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

SAUL LEIVA,

Petitioner,

 vs.

BEN CURRY, Warden,

Respondent. /

No. C 09-0652 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 fifteen years to life in prison following his

conviction for second-degree murder. This petition challenges the denial of parole in 2007 by

the California Board of Parole Hearings (“Board”). Petitioner challenged the Board’s decision

in habeas petitions filed in all three levels of the California courts. The Tulare County Superior

Court denied the petition in an explained opinion (Pet. Ex. A). The California Court of Appeal

and the Supreme Court of California issued summary denials (Pet. Exs. B, C).

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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 Tulare County Superior Court denying

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

B. ISSUES PRESENTED

As grounds for federal habeas relief, petitioner asserts that the denial of parole violated

his due process rights because there was not “some evidence” that he would be a present danger

to society if released. 

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

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

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“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 brutal and endangered the lives of various people in

addition to the victim. Petitioner shot the victim in a motel room because he was angry that he

had lost his heroin, threatened to kill another woman, grabbed a third woman by the throat and

ordered her to lick the blood off his hands, and fired his gun another time as a fourth person ran

away from the scene (Pet. Ex. D at 17-19). In addition to the commitment offense, petitioner

had a criminal history that included violent crimes. In the five years between his arrival in this

country from Honduras in 1986 and the commitment offense, petitioner was convicted of

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obstructing a police officer, burglary, and domestic violence (id. at 22). Petitioner received

probation twice, and both times he violated his probation by committing crimes, including the

commitment offense, during the probationary period (ibid.). 

Even aside from petitioner’s commitment offense and prior criminal record, there was

evidence of a risk of danger to the public if petitioner were released on parole. While in prison,

petitioner had a good disciplinary record and significant participation in vocational programs,

but he had neither completed his GED nor participated in any self-help programs beyond

Alcoholics Anonymous (“AA”) (id. at 36, 40-44). Moreover, his participation in AA, though

apparently lengthy, was of limited benefit as he could not identify more than one of the

program’s twelve steps at his parole hearing (id. at 44-45). This fact was particularly

significant to petitioner’s current dangerousness because there was evidence that petitioner’s

drinking and drug use played a significant role in his commitment offense and prior crimes (id.

at 17-20, 27-28). A psychologist who examined petitioner concluded that he continues to have

a “serious” drug and alcohol problem, and that if released he would not remain sober and

consequently there was a “high probability” that he would again be aggressive and violent in

connection with abusing drugs and alcohol (id. at 52-55). This opinion constituted “some

evidence” of petitioner’s current dangerousness notwithstanding the contrary opinion of a

different psychologist who thought petitioner did not present a risk of danger to the community

if released (id. at 56-58). 

Based on the record of the hearing before the Board, the superior court could reasonably

conclude that there was “some evidence” of petitioner’s current dangerousness notwithstanding

the fact that seventeen years had passed since the commitment offense. There was evidence in

petitioner’s “pre-incarceration behavior,” specifically other violent crimes and failing at

probation, his “post-incarceration” record, specifically his inadequate participation in AA and

other self-help and educational programs, and his mental state, specifically one psychologist’s

assessment that he should not be released because he posed a high risk of relapsing into

substance abuse and becoming violent, that indicated “that the implications regarding the

prisoner’s dangerousness that derive from his [] commission of the commitment offense remain

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

44 Cal. 4th at 1214. 

As a consequence, the state court decisions upholding the denial of parole 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\LEIVA0652.RUL.wpd 

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