Swarthout v. Cooke 1/24/11: No federal habeas relief for errors of state law

A major disappointing case by the US Supreme Court for Lifers!

The federal review will only be available if the Inmate is not allowed an opportunity to be heard and provided a reasons why his parole was denied.

All defense attorney should now make a point of making a "record" at the Parole hearing when the inmates are "cut-off" by the Commissioners and not given the proper opportunity to speak!!!


Case Name: Swarthout v. Cooke & Cate v. Clay ,
District: USSup , Case #: 10-333
Opinion Date: 1/24/2011 , DAR #:1230


Case Holding:

In the context of California's parole statute, there is no federal habeas relief for errors of state law, and the federal review available is limited to whether the applicant was allowed an opportunity to be heard and advised of the reasons why parole was denied.

Cooke, convicted of attempted first-degree murder, was denied parole by the Board of Prison Terms, which found that he was not suitable because of the nature of the offense, his prison adjustment, failure to participate in rehabilitative programs, and failure to develop marketable skills. Clay was found suitable by the board but the Governor reversed the finding.

The Ninth Circuit granted relief, finding that the parole statute created a liberty interest protected by the due process clause and, in Cooke's case, the state made an unreasonable determination. The Ninth Circuit found that in Clay's case, the Governor's decision was an unreasonable application of the "some evidence rule."

The U.S. Supreme Court reversed, holding that federal habeas corpus relief does not lie for errors of state law. Further, the liberty interest in parole is a state interest created by California law. There is no right under the federal Constitution to be conditionally released before expiration of sentence, and the states are under no duty to offer parole. If a state does offer parole, thereby creating a state liberty interest, the due process clause requires fair procedures for its implementation.

These State procedures are minimal, however, requiring only that the applicant has an opportunity to be heard and is advised of the reasons for parole denial. (Greenholtz v. Inmates of Neb. Penal and Correctional Complex (1979) 442 U.S. 1.) Here, both Cooke and Clay were offered the opportunity to speak at the parole hearing and were advised of the denial.


Thanks for the Summary from CCAP weekly news.

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.

In re Twinn 11/23/10 Minimization did not support - that inmate was a current danger!

Once again the "Governator- Arnold" gets Reversed by the Court who concurred with the Board's original suitability (for a release) recommendation.

We will see what JERRY BROWN will bring to the table for Lifers in 2011.

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In re Twinn, District: 2 DCA , Division: 7 , Case #: B225943
Opinion Date: 11/23/2010 , DAR #: 17681

CASE SUMMARY: (CCAP courtesy)
The Governor's reversal of the board's recommendation for parole required reversal where the petitioner's past minimization of his role in the crime did not support a finding that he was a current danger.

Appellant beat and killed a man who had assaulted his aunt. The coroner testified that while the death was immediately caused by the man's heart disease, the injuries from the beating contributed to the death. Appellant was convicted and sentenced to 15 years to life.

The Governor reversed the parole board's decision to grant parole based on the gravity of the commitment offense, lack of suitable post-release plans, and lack of insight since petitioner's statements in reports filed in 1991, 1995, and 2000 appeared to minimize his involvement in the offense. Appellant had commented that the death was accidental and caused by a heart attack.

Habeas proceedings ensued and the Court of Appeal reversed. The claim of inadequate post-release plans was not supported by some evidence because petitioner had a verified job offer and planned to live with his wife. And while there was a modicum of evidence in the record that appellant initially minimized involvement, the past minimization is not indicative of current dangerousness. Similarly, while there was some evidence to support the finding that the commitment offense was callous and cruel, there is no rational nexus between the offense and petitioner's current dangerousness.