Thursday, January 6, 2011

McCullough v. Kane 12/27/10 - District: 9 Cir. Inmate may obtain federal habeas review

After being found suitable twice by the BOARD and reversed twice by the Governor...a Federal Petition is filed for relief.

Feds agree that they can review if there is an abuse of the CA "some evidence" standard!
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Case Name:
McCullough v. Kane , District: 9 Cir , Case #: 07-16049
Opinion Date: 12/27/2010 , DAR #: 19318


Case Holding:

Under California's current parole laws, applicants for parole may obtain federal habeas review of whether there is "some evidence" supporting a negative parole decision. At a young age, McCullough was convicted of murder and sentenced to prison for life. Despite a less than positive initial prison adjustment, within a period of time, he performed admirably, obtaining a bachelor's degree in social work, helping with other prisoners, being psychologically evaluated as less likely to commit violence than the average community citizen, etc.

Twice the board recommended him for parole, and twice the Governor reversed, with the most recent reversal based on a finding that McCullough would pose an unreasonable risk of danger if released.

McCullough unsuccessfully pursued remedy through the state courts and filed the instant petition for writ of habeas corpus in the district court.

The court granted the petition and the state appealed. California parole law creates a cognizable interest in release on parole protected by due process, and a denial can be justified only with some evidence of dangerousness. Here, based on the record, the denial was an unreasonable application of decisions defining the scope of the state-created liberty in parole, such that the federal court, had jurisdiction to review under AEDPA.

Finding that the Governor's action in reversing violated McCullough's due process and statutory rights, the appellate court upheld the district court's decision granting the habeas corpus petition.

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