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

WILBUR LYNN MCCLURE,

Petitioner,

 vs.

BEN CURRY, Warden,

Respondent. /

No. C 08-3959 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. 

Respondent was ordered to show cause why the writ should not be granted. Respondent has

filed an answer, along with a supporting memorandum of points and authorities and exhibits. 

Petitioner has responded with a traverse. Petitioner also filed a supplemental brief in support of

his petition. For the reasons set forth below, the petition for a writ of habeas corpus is DENIED.

STATEMENT

In 1987, petitioner was sentenced to a term of seven years to life in state prison pursuant

to his conviction for kidnap for robbery and assault with a deadly weapon. This petition

challenges the denial of parole by the California Board of Parole Hearings in 2007. Petitioner

filed habeas petitions challenging this decision in all three levels of the California courts. The

Superior Court of the County of Los Angeles denied the petition in an explained opinion. The

California Court of Appeal and the Supreme Court of California issued summary denials.

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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. Ibid.

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. See Ylst v. Nunnemaker, 501

U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.2000). In

this case, the last reasoned opinion is that of the superior court denying petitioner’s habeas

petition (Resp. Exh. 2). 

B. ISSUES PRESENTED

As grounds for relief, petitioner claims (1) the denial of parole violated his right to due

process because it was not supported by at least “some evidence” of his current dangerousness;

(2) the denial of parole violated a liberty interest protected by the federal constitutional

guarantee of due process in denying parole without “some evidence” to support its decision;

and (3) the denial of parole violated due process because it was based on “the unchanging facts

of the crime in the face of clear evidence of rehabilitation.” As all of these claims concern

whether there was sufficient evidence to support the denial of parole without violating

petitioner’s right to due process, they will be addressed together. 

The Due Process Clause does not, by itself, entitle prisoners to release on parole in the

absence of some evidence of their current dangerousness. Hayward v. Marshall, 603 F.3d 546,

555, 561 (9th Cir. 2010) (en banc). Under California law, however, “some evidence” of current

dangerousness is required in order to deny parole. Id. at 562 (citing In re Lawrence, 44 Cal.4th

1181, 1205-06 (2008) and In re Shaputis, 44 Cal.4th 1241 (2008)). This requirement gives

California prisoners a liberty interest protected by the federal constitutional guarantee of due

process in release on parole in the absence of “some evidence” of their current dangerousness. 

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Cooke v. Solis, No. 06-15444, slip op. 1, 15-16 (9th Cir. June 4, 2010) (citing Hayward, 603

F.3d at 561-64); Pearson v. Muntz, No. 08-55728, slip op. 7791, 7799-7800 (9th Cir. May 24,

2010) (citing Hayward, 603 F.3d at 561-64).

When a federal habeas court in this circuit is faced with a claim by a California prisoner

that their right to due process was violated because the denial of parole was not supported by

“some evidence,” the court “need only decide whether the California judicial decision

approving” the denial of 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.’” Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. 2254(d)(1)-(2)); Cooke, slip

op. at 15. California’s “some evidence” requirement was summarized in Hayward as follows:

As a matter of California law, ‘the paramount consideration for both the Board

and the Governor under the governing statutes is whether the inmate currently

poses a threat to public safety.’ There must be ‘some evidence’ of such a threat,

and an aggravated offense ‘does not, in every case, provide evidence that the

inmate is a current threat to public safety.’ The prisoner’s aggravated 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’ supports the inference of dangerousness. 

Thus, in California, the offense of conviction may be considered, but the

consideration must address the determining factor, ‘a current threat to public

safety.’

Hayward, 603 F.3d at 562 (quoting Lawrence, 44 Cal.4th. at 1191, 1209-15); see also Cooke,

slip op. at 16-18 (describing California’s “some evidence” requirement). 

Here, the commitment offense certainly evinced dangerousness. Petitioner and his

accomplice, armed with a gun, approached an unarmed woman getting out of her car,

petitioner’s accomplice struck her in the face and forced her into the car by her neck, they took

her purse and drove her in her car to a shopping mall where they forced her to buy them clothes

and shoes at two stores, petitioner ripped her necklace from her neck and demanded she write

him a check for $200, and hours later they released her from her car on the side of the freeway

(Resp. Exh. 1B at 8-9). Even aside from his commitment offense, there was evidence that

petitioner posed a risk of current dangerousness. There was evidence of petitioner’s violence

from both before and after his commitment offense: he had a prior conviction for assault with a

deadly weapon, and while in prison he received a serious rules violation report for fighting (id.

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at 27-28, 69). In addition, there was evidence that parole had not been successful in the past, as

petitioner violated parole when it was granted to him following a prior conviction for burglary

(id. at 10-11). Moreover, petitioner repeatedly attributed his criminal history to his inability to

control anger, and his demeanor at the parole hearing suggested that he continued to have

difficulty managing anger; at the hearing, the Board noted petitioner “showed a lot of

agitation,” elevated his voice and used angry gestures during the discussion about what the

victim had said about the crime (id. at 61-65). Lastly, there was evidence supporting the

Board’s finding that petitioner’s parole plans were not substantial because his employment

plans were too far from his residential plans and were vague as to the work he would be doing

(id. at 52-57, 85). 

Under these circumstances, the state court reasonably found that the denial of parole was

supported by “some evidence” of petitioner’s current dangerousness at the 2007 parole hearing,

including evidence beyond the circumstances of the commitment offense. The state courts, in

upholding the Board’s denial of parole and denying petitioner’s claims, reasonably applied

California’s “some evidence” requirement and reasonably determined the facts in light of the

evidence presented. Accordingly, the state courts’ denial of petitioner’s claims was neither

contrary to nor an unreasonable application of petitioner’s federal constitutional guarantee of

due process, and petitioner is not entitled to federal habeas relief. 

CONCLUSION

The petition for a writ of habeas corpus is DENIED. 

Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to

rule on whether a petitioner is entitled to a certificate of appealability in the same order in

which the petition is denied. Petitioner has failed to make a substantial showing that his claims

amounted to a denial of his constitutional rights or demonstrate that a reasonable jurist would

//

//

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find the denial of his claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Consequently, no certificate of appealability is warranted in this case. 

The clerk shall enter judgment and close the file. 

IT IS SO ORDERED.

Dated: July 13 , 2010. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

G:\PRO-SE\WHA\HC.08\MCCLURE3959.RUL.wpd 

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