                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 09 2011

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




                            FOR THE NINTH CIRCUIT



JAMES CARLIN,                                    No. 08-16813

               Petitioner - Appellee,            D.C. No. 3:06-cv-04145-SI

  v.
                                                 MEMORANDUM *
VINCE CULLEN, Acting Warden,

               Respondent - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                             Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Warden Vince Cullen appeals from the district court’s grant of James

Carlin’s 28 U.S.C. § 2254 petition for habeas corpus. We have jurisdiction under

28 U.S.C. § 2253, and we reverse and remand.




          *
             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).
       The district court granted Carlin relief on the ground that the state courts had

unreasonably applied clearly established federal law concerning due process, by

failing to satisfy California’s “some evidence” standard. While this appeal was

pending, the Supreme Court decided Swarthout v. Cooke, 131 S. Ct. 859 (2011)

(per curiam). In that case, the Court held that “it is 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. We accordingly reverse

the grant of relief.

       Carlin argues that reversal is not required because the federal Constitution

requires a showing of some evidence of future dangerousness before states can

deny parole, and such evidence was lacking here. This contention is foreclosed.

See id. at 862-63; Pearson v. Muntz, __ F.3d __, 2011 WL 1238007, at *5 (9th Cir.

Apr. 5, 2011).

       We remand for further proceedings on Carlin’s remaining claims.1

       REVERSED and REMANDED.



       1
        As the district court correctly held, Carlin’s petition is timely. The statute
of limitations was triggered on the date his administrative appeal was denied. See
Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003). Applying statutory tolling
to the period of time during which his state petitions were pending after that date,
and gap tolling to the short period of time between his petitions, his federal petition
is timely. See 28 U.S.C. § 2244(d)(1).

                                           2                                     08-16813
