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Nelson v. Sisto

November 1, 2010


The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge


Nelson, a California state prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He does not challenge his conviction of second degree murder and drug charges, for which he received an aggregate prison term of 22 years to life. Rather, he argues that the Governor of California violated his constitutional rights by reversing the California Board of Parole Hearing's (Board) decision to grant Nelson a parole date.

On August 20, 2009, this case was ordered stayed pending the Court of Appeals for the Ninth Circuit's en banc decision in Hayward v. Marshall; that opinion was filed, see Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc); therefore, the stay is VACATED and Nelson's case may now proceed. I have reviewed the petition, the respondents' answer, the traverse, and the supporting documents. I hold that Nelson is entitled to the relief requested and order the petition granted.


The following is a summary of the facts surrounding Nelson's underlying offense, as found in a probation officer's report and recommendation, which was in turn a condensation of reports from the Mendocino County Sheriff's Department:

On September 23, 1989, Scott Lane Nelson was tending a marijuana garden, owned by him and Jimmy Don Myrick in the Red Mountain area of Northern Mendocino County near Leggett. He was awakened at approximately 6:30 in the morning by rustling in nearby brush and he suspected a marauding bear. He then observed three human forms in one of his nearby patches. He fired a warning shot, and when the men did not stop harvesting marijuana, he fired a second shot. He observed two men run from the scene. He ran to an area where he suspected their vehicle to be parked, but remained out of sight. He heard them call for a third person, who had not returned to the vehicle. After approximately an hour the two men left in their vehicle.

Nelson returned to Fortuna, where he sought out Myrick and explained that their garden had been invaded. He and Myrick decided to return to the garden that evening and harvest the marijuana. They enlisted the help of Richard Perras and Adam Darby. They were driven to the area by Nelson's wife, Mary, and dropped off above the site. Perras and Myrick began harvesting in one garden, while Darby and Nelson harvested in another. Nelson discovered the body of one of the marijuana pirates, later identified as Michael Clawson, who had apparently been shot and killed. After summoning Myrick and Perras, Nelson and Darby covered the body with a tree and brush. The four continued to harvest the marijuana and eventually left the area.

Clawson's two companions, Jerry Wilborn and Charlie Beighley, contacted the Mendocino County Sheriff's Department to report Clawson missing. The men initially stated that they were in the area of Red Mountain on a hunting trip, but later admitted to being there to steal marijuana from a garden that they knew Jimmy Myrick was growing. After entering the area of the gardens, Beighley and Wilborn had become scared and wanted to leave. Clawson stated he wanted to harvest more marijuana and separated from the two other men. They subsequently heard two gun shots in quick succession in their immediate area. They fled on foot, yelling for Clawson to follow. They waited for approximately one hour for him to arrive, before they left. . . .

On November 2, 1989, Sheriff's deputies received information that the victim's mother, Lillian Hineline, had been contacted by Wilborn, who had stated that he had been contacted by someone who stated that Perras had said he had seen a body in that marijuana garden later on the night of the shooting. They contacted Wilborn, who directed them to Richard Perras' residence in Fortuna. Perras confirmed that he, Myrick, Darby, and Nelson had returned to the garden on September 23, 1989, and in the process of harvesting, had discovered the body of Michael Clawson. He heard Nelson yelling, and when he arrived at the location, he heard Nelson say, "I hit him." He later heard Darby state that the victim had been "hit low."

On November 3, 1989, Perras accompanied Sheriff's deputies to the garden location, where Clawson's decomposing body was located.

Detectives were able to locate Adam Darby, who gave further details about the incident, prior to being arrested as an accomplice.

On November 9, 1989, Scott Nelson was arrested by the San Jose Police Department after being contacted at his mother's home in Santa Clara County. During his first interview, Nelson denied shooting the victim. He stated that when he returned to the garden later on September 23, he found Myrick at the location, suffering from a violent attack of flu. Myrick went into town to get a shot, while Nelson returned to the garden to finish the harvesting. Once there, he discovered blood on the hillside and then observed a body near the garden. He returned to Fortuna, where he told Myrick and Perras that there had been problems in the garden and that he had discovered a body. He then described the earlier version of returning to the garden that night with Myrick, Perras, and Darby. After being told that the other witnesses did not support his version, Nelson changed his statement to admitting that he had fired warning shots at three persons in his marijuana garden and that he had chased them off. He did not discover the body until he had returned to the garden later that same day. He stated that he threw the 30-30 rifle he had used in Humboldt Bay, but it was never located. [Pet. Ex. A at 3-6.]

On March 5, 1991, Nelson was convicted of second degree murder with use of a firearm in violation of California Penal Code sections 187 and 12022.5, and cultivation and transportation of marijuana while armed with a firearm in violation of California Health and Safety Code sections 11358 and 11360 and California Penal Code 12022. [Pet. Ex. C; Ans. Ex. 1; Pet. Ex. J at 1-2.] He received a sentence of five years for the transportation charge with a firearm enhancement; four years for the cultivation charge with a firearm enhancement (to be served concurrently with the five years for the transportation charge); and 17 years to life for the second degree murder charge with the firearm enhancement, to be served consecutive to the drug charges, for a total of 22 years to life. [Pet. Ex. B at 36-39.]

On May 13, 2004, following a hearing, the Board found Nelson was suitable for parole and set a parole date of November 19, 2009; a progress hearing was scheduled for May 2007. [Pet. at 9-11.] On September 22, 2004, however, the grant of parole was reversed by the Governor, who cited the gravity of Nelson's offense as the primary reason for the reversal. [Pet. Ex. O.]

Nelson then filed for a writ of habeas corpus in the Mendocino County Superior Court. [Pet. Ex. P.] That petition was denied on May 26, 2006. [Pet. Ex. R.] He then sought the writ in the California Court of Appeal, First Appellate District, which denied his petition without comment on August 8, 2006. [Pet. Exs. S, T.] The Supreme Court of California denied without comment his petition for review on November 1, 2006. [Pet. Ex. U.] He filed the instant petition in federal court on December 12, 2006; on December 9, 2008, the case was reassigned to me.


A person in custody pursuant to the judgment of a state court may petition a district court for relief by way of a writ of habeas corpus if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). Nelson asserts that he suffered violations of his rights as guaranteed by the Constitution. His petition was filed after the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), and is therefore governed by the AEDPA. Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). Under the AEDPA standards, Nelson's petition may be granted only if he demonstrates that the state court decision denying relief "resulted in a decision that was either (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. (internal quotation marks omitted), citing Doody v. Schriro, 596 F.3d 620, 634 (9th Cir. 2010) (en banc).

I must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003), quoting 28 U.S.C. § 2254(d)(1)). To do this, federal courts look to the "holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision," id., citing Williams, 529 U.S. at 412, and consider whether the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law," id., quoting 28 U.S.C. § 2254(d)(1)).

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application clause," a federal habeas court may grant the writ if the state court identifies the correct governing legal ...

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