Nikoosersht v. Curry, No. 07-16354 (9th Cir. 2011)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 23 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT RAMIN NIKOOSERESHT, Petitioner - Appellee, No. 07-16354 D.C. No. CV-06-04357-MHP v. MEMORANDUM * BEN CURRY, Respondent - Appellant. Appeal from the United States District Court for the Northern District of California Marilyn H. Patel, Senior District Judge, Presiding Argued August 9, 2010; Resubmitted March 17, 2011 San Francisco, California Before: GRABER, CALLAHAN, and BEA, Circuit Judges. Petitioner Ramin Nikooseresht is serving a prison sentence of 15 years to life for the 1992 murder of his girlfriend. In 2004, the parole board denied him parole. The California courts denied Petitioner s habeas petition, concluding that there was "some evidence" to support the board s decision. Petitioner sought federal habeas relief, which the district court granted on the ground that the state * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. courts had unreasonably applied clearly established federal law concerning due process, by failing to satisfy California s "some evidence" standard. The state timely appealed, arguing only that this is not a proper ground for federal habeas relief. That is, the state does not argue that, in fact, there is "some evidence" of Petitioner s current or future dangerousness. After this appeal began, the Supreme Court decided Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per curiam). Although Petitioner argues that Swarthout leaves open a question about the proper outcome here, we are not persuaded. The Supreme Court held that the Federal Due Process Clause requires a California inmate to receive only "an opportunity to be heard and . . . a statement of the reasons why parole was denied." Id. at 862. Petitioner received both. Moreover, the Court expressly held that due process does not mandate "correct application of the State s some evidence standard." Id. at 861. Accordingly, even if the district court correctly concluded that the state misapplied its "some evidence" standard, habeas relief is not available to Petitioner. REVERSED. 2
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