                                                                             FILED
                            NOT FOR PUBLICATION                               MAR 23 2011

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




                            FOR THE NINTH CIRCUIT

RAMIN NIKOOSERESHT,                               No. 07-16354

              Petitioner - Appellee,              D.C. No. CV-06-04357-MHP

  v.
                                                  MEMORANDUM *
BEN CURRY,

              Respondent - Appellant.



                  Appeal from the United States District Court
                      for the Northern District of California
                 Marilyn H. Patel, Senior District Judge, Presiding

               Argued August 9, 2010; Resubmitted March 17, 2011
                           San Francisco, California

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

       Petitioner Ramin Nikooseresht is serving a prison sentence of 15 years to

life for the 1992 murder of his girlfriend. In 2004, the parole board denied him

parole. The California courts denied Petitioner’s habeas petition, concluding that

there was "some evidence" to support the board’s decision. Petitioner sought

federal habeas relief, which the district court granted on the ground that the state


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
courts had unreasonably applied clearly established federal law concerning due

process, by failing to satisfy California’s "some evidence" standard. The state

timely appealed, arguing only that this is not a proper ground for federal habeas

relief. That is, the state does not argue that, in fact, there is "some evidence" of

Petitioner’s current or future dangerousness.

      After this appeal began, the Supreme Court decided Swarthout v. Cooke,

131 S. Ct. 859 (2011) (per curiam). Although Petitioner argues that Swarthout

leaves open a question about the proper outcome here, we are not persuaded. The

Supreme Court 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." Id. at 862. Petitioner received both. Moreover,

the Court expressly held that due process does not mandate "correct application of

the State’s ‘some evidence’ standard." Id. at 861. Accordingly, even if the district

court correctly concluded that the state misapplied its "some evidence" standard,

habeas relief is not available to Petitioner.

      REVERSED.




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