Clifford Parker v. A. P. Kane

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLIFFORD PARKER,
Petitioner - Appellant,
v.
A. P. KANE,
Respondent - Appellee.
No. 07-15330
D.C. No. CV-03-04924-SBA
MEMORANDUM*
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
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We certify for appeal, on our own motion, the issue of whether the 20011
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.
07-15330 2
jurisdiction under 28 U.S.C. § 2253. We affirm in part, and reverse and remand in1
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.

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07-15330 3
AFFIRMED in part; REVERSED and REMANDED in part.

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