                                                                            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                            NOT FOR PUBLICATION                              AUG 02 2010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



CLIFFORD PARKER,                                  No. 07-15330

               Petitioner - Appellant,            D.C. No. CV-03-04924-SBA

  v.
                                                  MEMORANDUM *
A. P. KANE,

               Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Northern District of California
                  Saundra B. Armstrong, District Judge, Presiding

                              Submitted July 19, 2010 **

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

       California state prisoner Clifford Parker appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have




          *
             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).
jurisdiction under 28 U.S.C. § 2253.1 We affirm in part, and reverse and remand in

part.

        Parker contends that the Board’s 2001 and 2004 decisions to deny him

parole were not supported by “some evidence” and therefore violated his due

process rights. The state court did not unreasonably conclude that some evidence

supports the Board’s 2001 decision. See 28 U.S.C. § 2254(d); see also Hayward v.

Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (en banc).

        However, the state court unreasonably concluded that some evidence

supports the Board’s 2004 decision. See 28 U.S.C. § 2254(d); Cooke v. Solis, 606

F.3d 1206, 1216 (9th Cir. 2010); see also Hayward, 603 F.3d at 562 (“The

prisoner’s aggravated offense does not establish current dangerousness ‘unless the

record also establishes that something in the prisoner’s pre- or post-incarceration

history, or his or her current demeanor and mental state’ supports the inference of

dangerousness.”) (quoting In re Lawrence, 190 P.3d 535, 555 (Cal. 2008)).

Therefore, we reverse the district court with respect to the Board’s 2004 decision

and remand with instructions to grant the writ.



        1
        We certify for appeal, on our own motion, the issue of whether the 2001
and 2004 decisions of the California Board of Prison Terms (“Board”) to deny
parole violated due process. The state has fully briefed the issue that we certify for
appeal.

                                           2                                    07-15330
AFFIRMED in part; REVERSED and REMANDED in part.




                         3                         07-15330
