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. 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
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.

PEARSON v. MUNTZ 7793
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

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.

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. 

7794 PEARSON v. MUNTZ
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

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.”

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). 

PEARSON v. MUNTZ 7795
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

‘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). 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

7796 PEARSON v. MUNTZ
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 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 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.

PEARSON v. MUNTZ 7797
[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

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, con7798 PEARSON v. MUNTZ
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 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

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

parole system. 

PEARSON v. MUNTZ 7799
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

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

4The California Supreme Court recently recognized that the lower

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

7800 PEARSON v. MUNTZ
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 suitable 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

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

55. 

PEARSON v. MUNTZ 7801
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.

7802 PEARSON v. MUNTZ