United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

GEORGE G. GREENWOOD,

Petitioner, 

 v.

ROBERT L. AYERS, Warden,

Respondent. /

No. C 08-2410 WHA (PR) 

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS

INTRODUCTION

This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. 2254. The

petition is directed to denial of parole. Respondent was ordered to show cause why the writ

should not be granted. Respondent has filed an answer and a memorandum of points and

authorities in support of it, along with exhibits. Petitioner has responded with a traverse. For

the reasons set forth below, the petition is DENIED.

STATEMENT

In 1982, petitioner was convicted by a jury in Los Angeles County Superior Court of

one count of first-degree murder and one count of robbery (Pet. Exh. A at 3). He was

sentenced to a term of twenty-five years to life in state prison (ibid.). At his 2007 parole

hearing, the California Board of Parole Hearings (the “Board”) found him unsuitable for parole

for a fifth time (id. at 56). The Board’s 2007 decision is the subject of this petition. Petitioner

has exhausted his claims by way of state habeas petitions. 

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ANALYSIS

A. STANDARD OF REVIEW

A district court may not grant a petition challenging a state conviction or sentence on the

basis of a claim that was reviewed 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). The first prong applies both to questions of law and to mixed questions of

law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), 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” Supreme Court authority, that is, falls under the

first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 

Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application of”

Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies

the governing legal principle from the Supreme Court’s decisions but “unreasonably applies

that principle to the facts of the prisoner’s case.” Id. at 413. The federal court on habeas review

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 incorrectly.” 

Id. at 411. Rather, the application must be “objectively unreasonable” to support granting the

writ. See id. at 409. 

“Factual determinations by state courts are presumed correct absent clear and

convincing evidence to the contrary.” Miller-El, 537 U.S. at 340. This presumption is not

altered by the fact that the finding was made by a state court of appeals, rather than by a state

trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082,

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1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and

convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory

assertions will not do. Id.

Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination

will not be overturned on factual grounds unless objectively unreasonable in light of the

evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; see also Torres v.

Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

When there is no reasoned opinion from the highest state court to consider the

petitioner’s claims, the court looks to the last reasoned opinion, which in this case is the opinion

of the superior court denying the state habeas petition. See Ylst v. Nunnemaker, 501 U.S. 797,

801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.2000). 

B. ISSUES PRESENTED

As grounds for federal habeas relief, petitioner asserts that: (1) there was not “some

evidence” to support the denial; and (2) the denial was arbitrary and capricious because there

was not enough evidence that petitioner was unsuitable for parole. Both of petitioner’s issues

are variations on the same claim that the Board’s decision violated due process because it was

not supported by sufficient evidence of petitioner’s unsuitability. 

In order to preserve the argument for appeal, respondent argues that California prisoners

have no liberty interest in parole, and that if they do, the only due process protections available

are a right to be heard and a right to be informed of the basis for the denial – that is, respondent

contends there is no due process right to have the result supported by sufficient evidence. 

Because these contentions are contrary to Ninth Circuit law, they are without merit. See Irons

v. Carey, 479 F.3d 658, 662 (9th Cir. 2007) (applying "some evidence" standard used for

disciplinary hearings as outlined in Superintendent v. Hill, 472 U.S. 445-455 (1985)); Sass v.

California Bd. of Prison Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006) (the some evidence

standard identified in Hill is clearly established federal law in the parole context for purposes of

§ 2254(d)); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (“California’s parole

scheme gives rise to a cognizable liberty interest in release on parole.”). 

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A parole denial satisfies the requirements of due process if “some evidence” supports

the decision. Sass, 461 F.3d at 1128-29 . "To determine whether the some evidence standard is

met 'does not require examination of the entire record, independent assessment of the credibility

of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any

evidence in the record that could support the conclusion reached'" by the parole board. Id. at

1128 (quoting Hill, 472 U.S. at 455-456). The "some evidence standard is minimal, and assures

that 'the record is not so devoid of evidence that the findings of the . . . board were without

support or otherwise arbitrary.'" Id. at 1129 (quoting Hill, 472 U.S. at 457).

It is now established under California law that the task of the Board of Parole Hearings

and the Governor is to determine whether the prisoner would be a danger to society if he or she

were paroled. See In. re Lawrence, 44 Cal. 4th 1181, 1205 (2008). The constitutional “some

evidence” requirement therefore is that there be some evidence that the prisoner would be such

a danger, not that there be some evidence of one or more of the factors that the regulations list

as factors to be considered in deciding whether to grant parole. Id. at 1205-06. 

In several cases the Ninth Circuit has discussed whether the “some evidence” standard

can be satisfied by evidence of the nature of the commitment offense and prior offenses. In

Biggs v. Terhune, 334 F.3d 910, 915-17 (9th Cir. 2003), the court explained that "[t]he Parole

Board’s decision is one of ‘equity’ and requires a careful balancing and assessment of the

factors considered . . . A continued reliance in the future on an unchanging factor, the

circumstance of the offense and conduct prior to imprisonment, runs contrary to the

rehabilitative goals espoused by the prison system and could result in a due process violation." 

Ibid. Although the Biggs court upheld the initial denial of a parole release date based solely on

the nature of the crime and the prisoner’s conduct before incarceration, the court cautioned that

"[o]ver time, however, should Biggs continue to demonstrate exemplary behavior and evidence

of rehabilitation, denying him a parole date simply because of the nature of his offense would

raise serious questions involving his liberty interest." Id. at 916. 

The Sass court criticized the decision in Biggs: "Under AEDPA it is not our function to

speculate about how future parole hearings could proceed." Sass, 461 F.3d at 1129. Sass

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determined that it is not a due process violation per se if the Board determines parole suitability

based solely on the unchanging factors of the commitment offense and prior offenses. Ibid.

(prisoner’s commitment offenses in combination with prior offenses amounted to some

evidence to support the Board’s denial of parole). However, Sass does not dispute the argument

in Biggs that, over time, a commitment offense may be less probative of a prisoner’s current

threat to the public safety. 

The Ninth Circuit explained that all of the cases in which it previously held that denying

parole based solely on the commitment offense comported with due process were ones in which

the prisoner had not yet served the minimum years required by the sentence. Ibid. Also, noting

that the parole board in Sass appeared to give little or no weight to evidence of the prisoner’s

rehabilitation, the Ninth Circuit stressed its hope that "the Board will come to recognize that in

some cases, indefinite detention based solely on an inmate’s commitment offense, regardless of

the extent of his rehabilitation, will at some point violate due process, given the liberty interest

in parole that flows from relevant California statutes." Ibid. (citing Biggs, 334 F.3d at 917). 

Even so, the Ninth Circuit has not set a standard as to when a complete reliance on unchanging

circumstances would amount to a due process violation. 

The Board denied parole based on the circumstances of the murder, petitioner’s criminal

history, his disciplinary record while in prison, his psychological report, and his lack of solid

plans for after his release from prison (Pet. Exh. A at 71-77). The Los Angeles County Superior

Court found that the parole denial did not violate due process because the evidence cited by the

Board constituted “some evidence” of a risk that petitioner would pose a threat to the public if

released (Pet. Exh. D at 1-2). The California Court of Appeal and the California Supreme Court

summarily denied petitioner’s claims (Resp. Exhs. 4 & 6). 

As to the commitment offense, the Board described it as follows:

[O]n June 29, 1981, at approximately 8 a.m., Frank Coffey, Sr. [] was struck to

the ground by an assailant and robbed. Jesse Davis (“Davis”) who was inside a

nearby store, looked outside when he heard a noise. He saw Defendant holding a

man who appeared elderly. Defendant’s left hand was in the man’s left rear

pocket. Davis observed Defendant swing the flat part of his clinched right fist

down in a clapping motion against the back of Coffey’s head. Coffey fell

forward onto his face into the street. When Defendant pulled his hand out of

Coffey’s pocket, Davis observed a black wallet in Defendant’s hand. Defedant

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ran off with the wallet. Orlando Mason (“Mason”) told police Defendant had

requested his help in robbing an old man. Mason responded that he did not want

to get involved. Defendant left, heading towards the street where Coffey was

attacked. Shortly thereafter, Defendant returned with the wallet. According to

Mason, Defendant later stated he had gotten only “crumbs” from the wallet. 

Mario Jancy [] saw Defendant at approximately 9 a.m. Defendant had in his

possession a credit card bearing the name Frank C. Sims [] and a driver’s license

issued to Frank Coffey. Jancy asked how Defendant had acquired the credit

card. Defendant answered, “I slammed this old man and took his wallet.” 

Defendant also noted he had warned people in the vicinity of the crime scene,

“of any of you blank blanks tell, I’ll come back and kill you.” 

(Pet. Exh. A at 15.) Coffey later died of the head injuries he sustained in petitioner’s attack

(Resp. Exh. 2 at 2). 

The Board reasonably found that the circumstances of the offense evince a “total

disregard for human suffering” and a trivial motive in comparison to the seriousness of the

crime (Pet. Exh. A at 71-72). Petitioner’s prior criminal record included drug offenses from the

age of 13, an attempted kidnap and assault as a juvenile, and robbery as a juvenile, before

committing the instant murder at age 18 (id. at 73). His institutional disciplinary record is

extensive, including 33 less serious “counseling chronos,” eight more serious infractions, and

15 disciplinary reports (id. at 73-74). These facts alone amount to “some evidence” that

petitioner would present an unreasonable threat to the public if released, but there was

additional evidence in the record supporting the Board’s parole denial as well. The

psychologist who evaluated him for parole found that petitioner had Antisocial Personality

Disorder and presented a “moderate” risk to the public (id. at 74-76). Also, petitioner had a

place to live while on parole, but he had presented no evidence of any employment plans (id. at

76). While petitioner was commended for his vocational training, and his participation in drug

recovery and other “very, very good programs” in prison, the Board reasonably found these

factors outweighed by the factors indicating that petitioner was not suitable for parole (id. at

77). 

The record of the 2007 parole hearing demonstrates at least “some evidence” that

petitioner would pose a risk of harm to society if released and that parole should be denied. See

Rosas v. Nielsen, 428 F.3d 1229, 1232–33 (9th Cir. 2005) (facts of the offense and psychiatric

reports about the would-be parolee sufficient to support denial). Moreover, as the Board did not

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deny parole solely because of the unchanging facts of petitioner’s offense and criminal history,

the concern expressed in Biggs, that after passage of enough time such facts would cease to

amount to “some evidence” on its own, is not triggered here. The state court’s rejection of

petitioner’s due process claim was neither contrary to nor an unreasonable application of the

“some evidence” requirement of due process. Consequently, petitioner is not entitled to federal

habeas relief. 

CONCLUSION

The petition for a writ of habeas corpus is DENIED. The clerk shall close the file. 

IT IS SO ORDERED.

Dated: January 26 , 2010. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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