FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL MERTON IRONS, II,  No. 05-15275

Petitioner-Appellee, D.C. No.

U.S. ATTORNEY GENERAL, CV-04-00220-LKK

Intervenor,  Eastern District

v. of California,

Sacramento TOM L. CAREY, Warden,

Respondent-Appellant. ORDER 

Filed November 6, 2007

Before: Stephen Reinhardt, John T. Noonan, and

Ferdinand F. Fernandez, Circuit Judges.

Order;

Dissent by Judge Kleinfeld

ORDER

The panel has voted to deny the petitions for rehearing and

petitions for rehearing en banc. 

The full court was advised of the petitions for rehearing en

banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc

reconsideration. FED. R. APP. P. 35. 

The petitions for rehearing and rehearing en banc are

denied. 

14647
KLEINFELD, Circuit Judge, with whom Circuit Judge Bea

joins, dissenting from denial of rehearing en banc: 

I dissent from denial of rehearing en banc. 

Our panel decision in Irons v. Carey1 makes two significant

legal errors. The legal errors are (1) the application of circuit

law instead of Supreme Court law to habeas corpus petitions,

and (2) the application of “good time” law to parole. These

legal errors are likely to lead to practical harm by requiring

parole boards to release prisoners on parole, no matter what

their crime, if they behave themselves in prison. 

The opinion in Irons is particularly mischievous because of

an oddity in the way our court treats the traditional distinction

between holdings and dicta. In our court, two judges on a

panel make law for 20% of Americans as a “supervisory”

matter, even where the case does not require the matter to be

decided.2 Our en banc decision in Barapind v. Enomoto says

that an issue presented for review and addressed and decided

in a panel opinion “became law of the circuit, regardless of

whether it was in some technical sense ‘necessary’ to our disposition of the case.”

3

 We characterized this rejection of the

traditional distinction between holdings and dicta as an exercise of our “supervisory function . . . by instructing threejudge panels and district courts about how to determine what

law is binding upon them.”

4

 The traditional view, which we

seem to have rejected in Barapind, is that since we are

empowered only to decide cases, not to legislate, only those

principles necessary to the decision are binding law of the cir1

Irons v. Carey, No. 05-15275, 2007 WL 2027359 (9th Cir. July 13,

2007). 

2Barapind v. Enomoto, 400 F.3d 744, 751 n.8 (9th Cir. 2005). 

3

Id. at 751. The dissent in Barapind says that “the discussion about dicta

is dicta,” id. at 758, but the majority claims it is nevertheless binding, id.

at 751 n.8. 

4

Id. at 751 n.8. 

14648 IRONS v. CAREY
cuit. Thus, under Barapind, the statements of law made in

Irons that were unnecessary to the decision may nevertheless

be construed by subsequent three judge panels, district courts

and the state courts as binding law of the circuit. 

Irons v. Carey was a petition for a writ of habeas corpus,

challenging a state denial of parole, for a murderer who had

served sixteen years of his seventeen-years-to-life sentence

for murder. Irons fired twelve shots into his housemate,

stabbed him twice in the back, hid his body in the room for

ten days, then dumped it in the ocean. In prison, though, “his

conduct has been exemplary.”

5

Irons says that deprivation of parole for this murderer

would violate due process of law under “clearly established”

Supreme Court law, unless it was supported by “some evidence in the record.” Irons cites previous circuit law and the

Supreme Court decision in Superintendant v. Hill for this proposition.6

Irons nevertheless allows denial of parole to this prisoner, during the sixteenth year of his 17-to-life sentence,

noting that the parole board thought he needed therapy, that

his crime was “carried out in an especially cruel and callous

manner,” and he was himself equivocal about his rehabilitation. When asked whether this especially cruel and callous

crime would happen again, Irons said “I don’t think so”

instead of a definite “no.” 

Irons did not stop there. We went on to “note” that in all

cases, including Irons, where we upheld denial of parole on

the basis of the crime, the inmate had not yet served even the

minimum period of his sentence. After that (one more year for

Irons), “indefinite detention based solely on the inmate’s

5

Irons at *2. 

6

See Sass v. California Board of Prison Terms, 461 F.3d 1123 (9th Cir.

2006); Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir. 2003); Jancsek v.

Oregon Board of Parole, 833 F.2d 1389, (9th Cir. 1987); Superintendant

v. Hill, 472 U.S. 445 (1985). 

IRONS v. CAREY 14649
commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process.”

7

Irons seems to

say that no matter how monstrous the crime, a prisoner

against whom there is no evidence adverse to parole and subsequent to the crime, has a constitutional right to be paroled

after serving the bottom end of his sentence. 

The first thing wrong with Irons is that it arrogates to our

court more authority than we have. The Supreme Court in

Carey v. Musladin8 reversed us in another habeas case, where

we applied circuit law (as Irons does) without a Supreme

Court decision to the same effect. The federal habeas statute

says that we cannot overturn a state decision as contrary to

federal constitutional law, unless the federal law is “as determined by the Supreme Court of the United States.”

9

 That

phrase carries a negative pregnant, an exclusion of federal law

as determined by a circuit court but not the Supreme Court.

The Court held in Musladin that the statutory phrase “refers

to the holdings . . . of [the Supreme] Court’s decisions.”

10

Where, as here, the Supreme Court “has not broken sufficient

legal ground to establish an asked-for constitutional principle,” our court “cannot [itself] establish such a principle with

clarity sufficient to satisfy the AEDPA bar.”

11

The second thing wrong with Irons is that it inaccurately

claims that the Supreme Court has “clearly established that a

parole board’s decision” must be supported by “some evidence” in Superintendant v. Hill.

12 Irons errs because Hill

requires “some evidence” to deprive a prisoner of “good

time,” not parole. 

7

Irons at *6. 

8Carey v. Musladin, 549 U.S. ___ (2006). 

9

28 U.S.C. § 2254(d)(1) 

10Carey v. Musladin, 549 U.S. *4 (2006). 

11Williams v. Taylor, 529 U.S. 362, 381 (2000). 

12Superintendant v. Hill, 472 U.S. 445 (1985). 

14650 IRONS v. CAREY
“Good time” and parole are different kinds of decisions.

Good time is retrospective, looking to whether the prisoner

has misbehaved. Parole is prospective, looking to whether the

prisoner, if no longer confined in a total institution, is likely

to misbehave in the future. The first kind of decision must be

based on evidence, the second requires discretion, judgment,

and experience. Evidence of behavior in prison may be insufficient for predictions of behavior outside of prison. 

“Good time” is a prison discipline device. Prisons need

some way to get prisoners, who are after all felons, to leave

the recreation yard or mess hall, go into their cells, quit fighting and keeping contraband in their cells, and so forth. Otherwise the prisoners could taunt the guards, “What are you

going to do about it, send me to jail?” Many prison rule violations are not crimes. Prisons use reductions in “good time”

credits, among other sanctions, to induce compliance. For

example, federal law generally credits prisoners with 54 days

per year, starting with the second year of imprisonment, for

compliance with prison disciplinary and educational regulations.13 The California scheme allows for reductions of up to

one-third of the sentence for good behavior and participation

in assigned programs.14

Parole, on the other hand, is a discretionary and prospective

decision about whether it is prudent and appropriate to let the

prisoner out early.15 The Supreme Court has characterized

1318 U.S.C. § 3624. 

14Cal. Penal Code §§ 2930 et seq. 

15See Cal Pen. § 3041(“One year prior to the inmate’s minimum eligible

parole release date, a panel . . . shall . . . set a parole release date . . . .

The panel . . . shall set a release date unless it determines that the gravity

of the current convicted offense . . . is such that consideration of the public

safety requires a more lengthy period of incarceration . . . .”); Cal. Code

of Regulations Tit. 15 § 2281 (“Regardless of the length of time served,

a life prisoner shall be found unsuitable for a denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to

IRONS v. CAREY 14651
parole decisions as “necessarily subjective in part and predictive in part.” Release on parole is “essentially an experienced

prediction based on a host of variables.”

16 Requiring “some

evidence” for a subjective prediction is dangerous. The prisoners who are the subjects of parole decisions have already

proved to be dangerous. Some people behave better in the

total institution of prison than outside. It is striking that the

panel felt moved to expound on the likely future entitlement

of parole to Irons, an especially vicious murderer. 

Wolff v. McDonnell, the Supreme Court’s seminal “good

time” revocation case, holds that due process requires, inter

alia, “that there must be a ‘written statement by the factfinders

as to the evidence relied and reasons’ for the disciplinary

action.”17 Wolff explains that “the provision for a written

record helps to insure that administrators, faced with possible

scrutiny by . . . perhaps even the courts, where fundamental

constitutional rights may have been abridged, will act fairly.”

18

Relying on Wolff’s procedural requirements for revoking

good time, the Supreme Court, in Superintendent v. Hill, concluded that, to take away a prisoner’s good time, due process

requires there to be “some evidence” of a disciplinary infraction.19

society if released from prison.”); see also FRED E. INBAU, ET AL., CRIMINAL

LAW AND ITS ADMINISTRATION, 13 (1990) (“A penitentiary sentence of a . . .

number of years does not necessarily mean that a convicted person will

remain in the penitentiary for that particular period of time. Under certain

. . . circumstances he may be released earlier ‘on parole.’ . . . [A] person

who has been given an indeterminate maximum-minimum sentence, such

as 5 to 10 years . . . , may be eligible for parole after he has served the

5 year minimum, less time off for good behavior.”). 

16Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 13, 15-16 (1978). 

17Wolff v. McDonnell, 418 U.S. 539, 564-65 (1973), quoting Morrisey

v. Brewer, 408 U.S. 471, 489 (1972). 

18Id. at 565. 

19Superintendent v. Hill, 472 U.S. 445, 454 (1984). 

14652 IRONS v. CAREY
No Supreme Court case holds that the “some evidence”

rule applies to parole determinations. Two Supreme Court

cases suggest the opposite.20 Despite these two Supreme Court

decisions, Irons inappropriately applies the Hill “good time”

rule to what the Supreme Court has said are the quite different

decisions made by parole boards. 

The Court in Greenholtz v. Inmates of the Nebraska Penal

and Correctional Complex holds that “nothing in the due process clause . . . requires the Parole Board to specify the particular ‘evidence’ in the inmate’s file or at his interview on

which it rests the discretionary determination that an inmate

is not ready for conditional release.”

21 Greenholtz explains

that the parole decision “is necessarily subjective” and

demands “experimentation involving analysis of psychological factors combined with fact evaluation guided by practical

experience.”

22 Thus, “to require the parole authority to provide a summary of the evidence would [incorrectly] tend to

convert the process into an adversary proceeding and to

equate the parole-release determination with a guilt determination.”23

Greenholtz specifically notes that the “procedures designed

to elicit specific facts, such as those required in . . . Wolff [the

good time case] are not necessarily appropriate . . . .”

24 The

panel ought to have noticed that the Supreme Court expressly

distinguished the procedures that are appropriate in parole

board decisions from what procedures are appropriate in good

time decisions. Under Greenholtz, all that is required for due

process is “an opportunity to be heard” and “inform[ing] the

20See Greenholtz v. Inmates of the Nebraska Penal and Correctional

Complex, 442 U.S. 1 (1978); Wilkinson v. Austin, 545 U.S. 209 (2005). 

21Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 15 (1978). 

22Id. at 13. 

23Id. at 15-16. 

24Id. at 14. 

IRONS v. CAREY 14653
inmate in what respects he falls short of qualifying for parole

. . . as a guide to the inmate for his future behavior.”

25

In Wilkinson v. Austin, the Supreme Court confirmed the

distinction between the requirements of due process for the

revocation of good time credits and the requirements of due

process for parole determinations.26 Wilkinson rejected a challenge to the administrative decision to transfer a prisoner to

a maximum security facility.27 Wilkinson held that the prisoner transfer decision is more like a parole decision than a

revocation of good time credits, and thus requires only the

“nonadversary procedures set forth in Greenholtz,” not the

“more formal adversary-type procedures” set forth in Wolff.

28

Again, the Supreme Court expressly distinguished between

procedures for good time revocation and procedures for

parole. 

Irons says that after a certain time, the crime committed by

the prisoner does not amount to “some evidence.”

29 According

to the panel, the savagery of the murder committed by Irons

only counts as “some evidence” because he had not yet satisfied the “minimum” of his 17-to-life sentence.30

Implicit in Irons is a psychological theory, untested, not

especially likely to be true, and dangerous. If we were to predict Irons’ behavior based on how he behaved when he was

last free, we would regard him as dangerous, but if we made

our prediction based only on how he behaved in prison, we

would regard him as much less dangerous. The theory implicit

25Id. at 15-16. 

26Wilkinson v. Austin, 545 U.S. 209, 228-29 (2005). 

27Id.

28Id.

29Irons v. Carey, 479 F.3d 658, 664-65 (9th Cir. 2007). 

30“Minimum” is a California word, because in California (but not many

other states anymore) some sentences are “25 to life” instead of “25” or

“40” or “99” or “life.” 

14654 IRONS v. CAREY
in Irons is that past conduct in freedom does not, after a

while, predict future conduct in freedom, and if long enough

ago, is not even “some evidence” of how a prisoner will conduct himself if free. That could be true. It could also be false.

It may be that especially savage conduct in freedom better

predicts future dangerousness in freedom, than behavior in

prison. The Irons psychological theory is not Supreme Court

law and there is no particular reason to assume its truth. We

have no justification for forcing this unproved theory upon the

states in the guise of constitutional law. 

In addition to the predictive, empirical concern with recidivism, states may have a moral concern with parole of prisoners who have committed especially savage crimes. Even if

there is not “some evidence” of likely recidivism, and even if

parole boards are satisfied that there is no likelihood of recidivism, states may justifiably deny parole. States are free to take

the view that vindication of principles of right and wrong, and

a decent respect for the victims of crime, require denial of

parole to especially vicious criminals. States are entitled to

deny parole and require prisoners to serve their full sentences

less “good time,” even without “some evidence” beyond the

crimes for which the sentences were imposed. 

IRONS v. CAREY 14655


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