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-

M  SGL-OP ADELENE A. MUNTZ, Acting

Warden, ORDER AND

Respondent-Appellant. AMENDED

OPINION 

Appeal from the United States District Court

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Filed May 24, 2010

Amended October 26, 2010

Before: Stephen Reinhardt, Marsha S. Berzon, and

Milan D. Smith, Jr., Circuit Judges.

Order;

Dissent to Order by Judge Ikuta;

Per Curiam Opinion

17595
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.

ORDER

The majority opinion filed May 24, 2010, slip op. 7791,

and appearing at 606 F.3d 606 (9th Cir. 2010), is hereby

amended as follows:

1. slip op. at 7795, line 26: replace “. . . [must]” with “facing the same issue in the future need only”.

2. slip op. at 7796, line 31: replace “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” with “Given that under

§ 2254(a) federal courts may not review a state court

decision absent a violation of federal law, the only possible basis for Hayward’s requirement that federal courts

review California’s application of the ‘some evidence’

rule is that”.

With these amendments, the panel has voted to deny the

petition for panel rehearing and the suggestion for rehearing

en banc.

17598 PEARSON v. MUNTZ
The full court was advised of the suggestion for rehearing

en banc. A judge of the court requested a vote on whether to

rehear the matter en banc. The matter failed to receive a

majority of the votes of the nonrecused active judges in favor

of en banc reconsideration. FED. R. APP. P. 35. 

No further petitions for rehearing or rehearing en banc will

be entertained.

IKUTA, Circuit Judge, dissenting from the denial of rehearing

en banc, joined by O’SCANNLAIN, TALLMAN, BYBEE,

CALLAHAN, BEA, and N.R. SMITH, Circuit Judges:

In one of our oddest habeas decisions to date, the Ninth

Circuit has not just misinterpreted the language of AEDPA,

28 U.S.C. § 2254(d), but has actually rewritten it. Contrary to

the plain language of AEDPA, Pearson holds that a California

prisoner is entitled to habeas relief because the state court’s

decision was inconsistent with California law as determined

by the California Supreme Court, or was based on a unreasonable factual determination of a state law issue. Pearson v.

Muntz, 606 F.3d 606, 611-12 (9th Cir. 2010) (per curiam).

Not only does this holding rewrite AEDPA, it also contradicts

the entire body of Supreme Court AEDPA jurisprudence. In

failing to rehear this case en banc, we bind this circuit to an

analytic approach that will consistently generate wrong decisions in the hundreds of challenges to California parole decisions adjudicated by federal courts in this circuit each year.

Therefore, I respectfully dissent from the denial of rehearing

en banc.

I

After pleading guilty to second degree murder in 1987, California state prisoner Kenneth Pearson became eligible for

parole in 1995. After denying his application for parole seven

PEARSON v. MUNTZ 17599
times, the parole board deemed Pearson suitable for parole in

2003. Governor Schwarzenegger then exercised his authority

under the California Constitution to reverse the parole board’s

suitability determination. See Cal. Const. art. V, § 8(b). The

Governor based this denial on a number of parole suitability

factors, including that Pearson’s commitment offense demonstrated an “exceptionally callous disregard” for his victim’s

suffering. 

Pearson appealed this decision to the state trial court. Under

the California due process clause, prisoners have a protected

liberty interest in parole, and cannot be deprived of that interest without the procedural protections required by the California constitution. In re Rosenkrantz, 59 P.3d 174, 207 (Cal.

2002). Under California law in effect at the time of Pearson’s

appeal, the Governor’s denial of parole had to “be supported

by some evidence in the record” relevant to the parole suitability factors that the Governor was required to consider, id.

at 209, but the “nature of the prisoner’s offense, alone, [could]

constitute a sufficient basis for denying parole” when the

offense was particularly egregious, id. at 222. 

The state trial court upheld the Governor’s decision. Relying on Rosenkrantz, the court held that the circumstances of

Pearson’s commitment offense alone constituted sufficient

evidence of parole unsuitability. After the California Court of

Appeal and California Supreme Court likewise affirmed,

Pearson applied for federal habeas relief. 

In federal court, Pearson argued that the state’s parole

denial violated his federal due process rights because there

was no evidence supporting the Governor’s determination that

Pearson’s parole posed an unreasonable risk of danger to society. Dist. Ct. Dkt. # 1, at 12.1

 California argued that the “some

evidence” standard of review in parole suitability hearings

1California agreed that Pearson had exhausted this claim in state court.

Dist. Ct. Dkt. # 7, at 5-6. 

17600 PEARSON v. MUNTZ
was not “clearly established Federal law,” and that a statement of reasons and an opportunity to be heard was all that

was required under Supreme Court precedent. 

The district court rejected the state’s argument,2 relying on

a line of Ninth Circuit cases which (like California law)

required a parole denial to be based on “some evidence” of

the relevant factors. Dist. Ct. Op. at 21 n.10. California filed

an emergency motion to stay the proceedings to prevent Pearson’s release. Pearson, 606 F.3d at 607. The Pearson panel

granted the stay, because we were currently reconsidering our

“some evidence” line of cases en banc. 

While the stay was pending, the California Supreme Court

revisited Rosenkrantz and concluded that the “underlying circumstances of the [prisoner’s] commitment offense alone”

will rarely be sufficient to uphold a parole denial decision. In

re Lawrence, 190 P.3d 535, 553 (Cal. 2008); accord In re

Shaputis, 190 P.3d 573 (Cal. 2008). “[T]he proper articulation

of the standard of review is whether there exists ‘some evidence’ that an inmate poses a current threat to public safety,

rather than merely some evidence of the existence of a statutory unsuitability factor.” Shaputis, 190 P.3d at 580.

Shortly thereafter, we issued Hayward v. Marshall, 603

F.3d 546 (9th Cir. 2010) (en banc), which overruled our

“some evidence” line of cases and clarified that Greenholtz v.

Inmates of Nebraska Penal & Correctional Complex, 442

U.S. 1 (1979), discussed below, guides the AEDPA analysis

of a due process challenge to a parole denial. Hayward, 603

F.3d at 555, 560 n.82.

Based on an idiosyncratic interpretation of Hayward, Pearson dissolved the stay of the district court’s order. California

then filed an emergency motion to reconsider this decision,

2Because the district court adopted the magistrate’s report and recommendation in full, I refer to both as the “district court.” 

PEARSON v. MUNTZ 17601
arguing that since Hayward had overruled the only cases supporting the district court’s grant of habeas relief, the state was

likely to succeed in reversing the district court’s decision, and

therefore we should keep the stay in place pending California’s appeal. See Pearson, 606 F.3d at 608.

As explained in more detail below, instead of considering

whether the state court’s decision was inconsistent with U.S.

Supreme Court precedent, Pearson concluded that because

the state court had not correctly applied California Supreme

Court precedent, as established by Lawrence and Shaputis,

California was unlikely to succeed on the merits of its appeal

of the district court’s decision.3Id. at 611-12. Accordingly,

Pearson issued a published opinion and order denying California’s motion to reconsider.

II

The correct analysis of Pearson’s habeas petition under

AEDPA is straightforward. Following AEDPA, a court may

not grant an application for a writ of habeas corpus from a

state prisoner “with respect to any claim that was adjudicated

on the merits in State court proceedings” unless the proceeding “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2). 

3Because Pearson involved a motion to stay the proceedings, the central

issue before the panel was whether California “ha[d] made a strong showing that [it was] likely to succeed on the merits.” Hilton v. Braunskill, 481

U.S. 770, 776 (1987); see also Nken v. Holder, 129 S. Ct. 1749, 1761

(2009). Although there is a “presumption of release from custody” of a

successful habeas petitioner pending appeal, see Fed. R. App. P. 23(c), “it

may be overcome if the traditional stay factors tip the balance against it.”

Hilton, 481 U.S. at 774, 777. 

17602 PEARSON v. MUNTZ
In the parole context, the “clearly established Federal law,

as determined by the Supreme Court” is Greenholtz. Like

other Supreme Court due process cases, Greenholtz “examine[d] procedural due process questions in two steps: the

first asks whether there exists a liberty or property interest

which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation

were constitutionally sufficient.” Ky. Dep’t of Corr. v.

Thompson, 490 U.S. 454, 460 (1989) (citations omitted); see

also Greenholtz, 442 U.S. at 7, 12. Greenholtz first explained

that it is possible for a prisoner to have a constitutionally protected liberty interest in parole, but only to the extent that

state law creates it. See 442 U.S. at 12; see also Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). Turning to the second element of the due process inquiry, Greenholtz

determined that all the Due Process Clause required was a

procedure that gave an inmate “an opportunity to be heard”

and “inform[ed] the inmate in what respects he [fell] short of

qualifying for parole.” 442 U.S. at 16. To date, the Supreme

Court has not further developed or modified Greenholtz’s

approach to analyzing the due process rights of prisoners who

are denied parole. See, e.g., Allen, 482 U.S. at 373, 381

(applying the Greenholtz two-prong due process inquiry to a

different state’s statutory scheme).

The state court’s decision in this case was not “contrary to”

Greenholtz’s two-element federal due process inquiry. As the

Supreme Court has explained, “[a] state-court decision will

certainly be contrary to our clearly established precedent if

the state court applies a rule that contradicts the governing

law set forth in our cases” or “if the state court confronts a set

of facts that are materially indistinguishable from a decision

of this Court and nevertheless arrives at a result different from

our precedent.” Williams v. Taylor, 529 U.S. 362, 405-06

(2000). “Avoiding these pitfalls does not require citation of

our cases—indeed, it does not even require awareness of our

cases, so long as neither the reasoning nor the result of the

state-court decision contradicts them.” Early v. Packer, 537

PEARSON v. MUNTZ 17603
U.S. 3, 8 (2002) (per curiam). Here, the state court did not

need to address the first prong of Greenholtz because it is

undisputed that Pearson had a federal liberty interest in parole

created by California law. Further, the state court’s decision

that Pearson was not denied due process is not “contrary to”

the second prong of Greenholtz, because it is undisputed that

Pearson had an opportunity to be heard and received a decision explaining why the Governor denied his parole. See 442

U.S. at 16.4

Nor was the state court’s determination based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. See § 2254(d)(2).

Because it is undisputed that Pearson was denied the statecreated liberty interest in parole, the only facts that are relevant to the Greenholtz inquiry relate to whether Pearson

received the process that was due to him under federal law.

There is no factual dispute over whether Pearson had “an

opportunity to be heard” and received a statement informing

him “in what respects he [fell] short of qualifying for parole,”

442 U.S. at 16, the minimum procedure required under the

federal Due Process Clause. Contrary to Pearson’s mode of

analysis, it is simply irrelevant whether the state court made

a factual error in determining that there was “some evidence”

of the California parole suitability factors. See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991); Engle v. Isaac, 456 U.S.

107, 121 n.21 (1982) (“We have long recognized that a ‘mere

error of state law’ is not a denial of due process.”). 

The state court decision was consistent with Greenholtz.

Under AEDPA, that should have been the end of it.

4Because the state court did not expressly consider or apply Greenholtz,

but rather applied the state supreme court’s stricter due process requirements, the “unreasonable application” inquiry is not relevant here. As the

Supreme Court has noted, this prong applies only “if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Williams, 529 U.S. at 413. 

17604 PEARSON v. MUNTZ
III

Instead, Pearson reformulates the AEDPA analysis and

rejects the state court’s decision on the ground that the state

court erred as a matter of state law.

Pearson starts from the correct premise that California law

creates a liberty interest in parole that “may be enforced as a

matter of federal law.” 606 F.3d at 609 (citing Wilkinson v.

Austin, 545 U.S. 209, 221 (2005)). But then, Pearson takes an

extraordinarily wrong turn, holding that on habeas review a

federal court is required to 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.’ ” Id.

(quoting Hayward, 603 F.3d at 563). Put simply, Pearson

rewrites AEDPA. Where the statutory language asks whether

the state court’s decision was “an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States,” § 2254(d)(1) (emphasis

added), Pearson asks whether the state court’s decision was

“an ‘unreasonable application’ of the California ‘some evidence’ requirement,” Pearson, 606 F.3d at 609 (emphasis

added). Based on this judicial rewrite, Pearson concludes that

the state court’s decision was an unreasonable application of

the California Supreme Court’s “some evidence” requirement,

and accordingly reasons that Pearson would likely prevail on

his habeas claim and should therefore be released on parole.

See id. at 611-12.5

5

In taking this erroneous approach, Pearson purports to rely on our en

banc decision in Hayward. But this is incorrect: in Hayward, we held on

de novo review that the prisoner had not been deprived of his state-created

liberty interest in parole, and therefore did not reach the question whether

the prisoner had been denied adequate procedural protections. See Hayward, 603 F.3d at 563. Because the petitioner’s claim failed on de novo

review, it was also unnecessary to apply AEDPA. See Berghuis v. ThompPEARSON v. MUNTZ 17605
Pearson confusingly claims that it applied this flawed test

because “state-created rights may give rise to liberty interests

that may be enforced as a matter of federal law,” and therefore “compliance with the state requirement is mandated by

federal law, specifically the Due Process Clause.” 606 F.3d at

609. There is no dispute that Pearson has a state-created liberty interest in parole. But the federal Due Process Clause

does not mandate compliance with state procedural requirements associated with that interest: no “clearly established”

Supreme Court precedent provides that a state court’s error in

holding that a prisoner received all the process to which he

was due under state law violates the federal Constitution. In

reaching a contrary conclusion, Pearson loses sight of the “elementary” proposition that “States are free to provide greater

protections in their criminal justice system than the Federal

Constitution requires.” California v. Ramos, 463 U.S. 992,

1013-14 (1983). 

What concerns us on habeas review is not whether the state

court decision violated state law, but whether the state court

decision violated the federal Constitution, see 28 U.S.C.

§ 2254(a), and we know that here it did not: Pearson had all

the process due him under the Constitution, see Greenholtz,

442 U.S. at 16. Pearson is entitled to due process as a matter

of federal law, but the process to which he is entitled is

spelled out in Greenholtz, which does not include California’s

“some evidence” requirement. Pearson’s AEDPA analysis

has this precisely backwards.

kins, 130 S. Ct. 2250, 2264 (2010). Here, by contrast, there is no dispute

that Pearson was deprived of his state-created liberty interest in parole; the

only question is whether the state court’s decision that Pearson received

the procedural protections required by the federal Constitution is inconsistent with Supreme Court precedent. Hayward provides no guidance on this

issue, and Pearson’s heavy reliance on its incorrect interpretation of Hayward provides yet another reason why we should have taken this case en

banc. 

17606 PEARSON v. MUNTZ
V

Ultimately, AEDPA review is for the purpose of determining whether a state court was objectively unreasonable in light

of Supreme Court precedents. Here, the Pearson panel held

that a state court decision was wrongly decided, even though

it was consistent with U.S. Supreme Court precedent, because

the decision was contrary to California Supreme Court precedent. Such an approach is so completely at odds with

AEDPA’s plain language that the Ninth Circuit had an obligation to take the opinion en banc to correct it. I respectfully

dissent from the circuit’s failure to do so.

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 magistrate 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. Accordingly, the court granted the habeas petition and issued an

1The 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 17607
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.

On April 22, 2010, we issued our en banc decision in Hayward, which held that courts must apply the California “some

evidence” test on federal habeas review under AEDPA. Hayward v. Marshall, No. 06-55392, slip op. 6303, 6330 (9th Cir.

Apr. 22, 2010) (en banc). Because Hayward resolved the principal 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

2Although 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). 

17608 PEARSON v. MUNTZ
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 facing the same issue in the

future need only 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.”

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 prisoner has a right to a parole decision supported by “some evidence” 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, Hayward 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

PEARSON v. MUNTZ 17609
‘some evidence’ requirement, or was ‘based on an unreasonable 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 treaties 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). Given that under § 2254(a) federal courts may not

review a state court decision absent a violation of federal law,

the only possible basis for Hayward’s requirement that federal

courts review California’s application of the ‘some evidence’

rule is that 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

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 evidence”; 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 17613-14. 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

17610 PEARSON v. MUNTZ
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 command can only be read as requiring an examination of how the

state court applied the requirement. Moreover, after examining the particular state court decision at issue, Hayward concluded that the district court properly denied the writ because

“[t]here was some evidence of future dangerousness” justifying 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 performed the function that the State argues it forbade. Indubitably, Hayward neither announced nor applied the test now

urged by the State.

[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 foreclosed 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

PEARSON v. MUNTZ 17611
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 considered 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 discussed above, we will try to clarify some closely related arguments 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, concludes 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 adherence 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 decisions 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

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

17612 PEARSON v. MUNTZ
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

parole in the absence of “some evidence” of current dangerousness 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 Greenholtz, 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 nothing 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

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 liberty interest created by the state laws and rules governing the California

parole system. 

PEARSON v. MUNTZ 17613
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, California 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 current 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 system. Having guaranteed the prisoners of the state that they

will not be denied a parole release date absent “some evidence” 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

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 dangerousness. 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 ‘unreasonable application’ of the California ‘some evidence’ requirement, 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 suit4The California Supreme Court recently recognized that the lower

courts of the state have applied the “some evidence” requirement in a

manner that has produced “arbitrary results.” Lawrence, 190 P.3d at 554-

55. 

17614 PEARSON v. MUNTZ
able for parole in 2003, but the Governor reversed that decision and denied him parole in 2004. The district court

determined on April 1, 2008 that the Governor’s action violated 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 manner contrary to the State’s arguments here, we concluded that

there was no longer any basis for a stay and therefore dissolved it.

[6] Given our conclusion that the only legal arguments

advanced by the State in its motion for reconsideration are

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.

PEARSON v. MUNTZ 17615