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December 27, 2010

Split Ninth Circuit affirms reversal of California Governor's reversal of state murderer's parole

Today brings a notable habeas ruling from a split Ninth Circuit panel in McCullough v. Kane, No. 07-16049 (9th Cir. Dec. 27, 2010) (available here).  Here is how the majorioty's opinion begins:

In 1983, at the age of 21, Fred McCullough was convicted of murder and sentenced to 15 years to life in prison.  While in prison, McCullough earned his GED, his associate’s degree, and his bachelor’s degree in social work.  He participated in a juvenile offender deterrent program, helping to keep children out of trouble.  He obtained job training and excelled in his employment placements.  He successfully rehabilitated himself to the point where his most recent psychological evaluations indicate he is less likely to commit violence than the average community citizen.  Twice, the California Board of Prison Terms recommended McCullough for parole, once in 2002 and again in 2004.  Twice, the governor of California reversed that decision.

In 2007, the district court found that Governor Arnold Schwarzenegger’s 2004 reversal of McCullough’s parole recommendation was not supported by “some evidence” of future dangerousness and granted McCullough’s federal habeas petition.  The state appealed and we ordered McCullough released pending his appeal while we awaited two California Supreme Court decisions concerning parole recommendations and reversals.  During that time, our court agreed to rehear en banc Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), to determine our ability to review such claims contained in a federal habeas corpus petition. See Hayward v. Marshall, 527 F.3d 797 (9th Cir. 2008).  The en banc court issued an opinion in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc).  While the courts sorted out the law, McCullough began his life outside prison. Within two months of his release he obtained employment at a furniture manufacturing company in Gardena, California.  McCullough’s manager at that store has reported to this court that, over the past two years, McCullough has made outstanding contributions to the company and been promoted to supervisor.

We now decide whether the governor’s 2004 reversal of McCullough’s parole recommendation violated due process; we hold that it did.  Our decision is consistent with Hayward v. Marshall and other prior and subsequent cases holding that we have jurisdiction to review the “some evidence” determination under California law.  Hayward, 603 F.3d at 562-63.  We thus affirm the district court’s decision granting McCullough’s habeas corpus petition.

December 27, 2010 at 06:03 PM | Permalink


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This is a joke.

Posted by: federalist | Dec 27, 2010 7:25:51 PM

Here is a similar joke.

Don't let the door hit you on your way out you projectionist.

Posted by: A | Dec 27, 2010 8:08:42 PM

Talk about jokes, federalist, how about Schwarzenegger's absurd (in this particular instance) tough-on-crime pose-down? Is there any opportunity to run up the Republican colours that pols of his stripe will let pass? Is there any extreme they won't resort to in vain attempts to save their phony- baloney jobs?

Court actions such as this one stand as virtually the only hope mercy and redemption have of triumphing over petty, gutless politics.

Posted by: John K | Dec 28, 2010 8:50:32 AM

I have to agree with Federalist on this one. However poorly thought out this particular denial was on the part of Schwarzenegger, second guessing parole decisions made by state officials should not be within the power of federal courts.

Parole, like pardon and clemency, should be seen entirely as a matter of grace and as far as the federal government is concerned a state should be able to grant or deny it for any or no reason.

Posted by: Soronel Haetir | Dec 28, 2010 12:56:34 PM

The guy murdered someone. The guy who was murdered had no chance at parole. Let's not forget that. The Ninth is out of control--it is not some super parole board. Moreover, why is release the remedy? Shouldn't the Governor get another chance to explain the reasoning, unless, as a matter of law, (a) the record is frozen (an odd result) and (b) no reasonable court could conclude that parole should not be granted.

The Ninth is lawless. Calling me names doesn't change that.

Posted by: federalist | Dec 28, 2010 8:37:42 PM

The guy has served 27 years of a 15-to-life sentence. Garden-variety homicide hasn't always been a throw-away-the-key proposition.

Keeping this particular prisoner behind bars does little more than signal other inmates that turning their lives around is a pointless, futile endeavor. Waiting for politicians to do the right thing takes futility to another level still.

Posted by: John K | Dec 29, 2010 8:27:24 AM

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