Carl Merton IRONS, II, Petitioner-Appellee, U.S. Attorney General, Intervenor, v. Tom L. CAREY, Warden, Respondent-Appellant, 505 F.3d 846

Opinion by Judge REINHARDT; Concurrence by Judge NOONAN; Concurrence by Judge REINHARDT; Concurrence By Judge FERNANDEZ. ORDER AMENDING OPINION AND AMENDED OPINION ORDER The panel opinion, filed March 6, 2007, is hereby amended as follows: 1. At page 2476 of the slip opinion, line 28, 479 F.3d at 662, insert “At the time that Irons’s state habeas petition was before the state courts,” before “The Supreme Court.” 2. At page 2476 of the slip opinion, line 28, 479 F.3d at 662, change “The” to “the.” 3.

At page 2476 of the slip opinion, line 28, 479 F.3d at 662, change “has” to “had.” Judge Noonan’s concurring opinion is hereby amended as follows: 1.At page 2483, line 23 of the slip opinion, 479 F.3d at 666, delete “More.” 2. At page 2488, line 23 of the slip opinion, 479 F.3d at 666, change “fundamentally” to “Fundamentally.” 3. At page 2488, line 22 of the slip opinion, 479 F.3d at 666, insert the following new paragraph: The great writ exists, by negative implication, in

Article I of the Constitution of the United States. It was initially understood to extend only to prisoners in the custody of the United States. It was extended by statute in 1867 to embrace prisoners of a state in custody in violation of the Constitution of the United States. It may be that the right to federal review of a claim of unconstitutional incarceration by a state is now to be considered an essential of due process just as the existence of federal courts to hear cases in numbers that it would be impossible for the Supreme Court to handle alone may be viewed as essential to due process.

In each case, Congress exercising a power originally designed for application to the national government may lie under a constitutional obligation to exercise it more broadly for the preservation of the Constitution. In each instance, Congress would be called to enact a statute which is necessary. It is not, however, necessary to maintain that habeas corpus today is a requirement of due process.

What is most relevant is that if Congress does provide for habeas in the federal courts, Congress cannot then instruct the federal courts, whether acting in a federal or in a state case, how to think, how to ascertain the law, how to judge. With these amendments the panel has voted to deny the petition for rehearing. The petition for rehearing en banc is still pending. OPINION REINHARDT, Circuit Judge. The state appeals the district court’s grant of habeas corpus to Carl Merton Irons II.

The district court granted relief after finding that there was insufficient evidence in the record to support the California Board of Prison Term’s decision to deem Irons ineligible for parole in 2001. In light of the California Supreme Court’s decision in In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005), and our decision in Sass v. California Board of Prison Terms, 461 F.3d 1123 (9th Cir.2006), both decided after the district court issued its order in this case, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND In 1985, Irons was convicted of second degree murder in the death of his former housemate and sentenced to seventeen years to life in prison. At the time of the offense, Irons was living in the home of a couple, with another tenant, John Nicholson. The couple suspected that Nicholson was dealing drugs and was stealing from them. Irons shared their suspicions. He confronted Nicholson and an angry argument ensued in which Nicholson denied responsibility for the thefts.

Irons went to his room, retrieved his gun, and then went to Nicholson’s room where he fired 12 rounds into Nicholson and, after Nicholson complained that he was in pain, stabbed him twice in the back. He then wrapped Nicholson’s body in a sleeping bag and left it in the room for the ten days it took him to procure a car. Irons then took the body to the coast, weighed it down, and disposed of it in the ocean. When the police found the body, their investigation led them to the house where Irons and the victim had lived.

Forensic analysis showed that Nicholson had died on the premises, and the police decided to arrest the owner of the house. Irons intervened, explained to the police that they had the wrong person, and confessed to the killing. He was subsequently convicted of second degree murder and sentenced to seventeen years to life in prison with the possibility of parole. Prior to this conviction, Irons had no criminal record. At the time of his 2001 parole hearing, Irons had been incarcerated for sixteen years. Throughout his confinement, his conduct has been exemplary.

From 1988 to the present he has maintained “Medium A” custody status, indicating that prison officials see him as a low threat. He has not engaged in further acts of violence, nor has he received any C.D.C. 128A written disciplinary charges. Irons suffers no mental health problems, and has received positive evaluations from the psychologists and counselors who have examined and treated him. He has been extremely industrious while in prison, maintaining average to exceptional job performance in every position he has occupied.

He has also received certificates of completion in several vocational training programs, and has participated in numerous self-help, substance abuse treatment, violence prevention and stress management programs. Even members of the Board have commented that Irons has “programmed in an exemplary manner in all areas.” Irons also has solid plans for the future. He will live with his mother when he is released and he has a standing job offer from a friend who owns a video production business. He also has the support of Deputy District Attorney Stephen Wagstaffe, the prosecutor assigned to Irons’ case from the outset.

These facts notwithstanding, the Board determined that Irons was unsuitable for parole in 1994, 1996, 1998, 1999, and 2001. The Board’s decision in 2001, the decision at issue in this case, was based on three factors. “First and foremost was the commitment offense itself.” The Board found that Irons’ crime was “carried out in an especially cruel and callous manner.” It further noted his motivation for the killing was trivial and that Irons was using drugs around the time of the offense.

Second, the Board stated that Irons “needs therapy” and recommended “continued participation in self-help programming.” Finally, the presiding commissioner stated, “I think you were asked by your counsel whether a situation like this would happen again, whether you would kill somebody. And I think you said, I don’t think so ... [T]hat’s not a very convincing reply.” After filing an unsuccessful administrative appeal challenging the Board’s decision, Irons filed a state habeas petition in Marin County Superior Court alleging that the Board’s 2001 unsuitability determination violated his due process rights.

The Superior Court denied the petition, finding that the Board’s decision was supported by “some evidence” and thus did not violate due process. Irons appealed, and the California Court of Appeal and the California Supreme Court issued

summary denials. He then filed a petition for writ of habe-as corpus in federal district court, and in January of 2005 the district court adopted the magistrate judge’s findings and recommendations granting the petition. The district court concluded that the state court unreasonably applied clearly established Supreme Court precedent because the board’s decision was without evidentia-ry support, and further held that the Board’s continued reliance on Irons’ commitment offense and prior conduct to deem him unsuitable for parole violated Irons’ right to due process.

On appeal, the state argues that the district court erred in concluding that the Board’s 2001 decision was not supported by “some evidence,” and that the district court failed to afford the California state court decision upholding the Board’s unsuitability determination the proper degree of deference required under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA). STANDARD OF REVIEW We review the district court’s decision to grant Irons’ petition for habeas corpus de novo. Leavitt v. Arave, 371 F.3d 663, 668 (9th Cir.2004).

Because Irons filed his petition after the effective date of AEDPA, his petition for habeas corpus may be granted only if he demonstrates that the state court decision denying relief was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). DISCUSSION California Penal Code

section 3041 vests Irons and all other California prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause. Sass, 461 F.3d at 1128; Biggs, 334 F.3d at 914; McQuillion v. Duncan, 306 F.3d 895, 903 (9th Cir.2002); see also Bd. of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979)).

At the time that Irons’s state habeas petition was before the state courts, the Supreme Court had clearly established that a parole board’s decision deprives a prisoner of due process with respect to this interest if the board’s decision is not supported by “some evidence in the record,” Sass, 461 F.3d at 1128-29 (citing Superintendent v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)); see also Biggs, 334 F.3d at 915 (citing McQuillion, 306 F.3d at 904), or is “otherwise arbitrary,” Hill, 472 U.S. at 457, 105 S.Ct. 2768.

When we assess whether a state parole board’s suitability determination was supported by “some evidence” in a habeas case, our analysis is framed by the statutes and regulations governing parole suitability determinations in the relevant state. See Biggs, 334 F.3d at 915.

Accordingly, here we must look to California law to determine the findings that are necessary to deem a prisoner unsuitable for parole, and then must review the record in order to determine whether the state court decision holding that these findings were supported by “some evidence” in Irons’ case constituted an unreasonable application of the “some evidence” principle articulated in Hill, 472 U.S. at 454, 105 S.Ct. 2768.

Under California law, prisoners serving an indeterminate sentence for second degree murder “may serve up to life in prison, but [ ] become eligible for parole consideration after serving minimum terms of confinement.” Dannenberg, 34 Cal.4th at 1078, 23 Cal.Rptr.3d 417, 104 P.3d 783.

Although the Board must “normally set a parole release date” before the minimum term has been served, id., an inmate “ ‘shall be found unsuitable for parole and denied parole if, in the judgment of the [Board,] the prisoner will pose an unreasonable risk of danger to society if released from prison,’ ” id. at 1080, 23 Cal.Rptr.3d 417, 104 P.3d 783 (quoting Cal. Code Regs., tit. 15 § 2402(a)).

The Board must determine whether a prisoner is presently too dangerous to be deemed suitable for parole based on the “circumstances tending to show unsuitability” and the “circumstances tending to show suitability” set forth in CaLCode. Regs., tit. 15 § 2402(c)-(d).

A prisoner’s commitment offense may constitute a circumstance tending to show that a prisoner is presently too dangerous to be found suitable for parole, but the denial of parole may be predicated on a prisoner’s commitment offense only where the Board can “point to factors beyond the minimum elements of the crime for which the inmate was committed” that demonstrate the inmate will, at the time of the suitability hearing, present a danger to society if released. Dannenberg, 34 Cal.4th at 1071, 23 Cal.Rptr.3d 417, 104 P.3d 783.

Factors beyond the minimum elements of the crime include, inter alia, that “[t]he offense was carried out in a dispassionate and calculated manner,” that “[t]he offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering,” and that “[t]he motive for the crime is inexplicable or very trivial in relation to the offense.” Cal. Code. Regs., tit. 15 § 2402(c)(1)(B), (D)(E).

Here, the Board based its 2001 determination that Irons was unsuitable for parole “first and foremost” on the fact that “[t]he offense was carried out in an especially cruel and callous manner ... which demonstrates a callous disregard for human life.” It also noted that “the motive for this crime was trivial in relation to the offense.” Although we agree with the district court that the other bases for the Board’s unsuitability determination — that Irons “needs therapy” and that when asked whether he would kill again said, “I don’t think so” — were wholly unsupported by “some evidence,” in light of Dannen-berg and Sass we are unable to conclude that the Board’s findings regarding the nature of the commitment offense were without some evidentiary support.

In Dannenberg the California Supreme Court addressed a prisoner’s challenge to the parole Board’s decision to deem him unsuitable for parole on the basis of his commitment offense in spite of the fact that virtually all other relevant factors militated in favor of a finding of suitability. Dannenberg had been sentenced to 15 years to life in prison for the second degree murder of his wife in 1985. After a domestic argument, Dannenberg struck multiple blows to his wife’s head with a pipe wrench and then pushed her into a tub of water in which she drowned. 34 Cal.4th at 1095, 23 Cal.Rptr.3d 417, 104 P.3d 783.

At his 1999 parole hearing the Board concluded that Dannenberg presented a danger to society if released and was thus unsuitable for parole because the second degree murder he committed was “ ‘especially callous and cruel,’ showed ‘an exceptionally callous disregard for human suffering,’ and was disproportionate to the ‘trivial’ provocation” for the offense. 34 Cal.4th at 1095, 23 Cal.Rptr.3d 417, 104 P.3d 783.

The California Supreme Court held that the Board’s decision to deem Dannenberg unsuitable on this basis was supported by “some evidence” because the Board “pointed to circumstances of the inmate’s offense suggesting viciousness beyond the minimum elements of second degree murder.... Accordingly, [ ] the Board could use the murder committed by Dannenberg as a basis to find him unsuitable, for reasons of public safety, to receive a firm parole released date.” Id.

Because we find that Irons’ crime was similarly cruel or vicious, we cannot say that there was not “some evidence” to support the Board’s determination that Irons was unsuitable for parole under California law.

Specifically, given that his commitment offense, standing alone, is a sufficient basis for deeming a petitioner unsuitable where, as here, there is some evidence to support a finding that “the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering” and the “motive for the crime is inexplicable or very trivial in relation to the offense,” Cal.Code Regs., tit. 15 § 2402(c)(l)(D)-(E), we cannot say that the state court unreasonably applied Hill’s “some evidence” principle.

Irons argues that, even if there is “some evidence” to support a finding that he is unsuitable for parole under the applicable California regulations, the Board’s reliance on an immutable factor to deny him parole, namely his commitment offense, nonetheless violated due process. In support of this argument, he cites our decision in Biggs, 334 F.3d 910. In Biggs, we affirmed the district court’s denial of a prisoner’s petition for habeas corpus challenging the Board’s determination that he was unsuitable for parole on the basis of his commitment offense. 334 F.3d at 916.

Although we held that the Board’s decision was supported by “some evidence” because “[t]he murder of which Biggs was convicted involved killing a witness in a manner which exhibited callous disregard for life,” we made clear that “[a] continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a' due process violation.” Id. at 916-17.

Specifically, we held that a parole board’s sole ... reliance on the gravity of the offense and conduct prior to imprisonment to justify denial of parole can be initially justified as fulfilling the requirements set forth by state law. Over time, however, should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of Biggs’ offense and prior conduct would raise serious questions involving his liberty interest in parole. Id. at 916.

Subsequently, in Sass, we held that denying parole to an individual in reliance on his offense of commitment did not violate due process. 461 F.3d at 1129.

Although we acknowledged that Biggs represents the law of this circuit and specifically noted that “continued reliance ... [on] the offense and on conduct prior to imprisonment ... could result in a due process violation,’ ” id., we nonetheless held that the Board’s reliance on the “gravity” of the second degree murder of which Sass was convicted, in combination with prior incidents of unlawful conduct, provided a sufficient basis for the Board to deem Sass unsuitable for parole.

Because the murder Sass committed was less callous and cruel than the one committed by Irons, and because Sass was likewise denied parole in spite of exemplary conduct in prison and evidence of rehabilitation, our decision in Sass precludes us from accepting Iron’s due process argument or otherwise affirming the district court’s grant of relief.

We note that in all the cases in which we have held that a parole board’s decision to deem a prisoner unsuitable for parole solely on the basis of his commitment offense comports with due process, the decision was made before the inmate had served the minimum number of years required by his sentence. Specifically, in Biggs, Sass, and here, the petitioners had not served the minimum number of years to which they had been sentenced at the time of the challenged parole denial by the Board. Biggs, 334 F.3d at 912; Sass, 461 F.3d at 1125.

All we held in those cases and all we hold today, therefore, is that, given the particular circumstances of the offenses in these cases, due process was not violated when these prisoners were deemed unsuitable for parole prior to the expiration of their minimum terms. Furthermore, we note that in Sass and in the case before us there was substantial evidence in the record demonstrating rehabilitation.

In both cases, the California Board of Prison Terms appeared to give little or no weight to this evidence in reaching its conclusion that Sass and Irons presently constituted a danger to society and thus were unsuitable for parole. We hope that the Board will come to recognize that in some cases, indefinite detention based solely on an inmate’s commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process, given the liberty interest in parole that flows from the relevant California statutes. Biggs, 334 F.3d at 917.

The district court’s order granting Irons’ petition for habeas corpus is REVERSED. . The record also shows that he was deemed unsuitable for parole in 2002, 2003, and 2004. We, of course, express no view as to the constitutionality of these denials or the applicability of the warning set forth in Biggs v. Terhune, 334 F.3d 910 (9th Cir.2003). See pp. 853, infra. . We need not address whether the Board’s determination was “otherwise arbitrary” because that question is not implicated here. . Specifically, under California Penal Code

section 3041(a), "one year before the prisoner’s minimum eligible parole date, a Board panel shall meet with the inmate, ‘shall normally set a parole release date,’ and shall do so ‘in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public.' ” Dannenberg, 34 Cal.4th at 1078, 23 Cal.Rptr.3d 417, 104 P.3d 783. However, a "determination of an individual inmate’s suitability for parole under

section 3041, subdivision (

b) must precede any effort to set a parole release date under the uniform-term principles of

section 3041, subdivision (a).” Id. at 1079-80, 23 Cal.Rptr.3d 417, 104 P.3d 783. .Under these regulations, the circumstances tending to show that a prisoner is unsuitable include: (1) the commitment offense, where the offense was committed in "an especially heinous, atrocious or cruel manner”; (2) the prisoner’s previous record of violence; (3) "a history of unstable or tumultuous relationships with others”; (4) commission of "sadistic sexual offenses”; (5) "a lengthy history of severe mental problems related to the offense”; and (6) “serious misconduct in prison or jail.” Cal.Code. Regs., tit. 15 § 2402(c).

Circumstances tending to show that a prisoner is suitable for parole include: (1) the prisoner has no juvenile record; (2) the prisoner has experienced reasonably stable relationships with others; (3) the prisoner has shown remorse; ... (6) the prisoner lacks any significant history of violent crime; ... (8) the prisoner "has made realistic plans for release or has developed marketable skills that can be pul to use upon release”; (9) ''[(Institutional activities indicate an enhanced ability to function within the law upon release.” Cal.Code. Regs., tit. 15 § 2402(d). .

Although we requested and received briefing on the constitutionality of the provision of AEDPA that directs federal courts to grant habeas relief to state petitioners only when the state court decision denying relief was “contrary to, or involved an unreasonable application, of clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. 2254(d)(1), we are now persuaded that Duhaime v. Ducharme, 200 F.3d 597 (9th Cir.2000), answers that question, correctly or not, for the court.

A three-judge panel of this court is without authority to overrule a holding of an earlier panel. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003) (en banc). Only an en banc court has the authority to do so. Id.