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-
SGL-OP
MADELENE A. MUNTZ, Acting
Warden, ORDER AND
Respondent-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Filed May 24, 2010
Before: Stephen Reinhardt, Marsha S. Berzon, and
Milan D. Smith, Jr., Circuit Judges.
Per Curiam Opinion
7791
PEARSON v. MUNTZ 7793
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.
7794 PEARSON v. MUNTZ
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
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.
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.
PEARSON v. MUNTZ 7795
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
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 . . . [must] decide whether the
California judicial decision approving the governor’s
[or the parole board’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.”
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).
7796 PEARSON v. MUNTZ
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
‘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). 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 necessarily held that compliance with 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
PEARSON v. MUNTZ 7797
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 7800. 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
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.
7798 PEARSON v. MUNTZ
[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
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-
PEARSON v. MUNTZ 7799
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
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
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
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.
7800 PEARSON v. MUNTZ
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
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
4
The California Supreme Court recently recognized that the lower
courts of the state have applied the “some evidence” requirement in a
PEARSON v. MUNTZ 7801
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-
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
manner that has produced “arbitrary results.” Lawrence, 190 P.3d at 554-
55.
7802 PEARSON v. MUNTZ
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.