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Nicholson v. Salazar

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


July 7, 2010

DAVID ANDREW NICHOLSON, PETITIONER,
v.
J. F. SALAZAR, WARDEN, RESPONDENT.

The opinion of the court was delivered by: James V. Selna United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the entire record in this action, the Report and Recommendation of United States Magistrate Judge ("Report"), Supplemental Report and Recommendation and Respondent's objections. The Court concurs with and adopts the findings of fact, conclusions of law, and recommendations contained in the Report after having made a de novo determination of the portions to which objections were directed.

In its objection, the Respondent suggests that the Petitioner here is entitled to no more than an opportunity to be heard at a hearing and a reasoned decision. (Objection to Report and Recommendation, p. 5, citing Greenholtz v. Inmates of Nebraska Penal and Correction Complex, 442 U.S. 1, 16 (1979).) Whether that is a correct statement of Supreme Court jurisprudence,*fn1 the Ninth Circuit has mandated that this Court examine the some evidence "requirement" not merely the procedures imposing it:

[C]courts in this circuit facing the same issue in the future, need only decide 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 v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010)(footnote deleted). As the Ninth Circuit subsequently noted in Pearson v. Muntz, 606 F.3d 606, 610 (9th Cir. 2010), "That command can only be read as requiring an examination of how the state court applied the requirement." (Italics in original.)

The Magistrate Judge has ably marshaled the record to show that the Board of Parole Hearings failed to put forth some evidence that the Petitioner is a threat to public safety. The Board's decision was an "'unreasonable application'" of the California "'some evidence'" requirement, [and] was "'based on an unreasonable determination of the facts in light of the evidence.'" Hayward, 603 F.3d at 563.


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