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Ninth Circuit: “Some Evidence” of Offense Viciousness Justifies Denial of Lifer’s Parole

The Ninth Circuit U.S. Court of Appeals held that the denial of a second degree murderer’s parole by the California parole board (BPT), based upon factors relating solely to the commitment offense, was justified when supported by “some evidence” in the record. The appellate court thus reversed the district court’s grant of the writ below. However, in an eloquent concurrence, the Court asked the Ninth Circuit to reconsider en banc the constitutional validity of the underlying Antiterrorism and Effective Death Penalty Act (AEDPA), whose legislative restrictions were challenged as violative of the courts’ Article III powers under the U.S. Constitution. Unfortunately, rehearing en banc was denied.

Carl Irons was convicted in 1985 of murdering a housemate by shooting him twelve times – then stabbing him twice in the back after the victim complained of being in pain – following which he wrapped the body in a sleeping bag, sequestered it in his apartment for a week, wrapped it in chicken wire, attached weights and dumped it in the Pacific Ocean. At his 2001 parole hearing (the subject of the instant writ petition), Irons had been incarcerated for 16 years and his prison history was admittedly “exemplary.”

Nonetheless, the BPT denied him parole based upon three (boilerplate) regulatory factors: that the crime was carried out in an “especially cruel and callous manner” and that the motive was “trivial”; that Irons “needed therapy”; and that the Board was unconvinced that Irons would not kill again given a similar situation.

After being denied administratively and in the state courts because they found “some evidence” to support the Board’s ruling, Irons petitioned the U.S. District Court, which granted relief in part. The district court found that the state court denials were an unreasonable application of clearly established U.S. Supreme Court authority, in that there was not sufficient evidence to support Irons’ denial of parole. It ordered the Board to calculate Irons’ release date and parole him. See: Irons v. Warden, 358 F.Supp.2d 936 (E.D. Cal. 2005).

On appeal, and following intervening rulings in In re Dannenberg, 34 Cal.4th 1061 (Cal. 2005) and Sass v. Board of Prison Terms, 461 F.3d 1123 (9th Cir. 2006), the Ninth Circuit followed Sass. Sass’ crime was recounted and deemed by the court to be less egregious than Irons’. Since the Ninth Circuit had denied Sass relief based upon “some evidence” in the record supporting the Board’s denial of parole based upon the seriousness of the murder, it necessarily followed that Irons was also not entitled to relief. Accordingly, the Ninth Circuit reversed the district court. See: Irons v. Carey, 479 F.3d 658 (9th Cir. 2007).

Despite the adverse ruling, the panel plainly did not agree that the AEDPA, upon which the reversal was ultimately grounded, was constitutional. As Judge Noonan posited in his concurrence, there exists a clash between two constitutional principles: (1) Congress determines the jurisdiction of the federal courts, and (2) Congress may not tell a federal court how to determine a case.

Noonan complained that the AEDPA wrongly restrains the courts in reaching decisions and therefore should be disapproved. The panel’s hands were tied in this case, however, because an earlier (and thus binding) panel of the Ninth Circuit, in Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 2000), had approved the AEDPA. Thus, the thrust of Noonan’s “concurrence” was to inspire other judges in the Ninth Circuit to vote for an en banc review of the question, overturning both Duhaime and the AEDPA. This would, no doubt, draw the attention of the U.S. Supreme Court upon a certiorari petition (by either party) and put the AEDPA under an Article III microscope.

The Ninth Circuit panel made minor corrections and additions to its opinion and voted to deny rehearing on July 13, 2007. See: Irons v. Carey, 505 F.3d 846 (9th Cir. 2007). An application for rehearing en banc was denied on Nov. 6, 2007, which resulted in a lengthy dissent from Judge Kleinfeld, who cited significant legal errors and chastised the appellate court for failing to hold an en banc hearing. See: Irons v. Carey, 506 F.3d 951 (9th Cir. 2007).

Separately, the very legitimacy of the use of a “some evidence” standard in California parole cases is being attacked in a federal petition challenging In re Dannenberg. The ultimate resolution of Dannenberg will determine the future of California’s politically-hamstrung lifer population (presently 27,000 and counting), as the subsequent rulings in Irons have nailed the lid on that case firmly shut.

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Related legal cases

Irons v. Carey

Irons v. Carey

Irons v. Carey

Irons v. Warden