                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 13 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


DAVID VELASQUEZ,                                 No. 09-16891

              Petitioner - Appellee,             D.C. No. 2:05-cv-02118-LKK-
                                                 CHS
  v.

TOM L. CAREY, Warden,                            MEMORANDUM*

              Respondent - Appellant.


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

                             Submitted July 11, 2011**
                             San Francisco, California

Before: HUG, SILVERMAN, and GRABER, Circuit Judges.

       Warden Tom L. Carey appeals the district court’s order granting David

Velasquez’s 28 U.S.C. § 2254 petition for writ of habeas corpus. We have

jurisdiction over the Warden’s appeal pursuant to 28 U.S.C. § 2253(a). We review


        *
             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).
de novo the district court’s decision to grant habeas relief, Gonzalez v. Brown, 585

F.3d 1202, 1206 (9th Cir. 2009), and we reverse.

      The district court’s decision was rendered without the benefit of the

Supreme Court’s recent decision in Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per

curiam), which makes clear that “it is [of] no federal concern . . . whether

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

Constitution demands) was correctly applied.” Id. at 863. Federal habeas relief is

not available for errors of state law, and the correct application of California’s

“some evidence” standard is not mandated by the Federal Due Process Clause. Id.

at 861. Where, as here, a state creates a protectible liberty interest in parole, due

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

and “provided a statement of reasons why parole was denied.” Id. at 862 (citing

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16 (1979)).

This is “the beginning and the end of the federal habeas courts’ inquiry into

whether [the prisoner] received due process.” Id.

      Velasquez had an opportunity to be heard and to contest the evidence against

him at his parole hearing before the Board of Prison Terms, and the

Governor—after considering the same evidence that was before the

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


                                          -2-
was eligible for parole. Furthermore, the Governor was not required, as a matter of

federal due process, to hold a second suitability hearing before reversing the

Board’s decision. Styre v. Adams, No. 09-15782, — F.3d —, 2011 WL 2176465,

at *1-2 (9th Cir. June 6, 2011). Therefore, even if the state court misapplied the

“some evidence” standard, Velasquez’s due process rights were not violated. See

Cooke, 131 S. Ct. at 862-63; see also Pearson v. Muntz, No. 08-55728, 639 F.3d

1185, 2011 WL 1238007, at *5 (9th Cir. Apr. 5, 2011) (“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.




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