                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 13 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT

ROBERT LAUCELLA,                                 No. 10-15349

              Petitioner - Appellee,             D.C. No. 2:08-cv-00109-LKK-
                                                 CHS
  v.

D. K. SISTO; JOHN W. HAVILAND,                   MEMORANDUM *

              Respondents,

  and

MATTHEW CATE, Secretary of the
California Department of Corrections and
Rehabilitation,

              Respondent - Appellant.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                              Submitted May 9, 2011 **
                              San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: HUG and PAEZ, Circuit Judges, and O’GRADY,*** District Judge.

      The State appeals the district court’s order granting Robert Laucella’s

(“Laucella’s”) federal habeas corpus petition. The California Board of Parole

Hearings (“Board”) found Laucella suitable for parole in 2002. Former Governor

Davis reversed that decision, but Laucella successfully challenged the reversal

through a state habeas corpus petition. The state court remanded the matter to the

Governor’s office; then Governor Schwarzenegger also reversed the Board’s

parole suitability order. After the state supreme court denied Laucella’s state

habeas corpus petition challenging Governor Schwarzenegger’s reversal, he filed

the federal habeas corpus petition at issue here. The district court granted

Laucella’s petition, finding that the Governor’s reversal was not supported by

some evidence in the record, as California law requires.

      We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(a). We review de

novo the district court’s grant of a habeas petition. Lambert v. Blodgett, 393 F.3d

943, 964 (9th Cir. 2004). We review for clear error the district court’s factual

findings. Id.




        ***
            The Honorable Liam O’Grady, District Judge for the U.S. District
Court for Eastern Virginia, Alexandria, sitting by designation.

                                          2
      After the district court granted Laucella’s habeas petition, the Supreme

Court issued its opinion in Swarthout v. Cooke, 131 S. Ct. 859 (2011). Cooke

forecloses Laucella’s due process claim. In Cooke, the Court explained that if a

state parole scheme creates a federally protected liberty interest, the Constitution

“does not require more” than a prisoner being “allowed an opportunity to be heard

and [] provided a statement of the reasons why parole was denied.” Id. at 862

(quoting Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S.

1, 16 (1979)).

      Here, the California parole scheme creates a liberty interest in parole.

Pearson v. Muntz, --- F.3d --- (9th Cir. 2011), 2011 WL 1238007 at *4 (“California

law creates a liberty interest in parole”) (internal quotation marks omitted);

McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 2002) (“[C]learly established

Federal law, as determined by the Supreme Court of the United States provides that

California prisoners like McQuillion have a cognizable liberty interest in release on

parole.”) (internal quotation marks omitted). We therefore reject the State’s

argument that this court lacks subject matter jurisdiction because Laucella does not

have a federally protected liberty interest in parole.

      Cooke instructs that if a state prisoner has a liberty interest in parole, due

process only requires that the prisoner be afforded an opportunity to be heard and


                                            3
be informed of the reasons parole is denied. 131 S. Ct. at 862. This is “the

beginning and the end of the federal habeas courts’ inquiry into whether [a

prisoner] received due process.” Id. Laucella had an opportunity to be heard at his

Board hearing, and the Governor—after considering the same evidence that was

before the Board—provided written reasons for reversing the Board’s finding that

Laucella was suitable for parole. Therefore, even if the district court correctly

found that the Governor’s decision was not supported by some evidence in the

record, Laucella’s due process rights were not violated. See Pearson, 2011 WL

1238007 at *5 (“Cooke makes clear that we cannot consider whether ‘some

evidence’ of dangerousness supported a denial of parole on a petition filed under

28 U.S.C. § 2254.”).

      REVERSED.




                                           4
