Ramirez v. Clark

FILED
NOT FOR PUBLICATION JUL 13 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN RAMIREZ, No. 08-15144

Petitioner - Appellant, D.C. No. CV-06-01029-
OWW/SMS
v.

KEN CLARK, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding

Submitted July 11, 2011**
San Francisco, California

Before: HUG, SILVERMAN, and GRABER, Circuit Judges.

Martin Ramirez appeals the district court’s order denying his 28 U.S.C. §

2254 petition for writ of habeas corpus. We have jurisdiction over Ramirez’s

appeal pursuant to 28 U.S.C. § 2253(a). We review de novo the district court’s

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
decision to deny habeas relief, Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir.

2009), and we affirm.

Ramirez argues that the state court decision upholding the Governor’s parole

determination rested on an unreasonable application of California’s “some

evidence” requirement and an unreasonable determination of the facts in light of

the evidence. His arguments are foreclosed by Swarthout v. Cooke, 131 S. Ct. 859

(2011) (per curiam). Cooke makes clear that “it is [of] no federal concern . . .

whether California’s ‘some evidence’ rule of judicial review (a procedure beyond

what the Constitution demands) was correctly applied.” Id. at 863. Federal habeas

relief is not available for errors of state law, and the correct application of

California’s “some evidence” standard is not mandated by the Federal Due Process

Clause. Id. at 861. Where, as here, a state creates a protectible liberty interest in

parole, due process requires only that the prisoner be afforded “an opportunity to

be heard” and “provided a statement of reasons why parole was denied.” Id. at 862

(citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16

(1979)). This is “the beginning and the end of the federal habeas courts’ inquiry

into whether [the prisoner] received due process.” Id.

Ramirez had an opportunity to be heard and to contest the evidence against

him at his parole hearing before the Board of Prison Terms, and the

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Governor—after considering the same evidence that was before the

Board—provided written reasons for reversing the Board’s finding that Ramirez

was eligible for parole. Furthermore, the Governor was not required, as a matter of

federal due process, to hold a second suitability hearing before reversing the

Board’s decision. See Styre v. Adams, No. 09-15782, — F.3d —, 2011 WL

2176465, at *1-2 (9th Cir. June 6, 2011). Therefore, even if the state court

misapplied the “some evidence” standard, Ramirez’s due process rights were not

violated. See Cooke, 131 S. Ct. at 862-63; see also Pearson v. Muntz, No. 08-

55728, 639 F.3d 1185, 2011 WL 1238007, at *5 (9th Cir. Apr. 5, 2011) (“Cooke

makes clear that we cannot consider whether ‘some evidence’ of dangerousness

supported a denial of parole on a petition filed under 28 U.S.C. § 2254.”).

AFFIRMED.

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