United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BILLY ALLEN, 

Petitioner,

 vs.

ROBERT AYERS, Warden,

Respondent. /

No. C 09-0897 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 filed a traverse. For the reasons set forth below, the petition for a writ of habeas

corpus is DENIED.

STATEMENT

In 1991, petitioner was sentenced to a term of twenty-seven years to life in prison

following his conviction for first-degree murder. This petition challenges the denial of parole in

2007 by the California Board of Parole Hearings (“Board”) at petitioner’s initial parole hearing. 

Petitioner challenged the Board’s decision in habeas petitions filed in all three levels of the

California courts. The Stanislaus County Superior Court denied the petition in an explained

opinion (Resp. Ex. 2). The California Court of Appeal and the Supreme Court of California

Case 3:09-cv-00897-WHA Document 6 Filed 06/17/10 Page 1 of 6
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

issued summary denials (Resp. Exs. 5, 6).

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

Case 3:09-cv-00897-WHA Document 6 Filed 06/17/10 Page 2 of 6
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

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

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 Stanislaus County Superior Court denying

petitioner’s habeas petition (Pet. Ex. 2). 

B. ISSUES PRESENTED

Petitioner’s remaining grounds for federal habeas relief are that (1) the Board violated

his state and federal due process rights because it relied upon the facts of the commitment

offense and because there was not “some evidence” that he would be a present danger to society

if released; and (2) the Board’s decision not to hold another hearing for four years violated his

due process rights because it was not based upon “some evidence” and was an “act of reprisal”

against him for filing a habeas petition.

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. 

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

Case 3:09-cv-00897-WHA Document 6 Filed 06/17/10 Page 3 of 6
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

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, 1210-14); see also Cooke,

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

“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 something in the prisoner’s preor postincarceration 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 of the statutory determination of a continuing threat

to public safety.” Lawrence, 44 Cal.4th at 1214 (emphasis in original); see Hayward, 603 F.3d

at 562 (same); Cooke, slip op. at 18 (same). 

The commitment offense was certainly brutal, and petitioner endangered the lives of

people other than the victim. Over the course of several days, petitioner told the victim that he

would kill him, before shooting and killing him at close range and also shooting and injuring

Case 3:09-cv-00897-WHA Document 6 Filed 06/17/10 Page 4 of 6
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

two of the victim’s friends (Pet. Ex. A at 20-33). Petitioner maintained at the hearing that he

acted in self-defense and that the victim had a gun, although the victim’s purported gun was not

found and the witnesses did not corroborate this account (id. at 31-32, 98-101). Even

aside from petitioner’s commitment offense, there was ample other evidence that the

dangerousness that petitioner showed in carrying out the commitment offense might recur:

petitioner had a substantial criminal history prior to the commitment offense (id. at 34-37); he

received six serious rules violations in prison, the most recent in 2003 (id. at 50-51, 60-64); his

participation in self-help programs was very limited (id. at 57-60); and he lacked insight into his

crimes (id. at 87-91). 

Based upon this evidence, the superior court could reasonably conclude that there was

“some evidence” of petitioner’s current dangerousness, particularly as petitioner had only

served sixteen years of his sentence of twenty-seven years to life. Cf. Lawrence, 44 Cal.4th at

1211 (not until after California prisoners “have served their suggested base terms” do the

underlying circumstances of the commitment offense fail to provide a valid basis for denying

parole). There was evidence in petitioner’s “pre-incarceration behavior,” specifically his

criminal history, his “post-incarceration” record, specifically his poor disciplinary record and

failure to participate in self-help programs, and his demeanor at the hearing, specifically his

lack of insight into his crimes, that indicated “that the implications regarding the prisoner’s

dangerousness that derive from his [] commission of the commitment offense remain probative

of the statutory determination of a continuing threat to public safety.” See Lawrence, 44 Cal.

4th at 1214. 

The same evidence relied upon to deny parole also constitutes “some evidence” that a

new parole hearing would not be necessary for four more years, at which point petitioner would

still be far from his suggested base term of twenty-seven years. Petitioner has cited no evidence

in support of his contention that the Board denied parole as “an act of reprisal” against

petitioner for filing a habeas petition. Rather, as is clear from the record of the parole hearing,

the denial was based on a detailed examination of petitioner’s criminal history, his prison

record, his psychological reports, and his parole plans (Pet. Ex. A). 

Case 3:09-cv-00897-WHA Document 6 Filed 06/17/10 Page 5 of 6
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

The state courts, in upholding the Board’s decision, reasonably applied California’s

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

record. See Hayward, 603 F.3d at 563. Therefore, the state courts’ denial of his federal due

process claims was neither contrary to nor an unreasonable application of federal law, and

petitioner is not entitled to 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

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: June 17 , 2010. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

G:\PRO-SE\WHA\HC.09\ALLEN0897.RUL.wpd 

Case 3:09-cv-00897-WHA Document 6 Filed 06/17/10 Page 6 of 6