NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 18 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
KHALIFAH E.D. SAIF’ULLAH, No. 06-17389
Petitioner - Appellant, D.C. No. CV-02-02664-
MCE/DAD
v.
D.K. SISTO and EDMUND G. BROWN, MEMORANDUM *
JR., Attorney General,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued August 12, 2010; Resubmitted May 17, 2011
San Francisco, California
Before: GRABER, CALLAHAN, and BEA, Circuit Judges.
In 1980, Khalifah E.D. Saif’ullah was convicted of kidnaping for ransom
with a firearm and was sentenced to seven years to life in prison. In July 2000, the
California Board of Prison Terms (“Board”) again denied him parole because (1)
the commitment offense was carried out in a “dispassionate and calculated manner
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
which demonstrated an exceptionally callous disregard for human suffering”; (2)
prior to his conviction he had a record of violence; and (3) he had received
fourteen write-ups for prison violations. After the California courts denied him
relief, Saif’ullah sought federal habeas relief. The district court denied the petition,
finding that there was “some evidence” to support the Board’s denial of parole.
We do not reach the merits of the district court’s finding of “some evidence,” but
affirm pursuant to the Supreme Court’s opinion in Swarthout v. Cooke, 131 S. Ct.
859 (2011) (per curiam).
While this appeal was pending, the Supreme Court decided Swarthout.
Therein, the Court stated that “it is no federal concern here whether California’s
‘some evidence’ rule of judicial review (a procedure beyond what the Constitution
demands) was correctly applied.” Id. at 863. It held that the Federal Due Process
Clause requires a California inmate to receive only “an opportunity to be heard and
. . . a statement of the reasons why parole was denied,” and noted that the “correct
application of the State’s ‘some evidence’ standard” is not required by the Federal
Due Process Clause. Id. at 861-62; see also Roberts v. Hartley, No. 10-15760, __
F.3d __, 2011 WL 1365811 (9th Cir. April 12, 2011).
Here, the record shows that Saif’ullah had the opportunity to be heard at the
2000 hearing and was given a statement of the reasons for the denial of parole. On
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this record, and in light of Swarthout, Saif’ullah has not demonstrated that the state
court’s denial of relief “was contrary to, or involved an unreasonable application
of, clearly established Federal law” or “was based on an unreasonable
determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d).
AFFIRMED.
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