FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRED MCCULLOUGH, 

No. 07-16049 Petitioner-Appellee,

D.C. No.

v.  CV-05-02207-MHP

ANTHONY KANE,

OPINION Respondent-Appellant. 

Appeal from the United States District Court

for the Northern District of California

Marilyn H. Patel, Senior District Judge, Presiding

Argued and Submitted December 3, 2007

Withdrawn December 4, 2007

Resubmitted December 27, 2010

San Francisco, California

Filed December 27, 2010

Before: Betty B. Fletcher, Marsha S. Berzon, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge B. Fletcher;

Dissent by Judge Rawlinson

20611
COUNSEL

Daniel Henry Bookin, O’Melveny & Myers LLP, San Francisco, California, Attorney for the petitioner-appellee.

Amber N. Wipfler, Office of the California Attorney General,

San Francisco, California, Attorney for the respondentappellant.

OPINION

B. FLETCHER, Circuit Judge:

In 1983, at the age of 21, Fred McCullough was convicted

of murder and sentenced to 15 years to life in prison. While

in prison, McCullough earned his GED, his associate’s

degree, and his bachelor’s degree in social work. He participated in a juvenile offender deterrent program, helping to

keep children out of trouble. He obtained job training and

excelled in his employment placements. He successfully rehabilitated himself to the point where his most recent psychological evaluations indicate he is less likely to commit

violence than the average community citizen. Twice, the California Board of Prison Terms recommended McCullough for

parole, once in 2002 and again in 2004. Twice, the governor

of California reversed that decision.

20614 MCCULLOUGH v. KANE
In 2007, the district court found that Governor Arnold Schwarzenegger’s 2004 reversal of McCullough’s parole recommendation was not supported by “some evidence” of future

dangerousness and granted McCullough’s federal habeas petition. The state appealed and we ordered McCullough released

pending his appeal while we awaited two California Supreme

Court decisions concerning parole recommendations and

reversals. During that time, our court agreed to rehear en banc

Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), to determine our ability to review such claims contained in a federal

habeas corpus petition. See Hayward v. Marshall, 527 F.3d

797 (9th Cir. 2008). The en banc court issued an opinion in

Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc).

While the courts sorted out the law, McCullough began his

life outside prison. Within two months of his release he

obtained employment at a furniture manufacturing company

in Gardena, California. McCullough’s manager at that store

has reported to this court that, over the past two years,

McCullough has made outstanding contributions to the company and been promoted to supervisor.

We now decide whether the governor’s 2004 reversal of

McCullough’s parole recommendation violated due process;

we hold that it did. Our decision is consistent with Hayward

v. Marshall and other prior and subsequent cases holding that

we have jurisdiction to review the “some evidence” determination under California law. Hayward, 603 F.3d at 562-63.

We thus affirm the district court’s decision granting McCullough’s habeas corpus petition.

I.

One night in July 1982, McCullough hit John Kukish, a

man sleeping in his car, in the head two or three times with

a brick. The blows killed him. McCullough then stole the

money from Kukish’s wallet to buy drugs. McCullough was

found guilty of murder and sentenced to 15 years to life in

prison. During his first few years in prison, McCullough

MCCULLOUGH v. KANE 20615
struggled to adjust. He had several disciplinary violations for

failing to follow orders and numerous minor infractions.

Eventually he decided to turn things around. He began to

work toward his GED, which he earned in 1986. He next

started taking college courses, earning his associate’s degree

and then his bachelor’s degree in social work in 1991. He

developed vocational skills, working as a wood finisher and

obtaining his certificate as a forklift operator, among other

achievements. His supervisors described him as possessing a

good work ethic, rated him as exceptional, and entrusted him

with the responsibility of training other prisoners in the workforce. McCullough participated in self-help programs, including Alcoholics Anonymous. He stated during his parole

hearing that the most valuable part of the 12-step program

was step four, where he took a “personal inventory” to figure

out why he ended up in prison and what he could change.

McCullough also volunteered for the juvenile offender deterrent program, speaking to children to help steer them away

from a life of crime. 

In 2002, the California Board of Prison Terms found

McCullough suitable for parole, a decision which thenGovernor Gray Davis reversed. Again in 2004, the Board recommended McCullough for parole. Governor Schwarzenegger reversed that recommendation in an August 12, 2004

decision. 

In his 2004 decision, Governor Schwarzenegger found

McCullough would pose an unreasonable risk of danger to

society upon release. In his decision, the governor referenced

to McCullough’s “escalating criminality,” which included

assaultive behavior as a juvenile, and McCullough’s prison

disciplinary record of a handful of “serious-rules violations”

and counseling for 28 incidents of minor misconduct. The

governor also stated, however, that McCullough had no previous record as an adult before his incarceration, that he had

“demonstrated considerable progress and increased maturity

by remaining discipline-free since 1985,” and that he “worked

20616 MCCULLOUGH v. KANE
during his 21-year incarceration to enhance his ability to function within the law upon release,” noting that McCullough

had earned a GED, associate’s and bachelor’s degrees, had

acquired vocational training and skills, and had availed himself of self-help and therapy. The governor’s decision found

that “McCullough has favorable staff reports and mentalhealth evaluations, seems to fully accept responsibility and

express remorse for his crime, and has made some legitimate

plans for himself upon parole.” 

Ultimately, however, the governor relied upon McCullough’s commitment offense to find him unsuitable for parole.

The Governor explained that “McCullough committed an

especially heinous second-degree murder because he preyed

upon and bludgeoned a sleeping, unsuspecting, and unthreatening man — ultimately killing him — for the remarkably

trivial motive of stealing his money.” The governor further

found that the manner was especially vicious because “[n]ot

only did he not need to beat the sleeping Mr. Kukish to rob

him, Mr. McCullough had a clear opportunity in between

each blow to Mr. Kukish’s head to stop but did not do so.” In

addition, the decision noted that the murder was carried out

in the commission of a planned robbery and that McCullough

was originally convicted of first-degree murder. The governor

concluded that “[t]he nature and gravity of the second-degree

murder committed by Mr. McCullough alone is a sufficient

basis on which to conclude his release from prison at this time

would put society at an unreasonable risk of harm.” 

McCullough sought relief from the governor’s reversal in

state court. The primary decision, the one issued by the Los

Angeles County Superior Court, held that the record contained “some evidence” to support the governor’s finding that

McCullough was not suitable for parole. The state court held

that the governor properly could have denied parole based

solely on the commitment offense, because the circumstances

of the crime were more than the minimum necessary to sustain a conviction for second-degree murder. It also determined

MCCULLOUGH v. KANE 20617
that the governor’s decision rested in part on the extreme

indifference to human life and the trivial motive for the crime,

but found these assertions unsupported in the record. Finally,

the Superior Court decision contained some puzzling references to material not in Governor Schwarzenegger’s decision.

For instance, the Superior Court decision stated that the governor had concluded that McCullough was unsuitable in part

“because he has demonstrated a lack of remorse for the

offense and minimizes his responsibility” and “insufficiently

participated in self-help programming,” when, in fact, the

governor’s 2004 decision stated exactly the opposite. Nonetheless, the court determined that “even if the governor’s conclusion was based on the commitment offense alone, which it

is not, there is no due process violation.” Based on its findings, the state court denied the petition.

The California Court of Appeal denied McCullough’s petition for a writ of habeas corpus in a one-sentence order. The

California Supreme Court summarily denied his petition for

review. McCullough then filed his federal habeas petition,

asserting that his right to due process had been violated. The

district court granted the petition and ordered McCullough

released from custody in a June 1, 2007 order, holding there

was not “some evidence” to support the California governor’s

reversal of McCullough parole recommendation. The state

timely appealed on June 7, 2007. 

II.

We review de novo the district court’s decision granting the

petition for habeas corpus. Bailey v. Hill, 599 F.3d 976, 978

(9th Cir. 2010). Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), a federal court may not grant a writ

of habeas corpus unless the state court decision “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

20618 MCCULLOUGH v. KANE
of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d). Because the state

appealed, no certificate of appealability is necessary. Fed. R.

App. Proc. 22(b)(3).

[1] In its initial briefing, before we issued the en banc decision in Hayward, the state argued that the district court lacked

jurisdiction to consider whether there was “some evidence” to

support the government’s decision to deny McCullough’s

parole. Hayward addressed this issue, considering “whether,

even if there is no general federal quantum of evidence

requirement, applicants for parole in California, under the

state’s current laws, may obtain federal habeas review of

whether there is ‘some evidence’ supporting a negative parole

decision.” Hayward, 603 F.3d at 549. Hayward answered this

question “yes” and proceeded to review the state court decision with AEDPA deference. Id. at 562-63. 

[2] As Hayward recognizes, “[a]lthough the due process

clause does not, by itself, entitle a prisoner to parole in the

absence of some evidence of future dangerousness, state law

may supply a predicate for that conclusion.” Hayward, 603

F.3d at 561. Prior to Hayward, we held in several cases that

“California’s parole scheme gives rise to a cognizable liberty

interest in release on parole.” McQuillion v. Duncan, 306 F.3d

895, 903 (9th Cir. 2002); see also Irons v. Carey, 505 F.3d

846, 850 (9th Cir. 2007) (“California Penal Code section 3041

vests Irons and all other California prisoners whose sentences

provide for the possibility of parole with a constitutionally

protected liberty interest in the receipt of a parole release date,

a liberty interest that is protected by the procedural safeguards

of the Due Process Clause.”); Sass v. Cal. Bd. of Prison

Terms, 461 F.3d 1123, 1127 (9th Cir. 2006) (same); Biggs v.

Terhune, 334 F.3d 910, 914 (9th Cir. 2003) (“Section 3041 of

the California Penal Code creates in every inmate a cognizable liberty interest in parole which is protected by the procedural safeguards of the Due Process Clause.”). “Stated

simply, ‘a State creates a protected liberty interest by placing

MCCULLOUGH v. KANE 20619
substantive limitations on official discretion.’ ” Ky. Dep’t of

Corr. v. Thompson, 490 U.S. 454, 462 (1989) (quoting Olim

v. Wakinekona, 461 U.S. 238, 249 (1983)). Thus, “a State

creates a liberty interest . . . by establishing ‘substantive predicates’ to govern official decision-making, and, further, by

mandating the outcome to be reached upon a finding that the

relevant criteria have been met.” Id. (quoting Hewitt v. Helms,

459 U.S. 360, 472 (1983)). 

[3] Hayward explained that, in California, a state parole

system encompasses the right to parole in the absence of some

evidence of future dangerousness. Hayward, 603 F.3d at 562

(“[A]s a matter of state law, ‘some evidence’ of future dangerousness is indeed a state sine qua non for denial of parole

in California.”). The state regulatory, statutory, and constitutional provisions that govern parole decisions in California

mandate that conclusion. See In re Rosenkrantz, 59 P.3d 174,

201-03 (Cal. 2002). The “some evidence” standard, therefore,

reflects the “substantive limitation[ ] on official discretion,”

Thompson, 490 U.S. at 462, that gives rise to a liberty interest

protected by the Fourteenth Amendment. See Cooke v. Solis

606 F.3d 1206, 1213 (9th Cir. 2010) (“California’s ‘some evidence’ requirement is a component of the liberty interest created by the parole system of that state.”); Pearson v. Muntz,

606 F.3d 606, 611 (9th Cir. 2010) (“In California, the ‘some

evidence’ requirement is a component of that liberty interest.”).

We previously have held that we review denials of parole

for California inmates under the “some evidence” standard.

Irons, 505 F.3d at 851 (“[W]e assess whether a state parole

board’s suitability determination was supported by ‘some evidence’ . . . .”); Sass, 461 F.3d at 1129 (applying the “some

evidence” standard because otherwise “a state could interfere

with a liberty interest — that in parole — without support or

in an otherwise arbitrary manner”); Biggs, 334 F.3d at 915

(“[T]he requirements of due process are satisfied if ‘some evidence’ supports the decision.”). Hayward overruled this line

20620 MCCULLOUGH v. KANE
of cases “[t]o the extent . . . [they] might be read to imply that

there is a federal constitutional right regardless of whether

state law entitles the prisoner to release,” but not otherwise.

Hayward, 603 F.3d at 555. But insofar as our prior precedents

held that California law created “an enforceable right to

parole” that is governed by California’s “some evidence”

standard, they remain good law. 

[4] In sum, “[w]hen a California court upholds a parole

denial decision, our precedents require us to determine

whether such a denial was an unreasonable application of the

decisions establishing and defining the scope of that statecreated liberty interest in parole.” Haggard v. Curry, ___ F.3d

___, 2010 WL 4978842, at *3 (9th Cir. 2010) (per curiam).

Although we might debate whether we classify the substantive restriction of California’s “some evidence” standard as an

element of the state-created liberty interest, or as part of the

process that is due to protect the liberty interest, or both, the

result is identical. Here, in both circumstances, we review

McCulloch’s parole denial for “some evidence” of future dangerousness.

III.

We now analyze McCullough’s claims as provided for in

Hayward, “decid[ing] whether the California judicial decision

approving the governor’s 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

563 (quoting 28 U.S.C. § 2254). We hold that the governor’s

decision does not offer “some evidence” that McCullough

poses an unreasonable risk of future dangerousness and that,

therefore, the state court decision upholding the 2004 governor’s decision was “an unreasonable determination of the

facts in light of the evidence.” Id.

As a threshold matter, the district court determined that no

reasoned state court decision existed and reviewed McCulMCCULLOUGH v. KANE 20621
lough’s claim de novo. The district court reached this conclusion because numerous statements in the Superior Court

decision do not accurately reflect the contents of the 2004

governor’s decision. Indeed, in some instances, the Superior

Court’s description of the governor’s bases for reversing

McCullough’s parole recommendation flatly contradicts the

very terms of the decision the state court was purporting to

describe. To determine whether the state courts ever reached

the merits of a federal claim, we “look through” unexplained

state court decisions, such as summary denials, to the last reasoned state court decision. Pirtle v. Cal. Bd. of Prison Terms,

611 F.3d 1015, 1020 (9th Cir. 2010). If the state court does

not reach the merits of the claim, “there is no state court decision on this issue to which to accord [AEDPA] deference.” Id.

(internal citation omitted, alteration in original).

We find it unnecessary to determine whether the state court

decision is a reasoned application of the law for purposes of

AEDPA because, even applying AEDPA deference, the state

court decision was “an unreasonable determination of the

facts in light of the evidence.” 28 U.S.C. § 2254(d)(2). The

state argues that the governor found that McCullough’s crime

was especially heinous, that the motive was trivial, and that

McCullough exhibited an escalating criminality at a young

age that peaked with his conviction for the commitment

offense at age 20. While it is true that the governor’s decision

referenced these factors, the governor relied upon the commitment offense to reverse McCullough’s parole recommendation. The 2004 decision does list escalating criminality as “a

negative factor weighing against Mr. McCullough’s parole,”

but then proceeds to highlight McCullough’s numerous rehabilitative accomplishments as “factors supportive of parole for

Mr. McCullough.” In the final paragraph of the 2004 decision,

the governor concluded “[t]he nature and gravity of the

second-degree murder committed by Mr. McCullough alone

is a sufficient basis on which to conclude his release from

prison at this time would put society at an unreasonable risk

of harm.” The state court determination that “even if the gov20622 MCCULLOUGH v. KANE
ernor’s conclusion was based on the commitment offense

alone, which it is not, there is no due process violation” was

therefore unreasonable. 

[5] In In re Lawrence, 190 P.3d 535 (Cal. 2008), a decision

we awaited to decide this case, the governor issued a similar

decision. There, the California Supreme Court concluded that:

Although the Governor alluded to other possible

grounds for denying petitioner’s parole, he expressly

relied only upon the nature of petitioner’s commitment offense to justify petitioner’s continued confinement, because “the gravity alone of this murder

is a sufficient basis on which to conclude presently

that [petitioner’s] release from prison would pose an

unreasonable public-safety risk.”

Id. at 560. The governor’s 2004 decision here did the same

thing: it alluded to McCullough’s juvenile crimes and early

disciplinary problems, but expressly relied on the commitment offense to deny parole. As was true in Lawrence,

McCullough’s “due process and statutory rights were violated

by the Governor’s reliance upon the immutable and

unchangeable circumstances of her commitment offense in

reversing the Board’s decision to grant parole.” Id.1 Accordingly, we affirm the district court’s decision granting McCullough’s habeas corpus petition.

1The dissent disagrees with this conclusion. It argues that our reliance

on Lawrence is not appropriate and that we should instead follow Irons,

which upheld “a virtually identical rejection of parole.” Dissent at 20627.

This contention is unpersuasive, as it ignores Hayward’s reliance on Lawrence’s refinement of the substantive standard applied in parole hearings.

In contrast to when Irons was decided, that standard now dictates that the

nature of the crime of conviction “does not in and of itself provide some

evidence of current dangerousness to the public.” Lawrence, 190 P.3d at

555. 

MCCULLOUGH v. KANE 20623
CONCLUSION

[6] McCullough serves as an example of how imprisonment can achieve the goal of rehabilitation. After committing

murder as a very young man, McCullough turned his life

around in prison. He became sober and excelled in his vocational training. He obtained not only his GED, but also a college degree. He has been found to have a lower potential for

violence than not merely the average inmate, but the average

community citizen. The governor’s decision reversing McCullough’s recommendation for parole for the second time was

not supported by “some evidence” of an unreasonable risk of

future dangerousness. California law entitles McCullough to

parole, Lawrence, 190 P.3d at 548, and due process dictates

that result. 

 AFFIRMED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent. When deciding cases on habeas

review, we apply federal law rather than state law. See Irons

v. Carey, 505 F.3d 846, 850 (9th Cir. 2007), reversed on other

grounds in Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir.

2010) (en banc). However, the majority opinion relies heavily

on a decision from the California Supreme Court to support

its holding. See Majority Opinion, p. 20623, quoting In re

Lawrence, 190 P.3d 535 (Cal. 2008).

I am not persuaded that the majority’s resolution of this

case can be squared with our precedent.

In Irons, we addressed circumstances similar to those we

address in this case. Irons was also convicted of murder and

was sentenced to seventeen years to life imprisonment. At the

time of the parole hearing at issue, Irons had been a model

20624 MCCULLOUGH v. KANE
prisoner for sixteen years. Irons had performed admirably

during his prison employment. He completed several vocational training programs, and participated in self-help, substance abuse, violence prevention and stress management

programs. See Irons, 505 F.3d at 849.

Despite Irons’ exemplary prison record, he was repeatedly

deemed unsuitable for parole. See id. at 849-50. The California Board of Prison Terms (Board) primarily relied on the

“commitment offense itself” as the basis for denial. Id. at 850.

More specifically, the Board determined that the crime “was

carried out in an especially cruel and callous manner.” Id.

(internal quotation marks omitted). The Board also noted that

the motive prompting the murder was trivial and that Irons

was using drugs during the period when the murder was committed. See id.

Irons filed an unsuccessful administrative appeal and a

fruitless state habeas petition. See id. However, Irons’ federal

habeas petition was granted on the basis that “the state court

unreasonably applied clearly established Supreme Court precedent because the Board’s decision was without evidentiary

support . . .” Id. The district court also concluded that “the

Board’s continued reliance on Irons’ commitment offense and

prior conduct to deem him unsuitable for parole violated

Irons’ right to due process.” Id.

On appeal, a panel of this court reversed the district court’s

decision. The panel applied the Supreme Court’s articulated

standard—whether the board’s decision is supported by

“some evidence in the record.” Id. at 851 (citations omitted).

The panel recognized that under California law an inmate’s

offense of conviction may serve as the basis for denying

parole if “the Board can point to factors beyond the minimum

elements of the crime for which the inmate was committed

that demonstrate the inmate, will, at the time of the suitability

hearing, present a danger to society if released.” Id. at 663

(citation and internal quotation marks omitted). Some of the

MCCULLOUGH v. KANE 20625
factors enumerated by the panel that would meet the criterion

included whether the offense was perpetrated calculatedly and

dispassionately, see id., whether the crime was committed in

a manner demonstrating “an exceptionally callous disregard

for human suffering”; and whether the motive was “inexplicable or very trivial in relation to the offense.” Id. (citation

omitted).

Applying these factors to Irons’ parole request, the panel

reversed the district court’s decision granting habeas relief to

Irons. In doing so, the panel relied heavily on our prior decision in Sass v. California Board of Prison Terms, 461 F.3d

1123 (9th Cir. 2006), reversed on other grounds in Hayward,

603 F.3d at 555. See Irons, 505 F.3d at 853-54. In Sass, the

Board relied on the “total disregard for human suffering demonstrated by the manner of the offense and Sass’ previous

criminal history.” Sass, 461 F.3d at 1126 (footnote reference

and internal quotation marks omitted). In denying habeas

relief, the Sass panel concluded that “evidence of Sass’ prior

offenses and the gravity of his convicted offenses constitute[d] some evidence to support the Board’s decision.” Id. at

1129.

Most recently, in Hayward we clarified that California law

establishes the “some evidence of future dangerousness” standard as the “state sine qua non” for denial of parole in California. Hayward, 603 F.3d at 562. We cited In re Lawrence, the

case treated as dispositive by the majority only for the proposition that the “some evidence” standard is used to determine

whether the state court decision approving the governor’s

rejection of parole was unreasonable under 28 U.S.C.

§ 2254(d). Id. at 563 & nn. 104, 105. That a California court

granted relief under state law in one case does not mandate

relief for a different inmate. See id. Rather, we must examine

the state court’s analysis of the Governor’s stated reasons for

rejecting the parole request. See id. at 562-63, keeping in

mind that “review of the Governor’s decision is extremely

20626 MCCULLOUGH v. KANE
deferential.” Id. at 562 (footnote reference and internal quotation marks omitted).

In reversing the grant of parole to McCullough, the Governor referenced the “especially heinous” nature of the murderbludgeoning “a sleeping, unsuspecting, and unthreatening

man repeatedly with a brick . . . for the remarkably trivial

motive of stealing his money.”

In Irons, the panel upheld a similar decision by the Governor, stating that:

[Irons’] commitment offense, standing alone, is a

sufficient basis for deeming a petitioner unsuitable

where, as here there is some evidence to support a

finding that the offense was carried out in a manner

which demonstrates an exceptionally callous disregard for human suffering and the motive for the

crime is inexplicable or very trivial in relation to the

offense.

Irons, 505 F.3d at 852-53 (citation and internal quotation

marks omitted). In this circumstance, the Irons panel ruled

that it could not “say that the state court unreasonably applied

[the] same evidence principle. Id. (internal quotation marks

omitted). 

There is no principled way to distinguish this case from the

facts in Irons and the holding that was left undisturbed by

Hayward. The district court in this case expressly acknowledged that the Governor’s determinations regarding the “especially heinous” nature of the crime and the trivial nature of the

motive were undisputed. In light of the “extreme deference”

due the Governor’s undisputed determinations, Hayward, 603

F.3d at 562, and our precedent upholding a virtually identical

rejection of parole, I would reverse the district court’s decision granting habeas relief.

MCCULLOUGH v. KANE 20627