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EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND -Senior Assistant Attorney General ANYA M. BINSACCA Supervising Deputy Attorney General AMANDA J. MURRAY, State Bar No. 223829 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5741 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent Ben Curry, Warden 10 11 12 13 14 SCOTT BURNS, . 15 Petitioner, 16 v. 17 B. CURRY, Warden, 18 Respondent. 19 20 21 22 23 24 25 . 26 27 28
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A. Burns v. Curry

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CV08-00163 PJH ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES Judge: The Honorable Phyllis J. Hamilton

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TABLE OF CONTENTS 2 3 4 5 6 7 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION ARGUMENT THE STATE COURTS' ADJUDICATION OF BURNS'S CLAIMS WAS NEITHER CONTRARY TO, NOR INVOLVED AN UNREASONABLE APPLICATION OF, CLEARLY ESTABLISHED FEDERAL LAW, NOR WAS IT BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS A. The Standard of Review for Federal Habeas Petitions Brought by State Prisoners Is Highly Deferential to the State Courts' Rulings. B. 11 12 13 14 D. 15 16 17 18 19 20 21 22 23 24 25 CONCLUSION 26 27 28
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Burns's Petition Should Be Denied Because He Received All Process Due: an Opportunity to Be Heard and an Explanation for the Parole Denial.

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C. The Some-Evidence Standard of Review Is Not Clearly Established Federal Law by the United States Supreme Court for Challenging Parole Denials. Burns's Petition Should Be Denied Because There Is Some Evidence Supporting the Board's Decision and - as Required by AEDPA - the State Court Decision Upholding the Board's Parole. Denial Is Based on a Reasonable . Application of the Facts Based on the Evidence Presented.

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12 E. No Clearly Established United States Supreme Court Law Precludes the State Courts from Upholding the Board's Reliance on Burns's Commitment Offense to Deny Him Parole.

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F.. Burns Cannot Demonstrate that the State Court Acted Contrary to Clearly Established Supreme Court Law or Unreasonably Determined the Facts Regarding Burns's Ineffective Assistance of Counsel Claim. G. Burns Cannot Demonstrate that the State Court Acted Contrary to Clearly Established Supreme Court Law or Unreasonably Determined the Facts Regarding Burns's Claim that the Board Is Precluded from Relying on Unchanging Circumstances When Denying Parole.

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1 2 3 4 Avila v. Galaza 5 297 F.3d 911 (9th Cir. 2002) 6 Benny v. US. Parole Comm 'n 295 F.3d 977 (9th Cir. 2002) 7 Biggs v. Terhune 8 334 F.3d. 910 (9th. Cir. 2003) 9 10 11 12 13 Crater v. Galaza 14 491 F:3d 1119 (9th Cir. 2007) cf. Strickland v. Washington 466 U.S. 668 (1984) Cases

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14 7,8,11,14,15 15 11 11 10 2, 7, 10, 12 8, 14, 15 11,'14 7, 14 7, 8 7, 11, 14 10 14, 15
Burns v. Curry CV08-00163 PJH ii

Carey v. Musladin 127 S Ct 649 (2006) U.S.

Cook v. Schriro F.3d , 2008 WL 441825 *1, *10 (9th Cir. 2008)

15 Early v. Packer 573 U.S. 3 (2002) 16 Greenholtz v. Inmates of Neb. Penal & Corr. Complex 17 442 U.S. 1 (1979) 18 19 Hayward v. Marshall 20 512 F.3d 536 (9th Cir. 2007) 21 In re Dannenberg 34 Cal. 4th 1061 (2005) 22 In re Rosenkrantz 23 29 Cal.4th 616 (2002) 24 Irons v. Carey 505 F.3d 846 (9th Cir. 2007) 25 Lockyer v. Andrade 26 538 U.S. 63 (2003) 27 Middleton v. Cupp 768 F.2d 1083 (9th Cir. 1985) 28
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.

Gutierrez v. Griggs 695 F.2d 1195 (1983)

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TABLE OF AUTHORITIES (continued)

1 2 3 Pedro v. Oregon Parole Board 4 825 F.2d 1396 (9th Cir. 1987) 5 Plumlee v. Masto Cir. 2008) 512 F.3d 1204 (9th 6 Pulley v. Harris (1984) 7 465 U.S. 37 Rose v. Hodges 8 423 U.S. 19 (1975) 9 Sandin v. Connor (1995) 10 515 U.S. 472 Sass v. Cal. Bd. Prison Terms 11 461 F.3d 1123 (9th Cir. 2005) 12 Schriro v. Landrigan U.S. 127 S. Ct. 1933 (2007) 13 Stanley v. Cal. Supreme Court 14 21 F.3d 359 (9th Cir. 1994) 15. Superintendent v. Hill (1985) 16 472 U.S. 445 U.S. Van Patten, 17 128 S.Ct. at 747 18 19 Wilkinson v. Austin 545 U.S. 209 (2005)

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Williams v. Taylor 20 529 U.S. 362 (2000) 21 Woodford y. Visciotti (2002) 22 537 U.S. 19 Wright v. Van Patten 23 U.S. , 2008 WL 59980, at *2 4 (Jan. 7, 2008) 24 Ylst v. Nunnemaker 797 (1991) 25 501 U.S. 26 27 28
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TABLE OF AUTHORITIES (continued) 1 2 Statutes 3 United States Code, Title 28 § 2244(d)(1) 4 § 2254(a) § 2254(d) 5 § 2254(d)(1) § 2254(d)(2) 6 § 2254(e) § 2254 (e)(1) 7 § 2254, Rule 2(a) California Penal Code § 3041 9 § 3041.7 10 Other Authorities 11 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 12 13 14 15 16 17 18 19 .20 21 22 23 24 25 26 27 28
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7, passim

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EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYA M. BINSACCA Supervising Deputy Attorney General AMANDA J. MURRAY, State Bar No. 223829 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5741 Fax: (415) 703-5843 Email: [email protected] Attorneys for Respondent Ben Curry, Warden

10 11 12 13 . 14 SCOTT BURNS, 15 Petitioner, 16 v. 17 B. CURRY, Warden, 18 Respondent. 19 20 21 As an Answer to the Petition for Writ of Habeas Corpus filed by California state inmate Scott Burns, proceeding pro se in this habeas corpus action, Respondent Warden Ben Curry' Judge: The Honorable Phyllis J. Hamilton ANSWER TO PETITION FOR WRIT OF HABEAS ,CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES CV08-00163 PJH IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

22 admits, denies, and alleges as follows: 23 24 25 1. The proper respondent in this action is Warden Ben Curry. Stanley v. Cal. Supreme 26 Court, 21 F.3d 359, 360 (9th Cir. 1994) (holding that the warden where the petitioner is incarcerated is the proper respondent); Rule 2(a), 28 U.S.C. § 2254. Because the actions complained of in this petition concern a parole consideration hearing, the Board of Parole Hearings is used interchangeably 27 with Respondent in this Answer and supporting Memorandum of Points and Authorities . for 28 convenience only.
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A. Burns v. Curry CV08-00163 PJH

1. Burns is in the lawful custody of the California Department of Corrections and

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Rehabilitation (CDCR) serving an indeterminate life sentence following his 1988 conviction in

2 Sierra County for second degree murder with use of a firearm and grand theft with use of a 3 4 firearm. (Ex. A, Abstract of Judgement.) 2. Burns's Petition does not challenge his conviction; instead, he challenges the Board of

5 Parole Hearings' September 29, 2005 decision finding him unsuitable for parole. Specifically, he 6 alleges that his federal due process rights were violated because there is no evidence supporting 7 the Board's decision. (Petn. at 17-18, 22-61, 70-75.) 2 He also alleges there is no evidence 8 supporting the Board's decision to deny him parole for two years (id. at 18, 55-61), that he was 9 deprived of effective assistance of counsel during his hearing (id. at 30, 62-69), and that the 10 Board was precluded from using unchanging circumstances during his parole hearing based on 11 12 13 the collateral estoppel doctrine. (Id. at 70-75.) 3. On June 7, 1987, Bums went to Robert Smith's campsite and began drinking with him.

(Ex. B, Subsequent Parole Consideration hearing, at 11-12; Ex. C, Probation Officer's Report, at

14 21-22; Ex. D, Life Prisoner Evaluation Report, at 1; Ex. D, Subsequent Parole Consideration 15 Hearing, at 10-12.) After Smith passed out, Bums took Smith's pistol and shot him twice in the 16 head, killing him. (Ex. B at 12; Ex. C at 21, Ex. D at 1.) Bums then left with Smith's pistol. 17 (Ex. B at 12; Ex. C at 21-22; Ex. D at 1.) 18 As Bums was going to the Downieville Sheriff's Office to report the alleged discovery of

19 Smith's body, Bums threw the pistol down a ravine. (Ex. B at 12; Ex. C at 22; Ex. D at 1.) 20 Later, after being questioned about the missing pistol, Burns confessed to shooting Smith. (Id.) 21 4. On September 29, 2005, Bums was provided an opportunity to be heard during

22 his parole consideration hearing (Ex. B at 11-56), and the Board issued a decision explaining 23 why Bums was unsuitable for parole. (Ex. B at 57-63.) Greenholtz v. Inmates of Neb. Penal. & 24 Corr. Complex, 442 U.S. 1, 16 (1979) (federal due process requires inmates being considered for 25 release on parole to receive an opportunity to be heard and a reasoned decision). Specifically, the 26 27 2. Respondent interprets Bums's Grounds 2-9 and Ground 11 as challenging the sufficiency 28 of the evidence. (Petn. at 17-18, 22-61, 70-75.)
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Board found that Bums's murder offense was carried out in an especially cruel and callous

2 manner, and that the motive for the crime was inexplicable and very trivial in relation to the 3 offense in that Burns took Smith's pistol and shot him twice in the head. (Ex. B at 57-58.) In

4 addition to the commitment offense, the Board denied Bums parole based on: (1) his failure to 5 profit from society's attempts to correct his criminality through previous grants of adult 6 probation and county jail; (2) his unstable social history; (3) his limited prison programming, 7 including failing to upgrade educationally and insufficient participation in self-help and therapy 8 programs; (4) his disciplinary history; (5) his insufficient employment plans if he should be 9 granted parole; and (6) opposition from the Sierra County District Attorney's Office and Sierra 10 County Sheriff's Department. (Id. at 58-59, 62.) 11 5. The Board denied parole for two years based on the cruel, callous, dispassionate, and

12 calculated nature of Burns's commitment offense, which was carried out in an exceptionally 13 callous disregard for human suffering in that when Smith was unconscious, Burns shot him twice

14 in the head, killing him. (Ex. B at 61.) The Board also noted that Burns needed additional time 15 to participate in prison programming to ensure that he was suitable for parole. (Id.) 16 6. Burns filed a petition with the Sierra County Superior Court raising substantially

17 the same challenges to the Board's 2005 decision that he now asserts in his federal Petition. (Ex. 18 E, Superior Court Pet. & Denial.Y The superior court denied Burns's claims on November 30, 19 2006 in a seven-page reasoned decision, finding there was some evidence supporting the Board's 20 parole denial. (Id.) 21 a. In affirming the Board's decision, the superior court first rejected Burns's claim

22 that the Board was precluded from using the circumstances of his commitment offense to deny 23 parole. (Ex. E at 2.) Rather, the court found there was some evidence in the record supporting 24 the Board's conclusion that the murder was committed in a dispassionate and calculated manner, 25 26 27 3. To avoid repetition and unnecessary volume, the exhibits attached to Burns's state court 28 petitions have been removed. Respondent will provide these documents upon the Court's request.
Answer to Pet.

showing exceptional disregard for human suffering, because Bums shot Smith - who was

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unconscious and defenseless-twice in the head, and then left him for dead without attempting

2 to obtain medical help and concealing the crime. (Id.) Although Burns argued that the Third 3 District Court of Appeal had opined that the nature of his murder offense "was neither

4 sensational nor atrocious" in its opinion affirming Burns's conviction, the superior court rejected 5 this argument because the appellate court's characterization of Burns's crime was for a different 6 purpose than the Board's analysis for determining Burns's parole suitability. (Id.) 7 8 9 10 11 The court also found that there was some evidence in the record that Burns' motive for the crime was inexplicable and trivial because there was no reason for Bums to kill Smith or, as alleged by Burns, if the pistol was the basis for the murder, the motive was trivial. (Ex. E at 2-3.) The court also rejected Burns's claim that his second degree murder conviction was not more than the minimum necessary to convict him of his offense because the Board did not rely

12 solely on the commitment offense in denying him parole, but rather relied on a myriad of other 13 '14 factors to find him unsuitable. (Ex. E at 3.) b. Second, the superior court found there was some evidence supporting the Board's

15 use of Burns's prior criminality to deny him parole. (Id. at 4.) Specifically, the court found that 16 the Board's regulations were not an exclusive list of unsuitability factors and that the Board was .17 entitled to consider "non-listed factors that are directly relevant to the suitability question," 18 including Burns's past criminal behavior. (Id.) Thus, the court concluded there was some 19 evidence supporting Burns's past criminal history. 20 21 The court also rejected Burns's argument that the Board's misstatement that Bums was convicted of robbery - rather than burglary - was prejudicial. (Ex. E at 4.) In finding that the

22 Board would have corrected its error if noticed and reached the same result, the court noted that 23 the Board had discussed Burns's burglary conviction and that Burns had confessed to committing

24 additional burglaries to finance his marijuana habit: (Id.) Accordingly, the state court found 25 26 some evidence supported the Board's reliance on Bums's criminal history. (Id.) c. Third, the superior court found that there was some evidence in the record

27 supporting the Board's conclusion that Burns had an unstable social history because Bums had 28 witnessed his father. (who was also his uncle) kill his mother, that he had lived in 40 to 50 foster
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homes, that he had engaged in drug use and criminality, and that he had no family support. (Ex.

2 E at 4-5.) d. Fourth, the superior court concluded that there was some evidence supporting the

4 Board's reliance on Burns's failure to participate in prison programming, self-help, and therapy 5 opportunities in denying him parole. (Ex. E at 5.) Specifically, the court found that Burns's 6 insufficient education, job skills, insight into his crime, and therapy regarding substance abuse, 7 was some evidence supporting the Board's decision that Bums would continue to pose .a danger 8 to society if released from prison. (Ex. E at 5-6.) 9 The court also rejected Burns's claim that there were insufficient self-help programs

. 10 available in prison because Burns - incarcerated since 1987 had done little to avail himself 11 of those programs that had been available, and had only recently begun participating in

12 Alcoholics Anonymous. (Ex. E at 5.) Thus, the court found that his failure to seek self-help 13 14 opportunities throughout his incarceration was supported by some evidence in the record. (Id.) e. Fifth, the superior court found that the Board's reliance on Burns's disciplinary

15 violations was supported by some evidence because his violations were somewhat recent and 16 suggested that Bums would have difficulty following the rules on parole, in his employment, and 17 in society if released from prison. (Ex. E at 6.) Thus, the court concluded there was some 18 19 evidence supporting the Board's reliance on this factor. f. Sixth, the superior court found that the Board's decision to deny Burns parole for

20 two years was supported by some evidence because the denial was properly based on Burns's 21 commitment offense, his past criminality, his substance abuse problems, his recent disciplinary

22 problems, and his failure to seek self-help for substance abuse and other emotional problems. 23 24 25 (Ex. E. at 6.) g. Seventh, the superior court rejected Burns's ineffective assistance of counsel

claim, finding that Burns's counsel did not prejudicially err in failing to make or correct any

26 alleged factual or legal errors. (Ex. E at 6-7.) Specifically, the court rejected Burns's claim that 27 Burns's attorney failed to correct the Board's misstatement of Bums's "robbery" conviction (See 28 6b), that the attorney erred in discouraging Burns from citing case law to the Board, finding that
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the attorney made a tactical decision, and that the attorney failed to object to the Board's reliance on Burns's commitment offense based on the Third District's characterization of his crime (See 6 a;Ex.Eat7). h. Finally, the superior court rejected Burns's claim that the Board was precluded from relying on unchanging circumstances at his parole hearing based on collateral estoppel.

6 (Ex. E at 7.) Rather, the court found that the Board properly considered the regulatory factors in 7 denying Burns parole and that collateral estoppel did not apply. (Id.) 8 7. Burns pursued his claims by filing substantially the same petition for writ of habeas

9 corpus in California's Third Appellate District, which was denied on April 5, 2007. (Ex. F, 10 Appellate Court Pet. & Denial.) 11 8. Burns pursued his claims by filing substantially the same petition for writ of

12 habeas corpus in the California Supreme Court, which was denied on October 10,2007. (Ex. G, 13 14 Supreme Court Pet. & Denial.) 9. Respondent admits that Burns has exhausted his state court remedies regarding

15 his challenges to the sufficiency of the evidence and his allegations that there is no evidence 16 supporting the Board's decision to deny him parole for two years, that he was deprived of

17 effective assistance of counsel during his hearing, and that the Board was precluded from using 18 unchanging circumstances during his parole hearing to deny him parole.4l Respondent denies that 19 Burns has exhausted his claims to the extent that they are more broadly interpreted to encompass 20 any systematic issues beyond this particular review of parole denial. 21 10. Respondent denies that the state courts' adjudication of Burns's claims was

22 contrary to, or involved an unreasonable application of, clearly established federal law as 23 24 25 26 4. Although Burns alleged that his life sentence was grossly disproportionate to his commitment offense throughout his state court petitions, he did not assert this claim in his federal 28 petition. Accordingly, Respondent will not address it. 27
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A. Burns v. Curry CV08-00163 PJH

determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). 11. Respondent denies that the state courts' adjudication of Burns's claims was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. §

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2254(d)(2). 12. To preserve the issue, Respondent denies that Burns has a federal liberty interest in parole under California Penal Code section 3041, notwithstanding the Ninth Circuit's contrary

4' decision in Sass v. Cal. Bd. Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2005). See Greenholtz 5
v.

Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12 (1979) (finding no federally protected

6 liberty interest in parole release date unless state creates interest through the unique structure and 7 language of state parole statute); but see also Sandin v. Connor, 515 U.S. 472, 484 (1995) (no 8 federal liberty interest unless the state's action poses an atypical or significant hardship compared

9 with ordinary prison life). However, it is unclear whether Greenholtz or Sandin is the controlling 10 methodology for determining whether an inmate has a liberty interest in parole. See Wilkinson v. 11 Austin, 545 U.S. 209, 229 (2005) (court noted that Greenholtz 's liberty interest methodology was 12 abrogated by Sandin). Accordingly, there is no clearly established federal law on how to 13 14 determine a federally protected liberty interest. Moreover, Burns does not have a federally protected liberty interest in parole under either

15 methodology: first, California's parole scheme is a two-step process that does not impose a 16 mandatory duty to grant life inmates parole before a suitability finding (In re Dannenberg, 34 17 Cal. 4th 1061, 1087 (2005)), and second, an inmate (such as Burns) continuing to serve his life 18 sentence does not pose an atypical or significant hardship compared to ordinary prison life (In re
29

19 Rosenkrantz,

Cal.4th 616, 658 (2002) ["parole release decisions concern an inmate's

20 anticipation or hope of freedom"]),. Thus, Burns does not have a protected liberty interest and 21 22 23 fails to assert a basis for federal jurisdiction. 13. To preserve the issue, notwithstanding the Ninth Circuit's contrary decision in Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007), Respondent denies that the Supreme Court has ever

24 clearly established that a state parole board's decision must be supported by some evidence. See 25 Carey v. Musladin, _ U.S. _, 127 S. Ct. 649, 654 (2006) (federal habeas relief was improper

26 under AEDPA in absence of United States Supreme Court precedent). 27 14. Respondent affirmatively alleges that if the some-evidence standard applies to federal

28 review of parole denials, then there is some evidence supporting the Board's 2005 decision to
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deny Burns parole. 15. Respondent alleges that there is no clearly established federal law precluding the

3 Board's reliance on Burns's commitment offense as a reason to deny him parole. Musladin, 127 4 S. Ct. at 654. 5 16. Respondent alleges that there is no clearly established federal law limiting the factors

6 the Board may consider when determining whether a California state inmate is suitable for 7 parole. Musladin, 127 S. Ct. at 654. 8 17. Respondent alleges that Bums cannot demonstrate that the state courts acted contrary

9 to clearly established federal law or that it unreasonably determined the facts regarding Burns's 10 ineffective assistance of counsel claim. 11 18. Respondent alleges that Bums cannot demonstrate that the state courts acted contrary

12 to clearly established federal law or that it unreasonably determined the facts regarding Burns's 13 claim that the Board is precluded from relying on unchanging circumstances when denying

14 parole. 15 19. Respondent alleges that to the extent Burns's claims are based on his construction of

16 the state statutes and regulations regarding parole suitability, they are not subject to federal 17 habeas relief because they are issues of state law. 28 U.S.C. § 2254(a); Rose v. Hodges, 18 423 U.S. 19, 21 (1975); Gutierrez v. Griggs, 695 F.2d 1195, 1197-1198 (1983). 19 20. Respondent denies that the Board's decision denying parole violated Burns's federal

20 due process rights. 21 21. If the Petition is granted, Burns's remedy is limited to a new parole consideration

22 hearing before the Board that comports with due process. Benny v. US. Parole Comm 'n, 295 23 F.3d 977, 984-985 (9th Cir. 2002) (finding that the Board must exercise the discretion in

24 determining whether or not an inmate is suitable for parole); In re Rosenkrantz, 29 Cal.4th at 25 26 658. 22. Respondent denies that an evidentiary hearing is necessary in this matter. 28 U.S.C. §

27 2254(e). 28 23. Respondent admits that Burns's claim is timely under 28 U.S.C. § 2244(d)(1), and that
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1 the Petition is not barred by the non-retroactivity doctrine. 2 24. Except as expressly admitted in this Answer, Respondent denies the allegations of the

3 Petition. 4 5 25. Burns fails to state or establish any grounds for habeas corpus relief. For the reasons stated in this Answer and in the following Memorandum of Points and

6 Authorities, this Court should deny the Petition. 7 8 .9 MEMORANDUMOFPOINTSANDAUTHORITIES INTRODUCTION Burns's Petition should be denied because he received the only process due under clearly

10 established Supreme Court authority: the opportunity to be heard and a decision. Thus, the 11 Board ' s decision did not violate his federal due process rights. Even if the some-evidence test is

12 applicable, and Respondent maintains it is not, Burns's Petition should be denied because there is 13 14 15 16 17 18 19 A. The Standard of Review for Federal Habeas Petitions Brought by State Prisoners Is Highly Deferential to the State Courts' Rulings. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is a "highly some evidence supporting the Board's decision denying Burns parole. ARGUMENT THE STATE COURTS' ADJUDICATION OF BURNS'S CLAIMS WAS NEITHER CONTRARY TO, NOR INVOLVED AN UNREASONABLE APPLICATION OF, CLEARLY ESTABLISHED FEDERAL LAW, NOR WAS IT BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS.

20 deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 21' (2002) (per curiam). Indeed, federal habeas relief for state prisoners is tightly constrained under 22 AEDPA and a federal petition must be denied unless the state court's adjudication was contrary 23 to, or involved an unreasonable application of, clearly established Federal law, as determined by 24 the United States Supreme Court; or was based on an unreasonable determination of the facts in 25 light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). In 26 conducting an AEDPA analysis, "[w]hat matters are the holdings of the Supreme Court, not the 27 holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en 28 banc).
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Under AEDPA, a state court decision is " contrary to" clearly established Supreme Court 2 precedent "if it `applies a rule that contradicts the governing law set forth in [Supreme Court] 3 cases,' or if it `confronts a set of facts that are materially indistinguishable from a decision" of

4 the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 573 U.S. 3, 8 5 6 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). Under the "unreasonable application" clause of § 2254(d) (1), a federal habeas court may

.7 grant the writ if the state court identifies the correct governing legal principle from the Supreme 8 Court's decisions, but unreasonably applies that principle to the facts of the case. Williams, 529

9 U.S. at 413. A federal habeas court may not grant the writ "simply because that court concludes 10 in its independent judgment that the relevant state-court decision applied clearly established 11 federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.

12 at 411; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal 13 habeas court, in its independent review of the legal question, is left with a `firm conviction' that

14 the state court was 'erroneous.') 15 The federal court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002); see Ylst v. Nunnemaker, 501 U.S. 797, 803-804 (1991). B. Burns's Petition Should Be Denied Because He Received All Process Due: an Opportunity to Be Heard and an Explanation for the Parole Denial. 20 21 The Supreme Court has found that a parole board's procedures are constitutionally adequate if the inmate is given an opportunity to be heard and a decision informing him of the reasons he

22. was not yet suitable for parole. Greenholtz, 442 U.S. at 16. As a matter of "clearly established" 23 federal law then, a challenge to a parole decision will fail if the inmate has received the

24 protections required under Greenholtz. See Wilkinson v. Austin, 545 U.S. at 229 (Supreme Court 25 26 cited Greenholtz approvingly for the proposition. that the "level of process due for inmates being considered for release on parole includes opportunity to be heard and notice of any adverse

27 decision" and noted that Greenholtz remained "instructive for [its] discussion of the appropriate 28 level of procedural safeguards.") Bums does not deny that he received an opportunity to be
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heard or the reasons he was denied parole. (Ex. B.) Thus, the state courts' decisions were not

2 contrary to clearly established federal law. 3 4 The some-evidence standard does not apply in federal habeas proceedings challenging 6 parole denials because it is not clearly established federal law in that context. Superintendent v. .7 Hill, 472 U.S. 445, 455-56 (1985) (some-evidence standard applies to disciplinary proceedings). 8 Yet, the Ninth Circuit has held that the some-evidence standard governs parole cases, even .9 though the Supreme Court has never extended that test from disciplinary cases to parole cases. 10 See, e.g., Hayward v. Marshall, 512 F.3d.536, 542 (9th Cir. 2007); Irons v. Carey, 505 F.3d at 11 851; but see Musladin, U.S. , 127 S. Ct. at 654 (federal habeas relief was improper under C. The Some-Evidence Standard of Review Is Not Clearly Established Federal Law by the United States Supreme Court for Challenging Parole Denials.

12 AEDPA in absence of United States Supreme CourtPrecedent as to specific issue presented). .13 Indeed, both the United States Supreme Court and the Ninth Circuit have reiterated that there can

14 be no clearly established federal law where the Supreme Court has never addressed a particular 15 issue or applied a certain test to a specific type of proceeding. 16 U.S. See e.g., Schriro v. Landrigan,

, 127 S. Ct. 1933, 1942 (2007) (no federal habeas relief when the issue is an open U.S. , 2008 WL

17 ' question in the Supreme Court's precedent); Wright v. Van Patten, 18

59980, at *2 4 (Jan. 7, 2008) (per curiam) (Supreme Court vacated the judgment, and remanded

19 for further consideration in light of Musladin because "No decision of this Court . . . squarely 20 addresses the issue in this case" and, therefore relief under § 2254(d)(1) is "unauthorized"); 21 Crater v. Galaza, 491 F.3d 1119, 1126 & n.8 (9th Cir. 2007) (citing Musladin, the Ninth Circuit

22 acknowledged that decisions by courts other than the Supreme Court are "non-dispositive" under 23 § 2254(d)(1)); Cook v. Schriro, _ F.3d _, 2008 WL 441825 *1, *10 (9th Cir. 2008) (citing

24 Musladin, the Ninth Circuit found that because there was no United States Supreme Court 25 precedent, it could not say "that the state court `unreasonably applied clearly established Federal 26 27 28 5. Although published after Musladin, neither Irons nor Hayward addressed the Musladin Court's discussion of clearly established federal law under AEDPA.
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.
Burns v. Curry

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law'). Accordingly, because Hill, 472 U.S. at 455-456 applied the some-evidence standard to a

3 prison disciplinary hearing and Burns. challenges his 2005 parole consideration hearing, the 4 some-evidence standard does not apply. Because Greenholtz is the only United States Supreme 5 Court authority describing the process due at a parole consideration hearing when an inmate has 6 a federal liberty interest in parole, the Greenholtz test, not the some-evidence standard, should 7 apply in this proceeding. Regardless, Respondent recognizes that the Ninth Circuit has held 8 otherwise and will argue this case accordingly. .9 D. Burns's Petition Should Be Denied Because There Is Some Evidence Supporting the Board's Decision and - as Required by AEDPA - the State Court Decision Upholding the Board's Parole Denial Is Based on a Reasonable Application of the Facts Based on the Evidence Presented.

If this Court finds that the some-evidence standard applies and assuming Burns has a federally protected liberty interest, some evidence supports the Board's decision denying Burns 14 parole. The some-evidence standard "does not require examination of the entire record, 15 independent assessment of the credibility of witnesses, or weighing of the evidence;" rather, it 16 assures that "the record is not so devoid of evidence that the findings of the ... board were' 17 without support or otherwise arbitrary." Hill, 472 U.S. at 455-457 (applying some-evidence 18 standard to prison disciplinary hearing).. Thus, both the "reasonable application" standard of 19 AEDPA and the some-evidence standard of Hill are very minimal standards. 20 21 Although Burns invites the Court to re-examine the facts of his case and re-weigh the evidence presented to the Board, neither AEDPA nor Hill's some-evidence test permit this degree

22 of judicial intrusion. Moreover, in assessing the state court's review of Burns's claims, not only 23 should the appropriate deference be afforded to the state court's review under AEDPA, but

24 deference is also due to the underlying Board decision. The Supreme Court has recognized the 25 difficult and sensitive task faced by the Board in evaluating the advisability of parole release. 26 Greenholtz, 442 U.S. at 9-10. Thus, contrary to Burns's belief that he should be paroled based 27. on the evidence in support of his parole (see generally, Petn.), the Supreme Court has stated that 28 in parole release, there is no set of facts which, if shown, mandate a decision favorable to the
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.
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inmate. Id. Instead, under the some-evidence standard, the court's inquiry is limited solely to

2 determining whether the state court properly found that the Board's decision to deny parole is 3 4 supported by some evidence in the record, i.e., any evidence. Hill, 472 U.S. at 455. Here, the superior court concluded that there was some evidence in the record supporting

5 the Board's decision denying Burns parole. The court based its findings on Burns's commitment 6 offense, his prior criminal behavior, his unstable social history, and his behavior and 7 programming in prison. (See Answer supra,
If

6; Exs. B, E.) Tilts, this is a reasonable

application of the minimal some-evidence test. Moreover, Burns fails to meet his burden of proving that the state courts unreasonably determined the facts based on the evidence presented to the Board. 28 U.S.C. § 2254(d)(2), (e)(1). Indeed, the superior court reasonably determined the facts regarding Burns's claims 12 concerning his commitment offense (Ex. B at 11-13, 57-58; Ex. E at 2-3), his prior criminal 13 history (Ex. B at 13-15, 28, 58; Ex. E at 3), his unstable social history (Ex. B at 15-28, 58; Ex. E 14 at 3-4), his limited programming in prison (Ex. B at 37-53, 59-62; Ex. E at 4-5), and his 5 disciplinary violations (Ex. B at 39, 58; Ex. E at 5), in concluding that some evidence supported

16 the Board's decision denying Burns parole. Because the state courts reasonably determined the 17 facts, Burns has failed to show an AEDPA violation. 18 In summary, if the some-evidence test applies, the state court denials were not an

19 unreasonable application of clearly established United States Supreme Court law, nor did the '20 state courts unreasonably determine the facts. Instead, the. state court properly determined that 21 there is some evidence in the record supporting the Board's decision, and Burns's Petition should

'22 be denied. 23 24 25 E. No Clearly Established United States Supreme Court Law Precludes the State Courts from Upholding the Board's Reliance on Burns's Commitment Offense to Deny Him Parole.

Burns contends that the Board violated his federal due process rights by improperly

26 relying on his commitment offense to find him unsuitable for parole. (Petn. at 20-25, 69-73.) 27 Yet, there is no clearly established federal law as determined by the United States Supreme Court 28 precluding the Board's reliance on Burns's crime as a reason to find him unsuitable for parole.
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See Musladin, 127 S. Ct. at 654; Landrigan, 127 S. Ct. at 1942. Although the Ninth Circuit's

.2 recent holdings suggest that continued reliance on the commitment offense may violate due 3 process at some future date (see, e.g., Irons, 505 F.3d at 854, (citing Biggs v. Terhune, 334 F.3d. 4 910, 916-17 (9th Cir. 2003); Hayward v. Marshall, 512 F.3d at 547, fn. 1.0 (court concluded that 5 Governor's continued reliance on Hayward's commitment offense violated due process, but

6 expressly limited its holding to the facts of Hayward's case and the nature of his specific 7 conviction offense), these holdings are irrelevant when conducting an AEDPA analysis. 8 Plumlee, 512 F.3d at 1210 ("What matters are the holdings of the Supreme Court, not the 9 holdings of lower federal courts"). 10 11 12 13 14 .15 Van Patten, U.S. , 128 S.Ct. at 747. Thus, because the Board's reliance on Burns's Indeed, the Supreme Court recently highlighted the tight constraints imposed by AEDPA: Because our cases give no clear answer to the question presented, let alone one in [Petitioner's] favor, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.' Musladin, 549 U.S. at , 127 S. Ct. 649, 654 (quoting 28 U.S.C. § 2254(d)(1)). Under the explicit terms of § 2254(d)(1), therefore, relief is unauthorized.

16 commitment offense to deny parole is supported by California state law (Cal. Pen. Code, §3041; 17 Dannenberg, 34 Cal.4th 1061, 1094 (2005)) and such reliance is not contrary to any clearly 18 19 20 21 established United States Supreme Court law, Burns's argument is without merit. F. Burns Cannot Demonstrate that the State Court Acted Contrary to Clearly Established Supreme Court Law or. Unreasonably Determined the Facts Regarding Burns's Ineffective Assistance of Counsel Claim.

Burns argues that he was deprived of effective assistance of counsel, asserting that his

22 attorney failed to object and correct the Board's alleged legal and factual errors during his parole 23 consideration hearing. (Pete. at 30, 62-69.) Yet, Burns's right to an attorney at his

. 24 administrative parole hearing , arises out of California state - not federal - law. Cal. Pen.. Code, 25 § 3041.7. As such, his claim is not cognizable in federal habeas corpus. 28 U.S.C. § 2254(a);

26 Rose v. Hodges, 423 U.S. 19, 21 (1.975); Gutierrez v. Griggs, 695 F.2d 1195, 1197-1198 (1983). 27 Even if Burns is alleging that the state court erroneously rejected this claim, a federal court may 28 not challenge a state court's interpretation or application of state law, Middleton v. Cupp, 768
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F.2d 1083, 1085 (9th Cir. 1985), or grant relief "on the basis of a perceived error of state law."

2 Pulley v. Harris, 465 U.S. 37, 41 (1984). 3 Burns's claim also fails because there is no clearly established Supreme Court authority
U.S.

4 for Burns's assertion in the context of an administrative parole proceeding. Musladin, 5 6

, 127 S. Ct. at 654 (federal habeas relief was improper under AEDPA in absence of United

States Supreme Court precedent as to specific issue presented); cf. Strickland v. Washington, 466

7 U.S. 668 (1984) (establishing test for determining ineffective assistance of counsel during 8 criminal proceedings). To the contrary, it is well established that the full panoply of rights due a

9 defendant in a criminal proceeding is not constitutionally mandated in a parole proceeding 10 because the setting of a parole term is not part of a criminal prosecution. Pedro v. Oregon 11 Parole Board, 825 F.2d 1396, 1399 (9th Cir. 1987). 12 13 Accordingly, because the state courts did not act contrary to clearly established federal law and because the superior court reasonably determined the facts regarding Bum's claim (See

14 Answer supra, ¶ 6 g; Ex. E at 6-7), Burns's Petition as to this claim must be denied. 15 16 17 18 Bums appears to argue that the Board is precluded from continually relying on G. Burns Cannot Demonstrate that the State Court Acted Contrary to Clearly Established Supreme Court Law or Unreasonably Determined the Facts Regarding Burns's Claim that the Board Is Precluded from Relying on Unchanging Circumstances When Denying Parole.

19 unchanging circumstances in denying him parole based on the collateral estoppel doctrine. (Petn. 20 at 70-73.) Yet, Burns's argument fails to implicate a federal claim to the extent it is based on his 21 construction of the state statutes and regulations regarding the manner in which the Board

22 determines suitability for parole. Thus, because Burns's claim is predicated on state law, it is not 23 cognizable in federal habeas corpus. 28 U.S.C. § 2254(a); Rose, 423 U.S. at 21; Gutierrez,

24 695 F.2d at 1197-1198. As stated above, even if Bums is alleging that the state court erroneously 25 rejected this claim, a federal court may not challenge a state court's interpretation or application 26 of state law, Middleton, 768 F.2d at 1085, or grant relief based on a perceived error of state law. 27 Pulley, 465 U.S. at 41. 28 Moreover, there is no clearly established Supreme Court law on this issue. Indeed, the
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1 cases cited by Bums concern the effect of collateral estoppel in an adversarial - not an 2 administrative - proceeding. (Petn. at 71-73.) Burns also fails to prove that the superior court 3 unreasonably determined the facts regarding his claim. Rather, the court found that the Board 4 properly considered the regulatory factors in denying Burns parole and that the collateral estoppel 5 6 did not apply. (Ex. E at 7.) Accordingly, in the absence of any United States Supreme Court law to the contrary and

7 based on the state courts' reasonable interpretation of the facts, Burns cannot show that the state 8 courts' decision violated AEDPA. As such, Bums's Petition should be denied as to this claim.

9 28 U.S.C. § 2254(d).. 10 11 CONCLUSION Burns received all the process he was due under clearly established Supreme Court

12 authority. Moreover, the record reflects that the Board's decision was supported by some 13 evidence and that the state courts reasonably determined the facts. Thus, the state courts'

14 adjudication of Burns's claims was not contrary to, nor did it involve an unreasonable application 15 of, clearly established federal law, or an unreasonable determination of the facts. Accordingly,

16 Burns's Petition should be denied. 17 18 19 20 21 22 23 24 25 26 27 28
Answer to Pet. for Writ of Habeas Corpus; Mem. of P. & A.
Burns v. Curry

Dated: April 7, 2008

Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYA M. BINSACCA

ANDA J. MURRA Deputy Attorney Genera Attorneys for Respondent

CV08-00163 PJH

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DECLARATION OF SERVICE BY U.S.MAIL Case Name: No.: Burns v. Curry

CV08-00163 PJH

I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On April7,2008, I served the attached ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Scott Burns, D-99247 San Quentin State Prison 1 Main Street 3-N-73-U San Quentin, CA 94964 In Pro Per I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on April 7, 2008, at San Francisco, California.

M.M. Argarin Declarant
40237825.wpd

gi/-6

Signatuu

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-6

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Case 3:08-cv-00163-PJH

Document 7-7

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EXHIBIT E Part 2 of 2

Case 3:08-cv-00163-PJH

Document 7-7

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-7

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-7

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-7

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-7

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-7

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-7

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-7

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-7

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-7

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-8

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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EXHIBIT G Part 1 of 2

Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-9

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Case 3:08-cv-00163-PJH

Document 7-9

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3:08-cv-00163-PJH

Document 7-9

Filed 04/07/2008

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Case 3