FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH A. ROBERTS,  No. 10-15760

Petitioner-Appellee, D.C. No.

v.  1:08-cv-01093-

AWI-JMD JAMES D. HARTLEY, Warden,

Respondent-Appellant. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Chief District Judge, Presiding

Argued and Submitted

January 11, 2011—San Francisco, California

Filed April 12, 2011

Before: Alex Kozinski, Chief Judge, J. Clifford Wallace and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Wallace

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COUNSEL

Christopher J. Rench, Deputy Attorney General, Sacramento,

California, for appellant James D. Hartley.

ROBERTS v. HARTLEY 5003
David M. Porter, Assistant Federal Defender, Sacramento,

California, for appellee Kenneth A. Roberts.

OPINION

WALLACE, Senior Circuit Judge:

The Warden appeals from the district court’s issuance of a

writ of habeas corpus in favor of Petitioner Kenneth A. Roberts. The district court issued the writ pursuant to 28 U.S.C.

§ 2254(d) after concluding that California misapplied its standard for determining Roberts’s eligibility for parole. We have

jurisdiction over this appeal pursuant to 28 U.S.C. § 2253(a).

In light of the Supreme Court’s recent decision in Swarthout

v. Cooke, 131 S. Ct. 859 (2011), we reverse.

I.

California law vests the State Board of Prison Terms

(Board) with authority to evaluate whether state prisoners,

such as Roberts, are eligible for parole. In conducting this

evaluation, the Board is required to “set a release date” for an

inmate unless the Board finds that “consideration of the public safety requires a more lengthy period of incarceration.”

Cal. Penal Code Ann. § 3041(b) (West 2010). When the

Board determines that an inmate is ineligible for parole, that

prisoner can seek judicial review by filing a petition for collateral relief in state court. Review of the Board’s decision,

however, is “extremely deferential.” In re Rosenkrantz, 59

P.3d 174, 210 (Cal. 2002). A decision denying parole must be

upheld as long as “ ‘some evidence’ supports the conclusion

that the inmate . . . is dangerous.” In re Lawrence, 190 P.3d

535, 539 (Cal. 2008).

Roberts appeared before the Board for consideration of his

eligibility for parole in June 2006. He had been convicted of

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second-degree murder twenty years earlier and sentenced to

a term of life imprisonment with the possibility of parole. At

the 2006 parole hearing, the Board permitted Roberts to speak

on his own behalf and to respond to the evidence presented

against him. Upon review of the evidence in Roberts’s parole

file, the Board denied parole due to concerns about the nature

of Roberts’s offense, his subsequent minimization of the murder, and his reasons for surrendering to law enforcement.

Shortly after the Board issued its decision, Roberts filed a

petition for collateral relief in state superior court. Relying on

Rosenkrantz, Roberts asserted that the Board’s parole decision

was not supported by sufficient evidence of dangerousness.

The superior court disagreed, concluding that the Board’s

decision satisfied California’s “some evidence” standard

because Roberts committed his crime in “a dispassionate and

calculated manner” and for a “very trivial motive.” Roberts’s

subsequent petitions to the court of appeal and state supreme

court were summarily denied.

Roberts then filed a petition for a writ of habeas corpus in

the Eastern District of California. Following then-existing

precedent, the district court issued the writ, holding that Roberts’s due process rights had been violated by the state court’s

misapplication of California’s “some evidence” standard for

parole determinations. Relying on a magistrate judge’s report

and recommendation, the district court concluded that there

was no nexus between the facts relied upon by the state superior court and the Board’s finding that Roberts presented a

current threat of dangerousness.

II.

We review a district court’s decision to issue a writ of

habeas corpus de novo. Lambert v. Blodgett, 393 F.3d 943,

964 (9th Cir. 2004). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), a state prisoner is not

entitled to a writ of habeas corpus unless he establishes that

ROBERTS v. HARTLEY 5005
the state court’s adjudication of a federal claim was either (1)

“contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States;” or (2) “based on an unreasonable

determination of the facts in light of the evidence presented

at the State court proceeding.” 28 U.S.C. §§ 2254(a),

(d)(1)-(2). 

Until now, and notwithstanding AEDPA’s deferential standard of review, our circuit has permitted California prisoners

seeking parole to obtain a federal writ of habeas corpus based

on a state court’s misapplication of California’s “some evidence” standard. We recently addressed this issue en banc in

Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). There,

we overruled a line of cases in which we had indicated that

the constitutional right to due process requires a state’s decision denying parole to be based upon “some evidence” of current dangerousness. See id. at 555. Yet, while we held that the

Due Process Clause “does not, by itself, entitle a prisoner to

parole in the absence of some evidence of . . . dangerousness,” id. at 561, we nonetheless suggested that California’s

parole scheme creates a “liberty interest . . . that [is] entitled

to protection under the Due Process Clause.” Id., quoting Bd.

of Pardons v. Allen, 482 U.S. 369, 371 (1987). We then stated

that “courts in this circuit facing [this] issue in the future[ ]

need only decide whether the California judicial decision

approving the governor’s [or the 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.” Id.

at 562-63 (internal footnote omitted). 

[1] Our decision in Cooke v. Solis, 606 F.3d 1206 (9th Cir.

2010), went further. There, we explicitly held that California’s “some evidence” standard creates a liberty interest protected by the Constitution’s Due Process Clause. Id. at 1213.

After construing the state court’s some evidence determination as a finding of fact, we then held that Cooke’s due pro5006 ROBERTS v. HARTLEY
cess rights had been violated because the state court decision

affirming the Board’s denial of parole was “based on an

unreasonable determination of the facts in light of the evidence.” Id. at 1216, quoting Hayward, 603 F.3d at 563. In

essence, Cooke held that federal courts within our circuit are

to grant habeas relief if the California judicial decision

upholding the denial of parole was based on an unreasonable

application of that state’s “some evidence” requirement. Id.

Subsequent cases followed a similar approach. See, e.g.,

Pearson v. Muntz, 625 F.3d 539 (9th Cir. 2010); Pirtle v. Cal.

Bd. of Prison Terms, 611 F.3d 1015 (9th Cir. 2010). 

[2] The Supreme Court, however, recently reversed our

decision in Cooke, holding we did not apply the correct legal

test for determining whether a state prisoner’s due process

rights had been violated by a state court decision approving

the Board’s parole determination. The Court instructed that

the due process inquiry must be analyzed in two steps. Cooke,

131 S. Ct. at 861. “We first ask whether there exists a liberty

or property interest of which a person has been deprived . . . .”

Id. The second step requires us to “ask whether the procedures followed by the State were constitutionally sufficient.”

Id.; see also Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7, 12 (1979). 

[3] Turning to the first step, Cooke did not disturb our conclusion that California law creates a liberty interest in parole.

Id. at 861-62. Nevertheless, because states “are under no duty

to offer parole to their prisoners,” the Court explained that the

existence of this state liberty interest does not give rise to a

federal right “to be conditionally released before the expiration of a valid sentence.” Id. at 862, citing Greenholtz, 442

U.S. at 7. 

[4] Thus, when “a State creates a liberty interest” in parole,

the second step of the due process inquiry requires federal

courts to evaluate whether the state provided “fair procedures” for the vindication of that interest. Id. Under this step,

ROBERTS v. HARTLEY 5007
we look to federal law to determine whether a state prisoner

has been afforded the procedural protections required by the

Constitution. Id. In the parole context, “the procedures

required are minimal.” Id. Due process is satisfied as long as

the state provides an inmate seeking parole with “an opportunity to be heard and . . . a statement of the reasons why parole

was denied.” Id., citing Greenholtz, 442 U.S. at 12. Stated

otherwise, there is no substantive due process right created by

California’s parole scheme. If the state affords the procedural

protections required by Greenholtz and Cooke, that is the end

of the matter for purposes of the Due Process Clause. See

Hayward, 603 F.3d at 560 (“The Constitution does not require

more than an opportunity to be heard and a statement telling

the prisoner why he was not paroled” (internal quotation

marks omitted)).

III.

[5] Based on Cooke, it is clear that California did not violate Roberts’s due process rights when it denied his request

for parole. At his parole hearing, the Board permitted Roberts

to speak on his own behalf and to contest the evidence against

him. See Cal. Penal Code Ann. §§ 3041, 3041.5. The Board

further provided Roberts an explanation of its decision. See

id. at § 3041.5(b)(2). This was sufficient to satisfy the Due

Process Clause. See Cooke, 131 S. Ct. at 862.

[6] It makes no difference that Roberts may have been subjected to a misapplication of California’s “some evidence”

standard. A state’s misapplication of its own laws does not

provide a basis for granting a federal writ of habeas corpus.

See 28 U.S.C. § 2254(a) (stating that a federal court may grant

the writ only if a state prisoner’s custody violates the Constitution or other laws of the United States); Cooke, 131 S. Ct.

at 861 (“[F]ederal habeas corpus relief does not lie for errors

of state law.” (quotation omitted)). Admittedly, our prior precedent required review of the propriety of a California state

court’s “some evidence” determination. See, e.g., Pearson,

5008 ROBERTS v. HARTLEY
625 F.3d at 550; Pirtle, 611 F.3d at 1025. Nevertheless,

Cooke overruled that precedent. 131 S. Ct. at 862.

Finally, Roberts’s reliance on our decision in Irons v.

Carey, 505 F.3d 846 (9th Cir. 2007), cannot save his due process claim. In Irons, we relied on the Supreme Court’s decision in Superintendent v. Hill, 472 U.S. 445, 457 (1985), and

concluded that a state’s parole system gives rise to the same

procedural protections that must be afforded to prisoners

deprived of “good-time credits.” Id. at 851, citing Hill, 472

U.S. at 457. Our en banc decision in Hayward, however, clarified that there is an important “constitutional distinction

between good time and parole.” 603 F.3d at 558. We

explained that “[g]ood time is not, as parole is, a ‘discretionary assessment of a multiplicity of imponderables, entailing

primarily what a man is and what he may be rather than simply what he has done.’ ” Id. at 560-61, quoting Greenholtz,

442 U.S. at 10. We therefore explicitly overruled Irons and

held that Greenholtz, rather than Hill, dictates the procedural

rights that must be afforded to a California prisoner who has

been denied parole. Id. at 555, 560 n.82. 

Cooke reaffirms the distinction between the process necessary when a prisoner’s good-time credits are revoked and the

process due when a state denies a prisoner’s request for

parole. Examining state law, the Court explained that California does “not purport to equate [its] parole system with goodtime credits.” Cooke, 131 S. Ct. at 862 n.1. Nevertheless, even

if California, as a matter of state law, did mandate the same

procedural protections for parole determinations as those

required for the revocation of good-time credits, the outcome

in this case would be no different. “[T]he question of which

due process requirements apply is one of federal law, not

[state] law.” Id. Given that Roberts received all of the process

to which he was due under the applicable test from Greenholtz and Cooke, his due process claim necessarily fails.

ROBERTS v. HARTLEY 5009
IV.

[7] The district court granted habeas relief without the benefit of the Court’s recent decision in Cooke. As we very

recently stated, “Cooke was unequivocal in holding that if an

inmate seeking parole receives an opportunity to be heard, a

notification of the reasons as to denial of parole, and access

to their records in advance, that should be the beginning and

the end of the inquiry into whether the inmate received due

process.” Pearson v. Muntz, ___ F.3d ___, 2011 WL

1238007, at *5 (9th Cir. April 5, 2011) (internal quotation

marks and alterations omitted). Cooke clearly holds that the

“responsibility for assuring that the constitutionally adequate

procedures governing California’s parole system are properly

applied rests with California courts.” 131 S. Ct. at 862. To

lend emphasis to the holding, the Court directed that it “is no

part of the Ninth Circuit’s business” to reevaluate California’s

application of its rules for determining parole eligibility. Id.

REVERSED.

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