FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

KENNETH PEARSON,

 Petitioner - Appellee,

 v.

MADELENE A. MUNTZ, Acting

Warden,

 Respondent - Appellant.

No. 08-55728

D.C. No. 2:05-cv-06937-SGL-OP

ORDER AND 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: REINHARDT, BERZON, and M. SMITH, Circuit Judges.

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

FILED

MAY 24 2010

MOLLY C. DW YER, CLERK

U.S. COURT OF APPEALS
The court also noted that Pearson had no adult criminal record aside from 1

the commitment offense, and rejected the State’s contention that his juvenile record

constituted “some evidence” of current dangerousness.

2

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, and that the state court decisions upholding 1

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
Although previous motions in this case were appropriately disposed of by 2

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).

3

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

I.

Our en banc decision in Hayward establishes the law that governs our

determination of post-AEDPA federal habeas claims in which a California prisoner
4

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.”

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.

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
5

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.

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
6

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 10-11. 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.”

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
7

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.

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.
8

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, 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
In this portion of Hayward, we expressed concern about a possible 3

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.

9

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, and 3

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.
10

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 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).
The California Supreme Court recently recognized that the lower courts of 4

the state have applied the “some evidence” requirement in a manner that has

produced “arbitrary results.” Lawrence, 190 P.3d at 554-55.

11

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. It is therefore our obligation, as we held in 4

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
12

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.

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
13

otherwise provided insufficient reason to reinstate the stay, we deny the State’s

motion for reconsideration.

DENIED.
14

Counsel Listing

Marc Grossman, Law Offices of Marc E. Grossman, Upland, California, for

Petitioner-Appellee.

Collette C. Cavalier, Deputy Attorney General, San Diego, California, for

Respondent-Appellant.