FILED
NOT FOR PUBLICATION MAY 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD EASTMAN, No. 07-56099
Petitioner - Appellee, D.C. No. CV-04-04525-PSG
v.
MEMORANDUM *
JOHN MARSHALL,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted March 3, 2008
Submission Withdrawn May 16, 2008
Resubmitted April 26, 2010
Pasadena, California
Before: O’SCANNLAIN and GRABER, Circuit Judges, and GIBSON, Senior
Circuit Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
Warden John Marshall appeals from the district court’s order granting
Richard Eastman’s petition for a writ of habeas corpus. The facts are known to the
parties, and we do not repeat them here except to the extent necessary.
I
“‘[S]ome evidence’ of future dangerousness” is a “sine qua non for denial of
parole in California.” Hayward v. Marshall, — F.3d —, 2010 WL 1664977, at *10
(9th Cir. Apr. 22, 2010) (en banc) (quoting In re Lawrence, 190 P.3d 535, 549
(Cal. 2008); In re Shaputis, 190 P.3d 573, 582 (Cal. 2008)). In Hayward, we
explained that on federal habeas review, we “need only 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.’”
Id. at *11 (quoting 28 U.S.C. § 2254(d)(1)-(2) (footnote omitted)).
Here, the governor reversed the parole board’s decision to grant parole
because he believed that “Eastman continues to pose a significant risk of danger to
the public safety” given the gravity of the offense, Eastman’s attempts to minimize
his involvement in the crime by changing his story repeatedly, his unwillingness to
accept responsibility for the crime, his unstable social history, his lack of
understanding about the causative factors leading up to the crime, and his history
2
of substance abuse. Because the record supports the governor’s conclusion, the
state courts’ decisions that Eastman was properly denied parole was not an
unreasonable application of the “some evidence” standard, nor was it an
unreasonable determination of the facts in light of the evidence. See id.
II
Accordingly, we REVERSE the district court’s decision and REMAND with
instructions that Eastman’s petition for writ of habeas corpus be dismissed.1
1
Eastman’s request for judicial notice is denied as moot.
3