The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Deshawn Stallsworth, a state prisoner appearing pro se, has filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Stallsworth is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent ("State") has answered, and Stallsworth has replied.
I. BACKGROUND/PRIOR PROCEEDINGS Following the entry of a guilty plea in December 1989, Stallsworth was convicted in the San Diego County Superior Court of Murder in the First Degree (Cal. Penal Code, § 187).*fn1
Stallsworth was sentenced to an indeterminate prison term of 25 years to life. Stallsworth does not challenge his conviction or sentence in these proceedings. In January 2006 Stallsworth made his first appearance before the California Board of Parole Hearings ("Board"), which denied him parole. Stallsworth timely petitioned the San Diego County Superior Court for habeas corpus relief. The San Diego County Superior Court denied his petition in an unreported, reasoned opinion. Stallsworth then filed a petition for habeas corpus relief in the California Court of Appeal, Fourth Appellate District, which denied his petition in an unreported, reasoned decision. Stallsworth timely filed a petition for review in the California Supreme Court, which was summarily denied without opinion or citation to authority on June 20, 2007. Stallsworth timely filed his petition for relief in this Court on November 14, 2007, asserting the same grounds as raised in his state habeas proceedings.
The facts underlying Stallsworth's commitment offense, as recited by the California Court of Appeal are:
The facts as recited at the hearing are: On August 8, 1989, Stallsworth and other Emerald Hills gang members discussed robbing a known drug house. They drove to the drug house in Stallsworth's car to purchase marijuana but were unsuccessful. They saw a group of individuals standing nearby and some of the individuals gave them "mean looks." Stallsworth's group drove by three times.
On the third pass, Stallsworth opened fire with a .22 caliber rifle and shot 16-year-old Armando Bracamontes in the head, killing him. Stallsworth shot 21-year-old David Sanchez in the leg. Stallsworth was about five feet away from the victims when he fired. He was high on malt liquor and marijuana at the time of the shooting. Stallsworth joined the gang at age 14 and was 17 years old at the time of the shooting.*fn2 The Board found that "Stallsworth was not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison."*fn3 In upholding that decision, the California Court of Appeal held: "The Board based its decision on the facts of the crime, Stallsworth's gang membership, his misconduct in prison, his limited participation in beneficial self-help programs and his need for additional programming."*fn4
After briefing was completed, the United States Court of Appeals for the Ninth Circuit, sitting en banc, decided Hayward v. Marshall.*fn5 At Docket No. 16 this Court entered its Order directing the parties to file supplemental briefs addressing the Hayward decision, in particular that "[t]he prisoner's aggravated offense does not establish current dangerousness 'unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state' supports the inference of dangerousness."*fn6 The Court also directed the parties to consider two Ninth Circuit Decisions applying Hayward.*fn7 Both parties have submitted supplemental briefing.
II. GROUNDS RAISED/DEFENSES In his Petition, Stallsworth raises five grounds for relief: (1) the Board's four-year denial of parole violated his plea agreement; (2) the Board impermissibly relied on the nature of the offense; (3) the Board relied upon disciplinary proceedings in violation of the Board's regulations; (4) the Board's insistence upon his becoming a true adherent to the tenets of Alcoholics Anonymous violates his right of religious freedom under the First Amendment; and
(5) the Board's instruction to upgrade his occupational skills violated the Board's regulations. The State raises no affirmative defense.*fn8
In his second ground, Stallsworth challenges the refusal of the Board to grant him a parole on the basis that the decision was based primarily, if not wholly, upon the nature of his commitment offense. Although the California Court of Appeal provided reasoning for rejecting Stallsworth's other grounds, i.e., violation of the plea agreement, consideration of factors in violation of the regulations, and his First Amendment right, the court's treatment of the second ground presented was a cryptic "[t]he Board's decision to deny parole is based upon some evidence."*fn9 The Court of Appeal does not identify those factors that support that conclusion or refer to the evidence in the record that supports any factor relevant to that conclusion.
"When habeas courts review the 'some evidence' requirement in
California parole cases, both the subsidiary findings and the ultimate
finding of some evidence constitute factual findings."*fn10
In its Order requesting supplemental briefing, this Court
directed the State to "specifically identify those characteristics,
other than the underlying commitment offense, that support a finding
that release of the Petitioner to parole status poses a current threat
to public safety, and point to the specific evidence in the record
that supports that determination."*fn11 In its
response, the State argues that, because Hayward was wrongly decided
and represents circuit law, not the law as established by the Supreme Court, this Court need
not follow Hayward or the Ninth Circuit cases applying Hayward. The
State, asserting that the order requiring that the evidence supporting
the finding that the release of Stallsworth to parole status poses a
current threat to public safety be identified is an improper question,
declined to provide the required information.*fn12
This Court disagrees. This Court, a district court, is bound by
earlier published decisions of the Ninth Circuit until overruled or
undermined by higher authority, e.g., an en banc decision of the Ninth
Circuit, a Supreme Court decision, or subsequent
legislation.*fn13 This has not occurred. This Court
notes that if, as the State contends, Hayward was incorrectly decided,
the appropriate remedy is to file a petition for a writ of certiorari
in the Supreme Court within 90 days of the date the petition for
rehearing in Hayward was denied.*fn14 The 90-day
period began to run June 2, 2010, when the Ninth Circuit denied
Hayward's petition for a rehearing.*fn15 As the time
for filing a petition for certiorari had not yet expired, if the State
contemplated seeking certiorari, the State could have requested this
Court to grant additional time to comply with the Order. Alternatively, the State could have preserved its arguments
that Hayward was erroneously decided for further appellate review, and
still complied with the express terms of the Order. What the State
could not do is what it did do in this case-ignore the clearly
articulated requirements of Hayward and decline to obey this Court's
specific order.*fn16 In so doing, even if the Order
was "improper," the State did so at its own peril.*fn17
Because the State failed to identify those characteristics, other than the underlying commitment offense, supporting a finding that Stallsworth presents a current threat to public safety, or the evidence supporting that finding, this Court must assume that the State concedes no ...