Appeal from the United States District Court for the Central District of California Stephen G. Larson, District Judge, Presiding D.C. No. 2:05-cv-06937-SGL-OP.
Before: REINHARDT, BERZON, and M. SMITH, Circuit Judges.
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,*fn1 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.
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.*fn2
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."
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 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 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 ...