Paul Guardado v. Margarita Perez , 428 F. App'x 770 ( 2011 )

FILED
NOT FOR PUBLICATION APR 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PAUL ALBERT GUARDADO, No. 09-17832
Petitioner - Appellee, D.C. No. 4:05-cv-00194-CW
v.
MEMORANDUM *
MARGARITA PEREZ, Chairwoman,
California Board of Prison Terms;
JEANNE S. WOODFORD, Director,
California Department of Corrections; A.
P. KANE, Warden,
Respondents - Appellants.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted February 14, 2011 **
San Francisco, California
*
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).
Before: O’SCANNLAIN and TROTT, Circuit Judges, and CAMPBELL,
District Judge.***
This is an appeal from the district court’s grant of habeas relief. As the facts
are familiar to the parties, we repeat them here only as necessary to explain our
decision. After much litigation, the California Board of Parole granted Paul Albert
Guardado’s parole application. Governor Schwarzenegger then vetoed that
determination. The district court granted Guardado’s habeas application and
ordered his release, determining that Governor Schwarzenegger’s veto violated
California’s “some evidence” requirement. Under then-binding Ninth Circuit
precedent, this amounted to a violation of the Fourteenth Amendment’s Due
Process Clause. See, e.g., Pirtle v. Cal. Bd. of Prison Terms, 611 F.3d 1015,
1020–21 (9th Cir. 2010).
The Supreme Court subsequently held that reviewing California parole
decisions for compliance with California’s “some evidence” standard “is no part of
the Ninth Circuit’s business.” Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011),
reversing sub nom., Cooke v. Solis, 606 F.3d 1206 (9th Cir. 2010). Instead, the
Court reaffirmed its previous holding that the U.S. Constitution affords parole
***
The Honorable Tena Campbell, Senior United States District Judge
for the District of Utah, sitting by designation.
2
applicants only “minimal” due process: an opportunity to be heard and a statement
of reasons why parole was denied. Id. at 862 (citing Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1 (1979)); see also Pearson v. Muntz, __ F. 3d
__, 2011 WL 1238007, at *5 (9th Cir. Apr. 5, 2011). These rights were clearly
afforded to Guardado. Accordingly, his due process rights were not violated.
Since the petition may easily be denied on the merits, we do not decide whether
Guardado properly exhausted his state court remedies. See 28 U.S.C. §
2254(b)(2).1
REVERSED.
1
Guardado moved to stay this appeal pending the reconsideration motion in
Swarthout. Because the Supreme Court has since denied that motion, we deny
Guardado’s request for a stay as moot.
3