Michael Slater v. William Sullivan

FILED
NOT FOR PUBLICATION JUL 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL CRAIG SLATER, No. 09-17784
Petitioner - Appellee, D.C. No. 1:08-cv-00571-OWW-
JMD
v.
WILLIAM SULLIVAN, Warden, MEMORANDUM *
Respondent - Appellant,
and
JAMES E. TILTON, Secretary of
California Department of Corrections &
Rehabilitation,
Respondent.
On Remand from the
United States Supreme Court
Before: KLEINFELD and GRABER, Circuit Judges, and MOLLOY,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
This case returns to us on remand from the Supreme Court of the United
States, which vacated our previous judgment. Reviewing de novo, Buckley v.
Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc), we now reverse the district
court’s grant of Petitioner’s habeas corpus petition in light of the Supreme Court’s
recent decision in Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per curiam).
The district court granted the petition on the ground that the State had
violated Petitioner’s right to due process when it denied him parole in the absence
of "some evidence" of current dangerousness as required by California law. In
Cooke, however, the Supreme Court held 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. Rather, when there is a liberty interest in parole, "an
opportunity to be heard" and "a statement of reasons why parole was denied" are
sufficient to satisfy federal due process. Id. at 862 (citing Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 442 U.S. 1, 16 (1979)).
In this case, Petitioner had an opportunity to be heard before the California
Board of Parole Hearings, and he was provided with a statement of reasons for his
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parole denial. Therefore, Petitioner’s due process rights were not violated. See
Cooke, 131 S. Ct. at 862-63; Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir.
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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