of violent crime and any previous criminal record of assaulting

others, and had a stable social history. Id. Further, the panel observed that while in prison, Hart

enhanced his ability to function within the law upon release by participating in educational,

vocational, self-help and therapeutic programs. Id. The panel also noted that Hart maintained close

family ties and relationship via visits and letters, and secured a reasonable parole plan including

living with his parents and a job offer. Id. at 47-48. The panel also felt that Hart’s maturation,

growth, greater understanding and advanced age reduced his probability of recidivism. Id. at 47. 

This conclusion was supported by a favorable 2005 psychiatric evaluation in which the doctor noted

that there was a minimal risk to the public if he was released. Id. at 48. Finally, the panel noted that

a representative from the Office of the District Attorney for Fresno County, the office that

prosecuted Hart, attended Hart’s hearing and did not oppose parole. Id. at 48. Pursuant to

California Penal Code section 3041(b), the panel’s recommendation became the final decision of the

Board 120 days later on December 15, 2006. 

On January 10, 2007, Governor Arnold Schwarzenegger, after conducting a discretionary

review of the grant of parole permitted by Article V, section 8 of the California Constitution1

,

reversed the Board’s decision. Pet., Exh. E (Parole Reversal). Such reviews are governed by title

15, section 2402 of the California Code of Regulations.2

 In his decision, the Governor recognized

the various positive factors which led to the Board’s grant of parole. Id. at 2. The Governor

concluded, however, that “despite the positive factors . . . the second degree murder for which [Hart]

was convicted was especially heinous considering the level of premeditation involved.” Id. at 3. 

The Governor found “[t]he gravity of the second-degree murder . . . was alone sufficient . . . to

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conclude presently that [Hart’s] release from prison would pose an unreasonable public-safety risk.” 

Id. at 3. Accordingly, the Governor reversed the Board’s decision to grant parole to Hart.

After the Governor’s reversal, Hart filed a petition for a writ of habeas corpus in the

Superior Court of Fresno County challenging the Governor’s decision. Docket No. 7 (Ans.), Exh. 1

(Super. Ct. Pet.). On September 24, 2007, the Superior Court denied the petition for a writ of habeas

corpus, concluding that “upon considering the record as a whole . . . there was at least ‘some

evidence’ to support the Governor’s decision to reverse parole.” Id. at 2. 

Hart appealed the Superior Court’s denial of his petition to the California Court of Appeal. 

His appeal was summarily denied. Pet., Exh. G (Cal. Ct. App. Order). Hart then filed a petition for

review with the California Supreme Court. Ans., Exh. 9 (Pet. for Review). On January 23, 2008,

the court denied the petition. Ans., Exh. 10 (Cal. Docket). Subsequently, Hart filed a petition for

habeas corpus with this court pursuant to 28 U.S.C. section 2254. Hart argues that the Governor’s

2007 decision to reverse the grant of parole violated his constitutional right to due process of law

because it was inappropriately based solely on nature of his commitment offense.

JURISDICTION AND VENUE

As is discussed at greater length below, the court has subject-matter jurisdiction over this

habeas action for relief under 28 U.S.C. section 2254. 28 U.S.C. § 1331. This action is in the proper

venue because the challenged action concerns the execution of the sentence of a prisoner housed at a

prison in Monterey County, within this judicial district. 28 U.S.C. §§ 84, 2241(d).

EXHAUSTION

Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings

either the fact or length of their confinement are required first to exhaust state judicial remedies,

either on direct appeal or through collateral proceedings, by presenting the highest state court

available with a fair opportunity to rule on the merits of each and every claim they seek to raise in

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federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that state court remedies

were exhausted for the claim asserted in the petition.

LEGAL STANDARD

This court may entertain a petition for a writ of habeas corpus “on behalf of a person in

custody pursuant to the judgment of a state court only on the ground that he is in custody in violation

of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A petition may

not be granted with respect to any claim that was adjudicated on the merits in state court unless the

state court’s adjudication of the claim: “(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d);

Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). The first prong applies both to questions

of law and to mixed questions of law and fact, id. at 407-09, while the second prong applies to

decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

A state court decision is “contrary to” clearly established federal law “if the state court

applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state

court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme

Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams, 529

U.S. at 405-06. An “unreasonable application” of federal law occurs “if the state court identifies the

correct governing legal principle from [Supreme Court] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. at 413.

In deciding whether a state court’s decision is contrary to, or an unreasonable application of,

clearly established federal law, a federal court looks to the “last reasoned decision” of the highest

state court that addressed the merits of the petitioner’s claim. See Ylst v. Nunnemaker, 501 U.S. 797,

803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). Here, the last reasoned

decision was the decision of the California Superior Court.

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DISCUSSION

Hart’s only claim is that the Superior Court unreasonably applied federal law by concluding

that Governor Schwarzenegger satisfied California’s “some evidence” test, discussed at length

below, when he reversed the Board’s grant of parole; Hart contends that this error by the Superior

Court necessitates that this court grant his petition for habeas corpus. 

I. The “Some Evidence” Standard

California’s parole scheme, governed by California Penal Code section 3041(b), “provides

that the Board must grant parole unless it determines that public safety requires a lengthier period of

incarceration for the individual because of the gravity of the offense underlying the conviction.” In

re Rosenkrantz, 29 Cal. 4th 616, 654 (2002) (Rosenkrantz).3

 In determining whether a longer period

of incarceration is required, the Board’s discretion is cabined by title 15, section 2402 of the

California Code of Regulations. Section 2402 requires that the Board consider all the relevant,

reliable information available to the panel including the prisoner’s social history, past and present

mental state, past criminal history, past and present attitude toward the crime, as well as any other

information which bears on the prisoner’s suitability for release. Cal. Code. Regs. tit. 15, § 2402(b). 

Additionally, section 2402 enumerates specific factors to be considered when weighing suitability

for parole. Id. § 2402(c)-(d). Subsection (c) lists certain circumstances tending to demonstrate

unsuitability for parole such as the heinous, atrocious, or cruel nature of the crime, or an unstable

social background.4

 Id. § 2402(c). Subsection (d) lists factors demonstrating suitability for parole

such as an inmate’s rehabilitative efforts, demonstration of remorse and the mitigating circumstances

of the crime.5

 Id. § 2402(d). Finally, the regulations make clear that the parole decision is highly

discretionary stating, “[t]hese circumstances are set forth as general guidelines; the importance

attached to any circumstance or combination of circumstances in a particular case is left to the

judgment of the panel.” Id. § 2402(c), (d).

After the Board decides whether or not to grant parole to an inmate, the Governor is

permitted to review the decision within thirty days. Cal. Const. art. V, § 8. This review is also

highly discretionary. In re Lawrence, 44 Cal. 4th 1181, 1204 (2008) (Lawrence). “Although the

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Governor’s decision must be based upon the same factors that restrict the Board in rendering its

parole decision, the Governor undertakes an independent, de novo review of the inmate’s suitability

for parole.” Id. (citing Rosenkrantz, 29 Cal. 4th at 660) (internal quotation marks and citation

omitted). For both the Board and the Governor, “the paramount consideration . . . under the

governing statutes is whether the inmate currently poses a threat to public safety and thus may not

be released on parole.” Id. at 1210 (emphasis added).

While both the Board and Governor exercise a high degree of discretion in making parole

determinations, this discretion is not without limits. Since at least 2002, California courts have

required that, in order to protect inmates’ due process rights, the Governor’s decision to reverse a

grant of parole by the Board must be supported by “some evidence.” Rosenkrantz, 29 Cal. 4th at

626. The “some evidence” test requires a reviewing court to permit the Governor’s reversal or

modification of the Board’s decision to stand where “some evidence in the record before the

[Governor] supports the decision to deny parole, based upon the factors specified by statute and

regulation.” Rosenkrantz, 29 Cal. 4th at 658.

In Lawrence, the California Supreme Court further clarified the contours of the “some

evidence” standard, specifically as it related to determinations of unsuitability for parole predicated

primarily or solely upon the nature of an inmate’s commitment offense. 44 Cal. 4th at 1206-13.6

The court held that the circumstances of an inmate’s conviction may, standing alone, serve as “some

evidence” of current dangerousness; however, “under the statute and the governing regulations, the

circumstances of the commitment offense (or any of the other factors related to unsuitability)

establish unsuitability if, and only if, those circumstances are probative to the determination that a

prisoner remains a danger to the public.” Id. at 1212. In so holding, the court rejected a line of

cases from lower courts that permitted the Board and the Governor to find an inmate unsuitable for

parole simply if they found facts to support the existence of an unsuitability factor, including that the

commitment offense was particularly aggravated. See id. at 1208. In contrast to those cases, which

adopted a procedural approach to the “some evidence” test, the court held that “[i]t is not the

existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole

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decision; the significant circumstance is how those factors interrelate to support a conclusion of

current dangerousness to the public.” Id. at 1212. 

In the key passage of Lawrence, the court concluded 

that although the Board and the Governor may rely upon the aggravated

circumstances of the commitment offense as a basis for a decision denying parole, the

aggravated nature of the crime does not in and of itself provide some evidence of

current dangerousness to the public unless the record also established that something

in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and

mental state, indicates that the implications regarding the prisoner’s dangerousness

that derive from his or her commission of the commitment offense remain probative

to the statutory determination of a continuing threat to public safety.

Id. at 1214 (emphasis in original); id. at 1213-14 (“[I]t is not the circumstance that the crime is

particularly egregious that makes a prisoner unsuitable for parole—it is the implication concerning

future dangerousness that derives from the prisoner having committed that crime.”). The court noted

that while this standard is “unquestionably deferential,” it “requires more than a rote recitation of the

relevant factors with no reasoning establishing a rational nexus between those factors and the

necessary basis for the ultimate decision.” Id. at 1210. To allow the denial of parole based solely on

the circumstances of the commitment offense without regard to the effect of time and other

rehabilitative gains would allow the denial of parole in perpetuum without considering what risk the

prisoner currently poses to the public. Id. at 1211. Accordingly, if the Board or the Governor seek

to rely exclusively on the commitment offense in denying an inmate parole, the Board or Governor

must demonstrate by “some evidence” how the aggravated circumstances of the commitment

offense, in light of the totality of the record, indicate that the prisoner poses a current unreasonable

risk to public safety.

Before determining whether the Governor’s reversal of Hart’s grant of parole violated the

“some evidence” requirement, the court must contend with two threshold issues: (1) whether Hart’s

petition raises a “federal question,” such that this court has subject-matter jurisdiction, and, if yes,

(2) whether Lawrence can be applied retroactively.

II. Federal Jurisdiction

In its moving papers, the state argues that the Superior Court could not have unreasonably

applied clearly established federal law because the United States Supreme Court has not clearly

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established that parole determinations in California implicate a federal, constitutionally-protected

liberty interest. Accordingly, the state argues that the petition does not raise a “federal question”

invoking this court’s jurisdiction pursuant to 28 U.S.C. section 2254. Id. The state, however, is

mistaken.

In large part, Hart’s claim initially rested on Hayward v. Marshall, 512 F.3d 536, 542 (9th

Cir. 2008) (Hayward I) vacated by Hayward v. Marshall, 527 F.3d 797 (9th Cir. 2008), in which, a

panel of the United States Court of Appeals for the Ninth Circuit concluded that the United States

Constitution required that parole denials in California be supported by “some evidence.” 

Subsequent to the completion of the initial briefing in this case, the Ninth Circuit, sitting en banc,

vacated the panel’s decision in Hayward I and affirmed the district court’s denial of a writ of habeas

corpus. Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (Hayward II). After the Ninth Circuit

issued Hayward II, this court ordered the parties to complete simultaneous supplemental briefing to

address the effect of Hayward II on the instant petition.

In Hayward II, the Ninth Circuit squarely held that claims like Hart’s must be heard in

federal habeas proceedings. The Hayward II court concluded that “courts in this circuit . . . [must]

decide whether the California judicial decision approving the governor’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.’ ” 603 F.3d at 563 (quoting 28

U.S.C. § 2254(d)(1)-(2)); see also Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010) (per curiam);

Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). In so holding, Hayward II identified a statecreated liberty interest—the “some evidence” requirement—protected by the federal Due Process

Clause. See Pearson, 606 F.3d at 611 (citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). “By

holding that a federal habeas court may review the reasonableness of the state court’s application of

the California ‘some evidence’ rule, Hayward [II] necessarily held that compliance with the state

requirement is mandated by federal law, specifically the Due Process Clause.” Id. at 609; see also

Sandin v. Connor, 515 U.S. 472, 483-84 (1995) (recognizing that states may, under certain

circumstances, create liberty interests protected by the Due Process Clause); Bd. of Pardons v. Allen,

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482 U.S. 369, 371 (1987) (holding that state statutes “may create liberty interests in parole release

that are entitled to protection under the due process clause” (quoting Greenholtz, 442 U.S. at 12)). 

Accordingly, Hart’s petition raises a federal question reviewable by this court under 28 U.S.C.

section 2254.

III. Retroactivity

Because the decisions by the Superior Court, Court of Appeal and California Supreme Court

affirming the Governor’s reversal of the Board’s grant of parole to Hart all occurred prior to

Lawrence, Hart would only be eligible for relief under Lawrence if Lawrence has retroactive effect.

Although the Ninth Circuit has not directly addressed this question, almost every federal district

court to confront this issue has concluded that the “some evidence” standard articulated in Lawrence

applies retroactively to pre-Lawrence parole decisions. See Hinkles v. Vaughn, No. CV

05-0024-ODW, 2009 WL 6312276, at *15 n.13, *16 n.15 (C.D. Cal. Dec. 4, 2009) (concluding that

there was no need to analyze retroactivity because Lawrence merely clarified existing California

law); Nix v. Hartly, No. EDCV 07-1435, 2009 WL 3055398, at *6 n.7 (C.D. Cal. Sept. 24, 2009);

Branham v. Davison, No. EDCV 06-1294-ODW OP, 2009 WL 3055404, at *7 n.7 (C.D. Cal. Sept.

22, 2009); see also Styre v. Adams, 635 F. Supp. 2d 1166, 1170 (E.D. Cal. 2009) (applying the

“some evidence” standard from Lawrence to a pre-Lawrence denial of parole). In fact, only one

court has concluded that Lawrence should not be applied retroactively. See Gzikowski v. Dexter, 

No. EDCV 08-01189 RGK, 2009 WL 1530817, at *7 (C.D. Cal., May 29, 2009) (holding that

Lawrence cannot be applied retroactively because nothing in the California Supreme Court’s

decision indicates that the court intended its decision to apply retroactively).

As a general rule, California judicial decisions apply retroactively with only limited

exceptions.7 People v. Guerra, 37 Cal. 3d 385, 399 (1984) (citing Solem v. Stumes, 465 U.S. 638

(1984)). To determine whether a decision should be given retroactive effect, “the court first

undertakes a threshold inquiry: does the decision establish a new rule of law?” Id. at 399. If it does

not, “no question of retroactivity arises” because there is no material change in the law. Id. (citing

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Donaldson v. Superior Court, 35 Cal. 3d 24, 36 (1983) (plurality op.); People v. Garcia, 36 Cal. 3d

539, 547-548 (1984); United States v. Johnson, 457 U.S. 537, 549 (1982)).

On its face, Lawrence does not establish a new rule of law, and thus it must be applied

retroactively. In Lawrence, the court held:

our recognition that a proper review of parole decision must focus upon “some

evidence” of current dangerousness, does not alter our recognition in [prior cases]

that the purpose of the parole statutes is to guarantee that the decision makers fully

have addressed the public safety implications of releasing on parole any inmate

serving a maximum term of life imprisonment. The relevant determination for the

Board and the Governor is, and always has been, an individualized assessment of the

continuing danger and the risk to public safety posed by the inmate.

44 Cal. 4th at 1227 (emphasis added). Accordingly, the California Supreme Court in Lawrence

neither intended to create a new rule of law or to expressly overrule an existing one, but merely

clarified the existing standard governing the judicial review of parole denial decisions. Because

giving effect to a statutory rule that the courts had theretofore misconstrued does not establish a new

rule of law, People v. Lopez, 27 Cal. Rptr. 2d 25, 26 (Ct. App. 1993) (citing Guerra, 37 Cal. 3d at

399 n.13), no question over the retroactive application of Lawrence is raised and California’s

presumption of retroactivity applies.

Further, retroactive application of Lawrence to pre-Lawrence parole decisions is consistent

with Hayward II. In Hayward II, the court applied the California “some evidence” standard

articulated in Lawrence to a pre-Lawrence decision by the Governor to deny parole.8 In light of

this, to not apply Lawrence retroactively would contradict the clear mandate of Hayward II. 

Accordingly, this court must determine whether the Superior Court reasonably applied the

California “some evidence” standard, as it is articulated in Lawrence, when it affirmed the

Governor’s reversal of the Board’s grant of parole.

IV. Application of the “Some Evidence” Standard9

In determining whether the Superior Court reasonably applied the proper “some evidence”

standard, this court may not supplant its judgment for the Superior Court’s. William (Terry), 529

U.S. at 411. It may not issue the writ “simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal law erroneously or

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incorrectly.” Id. Rather, to support granting the writ, the application must be “objectively

unreasonable”. Id. at 409.

The record in this case indicates that the Governor’s sole justification for reversing the

Board’s grant of parole was the nature of Hart’s commitment offense. The Governor begins his

discussion of the suitability and unsuitability factors by listing a litany of “positive factors” favoring

the granting of parole. The statement of reasons for reversal specifically mentions that Hart: was

“discipline-free for approximately 20 years”; had “made efforts in prison to enhance his ability to

function within the law upon release,” including earning his Associate in Arts Degree in Business

Administration, completing vocational training in upholstery work and participating in “an array of

self-help and therapy, including Alcoholics Anonymous, Narcotics Anonymous, Life Plan for

Recovery, Category T, Category X, Creative Conflict Resolution, Impact, Life Plan for Recovery,

Morals and Values, Breaking Barriers, Stress Management, Hands of Peace, Life Skills, and Gavel

Club”; had “maintain[ed] seemingly solid relationships and close ties with supportive family and

friends”; had “received favorable evaluations from various correctional and mental-health

professionals over the years”; and had made both living and professional arrangements for his

release. Parole Reversal at 1-2.10 

Nonetheless, the Governor ultimately concluded that the Board’s decision to grant parole

should be reversed. In reaching that decision, the Governor relied upon two of the unsuitability

factors, both of which related solely to the commitment offense. First, the Governor stated that

“[d]espite the positive factors I considered, the second-degree murder for which Mr. Hart was

convicted was especially heinous considering the level of premeditation involved.” Id. The

Governor then proceeded to describe the manner in which Hart murdered the victim, without

referencing, in any way, how the murder reflected on Hart’s current dangerousness. Second, the

Governor wrote that “Mr. Hart’s action . . . demonstrated an exceptionally callous disregard for [the

victim’s] suffering because, according to the probation report, after being shot twice, [the victim]

reportedly asked Mr. Hart if he was dead. Mr. Hart then shot him a third time in the back of the

head.” Id. The Governor then concluded that “[t]he gravity of the second-degree murder committed

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by Mr. Hart is alone sufficient for me to conclude presently that his release from prison would pose

an unreasonable public-safety risk.” Id. The Governor ends the statement by explaining that 

[g]iven the current record before me, and after carefully considering the very same

factors the Board must consider, I find that the gravity of the murder perpetrated by

Mr. Hart presently outweighs the positive factors. Accordingly, because I believe his

release would pose an unreasonable risk of danger to society at this time, I REVERSE

the Board’s 2006 decision to grant parole to Mr. Hart.

Id.

The Superior Court, in denying Hart’s habeas petition, held simply that “[u]pon

consideration of the record as a whole, . . . there was at least ‘some evidence’ to support the

Governor’s decision to reverse the Board’s grant of parole.” Super. Ct. Order at 2. The court

explained that “[t]he evidence supports the Governor’s conclusion that the petitioner’s crime was

especially cruel and heinous execution-style murder, and it was committed in a dispassionate and

calculated manner. . . . The premeditated and vicious nature of the crime is some evidence, in itself

to support the Governor’s decision to reverse the Board’s grant of parole. Consequently, the court

cannot overturn the Governor’s decision.” Super. Ct. Order at 3.11

The Superior Court engaged in exactly the type of reasoning that Lawrence proscribes. 

Rather than considering whether the unsuitability factors weighed by the Governor were supported

by “some evidence” and spoke to the current threat that Hart posed to society, as required by

Lawrence, the court simply determined that because the Governor identified “some evidence” of an

unsuitability factor—the commission of the crime in “an especially heinous, atrocious or cruel

manner”—the Governor acted reasonably in reversing Hart’s grant of parole. Cal. Code. Regs. tit.

15, § 2402(c)(1). Lawrence, however, requires more: “the aggravated nature of the crime does not

in and of itself provide some evidence of current dangerousness to the public 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, indicates that the implications regarding the prisoner’s dangerousness

that derive from his or her commission of the commitment offense remain probative to the statutory

determination of a continuing threat to public safety.” Lawrence, 44 Cal. 4th at 1214. Nowhere in

the reversal statement does the Governor cite to anything in Hart’s “pre- or post-incarceration

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history” or to his “current demeanor and mental state” to explain why Hart’s commitment offense

“remain[s] probative” as to whether Hart is a “continuing threat to public safety.”12 The Governor’s

reversal is marked by the same characteristics that the Lawrence court found dispositive in that case: 

the Governor has neither disputed the petitioner’s rehabilitative gains nor,

importantly, related the commitment offense to current circumstances or suggested

that any further rehabilitation might change the ultimate decision that petitioner

remains a danger; mere recitation of the circumstances of the commitment of the

offense, absent articulation of a rational nexus between those facts and current

dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.

Id. at 1227. The Governor’s reversal of Hart’s grant of parole therefore was not supported by “some

evidence,” as Lawrence defines the term. Accordingly, the Superior Court’s determination that the

Governor satisfied the “some evidence” standard was an unreasonable application of the test. The

Superior Court’s error requires that this court grant Hart’s petition for habeas corpus.13 

CONCLUSION

For the reasons stated above, the court finds that the Superior Court’s application of the

“some evidence” standard was an unreasonable application of clearly established federal law

pursuant to 28 U.S.C. section 2254. Accordingly, Hart’s petition for habeas corpus is GRANTED. 

Respondent is ordered to release petitioner within thirty (30) days of the entry of judgment on such

terms and conditions as may be set by the Board. The California Department of Corrections and

Rehabilitation is directed to credit the period of time from January 10, 2007, the date of the

Governor’s reversal of the Board’s grant of parole, to the date of petitioner’s release toward

petitioner’s parole term. 

IT IS SO ORDERED.

Dated: August 4, 2010 

MARILYN HALL PATEL

United States District Court Judge

Northern District of California

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1. Article 5, section 8(b) of the California Constitution states that, “No decision of the parole authority

of this State with respect to the granting, denial, revocation, or suspension of parole of a person

sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30

days, during which the Governor may review the decision subject to procedures provided by statute.”

2. Section 2402 sets forth the information and circumstances that are to be considered by both the Parole

Board and the Governor when determining the status of a prisoner’s parole. See Cal. Code. Regs. tit.

15, § 2402. Specifically, subsections (c) and (d) articulate the circumstances which show either

suitability or unsuitability for parole. Id.

3. In relevant part, California Penal Code section 3401(b) provides that:

The panel or the board, sitting en banc, shall set a release date unless it determines that

the gravity of the current convicted offense or offenses, or the timing and gravity of

current or past convicted offense or offenses, is such that consideration of the public

safety requires a more lengthy period of incarceration for this individual, and that a

parole date, therefore, cannot be fixed at this meeting. 

4. California Code of Regulations, title 15, section 2402(c) reads:

Circumstances Tending to Show Unsuitability. The following circumstances each tend

to indicate unsuitability for release. These circumstances are set forth as general

guidelines; the importance attached to any circumstance or combination of circumstances

in a particular case is left to the judgment of the panel. Circumstances tending to indicate

unsuitability include:

(1) Commitment Offense. The prisoner committed the offense in an especially heinous,

atrocious or cruel manner. The factors to be considered include:

(A) Multiple victims were attacked, injured or killed in the same or separate

incidents.

(B) The offense was carried out in a dispassionate and calculated manner, such

as an execution-style murder.

(C) The victim was abused, defiled or mutilated during or after the offense.

(D) The offense was carried out in a manner which demonstrates an

exceptionally callous disregard for human suffering.

(E) The motive for the crime is inexplicable or very trivial in relation to the

offense.

(2) Previous Record of Violence. The prisoner on previous occasions inflicted or

attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated

serious assaultive behavior at an early age.

(3) Unstable Social History. The prisoner has a history of unstable or tumultuous

relationships with others.

(4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in

a manner calculated to inflict unusual pain or fear upon the victim.

ENDNOTES

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(5) Psychological Factors. The prisoner has a lengthy history of severe mental problems

related to the offense.

(6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or

jail.

5. California Code of Regulations, title 15, Section 2402(d) reads:

Circumstances Tending to Show Suitability. The following circumstances each tend to

show that the prisoner is suitable for release. The circumstances are set forth as general

guidelines; the importance attached to any circumstance or combination of circumstances

in a particular case is left to the judgment of the panel. Circumstances tending to

indicate suitability include:

(1) No Juvenile Record. The prisoner does not have a record of assaulting others as a

juvenile or committing crimes with a potential of personal harm to victims.

(2) Stable Social History. The prisoner has experienced reasonably stable relationships

with others.

(3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence

of remorse, such as attempting to repair the damage, seeking help for or relieving

suffering of the victim, or indicating that he understands the nature and magnitude of the

offense.

(4) Motivation for Crime. The prisoner committed his crime as the result of significant

stress in his life, especially if the stress has built over a long period of time.

(5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner

suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears

the criminal behavior was the result of that victimization.

(6) Lack of Criminal History. The prisoner lacks any significant history of violent crime.

(7) Age. The prisoner’s present age reduces the probability of recidivism.

(8) Understanding and Plans for Future. The prisoner has made realistic plans for release

or has developed marketable skills that can be put to use upon release.

(9) Institutional Behavior. Institutional activities indicate an enhanced ability to function

within the law upon release. 

6. On the same day that the California Supreme Court decided Lawrence, it also decided a companion

case, In re Shaputis, 44 Cal. 4th 1241 (2009) (Shaputis). Together, Shaputis and Lawrence clarify the

California “some evidence” standard. However, Shaputis did not alter the boundaries of the “some

evidence” standard as it was articulated in Lawrence, instead directly incorporating the standard in

Lawrence. Accordingly, the court will refer solely to Lawrence for the purposes of discussing the “some

evidence” standard in this case.

7. See e.g., Kriesher v. Mobil Oil Corp., 243 Cal. Rptr. 2d 662, 672 (Ct. App. 1988) (concluding that

judicial decisions holding that contracting party’s right to refuse consent to assignment had to be

exercised in accordance with standards of commercial reasonableness and good faith would not be

retroactively applied to conduct involving franchise agreement where contrary rule had prevailed at time

all actions which subsequently formed basis for litigation occurred).

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8. In Hayward II, the court applied the Lawrence “some evidence” standard to then Governor Gray

Davis’s 2003 decision to reverse the Board’s grant of his parole . 603 F.3d at 550. 

9. The state suggests that it is improper for the court to determine whether the Superior Court

reasonably applied the “some evidence” test, and that instead, the court should only evaluate whether

Hart received the minimal procedural protections mandated by Greenholtz v. Inmates of Nebraska Penal

& Correctional Complex, 442 U.S. 1 (1979). Ans. at 6. In Greenholtz, the Supreme Court established

that the terms of a state’s parole statute (1) determine whether the statute creates a liberty interest

protected by the Due Process Clause and (2) delineate the contours of the process necessary to comport

with the Constitution. 442 U.S. at 16. The Greenholtz court held that neither the Nebraska statute at

issue nor the federal constitution required that all inmates receive a full parole hearing on an annual

basis or that the parole board issue written reasons for the denial of parole. Id. at 14-16. Further, the

Supreme Court held that by providing an opportunity to be heard and a statement for the reasons for

denying parole, the Nebraska procedures complied with the federal Due Process Clause. Id. at 16. 

In focusing on the narrow holding in Greenholtz, the government overlooks a more relevant rule

established in Greenholtz and a subsequent case, Board of Pardons v. Allen, 482 U.S. 369, 371 (1987).

Together, those cases stand for the clearly established proposition that state parole systems “may create

liberty interests in parole release that are entitled to protection under the Due Process Clause.” Allen, 482 U.S. at 371. The California Supreme Court held, in Lawrence, that the state’s parole statute and

regulations require that the an inmate be released unless there is “some evidence” of future

dangerousness. The Lawrence court further defined what type of evidence did and did not constitute

“some evidence.” In so holding, the California Supreme Court created a liberty interest protected by

the Due Process Clause. See Pearson, 606 F.3d at 611 (“California law gives rise to a liberty interest

on the part of its prisoners covered by its parole system. Having guaranteed the prisoners of the state

that they will not be denied a parole release date absent ‘some evidence’ of current dangerousness,

California is not permitted under the federal Constitution arbitrarily to disregard the ‘some evidence’

requirement in any particular case.”). According to California law, that liberty interest includes

substantive, as opposed to merely procedural, protections. SeeCooke, 606 F.3d at 1214 (explaining that

unlike the Nebraska statutes with which the United States Supreme Court was confronted in Greenholtz, the Ninth Circuit had “the benefit of extensive guidance from the California Supreme Court as to the

scope of the liberty interest at issue”; and holding that the “[t]he ‘some evidence’ requirement . . .

imposes substantive rather than purely procedural constraints on state officials’ discretion to grant or

deny parole . . . .”). Thus, although no United States Supreme Court opinion has explicitly held that

California inmates’ Due Process rights are violated if the Governor fails to adhere to the “some

evidence” standard, that rule is nonetheless clearly established pursuant to Allen and Greenholtz. Because it is clearly established, this court must enforce it. 

10. Notably, the Governor omitted any mention that the Fresno County District Attorney’s Office

attended Hart’s hearing and did not oppose parole. Tr. of Parole Hr’g at 48.

11. It should be noted that the Superior Court denied Hart’s habeas petition without the benefit of the

California Supreme Court’s decision in Lawrence. As is discussed above, however, Lawrence must be

applied retroactively because it clarified an existing rule of law.

12. The Governor did explain why he placed no credence in the Board’s conclusion that Hart committed

the murder “as a result of a significant stress in [his] life.” Parole Reversal at 2. In so arguing, the

Governor sought to negate one of the Board’s many findings of circumstances tending to show Hart’s

suitability for parole. See Cal. Code. Regs. tit. 15, § 2402(d)(4) (listing as one of the circumstances

tending to show suitability “Motivation for Crime: The prisoner committed his crime as the result of

significant stress in his life, especially if the stress has built over a long period of time.”). However, the

negation of a suitability factor found by the Board cannot serve as “some evidence” of current

dangerousness. See Cooke, 606 F.3d at 1215 (“A properly disregarded piece of favorable evidence,

however, cannot possibly constitute evidence of current dangerousness; that proposition is illogical on

its face. Evidence that is excluded is not probative of anything.”). 

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13. This conclusion is bolstered by post-Lawrence cases in which federal courts have granted petitions

similar to Hart’s. See, e.g., Cooke, 606 F.3d 1206; Pearson, 606 F.3d 606; Fellows v. Hartley, No.

1:08-CV-01556 OWW JMD, 2010 WL 2902514, at *5-7 (E.D. Cal. July 22, 2010) (granting habeas

petition where Board denied parole solely based upon commitment offense and pre-commitment

criminal history without relating those factors to current dangerousness); George v. Sullivan, ___ F.

Supp. 2d ____, 2010 WL 2546042, at *7 (E.D. Cal. June 15, 2010) (“In the absence of an expressly

identified nexus, the Court does not see that the circumstances of the offense alone reflect a current level

of unreasonable dangerousness. Additional facts, besides the commitment offense, are necessary to show

that George poses a current threat.”); Lopez v. Curry, ___ F. Supp. 2d ____, 2010 WL 2464850, at *3

(N.D. Cal. June 14, 2010) (Alsup, J.) (granting habeas petition even where the record contained some

evidence that commitment offense “involved ‘some level of premeditation,’ a trivial motive of a

perceived insult in the bar, ‘an exceptionally callous disregard for human suffering and life,’

endangering additional people present in the bar, and petitioner’s flight after the shooting” because the

commitment offense was not probative of current dangerousness); Hernandez v. R.J. Subia, No.

2:07-cv-00839-RSL-JLW, 2010 WL 2025330, at *13-16 (E.D. Cal. May 18, 2010) (granting habeas

petition for former gang member, who had demonstrated his reformation in prison, even though district

attorney lobbied against his release because commitment offense provided no evidence of current

dangerousness).

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