                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 02 2010

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




                             FOR THE NINTH CIRCUIT



OMAR SHARRIEFF GAY,                              No. 08-16315

               Petitioner,                       D.C. No. 3:06-CV-01960-WHA

  v.
                                                 MEMORANDUM *
MIKE EVANS; J. WOODFORD,

               Respondents - Appellees.



                     Appeal from the United States District Court
                       for the Northern District of California
                     William H. Alsup, District Judge, Presiding

                             Submitted July 19, 2010 **

Before:        B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Omar Sharrieff Gay appeals from the district court’s judgment denying his

28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253,

and we affirm.

       Gay contends that the California Board of Prison Terms (“Board”) violated

          *
             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).
his due process rights by considering evidence other than his commitment offense

at his parole hearing. Specifically, he contends that California Penal Code section

3041(b) precluded the Board from considering any evidence apart from his

commitment offense in determining whether he presented a threat to public safety,

and that Title 15, section 2402 of the California Code of Regulations, which

specifies that the Board must consider a number of factors, including factors other

than the commitment offense, in assessing suitability for parole, contravenes

Section 3041(b). However, California courts interpret Section 3041(b) and

Section 2402 of the regulations to be consistent with each other and to permit the

consideration of certain factors other than the commitment offense. See, e.g.,

In re Shaputis, 190 P.3d 573, 582 (Cal. 2008) (“Title 15, section 2402 of the

California Code of Regulations sets forth the factors to be considered by the Board

in carrying out the mandate of [Section 3041].”); In re Lawrence, 190 P. 3d 535,

554 (Cal. 2008) (“[E]vidence in the record corresponding to both suitability and

unsuitability factors—including the facts of the commitment offense, the specific

efforts of the inmate toward rehabilitation, and, importantly, the inmate’s attitude

concerning his or her commission of the crime, as well as the psychological

assessments contained in the record—must, by statute, be considered and relied

upon by both the Board and the Governor[.]”). Because we are bound by a state


                                          2                                     08-16315
court’s interpretation of its own law, see Mullaney v. Wilbur, 421 U.S. 684,

691 & n.11 (1975), Gay’s due process claim fails. See Hayward v. Marshall, 603

F.3d 546, 561-62 (9th Cir. 2010) (en banc).

      AFFIRMED.




                                         3                                     08-16315
