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NOT FOR PUBLICATION JUL 13 2011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
DAVID VELASQUEZ, No. 09-16891
Petitioner - Appellee, D.C. No. 2:05-cv-02118-LKK-
CHS
v.
TOM L. CAREY, Warden, MEMORANDUM*
Respondent - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Submitted July 11, 2011**
San Francisco, California
Before: HUG, SILVERMAN, and GRABER, Circuit Judges.
Warden Tom L. Carey appeals the district court’s order granting David
Velasquez’s 28 U.S.C. § 2254 petition for writ of habeas corpus. We have
jurisdiction over the Warden’s appeal pursuant to 28 U.S.C. § 2253(a). We review
*
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).
de novo the district court’s decision to grant habeas relief, Gonzalez v. Brown, 585
F.3d 1202, 1206 (9th Cir. 2009), and we reverse.
The district court’s decision was rendered without the benefit of the
Supreme Court’s recent decision in Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per
curiam), which 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.
Velasquez 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
Governor—after considering the same evidence that was before the
Board—provided written reasons for reversing the Board’s finding that Velasquez
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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. 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, Velasquez’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.”).
REVERSED.
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