The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER DENYING APPLICATION FOR CERTIFICATE OF APPEALABILITY
On September 7, 2005, Petitioner was found unsuitable for parole by California's Board of Parole Hearings, which set the next parole hearing for 2008. On October 10, 2006, after exhausting state court remedies, Petitioner filed his habeas petition in this Court. After full briefing, the Court denied the petition on August 29, 2008. On November 3, 2008, the Court declined to grant a certificate of appealability because, under Hayward v. Marshall, 512 F.3d 536, 541 n.6 (9th Cir. 2008), no such certificate was needed.
On April 22, 2010, the Ninth Circuit, sitting en banc, reversed its earlier holding and determined a certificate of appealability was required. Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). The appellate panel then remanded the case to this Court with instructions to either grant or deny the certificate.
Under AEDPA, the Court can only issue such a certificate "if the applicant has made a substantial showing of the denial of a constitutional right," and the certificate must "indicate which specific issue or issues satisfy the [required] showing." Smith v. Mahoney, 596 F.3d 1133, 1148 (quoting 28 U.S.C. § 2253(c)(2) and (3)). The certificate may issue only if Petitioner shows that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483--84 (2000) (quotation marks omitted).
The Court therefore ordered Petitioner, who is represented by counsel, to submit a formal application for a certificate of appealability, identifying the issues he wished to appeal. Because the Court is under a continuing obligation to examine its own jurisdiction, the Court also required Petitioner to address the possibility that his appeal has become moot as a result of the Board's later decisions. Petitioner filed a request, which he amended on July 12. Respondent's counsel has notified the Court that it will file no response.
The Court has reviewed Petitioner's briefing on the issue of mootness and concludes Petitioner has made an adequate showing the appeal is not moot. The Court infers from Petitioner's briefing, and from Respondent's decision not to respond, that parole was not granted at the 2008 hearing but that Petitioner's record has not otherwise changed substantially. The Court therefore turns to the merits.
The Court's order of August 29, 2008 adopted Magistrate Judge Leo Papas' report and recommendation (the "R&R"). Together, this order and the R&R address most of the factual and legal issues, so the Court repeats them only briefly here.
In 1984, Petitioner pleaded guilty to first degree murder and was sentenced to a term of 25 years to life, with the possibility of parole. He reached his minimum parole date on May 25, 2000. Wallach had had a long standing dispute with the murder victim, Richard Wescott, the president of a printing shop. Wescott held some property, worth about $1400, that Wallach thought belonged to him, and the dispute had resulted in civil litigation. Around that time, some children threw a water balloon at Wallach's car, causing a piece of plastic near the windshield to pop out. A bystander, Kenneth House, saw it happen, but when House refused to reveal who threw the balloon, Wallach shot House in the foot. House fled, and Wallach shot him in the back. Wallach then drove to the printing shop, confronted Wescott with a gun, and held him against his will. The police were called to the scene and had telephone contact with Wallach. The disputed property was returned to Wallach, but Wallach nevertheless shot Wescott twice in the face, killing him. (R&R at 3:9--13, 10:10--12.)
The Court first notes that the application for the certificate of appealability misreads the record as uniformly favorable. While the evidence the Board considered was mostly favorable to Petitioner, some of it - including the evidence the Board mentioned and relied on - was not. The Board also explained how the evidence supported its finding that Petitioner was not yet suitable for parole.
The sole appealable issue Petitioner identifies is the validity of this Court's denial of the Petition by finding some evidence in the record to support the Board's finding of the gravity of the commitment offense, without finding that the Board articulated any rational nexus by which the offense facts it recited elevate Mr. Wallach's forensically determined "low" current parole risk to "an unreasonable risk of danger" to public safety, the standard below which parole "shall" be granted.
(Am. Application for COA, 2:10--16.) Petitioner cites several authorities in support of these contentions, including two decided after the Court denied the petition, In re Lawrence, 44 Cal.4th 1181 (2008) and the Ninth Circuit's en banc decision in Hayward. He also cites 15 Cal. Code Regs §§ 2401, 2402(a) and Cal. Penal Code § 3041. Petitioner also appears to be emphasizing "shall" to demonstrate that this case fits within the holding of Board of Pardons v. Allen, 482 U.S. 369, 370--71, 381 (1987), and Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 12 (1979) (holding that, under certain conditions, prisoners may have a liberty interest in parole that is protected under the Due Process clause). Under Hayward, California law requires a denial of parole to be based on "some evidence," 603 F.3d at 562, though neither federal law nor the U.S. Constitution imposes such a requirement. Id. at 563.
Petitioner's statement of the issue on appeal misreads the law. Section 2402(a) specifically addresses one possible situation when the panel has no discretion to grant parole:
The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of 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.
In other words, this section specifies one instance when parole must be denied, not when it "shall" be granted. Sections 2402(b)--(d) address what information the panel is to consider when determining suitability or unsuitability for parole, much of which is relevant here. Sections 2401 and 2402 make clear the decision involves weighing a variety of factors and reaching a decision based on the particular facts of the case. These sections rely on determinations of ...