Brian SASS, Petitioner-Appellant, v. CALIFORNIA BOARD OF PRISON TERMS; Attorney General of the State of California, Respondents-Appellees, 461 F.3d 1123

GOODWIN, Circuit Judge. California state prisoner Brian Sass appeals the district court’s denial of his petition for a writ of habeas corpus. Sass argues that the California Board of Prison Terms’ decisions, in 1999 and 2000, denying him parole violated his due process rights. We hold that California inmates continue to have a liberty interest in parole after In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005).

However, the state court decisions upholding Sass’ parole denials were not contrary to, and did not involve an unreasonable application of, clearly established federal law as determined by the Supreme Court. For this reason, we affirm. I. In 1988, Sass was convicted of second degree murder, gross vehicular manslaughter, hit and run death, causing injury while driving under the influence, and felony drunk driving. He was sentenced to fifteen years to life with the possibility of parole.

The California Board of Prison Terms (“the Board”) held Sass’ initial parole consideration hearing on November 25, 1996, and found him unsuitable for parole. On March 25, 1999, the Board held a subsequent parole consideration hearing, and found Sass unsuitable for parole.

The Board found that Sass “would pose an unreasonable risk of danger to others — to society and a threat to public safety if released from prison.” The Board cited the “especially cruel manner” in which his offense was carried out, Sass’ “escalating pattern of criminal conduct,” and his “unstable social history with prior criminality” to support its unsuitability determination. Sass filed a petition for a writ of habeas corpus in California superior court, contending that the Board’s failure to set a parole date violated his equal protection and due process rights.

The court found that Sass had not exhausted his administrative remedies, and rejected Sass’ argument that it would be futile to pursue administrative remedies because he exhausted his administrative appeals from the Board’s 1996 unsuitability determination. Despite Sass’ failure to exhaust administrative remedies, the court denied his habeas petition on the merits. The California Court of Appeals and the California Supreme Court also denied habeas petitions challenging the 1999 unsuitability determination. On July 27, 2000, the Board held a third parole consideration hearing, and found Sass unsuitable for parole.

The Board found that Sass “would pose an unreasonable risk of danger to society and a threat to public safety if released from prison.” The Board cited the “total disregard for human suffering” demonstrated by the manner of his offense and Sass’ previous criminal history to support its determination. After pursuing an appeal to the Board, Sass filed a habeas petition in California superior court again alleging that the Board’s failure to set a parole release date violated his equal protection and due process rights.

The court found that the petition and supporting documentation failed to set forth sufficient facts to establish a prima facie case for relief, and denied the petition. The California Court of Appeals and the California Supreme Court also denied habeas petitions challenging the 2000- unsuitability determination. Sass filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of California challenging the Board’s 1996, 1999, and 2000 decisions denying him a parole date.

On September 12, 2002, the district court held that the challenges to the 1996 parole proceeding were time-barred. The remaining matters were referred to a magistrate judge. On March 16, 2005, the magistrate judge recommended that Sass’ habeas petition be granted and that Sass be given a parole date within thirty days of the adoption of his findings. The magistrate judge’s analysis relied on Ninth Circuit cases holding that California’s statutory scheme gives prisoners a liberty interest in release on parole, McQuillion v.

Duncan, 306 F.3d 895 (9th Cir.2002), and that the Board’s continued reliance on immutable factors to deny parole could result in a due process violation, Biggs v. Terhune, 334 F.3d 910, 917 (9th Cir.2003). However, it should be noted that Biggs affirmed a denial of parole after holding that the circumstances of the offense and conduct prior to imprisonment constituted some evidence to support the Parole Board’s decision. Id. On June 15, 2005, the district court rejected the magistrate’s findings and recommendations, and denied Sass’ habeas petition.

The district court held that the California Supreme Court had held in In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005), that the language of California Penal Code

section 3041 is not mandatory. The district court therefore held that Sass did not have an associated liberty interest in parole under clearly established federal law. On appeal, Sass argues that

(1) section 3041 creates a liberty interest in parole and (2)-the Board’s decisions denying him parole violate his due process rights because they are not supported by some evidence. II. We review de novo a district court’s decision to deny a 28 U.S.C. § 2254 habeas petition. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.2004).

Section 2254 “is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction.” White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.2004). Therefore, we review Sass’ ha-beas petition under the deferential standard of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

The petition cannot be granted unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). When a state court does not explain its reasoning, as is the case here, we must conduct an independent review of the record to determine whether the state court’s decision was objectively unreasonable. Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir.2004).

Contrary to the dissent’s assertion, we did conduct an independent review of the record. III. We analyze a due process claim in two steps. “[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citation omitted). Did Sass have a constitutionally protected liberty interest in parole?

The Supreme Court has held that “[tjhere is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence,” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). However, if a state statute “uses mandatory language (‘shall’) to ‘create a presumption that parole release will be granted’ when the designated findings are made,” the statute creates a liberty interest in parole. Bd. of Pardons v.

Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (quoting Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100). When previously confronted with the question whether

section 3041 creates a liberty interest in parole, this court held that “[ujnder the ‘clearly established’ framework of Greenholtz and Allen, ... California’s parole scheme gives rise to a cognizable liberty interest in release on parole.” McQuillion v. Duncan, 306 F.3d 895, 902 (2002). Furthermore, this “liberty interest is created, not upon the grant of a parole date, but upon the incarceration of the inmate.” Biggs v. Terhune, 334 F.3d 910, 915 (2003). Sass argues that the district court erred when it interpreted In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005), to hold that

section 3041 does not use mandatory language and does not create a liberty interest in parole, thereby superceding McQuillion and Biggs. Because “a State’s highest court is the final judicial arbiter of the meaning of state statutes,” if the California Supreme Court did hold that

section 3041 does not use mandatory language, this court’s holdings to the contrary would no longer control. Gurley v. Rhoden, 421 U.S. 200, 208, 95 S.Ct. 1605, 44 L.Ed.2d 110 (1975). The district court misread Dannenberg. Dannenberg addressed the narrow question whether the Board must engage in a comparative proportionality analysis in setting parole dates pursuant to

section 3041(

a) before determining whether an inmate is suitable for parole pursuant to

section 3041(b). 34 Cal.4th at 1077, 23 Cal.Rptr.3d 417, 104 P.3d 783. Dannen-berg held that “[n]othing in the statute states or suggests that the Board must evaluate the case under standards of term uniformity before exercising its authority to deny a parole date on the grounds the particular offender’s criminality presents a continuing public danger. ” Id. at 1070, 23 Cal.Rptr.3d 417, 104 P.3d 783. The California court did not hold that

section 3041(

b) does not use mandatory language. Dannenberg argued that “he was denied federal due process rights arising from his protected liberty interest, and expectation, in a ‘uniform’ parole release date.” Id. at 1098 n. 18, 23 Cal.Rptr.3d 417, 104 P.3d 783. The court explained that “he has such a liberty interest and expectation only to the extent that state law provides it,” but did not hold that state law does not provide such a liberty interest. Id. Instead, the court proceeded to the second step of the due process analysis — whether the procedures attendant upon a deprivation were constitutionally sufficient.

Id. (rejecting Dannenberg’s argument “that the Board’s decision lacked the support of ‘some evidence,’ ” and noting that he “does not contend he was denied any procedural rights he was constitutionally due in the course of the Board’s decision”) (citing McQuillion with approval). The court would not reach this step if it had held that there was no liberty interest. See Ky. Dep’t of Corr., 490 U.S. at 460, 109 S.Ct. 1904. Dannenberg does not explicitly or implicitly hold that there is no constitutionally protected liberty interest in parole. IV.

Because we hold that Sass has a constitutionally protected liberty interest in a parole date, we proceed to examine whether the deprivation of this interest, in this case, violated due process. See Ky. Dep’t of Corr., 490 U.S. at 460, 109 S.Ct. 1904. In Superintendent v. Hill, the Supreme Court held that “revocation of good time does not comport with ‘the minimum requirements of procedural due process,’ unless the findings of the prison disciplinary board are supported by some evidence in the record.” 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (quoting Wolff v.

McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). To determine whether the some evidence standard is met “does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56, 105 S.Ct. 2768.

This court held that although Hill involved the accumulation of good time credits instead of a parole denial, the some evidence standard applies in both situations because “both directly affect the duration of the prison term.” Jancsek v. Or. Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir.1987). A. The state contends that use of the some evidence standard in the parole context is not clearly established by the Supreme Court for AEDPA purposes.

The Supreme Court has held that a state can create a liberty interest in parole, Greenholtz, 442 U.S. 1, Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303, and that a liberty interest cannot be interfered with unless the requirements of due process are satisfied, Ky. Dep’t of Corr., 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506. Although the Court has not specifically identified how these requirements are satisfied in the parole context, it follows from these precedents that due process must be satisfied.

Hill’s some evidence standard is minimal, and assures that “the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.” Hill, 472 U.S. at 457, 105 S.Ct. 2768. Hill held that although this standard might be insufficient in other circumstances, “[t]he fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact.” Id. at 456, 105 S.Ct. 2768.

To hold that less than the some evidence standard is required would violate clearly established federal law because it would mean that a state could interfere with a liberty interest — that in parole — without support or in an otherwise arbitrary manner. We therefore reject the state’s contention that the some evidence standard is not clearly established in the parole context. B. In making a judgment call based on evidence of pre-conviction recidivism and the nature of the conviction offense, the Board cannot be categorized as acting arbitrarily.

Here, the Board based its finding that Sass was unsuitable for parole on the gravity of his convicted offenses in combination with his prior offenses. These elements amount to some evidence to support the Board’s determination. Sass contends that reliance on this immutable behavioral evidence violates due process.

While upholding an unsuitability determination based on these same factors, we previously acknowledged that “continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation.” Biggs, 334 F.3d at 917 (emphasis added). Under AEDPA it is not our function to speculate about how future parole hearings could proceed. Cf. id.

The evidence of Sass’ prior offenses and the gravity of his convicted offenses constitute some evidence to support the Board’s decision. Consequently, the state court decisions upholding the denials were neither contrary to, nor did they involve an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d). While the district court decision is correct under the AEDPA standard of review, we have pointed out that the district court based its decision on an erroneous reading of the California Supreme Court in Dannenberg.

However, under the law of this circuit, “[w]e may affirm the district court’s decision on any ground supported by the record, even if it differs from the district court’s rationale.” Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.2004). AFFIRMED. . We deny the government's motion for reconsideration of the order granting Sass’ motion to supplement the record on appeal. . Prior to his second degree murder conviction, Sass had been convicted on seven separate occasions for DUI. . Despite the government’s argument that Sandin v.

Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), eliminated the "mandatory language” approach of Green-holtz and Allen, the Supreme Court did not so hold and this court has consistently rejected this argument. See, e.g., McQuillion, 306 F.3d at 903; Biggs, 334 F.3d at 914.