                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           MAY 18 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

KHALIFAH E.D. SAIF’ULLAH,                        No. 06-17389

              Petitioner - Appellant,            D.C. No. CV-02-02664-
                                                 MCE/DAD
  v.

D.K. SISTO and EDMUND G. BROWN,                  MEMORANDUM *
JR., Attorney General,

              Respondents - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

               Argued August 12, 2010; Resubmitted May 17, 2011
                          San Francisco, California

Before: GRABER, CALLAHAN, and BEA, Circuit Judges.

       In 1980, Khalifah E.D. Saif’ullah was convicted of kidnaping for ransom

with a firearm and was sentenced to seven years to life in prison. In July 2000, the

California Board of Prison Terms (“Board”) again denied him parole because (1)

the commitment offense was carried out in a “dispassionate and calculated manner


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
which demonstrated an exceptionally callous disregard for human suffering”; (2)

prior to his conviction he had a record of violence; and (3) he had received

fourteen write-ups for prison violations. After the California courts denied him

relief, Saif’ullah sought federal habeas relief. The district court denied the petition,

finding that there was “some evidence” to support the Board’s denial of parole.

We do not reach the merits of the district court’s finding of “some evidence,” but

affirm pursuant to the Supreme Court’s opinion in Swarthout v. Cooke, 131 S. Ct.

859 (2011) (per curiam).

      While this appeal was pending, the Supreme Court decided Swarthout.

Therein, the Court stated that “it is no federal concern here whether California’s

‘some evidence’ rule of judicial review (a procedure beyond what the Constitution

demands) was correctly applied.” Id. at 863. It held that the Federal Due Process

Clause requires a California inmate to receive only “an opportunity to be heard and

. . . a statement of the reasons why parole was denied,” and noted that the “correct

application of the State’s ‘some evidence’ standard” is not required by the Federal

Due Process Clause. Id. at 861-62; see also Roberts v. Hartley, No. 10-15760, __

F.3d __, 2011 WL 1365811 (9th Cir. April 12, 2011).

      Here, the record shows that Saif’ullah had the opportunity to be heard at the

2000 hearing and was given a statement of the reasons for the denial of parole. On


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this record, and in light of Swarthout, Saif’ullah has not demonstrated that the state

court’s denial of relief “was contrary to, or involved an unreasonable application

of, clearly established Federal law” or “was based on an unreasonable

determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d).

      AFFIRMED.




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