                                                                           FILED
                           NOT FOR PUBLICATION                              APR 25 2011

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




                            FOR THE NINTH CIRCUIT



PAUL ALBERT GUARDADO,                            No. 09-17832

              Petitioner - Appellee,             D.C. No. 4:05-cv-00194-CW

  v.
                                                 MEMORANDUM *
MARGARITA PEREZ, Chairwoman,
California Board of Prison Terms;
JEANNE S. WOODFORD, Director,
California Department of Corrections; A.
P. KANE, Warden,

              Respondents - Appellants.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                          Submitted February 14, 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: O’SCANNLAIN and TROTT, Circuit Judges, and CAMPBELL,

District Judge.***

      This is an appeal from the district court’s grant of habeas relief. As the facts

are familiar to the parties, we repeat them here only as necessary to explain our

decision. After much litigation, the California Board of Parole granted Paul Albert

Guardado’s parole application. Governor Schwarzenegger then vetoed that

determination. The district court granted Guardado’s habeas application and

ordered his release, determining that Governor Schwarzenegger’s veto violated

California’s “some evidence” requirement. Under then-binding Ninth Circuit

precedent, this amounted to a violation of the Fourteenth Amendment’s Due

Process Clause. See, e.g., Pirtle v. Cal. Bd. of Prison Terms, 611 F.3d 1015,

1020–21 (9th Cir. 2010).

      The Supreme Court subsequently held that reviewing California parole

decisions for compliance with California’s “some evidence” standard “is no part of

the Ninth Circuit’s business.” Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011),

reversing sub nom., Cooke v. Solis, 606 F.3d 1206 (9th Cir. 2010). Instead, the

Court reaffirmed its previous holding that the U.S. Constitution affords parole



        ***
              The Honorable Tena Campbell, Senior United States District Judge
for the District of Utah, sitting by designation.

                                          2
applicants only “minimal” due process: an opportunity to be heard and a statement

of reasons why parole was denied. Id. at 862 (citing Greenholtz v. Inmates of Neb.

Penal & Corr. Complex, 442 U.S. 1 (1979)); see also Pearson v. Muntz, __ F. 3d

__, 2011 WL 1238007, at *5 (9th Cir. Apr. 5, 2011). These rights were clearly

afforded to Guardado. Accordingly, his due process rights were not violated.

Since the petition may easily be denied on the merits, we do not decide whether

Guardado properly exhausted his state court remedies. See 28 U.S.C. §

2254(b)(2).1

      REVERSED.




      1
       Guardado moved to stay this appeal pending the reconsideration motion in
Swarthout. Because the Supreme Court has since denied that motion, we deny
Guardado’s request for a stay as moot.

                                         3
