The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
At Docket No. 14 this Court issued its Order to Show Cause why this matter should not be stayed pending the issuance of the mandate by the United States Court of Appeals for the Ninth Circuit in Hayward v. Marshall, 512 F.3d 536, reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008), Case No. 06-55392. Respondent concurs that this matter should be stayed. Docket No. 15. Petitioner Paul Edward Dewey, a state prisoner appearing pro se, opposes staying this matter. Docket No. 16.
In his petition Dewey raises a single issue: his due process rights were violated when the parole board denied him parole based solely on the facts of the underlying conviction. In opposing a stay in this action, Dewey contends that in In re Lawrence*fn1 the California Supreme Court has created a liberty interest in parole that is entitled to the protection of the Due Process Clause notwithstanding that it is broader than the minimum required by the Constitution. The Court disagrees. The issue before this Court is whether the United States Supreme Court has held that reliance on the underlying commitment offense alone violates the Due Process Clause of the Fourteenth Amendment.
This Court is not unmindful that the decision of the California Supreme Court in Lawrence strongly supports Dewey's position. This Court cannot, however, grant relief unless the decision of the state court being reviewed in this case was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn2 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn3 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn4
Whatever view the California Supreme Court may have construing federal law, no matter how persuasive, is irrelevant in a federal habeas proceeding.*fn5
Federal law concerning the extent of the reliance by the parole board on the facts of the underlying conviction constitutes a denial of due process is far from well settled. There is no constitutional or inherent right of a convicted person to be conditionally released on parole before expiration of a sentence.*fn6 Due process is satisfied when the state provides for review of the inmate's file, a personal interview by the Board, and a statement of its reasons for denying parole,*fn7 and that decision is supported by some evidence in the record.*fn8 Squarely before the en banc panel in Hayward is whether the dicta in Biggs v. Terhune,*fn9 "[a] continued reliance in the future on an unchanging factor, the circumstances of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the system and could result in a due process violation," is, or should be, the federal law of the circuit. Whatever decision is reached in Hayward, this Court will be bound by that decision,*fn10 not the decision of the California Supreme Court in Lawrence.
The Court is also not unmindful of the potential adverse impact that staying this action may have on Dewey. On the other hand, any ruling in his favor by this Court more likely than not would be appealed to the Ninth Circuit, which is itself holding cases in abeyance pending the decision in Hayward.
IT IS THEREFORE ORDERED THAT this matter is stayed pending the issuance of the mandate by the United States Court of Appeals for the Ninth Circuit in Hayward v. Marshall, 512 F.3d 536, reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008), Case No. 06-55392.
IT IS FURTHER ORDERED THAT, should the Petitioner be granted parole, not later than 30 days after the decision of the Board of Parole Hearings becomes effective, Respondent is directed to inform the Court of the action of the Board ...