Hayward

Opinion by Judge KLEINFELD; Concurrence by Judge BERZON.

We address three issues: 1) whether a certificate of appealability is needed to appeal a district court’s order denying a writ of habeas corpus arising out of a state’s denial of parole; 2) whether federal constitutional law imposes on the states a requirement for some quantum of evidence to support a state’s denial of parole; and 3) whether, even if there is no general federal quantum of evidence requirement, applicants for parole in California, under the state’s current laws, may obtain federal habeas review of whether there is “some evidence” supporting a negative parole decision.

FACTS

In 1978, Hayward’s girlfriend was out shooting pool on a “girls’ night out,” while he stayed home. While she was out, a man acted abusively toward her. There are varying accounts. It is not clear whether the man slapped Hayward’s girlfriend, or she spat in his face, or he spat in hers, or whether, as Hayward once claimed, the man chased her out into the parking lot, tore off some of her clothes, and tried to rape her. Subsequently, Hayward spent months keeping his eyes open for the man so he could exact revenge.

Several months later,…

join, concurring in part and dissenting in part:

Hayward contends that the Governor of California denied him release on parole without “some evidence” of his future dangerousness and that doing so violated the Due Process Clause. In the substantive part of its opinion that actually pertains to the merits of this case, Part III, the majority declines to decide whether the federal Constitution independently establishes a “some evidence” standard as part of the minimum process due to California prisoners denied parole, because the state’s constitutional law already does so. The majority then reviews the evidence of Hayward’s future dangerousness and concludes that some evidence supported the denial of parole. I concur in Part III of the opinion and offer in Part III of this concurrence some additional bases for the conclusion reached, further explaining, in particular, why federal district courts and this court in the future may reach “some evidence” questions arising in California parole cases on federal habeas, as we do here.

Before it reaches the issues actually raised by Hayward’s petition, however, the majority offers a lengthy disquisition on state prisoner release systems in…

Michael Satris (argued and briefed supplemental brief), Law Office of Michael Satris, Bolinas, CA, and Joseph V. Camarata (briefed opening brief), Vallejo, CA, for the appellant.

Jennifer A. Neill (argued and briefed supplemental brief), Supervising Deputy Attorney General, San Diego, CA, and Jane Catherine Malich (briefed), Deputy Attorney General, Los Angeles, CA, for the appellee.

Monica Knox, Assistant Federal Defender, Sacramento, CA, for amicus Federal Defenders for the Central and Eastern Districts of California.

Before ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, BARRY G. SILVERMAN, RAYMOND C. FISHER, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge KLEINFELD; Concurrence by Judge BERZON.

KLEINFELD, Circuit Judge:

We address three issues: 1) whether a certificate of appealability is needed to appeal a district court's order denying a writ of habeas corpus arising out of a state's denial of parole; 2) whether federal constitutional law imposes on the states a requirement for some quantum of evidence to support a state's denial of parole; and 3)…