Case4:07-cv-06098-PJH Document20 Filed10/25/10 Page1 of 8

1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5 OAKLAND DIVISION
6
7 MARCO MARROQUIN,
8 Petitioner, No. C 07-6098 PJH (PR)
9 vs. ORDER DENYING
HABEAS PETITION
10 BEN CURRY,
United States District Court

11 Respondent.
/
For the Northern District of California

12
13 This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. 2254.
14 The petition is directed to a denial of parole. It originally contained six claims, but after the
15 court granted respondent’s motion to dismiss it as mixed, petitioner amended the petition to
16 present only the exhausted issue, his contention that the denial of parole was not
17 supported by “some evidence.”
18 The court ordered respondent to show cause on the merits of that issue.
19 Respondent filed an answer and the time for petitioner to file a traverse passed without his
20 filing one. The United States Court of Appeals for the Ninth Circuit then decided Hayward
21 v. Marshall, 603 F.3d 546 (9th Cir. 2010), in which a number of important issues involving
22 parole habeas cases had been raised. In consequence, the court ordered the parties to
23 provide supplemental briefs addressing the impact of Hayward on this case, which they
24 have done.
25 For the reasons set forth below, the petition will be denied.
26 BACKGROUND
27 A Los Angeles County jury convicted petitioner of second-degree murder with use of
28 a gun. He was sentenced to prison for fifteen years to life. He began serving that sentence
 Case4:07-cv-06098-PJH Document20 Filed10/25/10 Page2 of 8

1 in December of 1993. He alleges that he has exhausted these parole claims by way of
2 state habeas petitions.
3 On June 6, 2006, after a hearing before the Board of Parole Hearings (“Board”),
4 during which petitioner was represented and was given an opportunity to be heard, the
5 Board found petitioner unsuitable for parole. Ans. at Ex. 1, Pt. 2-3 (transcript of parole
6 hearing, hereafter “Tr.”) at 1-81.
7 The Board’s Presiding Commissioner read the facts of the crime in the record. It
8 was taken from a prior Board report.
9 Viewed in accordance with the usual rules on appeal, the evidence
established that in August of 1991, the victim Luis Silva, and his girlfriend,
10 agreed to buy a car from Marroquin. Silva drove the car for several days and
after discovering that it had a lot of defects, he returned the car to Marroquin.
United States District Court

11 He did not want the car back and told Silva that he wanted $1,000.00 for the
days the car was used. Silva replied that if he had the money, he would pay
For the Northern District of California

12 him for the car. Marroquin told Silva that he would regret what he had done
to him.
13
[¶] On January 13th, 1992, in the city of Compton, Los Angeles
14 County Sheriff’s Department Deputies were flagged down by two men. They
reported that an individual, later identified as Marroquin, had been shooting a
15 gun. Two men, who also witnessed the incident, directed LASD deputies to
where Marroquin was. He was observed to be standing in front of a Toyota
16 truck holding the hood open with a gun in his left hand. He was ordered to
drop the gun. Marroquin threw the gun into a vacant lot. In the process of
17 placing Marroquin in the patrol car, other witnesses approached the LASD
deputies stating that someone had been shot in the front of Villa Bajavita Bar.
18 ...
19 [¶] LASD deputies observed the victim, a male, later identified as Luis
Silva, lying on his back. Upon closer observation, there appeared a gunshot
20 wound to the victim’s left bicep. The victim was bleeding slightly, and his
jacket was stained with blood. The victim was then transported to Long
21 Beach Memorial Hospital where he was pronounced dead on 1/14/92 at
approximately 7:22 a.m. Cause of death was listed as internal hemorrhage.
22
[¶] A witness who was selling hotdogs from a stand outside the bar
23 heard Marroquin swearing at Silva and saying that he wanted to kill him. The
witness did not see them fighting prior to Marroquin pulling out the gun. Also
24 the witness saw no menacing gestures on the part of Silva, nor did she see
anything in Silva’s hand. The witness did not see or hear Silva break a bottle
25 or use a bottle in a jabbing motion.
26 Tr. at 9-10.1
27
1
In the original this is one long paragraph. It has been divided where indicated by “[¶]”
28 to make it easier to read.

2
 Case4:07-cv-06098-PJH Document20 Filed10/25/10 Page3 of 8

1 DISCUSSION
2 I. Standard of Review
3 A district court may not grant a petition challenging a state conviction or sentence on
4 the basis of a claim that was reviewed on the merits in state court unless the state court's
5 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an
6 unreasonable application of, clearly established Federal law, as determined by the
7 Supreme Court of the United States; or (2) resulted in a decision that was based on an
8 unreasonable determination of the facts in light of the evidence presented in the State court
9 proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to
10 mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000),
United States District Court

11 while the second prong applies to decisions based on factual determinations, Miller-El v.
For the Northern District of California

12 Cockrell, 537 U.S. 322, 340 (2003).

13 A state court decision is “contrary to” Supreme Court authority, that is, falls under the
14 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that
15 reached by [the Supreme] Court on a question of law or if the state court decides a case
16 differently than [the Supreme] Court has on a set of materially indistinguishable facts.”
17 Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application
18 of” Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly
19 identifies the governing legal principle from the Supreme Court’s decisions but
20 “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The
21 federal court on habeas review may not issue the writ “simply because that court concludes
22 in its independent judgment that the relevant state-court decision applied clearly
23 established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must
24 be “objectively unreasonable” to support granting the writ. See id. at 409.
25 “Factual determinations by state courts are presumed correct absent clear and
26 convincing evidence to the contrary.” Miller-El, 537 U.S. at 340. This presumption is not
27 altered by the fact that the finding was made by a state court of appeals, rather than by a
28 state trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d

3
 Case4:07-cv-06098-PJH Document20 Filed10/25/10 Page4 of 8

1 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present
2 clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness;
3 conclusory assertions will not do. Id.
4 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual
5 determination will not be overturned on factual grounds unless objectively unreasonable in
6 light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340;
7 see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
8 When there is no reasoned opinion from the highest state court to consider the
9 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker,
10 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th
United States District Court

11 Cir.2000).
For the Northern District of California

12 II. Issues Presented

13 A. Respondent’s Contentions
14 In the answer, respondent argues that California prisoners have no liberty interest in
15 parole, and that if they do, the only due process protections available are a right to be
16 heard and a right to be informed of the basis for the denial – that is, respondent contends
17 there is no due process right to have the result supported by sufficient evidence. He says
18 these contentions are made to preserve the issues for appeal. As discussed further below,
19 even after the en banc decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en
20 banc), these contentions are incorrect. See Pirtle v. California Bd. of Prison Terms, 611
21 F.3d 1015, 1020-21 (9th Cir. 2010) (California law creates a federal liberty interest in
22 parole; that liberty interest encompasses the state-created requirement that a parole
23 decision must be supported by “some evidence” of current dangerousness); Cooke v. Solis,
24 606 F.3d 1206, 1213-14 (9th Cir. 2010) (same); Pearson v. Muntz, 606 F.3d 606, 610-11
25 (9th Cir. 2010) (same).
26 B. Petitioner’s Claim
27 As grounds for federal habeas relief, petitioner asserts that there was not “some
28 evidence” to support the Board’s decision.

4
 Case4:07-cv-06098-PJH Document20 Filed10/25/10 Page5 of 8

1 1. Impact of Hayward
2 As noted, the court permitted the parties to file supplemental briefs addressing the
3 impact on this case of the Ninth Circuit's decision in Hayward v. Marshall, 603 F.3d 546
4 (9th Cir. 2010) (en banc). In his supplemental brief, respondent contends that after
5 Hayward it is clear that there is not federal habeas review of the sufficiency of the evidence
6 to deny parole. Ninth Circuit cases subsequent to the filing of the brief, however, establish
7 that this is incorrect.
8 Hayward did hold that there is no constitutional right to "release on parole, or to
9 release in the absence of some evidence of future dangerousness," arising directly from the
10 Due Process Clause of the federal constitution; instead, any such right "has to arise from
United States District Court

11 substantive state law creating a right to release." Hayward, 603 F.3d at 555. The court
For the Northern District of California

12 overruled Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003); Sass v. California Bd. of Prison
13 Terms, 461 F.3d 1123 (9th Cir. 2006); and Irons v. Carey, 505 F.3d 846 (9th Cir. 2007), "to
14 the extent they might be read to imply that there is a federal constitutional right regardless
15 of whether state law entitles the prisoner to release . . . ." Hayward, 603 F.3d at 556. All
16 three of those cases had discussed the "some evidence" requirement, but in all three it was
17 clear that the requirement stemmed from a liberty interest created by state law; that portion
18 of the cases, therefore, was not overruled by Hayward. See Biggs, 334 F.3d at 914-15;
19 Sass, 461 F.3d at 1127-19; Irons, 505 F.3d at 850-51; see also Cooke v. Solis, 606 F.3d
20 1206, 1213-14 (9th Cir. 2010) (post-Hayward case; noting that California law gives rise to a
21 liberty interest in parole). However, all three also contained references in dicta to the
22 possibility that "[a] continued reliance in the future on an unchanging factor, the
23 circumstances of the offense and conduct prior to imprisonment, [would] run[] contrary to
24 the rehabilitation goals espoused by the prison system and could result in a due process
25 violation." Biggs, 334 F.3d at 916-17; see also Sass, 461 F.3d at 1129; Irons, 505 F.3d at
26 853-54. It appears that this possibility – referred to below as a "Biggs claim" – is the only
27 thing that was "overruled" by Hayward.
28 ///

5
 Case4:07-cv-06098-PJH Document20 Filed10/25/10 Page6 of 8

1 Aside from its holding that there could be no Biggs claim arising directly from the
2 Due Process Clause of the Constitution, Hayward has had little effect. The Ninth Circuit
3 still recognizes that California law gives rise to a liberty interest in parole. Pirtle, 611 F.3d
4 at 1020-21; Cooke, 606 F.3d at 1213-14; Pearson, 606 F.3d at 610-11. Under California
5 law, "some evidence" of current dangerousness is required in order to deny parole.
6 Hayward, 603 F.3d at 562 (citing In re Lawrence, 44 Cal.4th 1181, 1205-06 (2008), and In
7 re Shaputis, 44 Cal.4th 1241 (2008)). "California's ‘some evidence' requirement is a
8 component of the liberty interest created by the parole system of that state." Cooke, 606
9 F.3d at 1213. A federal court considering a "some evidence" claim directed to a parole
10 denial thus must determine whether there was "some evidence" of current dangerousness
United States District Court

11 to support the parole board's decision; if not, the prisoner's due process rights were
For the Northern District of California

12 violated. This was also true prior to Hayward, although now the rationale is that the court is
13 applying California's "some evidence" rule as a component of the required federal due
14 process. See Pirtle, 611 F.3d at 1020-21; Cooke, 606 F.3d at 1213-14; Pearson, 606 F.3d
15 at 610-11. Respondent's arguments regarding the impact of Hayward are rejected.
16 2. Analysis
17 In Hayward the court held that a federal district court reviewing a California parole
18 decision "must determine ‘whether the California judicial decision approving the governor's
19 [or the Board's] decision rejecting parole was an ‘unreasonable application' of the California
20 ‘some evidence' requirement, or was ‘based on an unreasonable determination of the facts
21 in light of the evidence.'" Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. §
22 2254(d)(1)-(2)).
23 When a federal court considers a habeas case directed to a parole decision, the
24 "necessary subsidiary findings" and the "ultimate ‘some evidence' findings" by the state
25 courts are factual findings – and thus are reviewed by the federal court under 28 U.S.C. §
26 2254(d)(2) for whether the decision was "based on an unreasonable determination of the
27 facts in light of the evidence." Id. (citing Hayward, 603 F.3d at 563).
28 ///

6
 Case4:07-cv-06098-PJH Document20 Filed10/25/10 Page7 of 8

1 The California Supreme Court explained how the state "some evidence" requirement
2 should be applied in the important and relatively recent case of In re Lawrence. That
3 requirement was summarized in Hayward as follows:
4
As a matter of California law, ‘the paramount consideration for both the
5 Board and the Governor under the governing statutes is whether the inmate
currently poses a threat to public safety.' There must be ‘some evidence' of
6 such a threat, and an aggravated offense ‘does not, in every case, provide
evidence that the inmate is a current threat to public safety.' The prisoner's
7 aggravated offense does not establish current dangerousness ‘unless the
record also establishes that something in the prisoner's pre- or post-
8 incarceration history, or his or her current demeanor and mental state'
supports the inference of dangerousness. Thus, in California, the offense of
9 conviction may be considered, but the consideration must address the
determining factor, ‘a current threat to public safety.'
10
United States District Court

11 Id. at 562 (quoting In re Lawrence, 44 Cal. 4th. at 1191, 1209-15); see also Cooke, 606
For the Northern District of California

12 F.3d at 1214 (describing California's "some evidence" requirement).

13 The circumstances of the offense, in which a person was murdered because of a
14 minor dispute over the sale of a car, was one basis for the Board’s conclusion that
15 petitioner would be a danger to society if paroled. Tr. 73-74. At the time of the hearing in
16 2006, petitioner was approximately fifty years old and had served a bit more than thirteen
17 years on his sentence of fifteen years to life. It is apparent from petitioner’s version of
18 events that he has not come to terms with his responsibility for the killing, id. 11-14, which
19 meets the Lawrence requirement that something in the inmate’s current demeanor or
20 mental state support the inference of dangerousness that arises from the nature of the
21 offense. See Lawrence, 44 Cal. 4th at 1214. The court concludes that despite the
22 passage of time, the circumstances of the offense constitute “some evidence” to support
23 the denial. In addition, as the Board noted, petitioner had not participated sufficiently in
24 self-help programs, id. at 74, and had not developed employment plans if he were to be
25 paroled in the United States rather than deported, id. at 44, 75.
26 In light of this evidence, the state courts’ rejections of the claim were not “based on []
27 unreasonable determination[s] of the facts in light of the evidence.” See 28 U.S.C. §
28 2254(d)(2). As this is the only remaining claim in the petition, the petition must be denied.

7
 Case4:07-cv-06098-PJH Document20 Filed10/25/10 Page8 of 8

1 See Cooke, 606 F.3d at 1215 (federal habeas court considering California parole “some
2 evidence” claim must apply § 2254(d)(2)); Hayward, 603 F.3d at 562-63 (requiring
3 application of California’s “some evidence” standard).
4 CONCLUSION
5 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file.
6 IT IS SO ORDERED.
7 Dated: October 25, 2010.
PHYLLIS J. HAMILTON
8 United States District Judge
9
10
United States District Court

11
For the Northern District of California

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 P:\PRO-SE\PJH\HC.07\MARROQUIN6098.RUL.wpd