FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH A. ROBERTS, No. 10-15760
Petitioner-Appellee, D.C. No.
v. 1:08-cv-01093-
JAMES D. HARTLEY, Warden, AWI-JMD
Respondent-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted
January 11, 2011—San Francisco, California
Filed April 12, 2011
Before: Alex Kozinski, Chief Judge, J. Clifford Wallace and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Wallace
5001
ROBERTS v. HARTLEY 5003
COUNSEL
Christopher J. Rench, Deputy Attorney General, Sacramento,
California, for appellant James D. Hartley.
5004 ROBERTS v. HARTLEY
David M. Porter, Assistant Federal Defender, Sacramento,
California, for appellee Kenneth A. Roberts.
OPINION
WALLACE, Senior Circuit Judge:
The Warden appeals from the district court’s issuance of a
writ of habeas corpus in favor of Petitioner Kenneth A. Rob-
erts. The district court issued the writ pursuant to 28 U.S.C.
§ 2254(d) after concluding that California misapplied its stan-
dard for determining Roberts’s eligibility for parole. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 2253(a).
In light of the Supreme Court’s recent decision in Swarthout
v. Cooke, 131 S. Ct. 859 (2011), we reverse.
I.
California law vests the State Board of Prison Terms
(Board) with authority to evaluate whether state prisoners,
such as Roberts, are eligible for parole. In conducting this
evaluation, the Board is required to “set a release date” for an
inmate unless the Board finds that “consideration of the pub-
lic safety requires a more lengthy period of incarceration.”
Cal. Penal Code Ann. § 3041(b) (West 2010). When the
Board determines that an inmate is ineligible for parole, that
prisoner can seek judicial review by filing a petition for col-
lateral relief in state court. Review of the Board’s decision,
however, is “extremely deferential.” In re Rosenkrantz, 59
P.3d 174, 210 (Cal. 2002). A decision denying parole must be
upheld as long as “ ‘some evidence’ supports the conclusion
that the inmate . . . is dangerous.” In re Lawrence, 190 P.3d
535, 539 (Cal. 2008).
Roberts appeared before the Board for consideration of his
eligibility for parole in June 2006. He had been convicted of
ROBERTS v. HARTLEY 5005
second-degree murder twenty years earlier and sentenced to
a term of life imprisonment with the possibility of parole. At
the 2006 parole hearing, the Board permitted Roberts to speak
on his own behalf and to respond to the evidence presented
against him. Upon review of the evidence in Roberts’s parole
file, the Board denied parole due to concerns about the nature
of Roberts’s offense, his subsequent minimization of the mur-
der, and his reasons for surrendering to law enforcement.
Shortly after the Board issued its decision, Roberts filed a
petition for collateral relief in state superior court. Relying on
Rosenkrantz, Roberts asserted that the Board’s parole decision
was not supported by sufficient evidence of dangerousness.
The superior court disagreed, concluding that the Board’s
decision satisfied California’s “some evidence” standard
because Roberts committed his crime in “a dispassionate and
calculated manner” and for a “very trivial motive.” Roberts’s
subsequent petitions to the court of appeal and state supreme
court were summarily denied.
Roberts then filed a petition for a writ of habeas corpus in
the Eastern District of California. Following then-existing
precedent, the district court issued the writ, holding that Rob-
erts’s due process rights had been violated by the state court’s
misapplication of California’s “some evidence” standard for
parole determinations. Relying on a magistrate judge’s report
and recommendation, the district court concluded that there
was no nexus between the facts relied upon by the state supe-
rior court and the Board’s finding that Roberts presented a
current threat of dangerousness.
II.
We review a district court’s decision to issue a writ of
habeas corpus de novo. Lambert v. Blodgett, 393 F.3d 943,
964 (9th Cir. 2004). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a state prisoner is not
entitled to a writ of habeas corpus unless he establishes that
5006 ROBERTS v. HARTLEY
the state court’s adjudication of a federal claim was either (1)
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States;” or (2) “based on an unreasonable
determination of the facts in light of the evidence presented
at the State court proceeding.” 28 U.S.C. §§ 2254(a),
(d)(1)-(2).
Until now, and notwithstanding AEDPA’s deferential stan-
dard of review, our circuit has permitted California prisoners
seeking parole to obtain a federal writ of habeas corpus based
on a state court’s misapplication of California’s “some evi-
dence” standard. We recently addressed this issue en banc in
Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). There,
we overruled a line of cases in which we had indicated that
the constitutional right to due process requires a state’s deci-
sion denying parole to be based upon “some evidence” of cur-
rent dangerousness. See id. at 555. Yet, while we held that the
Due Process Clause “does not, by itself, entitle a prisoner to
parole in the absence of some evidence of . . . dangerous-
ness,” id. at 561, we nonetheless suggested that California’s
parole scheme creates a “liberty interest . . . that [is] entitled
to protection under the Due Process Clause.” Id., quoting Bd.
of Pardons v. Allen, 482 U.S. 369, 371 (1987). We then stated
that “courts in this circuit facing [this] issue in the future[ ]
need only decide whether the California judicial decision
approving the governor’s [or the Board’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.
at 562-63 (internal footnote omitted).
[1] Our decision in Cooke v. Solis, 606 F.3d 1206 (9th Cir.
2010), went further. There, we explicitly held that Califor-
nia’s “some evidence” standard creates a liberty interest pro-
tected by the Constitution’s Due Process Clause. Id. at 1213.
After construing the state court’s some evidence determina-
tion as a finding of fact, we then held that Cooke’s due pro-
ROBERTS v. HARTLEY 5007
cess rights had been violated because the state court decision
affirming the Board’s denial of parole was “based on an
unreasonable determination of the facts in light of the evi-
dence.” Id. at 1216, quoting Hayward, 603 F.3d at 563. In
essence, Cooke held that federal courts within our circuit are
to grant habeas relief if the California judicial decision
upholding the denial of parole was based on an unreasonable
application of that state’s “some evidence” requirement. Id.
Subsequent cases followed a similar approach. See, e.g.,
Pearson v. Muntz, 625 F.3d 539 (9th Cir. 2010); Pirtle v. Cal.
Bd. of Prison Terms, 611 F.3d 1015 (9th Cir. 2010).
[2] The Supreme Court, however, recently reversed our
decision in Cooke, holding we did not apply the correct legal
test for determining whether a state prisoner’s due process
rights had been violated by a state court decision approving
the Board’s parole determination. The Court instructed that
the due process inquiry must be analyzed in two steps. Cooke,
131 S. Ct. at 861. “We first ask whether there exists a liberty
or property interest of which a person has been deprived . . . .”
Id. The second step requires us to “ask whether the proce-
dures followed by the State were constitutionally sufficient.”
Id.; see also Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7, 12 (1979).
[3] Turning to the first step, Cooke did not disturb our con-
clusion that California law creates a liberty interest in parole.
Id. at 861-62. Nevertheless, because states “are under no duty
to offer parole to their prisoners,” the Court explained that the
existence of this state liberty interest does not give rise to a
federal right “to be conditionally released before the expira-
tion of a valid sentence.” Id. at 862, citing Greenholtz, 442
U.S. at 7.
[4] Thus, when “a State creates a liberty interest” in parole,
the second step of the due process inquiry requires federal
courts to evaluate whether the state provided “fair proce-
dures” for the vindication of that interest. Id. Under this step,
5008 ROBERTS v. HARTLEY
we look to federal law to determine whether a state prisoner
has been afforded the procedural protections required by the
Constitution. Id. In the parole context, “the procedures
required are minimal.” Id. Due process is satisfied as long as
the state provides an inmate seeking parole with “an opportu-
nity to be heard and . . . a statement of the reasons why parole
was denied.” Id., citing Greenholtz, 442 U.S. at 12. Stated
otherwise, there is no substantive due process right created by
California’s parole scheme. If the state affords the procedural
protections required by Greenholtz and Cooke, that is the end
of the matter for purposes of the Due Process Clause. See
Hayward, 603 F.3d at 560 (“The Constitution does not require
more than an opportunity to be heard and a statement telling
the prisoner why he was not paroled” (internal quotation
marks omitted)).
III.
[5] Based on Cooke, it is clear that California did not vio-
late Roberts’s due process rights when it denied his request
for parole. At his parole hearing, the Board permitted Roberts
to speak on his own behalf and to contest the evidence against
him. See Cal. Penal Code Ann. §§ 3041, 3041.5. The Board
further provided Roberts an explanation of its decision. See
id. at § 3041.5(b)(2). This was sufficient to satisfy the Due
Process Clause. See Cooke, 131 S. Ct. at 862.
[6] It makes no difference that Roberts may have been sub-
jected to a misapplication of California’s “some evidence”
standard. A state’s misapplication of its own laws does not
provide a basis for granting a federal writ of habeas corpus.
See 28 U.S.C. § 2254(a) (stating that a federal court may grant
the writ only if a state prisoner’s custody violates the Consti-
tution or other laws of the United States); Cooke, 131 S. Ct.
at 861 (“[F]ederal habeas corpus relief does not lie for errors
of state law.” (quotation omitted)). Admittedly, our prior pre-
cedent required review of the propriety of a California state
court’s “some evidence” determination. See, e.g., Pearson,
ROBERTS v. HARTLEY 5009
625 F.3d at 550; Pirtle, 611 F.3d at 1025. Nevertheless,
Cooke overruled that precedent. 131 S. Ct. at 862.
Finally, Roberts’s reliance on our decision in Irons v.
Carey, 505 F.3d 846 (9th Cir. 2007), cannot save his due pro-
cess claim. In Irons, we relied on the Supreme Court’s deci-
sion in Superintendent v. Hill, 472 U.S. 445, 457 (1985), and
concluded that a state’s parole system gives rise to the same
procedural protections that must be afforded to prisoners
deprived of “good-time credits.” Id. at 851, citing Hill, 472
U.S. at 457. Our en banc decision in Hayward, however, clar-
ified that there is an important “constitutional distinction
between good time and parole.” 603 F.3d at 558. We
explained that “[g]ood time is not, as parole is, a ‘discretion-
ary assessment of a multiplicity of imponderables, entailing
primarily what a man is and what he may be rather than sim-
ply what he has done.’ ” Id. at 560-61, quoting Greenholtz,
442 U.S. at 10. We therefore explicitly overruled Irons and
held that Greenholtz, rather than Hill, dictates the procedural
rights that must be afforded to a California prisoner who has
been denied parole. Id. at 555, 560 n.82.
Cooke reaffirms the distinction between the process neces-
sary when a prisoner’s good-time credits are revoked and the
process due when a state denies a prisoner’s request for
parole. Examining state law, the Court explained that Califor-
nia does “not purport to equate [its] parole system with good-
time credits.” Cooke, 131 S. Ct. at 862 n.1. Nevertheless, even
if California, as a matter of state law, did mandate the same
procedural protections for parole determinations as those
required for the revocation of good-time credits, the outcome
in this case would be no different. “[T]he question of which
due process requirements apply is one of federal law, not
[state] law.” Id. Given that Roberts received all of the process
to which he was due under the applicable test from Green-
holtz and Cooke, his due process claim necessarily fails.
5010 ROBERTS v. HARTLEY
IV.
[7] The district court granted habeas relief without the ben-
efit of the Court’s recent decision in Cooke. As we very
recently stated, “Cooke was unequivocal in holding that if an
inmate seeking parole receives an opportunity to be heard, a
notification of the reasons as to denial of parole, and access
to their records in advance, that should be the beginning and
the end of the inquiry into whether the inmate received due
process.” Pearson v. Muntz, ___ F.3d ___, 2011 WL
1238007, at *5 (9th Cir. April 5, 2011) (internal quotation
marks and alterations omitted). Cooke clearly holds that the
“responsibility for assuring that the constitutionally adequate
procedures governing California’s parole system are properly
applied rests with California courts.” 131 S. Ct. at 862. To
lend emphasis to the holding, the Court directed that it “is no
part of the Ninth Circuit’s business” to reevaluate California’s
application of its rules for determining parole eligibility. Id.
REVERSED.