Culverson

MEMORANDUM **

We assume without deciding that the denial of parole must be supported by “some evidence.” 1 Under California law, which is the source of the petitioner’s “liberty interest,” 2 the nature of the eommitment offense alone can suffice as “some evidence” justifying a denial of parole. 3 There is no “clearly established federal law, as determined by the Supreme Court of the United States,” 4 that limits the number of times a parole board may deny parole to a murderer based on the brutality and viciousness of the commitment offense.

REVERSED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

. Superintendent v. Hill, 472 U.S. 445, 456-57 , 105 S.Ct. 2768 (1985); see also Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir.1987).

. See Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 12 , 99 S.Ct. 2100 , 60 L.Ed.2d 668 (1979); Board of Pardons v. Allen, 482 U.S. 369, 377-78 , 107 S.Ct. 2415 , 96 L.Ed.2d 303 (1987); see also McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir.2002).

. See Cal. Pen.Code § 3041(b); 15 C.C.R. §§ 2400-02; see also In re Dannenberg, 34…

dissenting.

California Penal Code section 3401 creates a constitutionally protected liberty interest in a parole release date, Sass v. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir.2006), the denial of which must be supported by “some evidence,” see id. (citing Superintendent v. Hill, 472 U.S. 445, 454 , 105 S.Ct. 2768 , 86 L.Ed.2d 356 (1985)); In re Powell, 45 Cal.3d 894, 904 , 248 Cal.Rptr. 431 , 755 P.2d 881 (Cal.1988) (same (citing Hill)). The record here shows that the state court’s conclusion that “some evidence” supported the denial of a parole release date to Culverson “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254 (d)(2). Because I would therefore affirm the district *176 court’s grant of a writ of habeas corpus, I respectfully dissent.

Sharol Culverson pled guilty to second degree murder in 1979. Three days after her partner Barbara Chase moved out of the apartment they had shared as a couple for seven years, Culverson saw Chase and a woman with whom Chase was then romantically involved at a gas station. As they left the gas station, Culverson, who regularly carried a gun in her car for security purposes, 6 followed them. When they…