                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                            OCT 20 2010

                                                                         MOLLY C. DWYER, CLERK
MICHAEL CRAIG SLATER,                            No. 09-17784             U .S . CO UR T OF AP PE A LS




              Petitioner - Appellee,             D.C. No. CV 08-00571-OWW-
                                                 JMD
  v.

WILLIAM SULLIVAN, Warden,                        MEMORANDUM *

              Respondent - Appellant,

  and

JAMES E. TILTON, Secretary of
California Department of Corrections &
Rehabilitation,

              Respondent.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                      Argued and Submitted October 5, 2010
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: KLEINFELD and GRABER, Circuit Judges, and MOLLOY,** District
        Judge.

      Respondent William Sullivan, Warden, (the þStateþ) appeals the district

court's grant of Petitioner Michael Craig Slater's habeas corpus petition under 28

U.S.C. y 2254. The district court held that the State deprived Petitioner of his right

to due process when he was denied parole in the absence of þsome evidenceþ of

current dangerousness as required by California law. On de novo review, Bucµley

v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc), we affirm.

      In a series of recent cases, we have rejected the State's argument that the

Antiterrorism and Effective Death Penalty Act of 1996 precludes relief on

Petitioner's claim because California's þsome evidenceþ requirement is not þclearly

established federal law.þ Hayward v. Marshall, 603 F.3d 546, 563 (9th Cir. 2010)

(en banc); Cooµe v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010); Pearson v. Muntz,

606 F.3d 606, 608-09 (9th Cir. 2010) (per curiam). The State argues, in essence,

that those cases were wrongly decided, but they bind this three-judge panel. Miller

v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).

      The State does not argue that the Board of Parole Hearings' decision was, in

fact, supported by some evidence. We therefore do not consider that question. See


       **
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.

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Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (holding arguments not

raised in the opening brief generally are waived).

      AFFIRMED.




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                                                                              FILED
Slater v. Sullivan, No. 09-17784                                               OCT 20 2010

                                                                          MOLLY C. DWYER, CLERK
KLEINFELD, Circuit Judge:                                                   U .S . CO UR T OF AP PE A LS




      I respectfully dissent. The district court's grant of the writ was based on a

line of reasoning that was rejected by our court earlier this year in Hayward v.

Marshall, 603 F.3d 546, 559-61 (9th Cir. 2010) (en banc). The recent applications

of Hayward in Pearson v. Muntz, 606 F. 3d 606 (9th Cir. 2010) (per curiam), and

Cooµe v. Solis, 606 F.3d 1206 (9th Cir. 2010), do not purport to overrule Hayward,

nor could they, since they are not en banc. Hayward did 'not decide whether a

right arises in California under the United States Constitution to parole in the

absence of some evidence of future dangerousness.' Hayward, 603 F.3d at 562. It

cannot be read to allow for us to become something aµin to a state parole board or

appellate court. See Antiterrorism and Effective Death Penalty Act of 1996, 28

U.S.C. y 2254(d)(1-2); Estelle v. McGuire, 502 U.S. 68, 72 (1991).



      In this case, the California superior court assessed the distinct rationales

given by the Board of Parole Hearings, addressed the most direct and on-point

rationale that was not out of bounds under its state's case law, and concluded that

Slater was currently dangerous because his repeated explanation for the murder



                                           1
showed a current state of mind indicating that he would be dangerous if released.

See In re Scott, 15 Cal. Rptr. 3d 32, 40 (Ct. App. 2004). In addition to the crime of

conviction and his continuing failure to taµe responsibility, the parole board's

finding of future dangerousness was supported by Slater's escalating pattern of

criminal behavior before he came to prison, and his 'tenting' infraction while he

was imprisoned. We are not at liberty to disregard 'tenting' as though it were

insignificant evidence of future dangerousness. The parole board tooµ explicit

notice of it, no doubt because 'tenting' is both an infraction and a possible means

by which prisoners may shield themselves from surveillance while they commit

more serious infractions and crimes. The superior court did not purport to reject

any of the parole board's reasons for denying parole, although it did not mention

them all.



      The summary affirmances by California's court of appeal and supreme court

indicate that the reasons given by the parole board and superior court are enough to

satisfy California's 'some evidence' standard of review. See In re Lawrence, 44

Cal. 4th 1181, 1214 (2008) (noting that the inmate's criminal offense alone cannot

establish his current dangerousness 'unless the record also establishes that

something in the prisoner's pre- or post-incarceration history, or his or her current



                                           2
demeanor and mental state' supports an inference of dangerousness); In re

Shaputis, 44 Cal. 4th 1241 (2008) (same). There is no showing that California

violated the holdings of the Supreme Court, or made an unreasonable

determination of the facts in light of the evidence. See 28 U.S.C. y 2254(d)(1-2);

Hayward, 603 F.3d at 559-61.




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