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No Federal Habeas for Second-guessing State Law Question

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For the third time in two weeks, the U.S. Supreme Court has reversed a Ninth Circuit decision in a crime-related case without a single Justice concluding the Ninth was correct.

In Swarthout v. Cooke, No. 10-333, the Ninth Circuit took it upon itself to review whether California's parole authority and state courts had correctly applied the standard under state law for deciding when to parole a person convicted of murder or attempted murder.  (Only a few crimes in California still have these "indeterminate" terms with discretionary release by the parole board.  Most have "determinate" terms with a set term of years which may be reduced by credits for working or behaving in prison. Noncapital murder is one of the few.)

The parole board* decides when and whether to grant parole based on whether the public safety requires keeping the murderer locked up, and the state courts review whether there is "some evidence" supporting the board's decision.  What is the federal question here?  There isn't any.  There is a federal constitutional minimum of due process, but there is no claim in this case that California's procedures do not meet it.
To grant itself authority to review these decisions, the Ninth Circuit dragged out the old "state-created liberty interest" rubric.  Under this theory, state law creates a "liberty interest" in release under conditions X.  If the state denies release based on an erroneous determination of X, that error supposedly denies the prisoner liberty without due process of law.  Today, the Supreme Court said,

Such reasoning would subject to federal-court merits review the application of all state-prescribed procedures in cases involving liberty or property interests,including (of course) those in criminal prosecutions. That has never been the law. To the contrary, we have long recognized that "a 'mere error of state law' is not a denial of due process." Engle v. Isaac, 456 U. S. 107, 121, n. 21 (1982); see also Estelle [v. McGuire], 502 U. S., at 67-68. Because the only federal right at issue is procedural, the relevant inquiry is what process Cooke and Clay received, not whether the state court decided the case correctly.

The Ninth Circuit's questionable finding that there was no evidence in the record supporting the parole denials is irrelevant unless there is a federal right at stake, as ยง2254(a) requires. See id., at 67. The short of the matter is that the responsibility for assuring that the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts, and is no part of the Ninth Circuit's business.

The per curiam** opinion evidently represents the views of eight Justices, as there is no indication that Justice Kagan is recused on this one.  Justice Ginsburg writes a very brief concurrence in the judgment, as she did last week.

It is rather curious that the opinion does not cite Sandin v. Conner, the Court's previous smackdown of the Ninth for misusing the "state-created liberty interest" in a prison case.  Sandin was a 5-4, and Justice Breyer dissented, so perhaps leaving it out was the price of getting Justice Breyer and one or both of the new Justices to join.

In addition to the importance of the case itself, there are a couple of policy implications for Congress to note.

First, while the judges of the Ninth Circuit complain loudly that they are overworked, they continue to reach out and decide issues that are "no part of the Ninth Circuit's business."  Curtailment of federal court jurisdiction rather than increase in the number of federal judges seems to be in order.

Second, this third unanimous reversal in two weeks further confirms that the Ninth is off the rails in the pro-criminal direction.  The Senate must consider that as it considers nominees to this court.

* The official name of this body has been changed many times over the years.  It is presently called the Board of Parole Hearings.

** "By the court," with no specific Justice indicated as the author.

6 Comments

As Howard Cosell would say, "down goes Reinhardt, down goes Reinhardt, down goes Reinhardt."

You have to admire, in a way, a circuit judge so, uh, outspoken in his opinions that he gets overwhelmingly reversed THREE TIMES IN A WEEK. Stephen Reinhardt is indeed Jimmy Carter's gift to the federal judiciary.

That God has a special place in His heart for the United States is strongly suggested by the fact that Carter got no Supreme Court appointments.

What always struck me as odd about the Ninth's acting as a super governor/parole board is the remedy. They simply ordered release. But parole hearings aren't like criminal trials and jeopardy doesn't attach. If the state violated some right in the process, wouldn't the proper procedure have been to simply say release within X days unless you provide a process that comports with Due Process?

They weren't saying the process was inadequate; they were saying the evidence was inadequate. If you accept the Ninth's approach, then it's analogous to a Jackson v. Virginia claim, which does result in release and not retrial.

True, but my point (inartfully stated--"violated some right in the process" isn't a model of clarity) was that even if you accept the Ninth's view, release doesn't follow because parole hearings aren't the same as criminal trials.

Or better yet, where was the clearly established law that a release and not a do-over was mandated by federal law.

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