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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JERRY L SULLIVAN,

Petitioner,

 v

ROBERT L AYERS, Warden,

Respondent.

 /

No C-08-1837 VRW (PR)

ORDER GRANTING PETITION FOR

WRIT OF HABEAS CORPUS

Petitioner Jerry L Sullivan, a state prisoner incarcerated

at San Quentin State Prison in San Quentin, California, seeks a writ

of habeas corpus under 28 USC § 2254 challenging the California

Board of Parole Hearings’ (“BPH”) July 30, 2007 decision to deny him

parole at his twelfth parole suitability hearing. Doc #1. 

On October 21, 2009 the court granted petitioner habeas

relief based on his challenge to BPH’s July 21, 2006 decision to

deny him parole at his eleventh parole suitability hearing. See

Sullivan v Ayers, No C-07-4963 VRW (PR) (ND Cal filed Sept 26,

2007), Doc #12; see Doc #20 (amended order filed Nov 4, 2009). The

thirty-three page order included a comprehensive discussion of

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petitioner’s commitment offense and other factors relevant under

California law in determining his parole suitability upon which BPH

relied to deny him parole. Initially, the court observed:

At the time he was denied parole in 2006, fiftythree-year-old petitioner had served twentythree years on his seven-to-life sentence – over

thirteen years past his minimum eligible parole

date – during which he had exhibited, in the

words of BPH, “pretty close to * * *

exceptional” institutional behavior, Doc #9-2 at

95; Doc #9-3 at 4; see also Doc #9-2 at 100

(petitioner’s “institutional adjustment[] [has]

been exceptional”; petitioner’s disciplinary

record has been “outstanding”; id at 56-57

(during the hearing BPH “commend[ed]

[petitioner]” for his “remarkable and

outstanding record” throughout the duration of

his life term). After recognizing petitioner’s

“unblemished disciplinary profile,” his

“positive programming” and “excellent rapport

with both inmates and staff,” the July 2006

“Life Prisoner Evaluation Report” concluded:

Based on the absence of a prior criminal

history (taking into account his commitment

offense), his prison adjustment, the

findings in his psychiatric reports, and

his family support I believe [petitioner]

will re-integrate into society without

incident. I did not note any information

that would indicate he would not be able to

function as a law-abiding citizen should he

be allowed parole at this time. 

Doc #9-5 at 49. And, the doctor who prepared

the psychological report specifically for

petitioner’s parole suitability hearing

concluded: “[g]iven [petitioner’s] history,

institutional adjustment, and present clinical

presentation there are no psychological factors

that would suggest an increased risk for violent

behavior, in either the community, or a

controlled setting at the present time.” Doc

#9-3 at 31.

Doc #20 at 1–2. The court proceeded with a thorough analysis, and

ultimately concluded:

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1 On November 2, 2009, BPH conducted petitioner’s thirteenth

parole suitability hearing and issued a “proposed decision” granting

him parole. See Sullivan v Ayers, No C-07-4963 VRW (PR) (ND Cal filed

Sept 26, 2007), Doc #23 at 1 & 5. That decision, however, is not yet

final. See Cal Pen Code § 3041(b) (“any decision of the parole panel

finding an inmate suitable for parole shall become final within 120

days of the date of the hearing” during which time BPH may review the

decision). Further, under California Penal Code § 3041.1, the

governor may request review of BPH’s decision to grant parole “up to

90 days prior to a scheduled release date.” It is unclear from the

November 2, 2009 “proposed decision” whether or not petitioner has a

scheduled release date. 

3

After careful review of the record and pertinent

law, the court finds there simply is no evidence

that petitioner was not suitable for parole and

would pose an unreasonable risk of danger to

society or a threat to public safety if released

from prison. The state court’s determination

that BPH’s reliance on the commitment offense as

well as what it termed petitioner’s “uncertain

parole plans” satisfied the “some evidence”

standard was an objectively unreasonable

application of [Superintendent v Hill, 472 US

445, 457 (1985)]. See 28 USC § 2254(d). As a

result, petitioner is entitled to federal habeas

relief on his due process claim.

Id at 32-33. 

The court then ordered respondent to calculate a term for

petitioner and set an imminent date for his release in accordance

with California Penal Code § 3041(a) and, within ten days of

petitioner’s release, to file a notice with the court confirming the

date on which petitioner was released. Doc #20 at 33. Respondent

promptly filed in the Ninth Circuit a notice of appeal and a motion

to stay the proceedings pending appeal, which that court granted.1

Doc ## 13 & 14 & 19. See Sullivan v Ayers, No 09-17403 (9th Cir,

filed Oct 28, 2009). 

In the instant petition, petitioner challenges BPH’s July

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July 30, 2007 decision finding him unsuitable for parole on the

ground that it does not comport with due process. Specifically,

petitioner argues that BPH’s decision was “arbitrary” and

“capricious” because the record did not contain any evidence that he

presently posed a danger to society. Sullivan v Ayers No C-08-1837

VRW (PR) (ND Cal filed Apr 7, 2008), Doc #1 at 13-14. In deciding

to deny petitioner parole, BPH again relied on the commitment

offense, as well as petitioner’s “inability” to express himself,

which led BPH to “feel[] that maybe there’s an [American with

Disabilities Act] issue here that we’re not picking up that’s some

kind of block on processing * * * information.” Id, Doc #6-2 at 18.

The instant petition raises substantially similar issues

presented to the court by petitioner in his challenge to his 2006

denial of parole. In granting petitioner relief in that action, the

court could have, and indeed perhaps should have, included a

discussion of the instant petition challenging petitioner’s 2007

parole denial and decided both petitions simultaneously. Because an

appeal regarding the court’s grant of habeas relief on that petition

is pending, the court now lacks jurisdiction to amend the order

granting relief to include a discussion of petitioner’s challenge to

his 2007 denial of parole. 

After carefully reviewing the record now before the court,

the court finds for essentially the same reasons stated in its order

granting petitioner habeas relief on his challenge to his 2006

parole denial that there was no evidence at the time of petitioner’s

July 30, 2007 hearing that he was not suitable for parole and would

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2

 Even the state court “recognize[d] that [BPH’s] reasoning

process was not completely flawless.” Doc #6-5 at 89. 

5

pose an unreasonable risk of danger to society or a threat to public

safety if released from prison. The court further finds the state

court’s determination that the “some evidence” standard was

satisfied by the evidence presented at the hearing was an

objectively unreasonable application of Superintendent v Hill, 472

US 445, 457 (1985).2

 See 28 USC § 2254(d). As a result, petitioner

is entitled to federal habeas relief on his due process claim. 

Accordingly, the petition for writ of habeas corpus is

GRANTED. Within twenty days of the date of this order, BPH must

calculate a term for petitioner and set an imminent date for his

release in accordance with California Penal Code § 3041(a). Within

ten days of petitioner’s release, respondent must file a notice with

the court confirming the date on which petitioner was released.

In the event respondent files a timely notice of appeal of

this order, in the interest of judicial economy, the court of

appeals may wish to consolidate this appeal with the appeal pending

in Sullivan v Ayers, No 09-17403 (9th Cir, filed Oct 28, 2009). See

FRAP 3(b)(2).

IT IS SO ORDERED.

 

VAUGHN R WALKER

United States District Chief Judge

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