Paul R. Tash v. BEN CURRY, Warden

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL R. TASH,
Petitioner - Appellee,
v.
BEN CURRY, Warden,
Respondent - Appellant.
No. 08-17150
D.C. No. 4:05-cv-02417-CW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Argued and Submitted December 10, 2010
San Francisco, California
Before: HUG, D.W. NELSON, and McKEOWN, Circuit Judges.
Warden Ben Curry appeals from the district court’s grant of the habeas
petition of Paul R. Tash. The district court concluded that under 28 U.S.C. § 2254
the state court unreasonably applied clearly established federal law when it upheld
the Governor’s reversal of the California Board of Prison Terms’s grant of Tash’s
FILED
FEB 01 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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parole. The district court reviewed the state court’s application of the California-
law requirement that “some evidence” of future dangerousness support a denial of
parole, see Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2010) (en banc), and
granted Tash’s petition because it determined that the state court unreasonably
applied this standard. We review de novo a district court’s decision to grant a
habeas petition, see Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004), and we
reverse.
The legal landscape of this case has changed considerably since the district
court considered Tash’s habeas petition. The Supreme Court recently held that
although California might create a liberty interest in parole through its “some
evidence” standard, federal courts are limited on habeas to a review of the process
that the petitioner received. See Swarthout v. Cooke, No. 10-333, 562 U.S. ___,
2011 WL 197627, at *3 (Jan. 24, 2011) (per curiam) (“Because the only federal
right at issue is procedural, the relevant inquiry is what process [petitioner]
received, not whether the state court decided the case correctly.”).
Tash was “allowed to speak at [his] parole hearing[] and to contest the
evidence against [him], [was] afforded access to [his] record[] in advance, and
[was] notified as to the reasons why parole was denied.” Id. at *2; see also
Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16

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(1979). According to the Supreme Court, that is “the beginning and the end” of
our inquiry. Swarthout, 2011 WL 197627, at *3. Because Tash was afforded
constitutionally adequate process, his petition should have been denied.
REVERSED.

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