FILED

DEC 27 2010

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDGAR KUNKLER, No. 06-55555

Petitioner - Appellee, D.C. No. CV-05-06473-TJH

v.

ORDER

MADELENE M. MUNTZ,

Respondent - Appellant.

Before: CANBY and THOMAS, Circuit Judges, and CONLON,* District Judge.

The State of California, on behalf of Warden Madelene Muntz, appealed the

district court order granting Edgar Kunkler’s petition for a writ of habeas corpus

under 28 U.S.C. § 2254. In a memorandum disposition filed March 7, 2007, we

reversed, finding the California governor’s decision to deny Kunkler parole was

supported by “some evidence.” Kunkler v. Muntz, 226 Fed. Appx. 669, 670-71

(9th Cir. 2007). Kunkler timely petitioned for panel rehearing and rehearing en

banc. We deferred ruling on the petition because appeals implicating the same

issue were pending. Hayward v. Marshall (No. 06-55392); Pearson v. Muntz (No.

* The Honorable Suzanne B. Conlon, United States District Judge for the Northern District of Illinois, sitting by designation. 08-55728); Cooke v. Solis (No. 06-15444); Smiley v. Hernandez (No. 06-55727).

Relying on Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc),

Kunkler filed a second request for rehearing or reconsideration on June 4, 2010.

By order dated June 21, 2010, we construed Kunkler’s second request as a

supplement to his pending petition and ordered the State to respond whether

Hayward impacts the March 7, 2007 order reversing the district court.

Hayward established that federal habeas courts must decide “whether the

California judicial decision approving the governor’s decision rejecting parole was

an ‘unreasonable application’ of the California ‘some evidence’ requirement, or

was ‘based on an unreasonable determination of the facts in light of the evidence.’”

Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(2)); see also Pearson

v. Muntz, 606 F.3d 606, 608 (9 th Cir. 2010), amended on denial of reh’g, 625 F.3d

539 (9 th Cir. 2010). The inquiry is whether some evidence of future dangerousness

exists: does the inmate pose a threat to public safety? Hayward, 603 F.3d at 562;

In re Lawrence, 190 P.3d 535, 539 (Cal. 2008). The State contends Lawrence and

Hayward should not be considered because those decisions were issued after the

March 7, 2007 order. However, this court retroactively applies the future

dangerousness standard. See, e.g., Hayward, 603 F.3d at 562-63; Pearson, 606

F.3d at 610-11; Cooke v. Solis, 606 F.3d 1206 (9 th Cir. 2010), petition for certiorari

2 filed, 79 USLW 3141 (U.S. Sept. 2, 2010).

In reversing the decision of the Board of Prison Terms (“the Board”)

granting Kunkler parole, the governor stated, “the gravity of the crime is

significant; this factor alone provides a sufficient basis for me to conclude that Mr.

Kunkler is unsuitable for release from prison at this time.” ER 98. The aggravated

nature of the underlying offense alone is insufficient to establish future

dangerousness. Cooke, 606 F.3d at 1214; Hayward, 603 F.3d at 562; Lawrence,

190 P.3d at 554-55. The prisoner’s incarceration history or his current demeanor

and mental state must support a conclusion that he poses a threat to public safety.

Hayward, 603 F.3d at 562 (quoting Lawrence, 190 P.3d at 555).

While the governor noted prior criminal history, Kunkler’s record consists

of non-violent offenses and does not support an inference of future dangerousness.

Kunkler v. Muntz, No. CV 05-6473, 2006 WL 4818032, at *2 (C.D. Cal. March 15,

2006). In addition, the State’s forensic psychologist determined he posed no

greater risk to public safety than an average citizen. ER 89, 150.

The State has failed to cite anything in the record that suggests Kunkler’s

future dangerousness. The State argues the Board deemed Kunkler unsuitable for

parole in 2007 and 2009 because of institutional misconduct and an unsupportive

psychological evaluation. Appellant’s Supplemental Brief at 3. Despite the June

3 21, 2010 order requiring the State to address the impact of Hayward, it has failed

to supplement the record to support its generalized allegations of future

dangerousness.

Kunkler is entitled to habeas relief under the standard articulated in

Lawrence and applied in Hayward, Pearson and Cooke. The governor’s reliance

on Kunkler’s aggravated offense to reverse the Board’s parole decision is

insufficient to demonstrate he posed a continued threat to public safety. The record

establishes Kunkler’s prior criminal history consisted of non-violent crimes, and he

received a favorable psychological assessment at the Board hearing.

The district court did not have the benefit of Lawrence, Hayward, Pearson

and Cooke when it issued its March 15, 2006 order. The district court relied on

Biggs v. Terhune, 334 F.3d 910 (9 th Cir. 2003), overruled by Hayward to the extent

Biggs implied there is a federal constitutional right to parole if state law entitles the

prisoner to release. Hayward, 603 F.3d at 555. The Hayward court chose not to

decide whether there is a federal constitutional right to parole in the absence of

some evidence of future dangerousness because California state law addressed the

issue. Id. at 562. Despite the reference to Biggs, the district court’s order is

consistent with the future dangerousness standard articulated in Hayward and

Lawrence. The district court found the seriousness of Kunkler’s offense alone was

4 insufficient to support denial of parole.

Accordingly, the petition for panel rehearing is GRANTED. The March 7,

2007, memorandum disposition reversing the district court is VACATED. The

district court order granting Kunkler’s habeas corpus petition is AFFIRMED.

5