FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH PEARSON, No. 08-55728
Petitioner-Appellee, D.C. No.
v. 2:05-cv-06937-
MADELENE A. MUNTZ, Acting SGL-OP
Warden, ORDER AND
Respondent-Appellant. AMENDED
OPINION
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Filed May 24, 2010
Amended October 26, 2010
Before: Stephen Reinhardt, Marsha S. Berzon, and
Milan D. Smith, Jr., Circuit Judges.
Order;
Dissent to Order by Judge Ikuta;
Per Curiam Opinion
17595
17598 PEARSON v. MUNTZ
COUNSEL
Marc Grossman, Law Offices of Marc E. Grossman, Upland,
California, for the petitioner-appellee.
Collette C. Cavalier, Deputy Attorney General, San Diego,
California, for the respondent-appellant.
ORDER
The majority opinion filed May 24, 2010, slip op. 7791,
and appearing at 606 F.3d 606 (9th Cir. 2010), is hereby
amended as follows:
1. slip op. at 7795, line 26: replace “. . . [must]” with “fac-
ing the same issue in the future need only”.
2. slip op. at 7796, line 31: replace “Such was the case in
Hayward. By holding that a federal habeas court may
review the reasonableness of the state court’s application
of the California ‘some evidence’ rule, Hayward neces-
sarily held that compliance with” with “Given that under
§ 2254(a) federal courts may not review a state court
decision absent a violation of federal law, the only possi-
ble basis for Hayward’s requirement that federal courts
review California’s application of the ‘some evidence’
rule is that”.
With these amendments, the panel has voted to deny the
petition for panel rehearing and the suggestion for rehearing
en banc.
PEARSON v. MUNTZ 17599
The full court was advised of the suggestion for rehearing
en banc. A judge of the court requested a vote on whether to
rehear the matter en banc. The matter failed to receive a
majority of the votes of the nonrecused active judges in favor
of en banc reconsideration. FED. R. APP. P. 35.
No further petitions for rehearing or rehearing en banc will
be entertained.
IKUTA, Circuit Judge, dissenting from the denial of rehearing
en banc, joined by O’SCANNLAIN, TALLMAN, BYBEE,
CALLAHAN, BEA, and N.R. SMITH, Circuit Judges:
In one of our oddest habeas decisions to date, the Ninth
Circuit has not just misinterpreted the language of AEDPA,
28 U.S.C. § 2254(d), but has actually rewritten it. Contrary to
the plain language of AEDPA, Pearson holds that a California
prisoner is entitled to habeas relief because the state court’s
decision was inconsistent with California law as determined
by the California Supreme Court, or was based on a unrea-
sonable factual determination of a state law issue. Pearson v.
Muntz, 606 F.3d 606, 611-12 (9th Cir. 2010) (per curiam).
Not only does this holding rewrite AEDPA, it also contradicts
the entire body of Supreme Court AEDPA jurisprudence. In
failing to rehear this case en banc, we bind this circuit to an
analytic approach that will consistently generate wrong deci-
sions in the hundreds of challenges to California parole deci-
sions adjudicated by federal courts in this circuit each year.
Therefore, I respectfully dissent from the denial of rehearing
en banc.
I
After pleading guilty to second degree murder in 1987, Cal-
ifornia state prisoner Kenneth Pearson became eligible for
parole in 1995. After denying his application for parole seven
17600 PEARSON v. MUNTZ
times, the parole board deemed Pearson suitable for parole in
2003. Governor Schwarzenegger then exercised his authority
under the California Constitution to reverse the parole board’s
suitability determination. See Cal. Const. art. V, § 8(b). The
Governor based this denial on a number of parole suitability
factors, including that Pearson’s commitment offense demon-
strated an “exceptionally callous disregard” for his victim’s
suffering.
Pearson appealed this decision to the state trial court. Under
the California due process clause, prisoners have a protected
liberty interest in parole, and cannot be deprived of that inter-
est without the procedural protections required by the Califor-
nia constitution. In re Rosenkrantz, 59 P.3d 174, 207 (Cal.
2002). Under California law in effect at the time of Pearson’s
appeal, the Governor’s denial of parole had to “be supported
by some evidence in the record” relevant to the parole suit-
ability factors that the Governor was required to consider, id.
at 209, but the “nature of the prisoner’s offense, alone, [could]
constitute a sufficient basis for denying parole” when the
offense was particularly egregious, id. at 222.
The state trial court upheld the Governor’s decision. Rely-
ing on Rosenkrantz, the court held that the circumstances of
Pearson’s commitment offense alone constituted sufficient
evidence of parole unsuitability. After the California Court of
Appeal and California Supreme Court likewise affirmed,
Pearson applied for federal habeas relief.
In federal court, Pearson argued that the state’s parole
denial violated his federal due process rights because there
was no evidence supporting the Governor’s determination that
Pearson’s parole posed an unreasonable risk of danger to soci-
ety. Dist. Ct. Dkt. # 1, at 12.1 California argued that the “some
evidence” standard of review in parole suitability hearings
1
California agreed that Pearson had exhausted this claim in state court.
Dist. Ct. Dkt. # 7, at 5-6.
PEARSON v. MUNTZ 17601
was not “clearly established Federal law,” and that a state-
ment of reasons and an opportunity to be heard was all that
was required under Supreme Court precedent.
The district court rejected the state’s argument,2 relying on
a line of Ninth Circuit cases which (like California law)
required a parole denial to be based on “some evidence” of
the relevant factors. Dist. Ct. Op. at 21 n.10. California filed
an emergency motion to stay the proceedings to prevent Pear-
son’s release. Pearson, 606 F.3d at 607. The Pearson panel
granted the stay, because we were currently reconsidering our
“some evidence” line of cases en banc.
While the stay was pending, the California Supreme Court
revisited Rosenkrantz and concluded that the “underlying cir-
cumstances of the [prisoner’s] commitment offense alone”
will rarely be sufficient to uphold a parole denial decision. In
re Lawrence, 190 P.3d 535, 553 (Cal. 2008); accord In re
Shaputis, 190 P.3d 573 (Cal. 2008). “[T]he proper articulation
of the standard of review is whether there exists ‘some evi-
dence’ that an inmate poses a current threat to public safety,
rather than merely some evidence of the existence of a statu-
tory unsuitability factor.” Shaputis, 190 P.3d at 580.
Shortly thereafter, we issued Hayward v. Marshall, 603
F.3d 546 (9th Cir. 2010) (en banc), which overruled our
“some evidence” line of cases and clarified that Greenholtz v.
Inmates of Nebraska Penal & Correctional Complex, 442
U.S. 1 (1979), discussed below, guides the AEDPA analysis
of a due process challenge to a parole denial. Hayward, 603
F.3d at 555, 560 n.82.
Based on an idiosyncratic interpretation of Hayward, Pear-
son dissolved the stay of the district court’s order. California
then filed an emergency motion to reconsider this decision,
2
Because the district court adopted the magistrate’s report and recom-
mendation in full, I refer to both as the “district court.”
17602 PEARSON v. MUNTZ
arguing that since Hayward had overruled the only cases sup-
porting the district court’s grant of habeas relief, the state was
likely to succeed in reversing the district court’s decision, and
therefore we should keep the stay in place pending Califor-
nia’s appeal. See Pearson, 606 F.3d at 608.
As explained in more detail below, instead of considering
whether the state court’s decision was inconsistent with U.S.
Supreme Court precedent, Pearson concluded that because
the state court had not correctly applied California Supreme
Court precedent, as established by Lawrence and Shaputis,
California was unlikely to succeed on the merits of its appeal
of the district court’s decision.3 Id. at 611-12. Accordingly,
Pearson issued a published opinion and order denying Cali-
fornia’s motion to reconsider.
II
The correct analysis of Pearson’s habeas petition under
AEDPA is straightforward. Following AEDPA, a court may
not grant an application for a writ of habeas corpus from a
state prisoner “with respect to any claim that was adjudicated
on the merits in State court proceedings” unless the proceed-
ing “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States” or “resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2).
3
Because Pearson involved a motion to stay the proceedings, the central
issue before the panel was whether California “ha[d] made a strong show-
ing that [it was] likely to succeed on the merits.” Hilton v. Braunskill, 481
U.S. 770, 776 (1987); see also Nken v. Holder, 129 S. Ct. 1749, 1761
(2009). Although there is a “presumption of release from custody” of a
successful habeas petitioner pending appeal, see Fed. R. App. P. 23(c), “it
may be overcome if the traditional stay factors tip the balance against it.”
Hilton, 481 U.S. at 774, 777.
PEARSON v. MUNTZ 17603
In the parole context, the “clearly established Federal law,
as determined by the Supreme Court” is Greenholtz. Like
other Supreme Court due process cases, Greenholtz “ex-
amine[d] procedural due process questions in two steps: the
first asks whether there exists a liberty or property interest
which has been interfered with by the State; the second exam-
ines whether the procedures attendant upon that deprivation
were constitutionally sufficient.” Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989) (citations omitted); see
also Greenholtz, 442 U.S. at 7, 12. Greenholtz first explained
that it is possible for a prisoner to have a constitutionally pro-
tected liberty interest in parole, but only to the extent that
state law creates it. See 442 U.S. at 12; see also Bd. of Par-
dons v. Allen, 482 U.S. 369, 373 (1987). Turning to the sec-
ond element of the due process inquiry, Greenholtz
determined that all the Due Process Clause required was a
procedure that gave an inmate “an opportunity to be heard”
and “inform[ed] the inmate in what respects he [fell] short of
qualifying for parole.” 442 U.S. at 16. To date, the Supreme
Court has not further developed or modified Greenholtz’s
approach to analyzing the due process rights of prisoners who
are denied parole. See, e.g., Allen, 482 U.S. at 373, 381
(applying the Greenholtz two-prong due process inquiry to a
different state’s statutory scheme).
The state court’s decision in this case was not “contrary to”
Greenholtz’s two-element federal due process inquiry. As the
Supreme Court has explained, “[a] state-court decision will
certainly be contrary to our clearly established precedent if
the state court applies a rule that contradicts the governing
law set forth in our cases” or “if the state court confronts a set
of facts that are materially indistinguishable from a decision
of this Court and nevertheless arrives at a result different from
our precedent.” Williams v. Taylor, 529 U.S. 362, 405-06
(2000). “Avoiding these pitfalls does not require citation of
our cases—indeed, it does not even require awareness of our
cases, so long as neither the reasoning nor the result of the
state-court decision contradicts them.” Early v. Packer, 537
17604 PEARSON v. MUNTZ
U.S. 3, 8 (2002) (per curiam). Here, the state court did not
need to address the first prong of Greenholtz because it is
undisputed that Pearson had a federal liberty interest in parole
created by California law. Further, the state court’s decision
that Pearson was not denied due process is not “contrary to”
the second prong of Greenholtz, because it is undisputed that
Pearson had an opportunity to be heard and received a deci-
sion explaining why the Governor denied his parole. See 442
U.S. at 16.4
Nor was the state court’s determination based on an unrea-
sonable determination of the facts in light of the evidence
presented in the state court proceedings. See § 2254(d)(2).
Because it is undisputed that Pearson was denied the state-
created liberty interest in parole, the only facts that are rele-
vant to the Greenholtz inquiry relate to whether Pearson
received the process that was due to him under federal law.
There is no factual dispute over whether Pearson had “an
opportunity to be heard” and received a statement informing
him “in what respects he [fell] short of qualifying for parole,”
442 U.S. at 16, the minimum procedure required under the
federal Due Process Clause. Contrary to Pearson’s mode of
analysis, it is simply irrelevant whether the state court made
a factual error in determining that there was “some evidence”
of the California parole suitability factors. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); Engle v. Isaac, 456 U.S.
107, 121 n.21 (1982) (“We have long recognized that a ‘mere
error of state law’ is not a denial of due process.”).
The state court decision was consistent with Greenholtz.
Under AEDPA, that should have been the end of it.
4
Because the state court did not expressly consider or apply Greenholtz,
but rather applied the state supreme court’s stricter due process require-
ments, the “unreasonable application” inquiry is not relevant here. As the
Supreme Court has noted, this prong applies only “if the state court identi-
fies the correct governing legal principle from [the Supreme] Court’s deci-
sions but unreasonably applies that principle to the facts of the prisoner’s
case.” Williams, 529 U.S. at 413.
PEARSON v. MUNTZ 17605
III
Instead, Pearson reformulates the AEDPA analysis and
rejects the state court’s decision on the ground that the state
court erred as a matter of state law.
Pearson starts from the correct premise that California law
creates a liberty interest in parole that “may be enforced as a
matter of federal law.” 606 F.3d at 609 (citing Wilkinson v.
Austin, 545 U.S. 209, 221 (2005)). But then, Pearson takes an
extraordinarily wrong turn, holding that on habeas review a
federal court is required to 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 unreason-
able determination of the facts in light of the evidence.’ ” Id.
(quoting Hayward, 603 F.3d at 563). Put simply, Pearson
rewrites AEDPA. Where the statutory language asks whether
the state court’s decision was “an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1) (emphasis
added), Pearson asks whether the state court’s decision was
“an ‘unreasonable application’ of the California ‘some evi-
dence’ requirement,” Pearson, 606 F.3d at 609 (emphasis
added). Based on this judicial rewrite, Pearson concludes that
the state court’s decision was an unreasonable application of
the California Supreme Court’s “some evidence” requirement,
and accordingly reasons that Pearson would likely prevail on
his habeas claim and should therefore be released on parole.
See id. at 611-12.5
5
In taking this erroneous approach, Pearson purports to rely on our en
banc decision in Hayward. But this is incorrect: in Hayward, we held on
de novo review that the prisoner had not been deprived of his state-created
liberty interest in parole, and therefore did not reach the question whether
the prisoner had been denied adequate procedural protections. See Hay-
ward, 603 F.3d at 563. Because the petitioner’s claim failed on de novo
review, it was also unnecessary to apply AEDPA. See Berghuis v. Thomp-
17606 PEARSON v. MUNTZ
Pearson confusingly claims that it applied this flawed test
because “state-created rights may give rise to liberty interests
that may be enforced as a matter of federal law,” and there-
fore “compliance with the state requirement is mandated by
federal law, specifically the Due Process Clause.” 606 F.3d at
609. There is no dispute that Pearson has a state-created lib-
erty interest in parole. But the federal Due Process Clause
does not mandate compliance with state procedural require-
ments associated with that interest: no “clearly established”
Supreme Court precedent provides that a state court’s error in
holding that a prisoner received all the process to which he
was due under state law violates the federal Constitution. In
reaching a contrary conclusion, Pearson loses sight of the “el-
ementary” proposition that “States are free to provide greater
protections in their criminal justice system than the Federal
Constitution requires.” California v. Ramos, 463 U.S. 992,
1013-14 (1983).
What concerns us on habeas review is not whether the state
court decision violated state law, but whether the state court
decision violated the federal Constitution, see 28 U.S.C.
§ 2254(a), and we know that here it did not: Pearson had all
the process due him under the Constitution, see Greenholtz,
442 U.S. at 16. Pearson is entitled to due process as a matter
of federal law, but the process to which he is entitled is
spelled out in Greenholtz, which does not include California’s
“some evidence” requirement. Pearson’s AEDPA analysis
has this precisely backwards.
kins, 130 S. Ct. 2250, 2264 (2010). Here, by contrast, there is no dispute
that Pearson was deprived of his state-created liberty interest in parole; the
only question is whether the state court’s decision that Pearson received
the procedural protections required by the federal Constitution is inconsis-
tent with Supreme Court precedent. Hayward provides no guidance on this
issue, and Pearson’s heavy reliance on its incorrect interpretation of Hay-
ward provides yet another reason why we should have taken this case en
banc.
PEARSON v. MUNTZ 17607
V
Ultimately, AEDPA review is for the purpose of determin-
ing whether a state court was objectively unreasonable in light
of Supreme Court precedents. Here, the Pearson panel held
that a state court decision was wrongly decided, even though
it was consistent with U.S. Supreme Court precedent, because
the decision was contrary to California Supreme Court prece-
dent. Such an approach is so completely at odds with
AEDPA’s plain language that the Ninth Circuit had an obliga-
tion to take the opinion en banc to correct it. I respectfully
dissent from the circuit’s failure to do so.
OPINION
PER CURIAM:
California state prisoner Kenneth Pearson filed an action
for a writ of habeas corpus in the district court on September
22, 2005, asserting that the Governor, in reversing the Parole
Board, violated his due process rights by denying him parole
absent “some evidence” supporting the decision. The magis-
trate judge’s Report and Recommendation, which the district
court adopted in full, noted that “the last reasoned state court
opinions upholding the Governor’s reversal of the [Parole]
Board’s finding of Petitioner’s parole suitability rested on the
sole ground of Petitioner’s commitment offense.” The district
court determined that the circumstances of the commitment
offense did not alone constitute “some evidence” supporting
the Governor’s decision,1 and that the state court decisions
upholding the denial of parole were based on an unreasonable
determination of the facts in light of the evidence. Accord-
ingly, the court granted the habeas petition and issued an
1
The court also noted that Pearson had no adult criminal record aside
from the commitment offense, and rejected the State’s contention that his
juvenile record constituted “some evidence” of current dangerousness.
17608 PEARSON v. MUNTZ
order requiring the State to release Pearson within thirty days.
The State appealed and filed an emergency motion to stay the
district court’s order.
In support of its motion for a stay, the State contended that
“there is no federally protected liberty interest in parole in
California,” that “the some evidence test does not control in
[federal habeas] review of parole cases,” and thus that “it was
erroneous for the district court to apply the some evidence
test” on federal habeas review under AEDPA. Because those
same legal questions were presented in Hayward v. Marshall,
in which rehearing en banc had just been granted, on June 3,
2008 we stayed Pearson’s release and suspended proceedings
in the State’s appeal pending our decision in Hayward.
On April 22, 2010, we issued our en banc decision in Hay-
ward, which held that courts must apply the California “some
evidence” test on federal habeas review under AEDPA. Hay-
ward v. Marshall, No. 06-55392, slip op. 6303, 6330 (9th Cir.
Apr. 22, 2010) (en banc). Because Hayward resolved the prin-
cipal issues that underlay the State’s request for the stay that
we granted, and did so adversely to the State, we issued an
order on May 4, 2010 dissolving our stay of the district
court’s order.
Under our circuit rule governing emergency motions, the
State now seeks reconsideration of our order dissolving the
stay and requests relief by today, May 24, 2010. It does so on
the basis of a series of fundamental misunderstandings of
Hayward. Its motion for reconsideration is therefore denied.2
2
Although previous motions in this case were appropriately disposed of
by order of one or two judges, see General Order 6.3(f), our rules require
that we issue this published order and opinion as a three-judge motions
panel, see General Order 6.3(g)(3)(ii).
PEARSON v. MUNTZ 17609
I.
[1] Our en banc decision in Hayward establishes the law
that governs our determination of post-AEDPA federal habeas
claims in which a California prisoner asserts that he was
denied parole in the absence of “some evidence”; i.e., some
evidence that he currently poses a threat to public safety. In
such cases, Hayward held that
courts in this circuit facing the same issue in the
future need only decide whether the California judi-
cial decision approving the governor’s [or the parole
board’s] decision rejecting parole was an “unreason-
able application” of the California “some evidence”
requirement, or was “based on an unreasonable
determination of the facts in light of the evidence.”
Hayward, slip op. at 6330 (quoting 28 U.S.C. § 2254(d)(1)-
(2)). That holding is binding on us.
The State cites Hayward for three propositions that are
inconsistent with the holding set forth above. In reviewing the
State’s arguments, we do so with the understanding that we
must look to the en banc court’s holdings, and that others
seeking to understand Hayward’s meaning must, as in all
cases, do likewise. In asserting its arguments, the State fails
to follow that elementary principle.
[2] First, although the State concedes that a California pris-
oner has a right to a parole decision supported by “some evi-
dence” of current dangerousness as a matter of state law, it
argues that because the “some evidence” rule is not a right
that arises under federal law, “Hayward established that there
is no federal right to a some-evidence review.” In fact, Hay-
ward held just the opposite. It held, as we have noted, that
federal habeas courts must “decide whether the California
judicial decision approving the governor’s decision rejecting
parole was an ‘unreasonable application’ of the California
17610 PEARSON v. MUNTZ
‘some evidence’ requirement, or was ‘based on an unreason-
able determination of the facts in light of the evidence.’ ”
Hayward, slip op. at 6330. A federal court may, of course,
review a habeas petition only on the ground that the petitioner
“is in custody in violation of the Constitution or laws or trea-
ties of the United States.” 28 U.S.C. § 2254(a). What the State
fails to recognize, however, is that state-created rights may
give rise to liberty interests that may be enforced as a matter
of federal law. See, e.g., Wilkinson v. Austin, 545 U.S. 209,
221 (2005). Given that under § 2254(a) federal courts may not
review a state court decision absent a violation of federal law,
the only possible basis for Hayward’s requirement that federal
courts review California’s application of the ‘some evidence’
rule is that the state requirement is mandated by federal law,
specifically the Due Process Clause.
[3] Similarly, the State argues that Hayward precludes
relief under AEDPA because it held that there is no clearly
established Supreme Court law under which compliance with
the “some evidence” standard is required. Again, the State
clearly misreads our opinion. What Hayward says is that the
Supreme Court has not held that “some evidence” is a rule
that must be applied in all states regardless of state law. In the
case before us, it is the state law that requires “some evi-
dence”; and it is that state law that gives rise to “interests” on
the part of state prisoners that may be enforced as a matter of
federal law. The principle that state law gives rise to liberty
interests that may be enforced as a matter of federal law is
long-established. See infra page 17613-14. Hayward clearly
did not preclude relief under AEDPA. To the contrary, it not
only announced that AEDPA applied but it applied AEDPA
to the case before it — to Hayward’s claim that he was denied
parole in the absence of “some evidence.”
[4] Third, the State contends that Hayward limits federal
habeas review to a cursory examination of whether a state
court identified and applied the California “some evidence”
requirement, rather than an examination of how the state court
PEARSON v. MUNTZ 17611
applied the requirement. Again, the State’s argument is based
on a fundamental misunderstanding of the Hayward holding
quoted above. Hayward specifically commands federal courts
to examine the reasonableness of the state court’s application
of the California “some evidence” requirement, as well as the
reasonableness of the state court’s determination of the facts
in light of the evidence. Hayward, slip op. at 6330. That com-
mand can only be read as requiring an examination of how the
state court applied the requirement. Moreover, after examin-
ing the particular state court decision at issue, Hayward con-
cluded that the district court properly denied the writ because
“[t]here was some evidence of future dangerousness” justify-
ing the denial of parole, slip op. at 6331, and not merely
because the state court purported to identify some evidence of
future dangerousness. In short, the Hayward court itself per-
formed the function that the State argues it forbade. Indubita-
bly, Hayward neither announced nor applied the test now
urged by the State.
[5] In sum, notwithstanding the State’s arguments to the
contrary, our en banc holding in Hayward requires federal
courts to decide precisely what it announces that they must
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.’ ” Slip op. at 6330 (quoting 28 U.S.C.
§ 2254(d)(1)-(2)). In establishing that rule, Hayward fore-
closed all of the principal arguments made by the State in its
original motion to stay the district court’s order pending
appeal, and now repeated to us in its motion for rehearing.
This time, however, because the en banc court has rejected the
State’s arguments, we can no longer allow those arguments to
serve as a basis for a stay of the district court’s decision.
II.
It took this court more than four years to resolve the critical
question in Hayward: whether we may review the habeas
17612 PEARSON v. MUNTZ
claims asserted by California prisoners like Pearson. During
this period a number of persons who had been held eligible
for release by parole boards remained in prison while we con-
sidered the legal issues raised by the State. Now that we have
issued our en banc decision, we find once again that the State
is raising those same issues as a basis for continuing to hold
individuals in detention, and that in doing so it appears not to
comprehend the opinion at which we arrived so painfully and
with such deliberation.
In addition to rejecting the three principal arguments dis-
cussed above, we will try to clarify some closely related argu-
ments suggested by the State, or perhaps some of the principal
arguments merely restated in different forms. The State’s
motion suggests that on the basis of a discussion in Hayward
of the distinction between parole and good time, the State
takes the view that unlike good time, parole is not subject to
habeas review. Our discussion on that point, however, con-
cludes with the statement that “in the absence of state law
establishing otherwise, there is no federal constitutional
requirement that parole be granted in the absence of ‘some
evidence’ of future dangerousness or anything else.” Slip op.
at 6327 (emphasis added). The State appears to take the above
quotation to mean that the federal Constitution never requires
adherence to a “some evidence” requirement, even if adher-
ence to that requirement is mandated by state law.
The State is in error. We asserted clearly that the United
States Constitution does not establish a uniform federal
requirement of “some evidence” that applies to parole deci-
sions in every state, and that no such requirement exists “in
the absence of state law establishing otherwise.” We noted
that the scope of any federal due process right to release on
parole depends on the “substantive state law” that defines the
attributes of the particular parole system at issue, slip op. at
6317,3 and we recognized that California law explicitly
3
In this portion of Hayward, we expressed concern about a possible
misreading of our prior decisions in Biggs v. Terhune, 334 F.3d 910 (9th
PEARSON v. MUNTZ 17613
creates a right to release in the absence of “some evidence”
of current dangerousness. Id. at 6327-30. We emphasized that,
although the California “some evidence” requirement is
enforceable on federal habeas review, the federal Constitution
does not “constrain[ ] other states to conform to the California
system.” Id. at 6330-31.
Like many liberty interests that are enforceable under the
federal Due Process Clause, a California prisoner’s right to
parole in the absence of “some evidence” of current danger-
ousness arises from state law. Slip op. at 6329-30. It is beyond
doubt that state statutes, and a fortiori state constitutions,
“may create liberty interests in parole release that are entitled
to protection under the Due Process Clause.” Bd. of Pardons
v. Allen, 482 U.S. 369, 371 (1987) (citing Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12
(1979)). In California, the “some evidence” requirement is a
component of that liberty interest. A state has no duty under
the federal Constitution to create any parole system at all, let
alone a parole system in which a prisoner must be released
unless certain requirements have been satisfied. See Green-
holtz, 442 U.S. at 7; see also Hayward, slip op. at 6324-25.
Once a state creates such a system, however, it must operate
it in a manner that comports with due process. There is noth-
ing novel or unusual about the liberty interests created by the
state laws and rules governing parole systems. It is a basic
principle of federal due process that “[a] liberty interest may
arise [not only] from the Constitution itself, by reason of
Cir. 2003), Sass v. California Board of Prison Terms, 461 F.3d 1123 (9th
Cir. 2006), and Irons v. Carey, 505 F.3d 846 (9th Cir. 2007). We noted
that those decisions should not “be read to imply that there is a federal
constitutional right regardless of whether state law entitles the prisoner to
release,” and overruled those decisions only “to the extent [that] they may
be read to mean that.” Hayward, slip op. at 6317. We did not, however,
disturb those opinions’ holdings with regard to the federally protected lib-
erty interest created by the state laws and rules governing the California
parole system.
17614 PEARSON v. MUNTZ
guarantees implicit in the word ‘liberty,’ . . . [but also] from
an expectation or interest created by state laws or policies.”
Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
Through its state statutory and constitutional law, Califor-
nia has created a parole system that independently requires
the enforcement of certain procedural and substantive rights,
including the right to parole absent “some evidence” of cur-
rent dangerousness. Hayward, slip op. at 6327-30 (discussing,
inter alia, In re Lawrence, 190 P.3d 535 (Cal. 2008); In re
Shaputis, 190 P.3d 573 (Cal. 2008); and In re Rosenkrantz, 59
P.3d 174 (Cal. 2002)). California law gives rise to a liberty
interest on the part of its prisoners covered by its parole sys-
tem. Having guaranteed the prisoners of the state that they
will not be denied a parole release date absent “some evi-
dence” of current dangerousness, California is not permitted
under the federal Constitution arbitrarily to disregard the
“some evidence” requirement in any particular case.4 It is
therefore our obligation, as we held in Hayward, to review the
merits of a federal habeas petition brought by a California
prisoner who asserts that the decision to deny him parole was
not supported by “some evidence” of his current dangerous-
ness. Under AEDPA, this means that we review “whether the
California judicial decision approving the governor’s [or
parole board’s] decision rejecting parole was an ‘unreason-
able application’ of the California ‘some evidence’ require-
ment, or was ‘based on an unreasonable determination of the
facts in light of the evidence.’ ” Hayward, slip op. at 6330
(quoting 28 U.S.C. § 2254(d)(1)-(2)).
III.
The California Board of Prison Terms found Pearson suit-
4
The California Supreme Court recently recognized that the lower
courts of the state have applied the “some evidence” requirement in a
manner that has produced “arbitrary results.” Lawrence, 190 P.3d at 554-
55.
PEARSON v. MUNTZ 17615
able for parole in 2003, but the Governor reversed that deci-
sion and denied him parole in 2004. The district court
determined on April 1, 2008 that the Governor’s action vio-
lated Pearson’s federal due process rights. If the district
court’s decision is correct, as we are bound to presume at this
stage of the proceedings, Hilton v. Braunskill, 481 U.S. 770,
777 (1987), Pearson should have been released on parole
more than six years ago.
We issued a stay of the district court’s order solely because
of the pendency of our en banc decision in Hayward and the
issues presented in that case regarding federal habeas review
of California parole decisions, especially the “some evidence”
requirement. When Hayward resolved those issues in a man-
ner contrary to the State’s arguments here, we concluded that
there was no longer any basis for a stay and therefore dis-
solved it.
[6] Given our conclusion that the only legal arguments
advanced by the State in its motion for reconsideration are
entirely without merit, and because the State has otherwise
provided insufficient reason to reinstate the stay, we deny the
State’s motion for reconsideration.
DENIED.