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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

ISIDRO ROMERO,

Petitioner,

 v.

ROBERT K. WONG, Warden

Respondent.

 /

No. C-09-1636 TEH (PR)

ORDER DENYING PETITION FOR WRIT

OF HABEAS CORPUS; DENYING

CERTIFICATE OF APPEALABILITY

Pro se Petitioner Isidro Romero, a state prisoner

incarcerated at San Quentin State Prison seeks a writ of habeas

corpus under 28 U.S.C. § 2254 challenging the California Board of

Parole Hearings’ (“BPH”) March 26, 2008 decision to deny him parole.

On June 10, 2009, the Court issued an Order to Show Cause why the

writ should not be granted. Doc. #4. On August 10, 2009,

Respondent filed an Answer. Doc. #5. On September 10, 2009,

Petitioner filed a Traverse. Doc. #6. 

After the matter was submitted, on April 22, 2010, the

Ninth Circuit issued its decision in Hayward v. Marshall, 603 F.3d

546 (9th Cir. 2010) (en banc), which addressed important issues

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relating to federal habeas review of BPH decisions denying parole to

California state prisoners. On May 3, 2010, the Court ordered the

parties to file supplemental briefing explaining their views of how

the Hayward en banc decision applies to the facts presented in

Petitioner’s challenge to BPH’s decision denying him parole. Doc.

#7. Respondent filed supplemental briefing on May 28, 2010;

Petitioner filed his on June 25, 2010. Doc. ## 8 & 9. 

Having considered all of the papers filed by the parties,

the Court DENIES the Petition.

I

Below is a brief factual summary, derived from the state

appellate court opinion, of Petitioner’s commitment offense as set

forth by BPH during Petitioner’s March 26, 2008 parole suitability

hearing. 

During a party, Sergio Cruz, a noninvitee, attempted to

coax one of the guests, Sophia, outside. Although Cruz and Sophia

had previously dated, Sophia refused to leave the house. Cruz

returned hours later accompanied by Petitioner and others. When

Sophia still refused to leave with Cruz, catcalls were made until a

fight erupted between those inside the house and Cruz and his

friends. During the brawl, witnesses identified Petitioner as

stabbing Jose Gomez, Sophia’s cousin. Petitioner, Cruz and the

others fled. 

Gomez’s autopsy revealed he died from eight stab wounds. 

Petitioner was arrested at a hospital while being treated for cuts

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and bruises. Blood tests showed Petitioner’s blood alcohol level to

be .16 percent. 

Petitioner admitted at trial he accompanied Cruz to the

party and was involved in a fight, but denied stabbing anyone. In

addition he admitted drinking beer but denied feeling its effect.

The evidence at trial showed the victim Gomez was unarmed

and was the subject of an unprovoked beating by Petitioner and his

cohorts and that Petitioner personally stabbed the victim at least

three times, twice in the chest. Petitioner’s previous testimony

negated any claim that his ability to reason was impaired by

alcohol. The evidence at trial was more than adequate to support a

murder conviction. Doc. #5-1 at 9–10. 

In May 1985, Petitioner was sentenced to sixteen years to

life in state prison following his conviction by a jury in Orange

County of second degree murder with an attached deadly weapon

enhancement. Doc. #5-1 at 29. His minimum eligible parole date was

August 25, 1991. Id. 

On March 26, 2008, Petitioner appeared before BPH for his

eleventh parole suitability hearing. Doc. #5-1 at 29. At the

conclusion of the hearing, BPH found 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.” Doc.

#5-2 at 17. 

Petitioner unsuccessfully challenged BPH’s decision in the

state superior and appellate courts. Doc. #5-3 at 2–5; Doc. #5-7 at

27. On December 10, 2008, the California Supreme Court summarily

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denied Petitioner’s Petition for Review. Doc. #5-8 at 2. This

federal Petition for a Writ of Habeas Corpus followed. Doc. #1. 

II

In Hayward, the Ninth Circuit explained the law in

California as it relates to parole suitability determinations: 

The California parole statute provides that

the Board of Prison Terms “shall set a release

date unless it determines that the gravity of

the current convicted offense or offenses, or

the timing and gravity of current or past

convicted offense or offenses, is such that

consideration of the public safety requires a

more lengthy period of incarceration for this

individual.” The crucial determinant of whether

the prisoner gets parole in California is

“consideration of the public safety.”

In California, when a prisoner receives an

indeterminate sentence of fifteen years to life,

the “indeterminate sentence is in legal effect a

sentence for the maximum term, subject only to

the ameliorative power of the [parole authority]

to set a lesser term.” Under the California

parole scheme, the prisoner has a right to a

parole hearing and various procedural guarantees

and rights before, at, and after the hearing; a

right to subsequent hearings at set intervals if

the Board of Prison Terms turns him down for

parole; and a right to a written explanation if

the Governor exercises his authority to overturn

the Board of Prison Terms’ recommendation for

parole. Under California law, denial of parole

must be supported by “some evidence,” but review

of the [decision to deny parole] is “extremely

deferential.” 

Hayward, 603 F.3d at 561–62 (footnotes and citations omitted). 

The court further explained that: 

[s]ubsequent to Hayward’s denial of parole, and

subsequent to our oral argument in this case,

the California Supreme Court established in two

decisions, In re Lawrence . . . and In re

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Shaputis, . . . that as a matter of state law,

“some evidence” of future dangerousness is

indeed a state sine qua non for denial of parole

in California. We delayed our decision in this

case so that we could study those decisions and

the supplemental briefs by counsel addressing

them. As a matter of California law, “the

paramount consideration for both the Board [of

Prison Terms] 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 (footnotes and citations omitted).

After providing this background on California law as it

applies to parole suitability determinations, the court then

explained the role of a federal district court charged with

reviewing the decision of either the BPH or the governor in denying

a prisoner parole. According to the Ninth Circuit, this Court must

decide whether a decision “rejecting 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 (citations omitted); see

also Cooke v. Solis, 606 F.3d 1206, 1208, n. 2 & 1213 (9th Cir.

2010) (applying Hayward and explicitly rejecting the state’s

argument that “the constraints imposed by AEDPA preclude federal

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habeas relief” on petitioner’s claim; noting that in Hayward, the

court “held that due process challenges to California courts’

application of the ‘some evidence’ requirement are cognizable on

federal habeas review under AEDPA”). 

III

When assessing whether California’s parole board’s

suitability determination was supported by “some evidence,” this

Court’s analysis is framed by the state’s “regulatory, statutory and

constitutional provisions that govern parole decisions in

California.” Cooke, 606 F.3d at 1213 (citing In re Rosenkrantz, 29

Cal. 4th 616 (2002)); see Hayward, 603 F.3d at 561–62. Under

California law, prisoners serving indeterminate life sentences, like

Petitioner, become eligible for parole after serving minimum terms

of confinement required by statute. In re Dannenberg, 34 Cal. 4th

1061, 1069–70 (2005). Regardless of the length of the time served,

“a life prisoner shall be found unsuitable for and denied parole if

in the judgment of the panel the prisoner will pose an unreasonable

risk of danger to society if released from prison.” Cal. Code Regs.

tit. 15, § 2402(a). In making this determination, BPH must consider

various factors, including the prisoner’s social history, past and

present mental state, past criminal history, the base and other

commitment offenses, including behavior before, during and after the

crime, past and present attitude toward the crime and any other

information that bears on the prisoner’s suitability for release. 

See Cal. Code Regs. tit. 15, § 2402(b)–(d).

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In considering the commitment offense, BPH must determine

whether “the prisoner committed the offense in an especially

heinous, atrocious or cruel manner.” Cal. Code Regs. tit. 15, §

2402(c)(1). The factors to be considered in making that

determination include: "(A) Multiple victims were attacked, injured

or killed in the same or separate incidents; (B) The offense was

carried out in a dispassionate and calculated manner, such as an

execution-style murder; (C) The victim was abused, defiled or

mutilated during or after the offense; (D) The offense was carried

out in a manner which demonstrates an exceptionally callous

disregard for human suffering; (E) The motive for the crime is

inexplicable or very trivial in relation to the offense.” Id. 

According to the California Supreme Court, “the core

statutory determination entrusted to the Board and the Governor [in

determining a prisoner’s parole suitability] is whether the inmate

poses a current threat to public safety . . . .” In re Lawrence, 44

Cal. 4th 1181, 1191 (2008). And, “the core determination of ‘public

safety’ under the statute and corresponding regulations involves an

assessment of an inmate’s current dangerousness.” Id. at 1205

(emphasis in original) (citing Rosenkrantz, 29 Cal. 4th 616 & 

Dannenberg, 34 Cal. 4th 1061). The court further explained that: 

a parole release decision authorizes the Board

(and the Governor) to identify and weigh only

the factors relevant to predicting “whether the

inmate will be able to live in society without

committing additional antisocial acts.” . . .

These factors are designed to guide an

assessment of the inmate’s threat to society, if

released, and hence could not logically relate

to anything but the threat currently posed by

the inmate.

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Lawrence, 44 Cal. 4th at 1205–06 (citations omitted). The relevant

inquiry, therefore, is: 

whether the circumstances of the commitment

offense, when considered in light of other facts

in the record, are such that they continue to be

predictive of current dangerousness many years

after commission of the offense. This inquiry

is, by necessity and by statutory mandate, an

individualized one, and cannot be undertaken

simply by examining the circumstances of the

crime in isolation, without consideration of the

passage of time or the attendant changes in the

inmate’s psychological or mental attitude. 

In re Shaputis, 44 Cal. 4th 1241, 1254–55 (2008). 

The evidence of current dangerousness “must have some

indicia of reliability.” In re Scott, 119 Cal. App. 4th 871, 899

(2004) (Scott I). Indeed, “the ‘some evidence’ test may be

understood as meaning that suitability determinations must have some

rational basis in fact.” In re Scott, 133 Cal. App. 4th 573, 590,

n. 6 (2005) (Scott II); see also Cooke, 606 F.3d at 1216 (holding

that the state court decision upholding the denial of parole was

“‘“based on an unreasonable determination of the facts in light of

the evidence[],’” Hayward, 603 F.3d at 563 (quoting 28 U.S.C. §

2254(d)(2)),” and therefore finding petitioner entitled to habeas

relief because “[n]othing in the record supports the state court’s

finding that there was ‘some evidence’ in addition to the

circumstances of the commitment offense to support the Board’s

denial of petitioner’s parole”). 

//

//

//

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1

 Here, the state appellate courts summarily denied Petitioner

relief; the state superior court was the highest state court to

address the merits of Petitioner’s claim in a reasoned decision. It

is that decision, therefore, that the Court analyzes. See LaJoie v.

Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000); Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004) (federal court may look to any

lower state court decision that was examined, and whose reasoning was

adopted, by the highest state court to address the merits of a

petitioner’s claim).

9

IV

After reviewing the petition filed in superior court

challenging Petitioner’s March 26, 2008 parole denial, the court

affirmed BPH’s decision to deny Petitioner parole, finding it was

supported by “some evidence.”1

 See Doc. #5-3 at 5. The court

concluded Petitioner was not entitled to relief, noting that in

addition to relying on the circumstances of the commitment offense,

BPH “recount[ed] Petitioner’s previous criminal history, which

included substance abuse, the psychologist’s evaluation which noted

the risk factor of substance abuse, and Petitioner’s parole plans

which needed more complete documentation.” Id. After careful

review of the law and the evidence, and as set forth below, this

Court cannot say that the state court’s approval of BPH’s decision

to deny Petitioner parole was an unreasonable application of the

California “some evidence” standard, nor that it was based on an

unreasonable determination of the facts in light of the evidence. 

See Hayward, 603 F.3d at 563. 

As an initial matter, the record shows that BPH afforded

Petitioner and his counsel an opportunity to speak and present

Petitioner’s case at the hearing, gave them time to review documents

relevant to Petitioner’s case and provided them with a reasoned

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2

 The assault involved an act of domestic violence where

Petitioner threatened his girlfriend with a knife. Id. at 22; see

Doc. #5-1 at 44–45. Petitioner’s commitment offense was for

repeatedly stabbing someone to death with a knife. Doc. #5-1 at 9–10.

10

decision in denying parole. Doc. #5-1 at 33–37; Doc. #5-2 at 17–23. 

The record also shows that BPH relied on several circumstances

tending to show unsuitability for parole and that these

circumstances formed the basis for its conclusion that Petitioner

was not yet suitable for parole and would pose a current

unreasonable risk of danger to society or threat to public safety if

released from prison. Doc. #5-2 at 17–23; see Lawrence, 44 Cal. 4th

at 1191, 1205; Cal. Code Regs. tit. 15, § 2402(a) (stating that a

prisoner determined to be an unreasonable risk to society shall be

denied parole). 

In its decision denying Petitioner parole, BPH

acknowledged Petitioner’s lack of serious disciplinary history while

in prison, his receipt of several laudatory chronos, and the

positive steps he had taken with respect to furthering his education

and developing a vocation. Doc. #5-2 at 18–19. But BPH also noted

Petitioner’s “history of violence and assaults and prior criminality

that shows an escalating pattern of criminal conduct.” Doc. #5-2 at

18–19. Specifically, BPH observed that Petitioner “ha[d] failed

society’s previous attempts to correct [his] criminality including

time in County Jail as well as adult probation,” citing Petitioner’s

prior criminal convictions for driving under the influence, failure

to appear and assault.2

 Id. 

BPH also noted that Petitioner had “lied many times”

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regarding the circumstances surrounding the commitment offense,

which indicated to BPH that Petitioner failed to understand the

nature and magnitude of his crime. Doc. #5-2 at 21–22; see Doc. #5-

1 at 38, 40–41. BPH noted Petitioner’s failure to enroll in any

victim impact classes despite recommendations from prior panels that

he do so. Doc. #5-1 at 51. BPH again recommended that Petitioner

do some soul-searching to help him understand the gravity of his

actions and be prepared to discuss what he has learned at his next

parole suitability hearing. See Doc. #5-2 at 22–23. 

Finally, BPH stated “there are no documented parole plans

that are current to this Panel today” including “no concrete

employment plans.” Doc. #5-2 at 20. BPH also noted that Petitioner

did “not have any type of substance abuse prevention plan in place.” 

Id. This was of particular interest to BPH given Petitioner’s

substance abuse history, his “periodic” participation in Alcoholics

Anonymous while in prison, and the psychologist’s observation that

Petitioner’s “foremost risk factor if released into the community is

the potential for alcohol relapse” given the “clearly established

link between [Petitioner’s] class consumption of alcohol and the

commission of violence.” Id. at 19–20. BPH recommended that

Petitioner improve on his sporadic participation in Alcoholics

Anonymous and suggested he attend “very conscientiously” and

“consistent[ly].” Doc. #5-1 at 47 & 49. 

Based on the entire body of evidence presented at

Petitioner’s March 26, 2008 parole suitability hearing, the Court

cannot say that the state court’s approval of BPH’s decision to deny

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Petitioner parole was an unreasonable application of the California

“some evidence” standard, nor that it was based on an unreasonable

determination of the facts in light of the evidence. See Hayward,

603 F.3d at 563. Petitioner therefore is not entitled to federal

habeas relief.

V 

For the foregoing reasons, the Petition for a Writ of

Habeas Corpus is DENIED. Further, a certificate of appealability is

DENIED. See Hayward, 603 F.3d at 554–55. Petitioner has failed to

make “a substantial showing of the denial of a constitutional

right.” Id. (citing 28 U.S.C. § 2253(c)(2)). Nor has Petitioner

demonstrated that his claim is “debatable among reasonable jurists.” 

See Hayward, 603 F.3d at 555. 

The Clerk of Court shall terminate all pending motions as

moot, enter judgment in accordance with this Order and close the

file. 

IT IS SO ORDERED.

DATED 08/19/10 

THELTON E. HENDERSON

United States District Judge

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