BRIAN SASS,  Petitioner-Appellant, No. 05-16455 v. CALIFORNIA BOARD OF PRISON  D.C. No. CV-01-00835-MCE TERMS; ATTORNEY GENERAL OF THE OPINION STATE OF CALIFORNIA, Respondents-Appellees.  Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding

Argued and Submitted March 16, 2006—San Francisco, California

Filed August 31, 2006

Before: Alfred T. Goodwin, Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Goodwin; Dissent by Judge Reinhardt

10563 10566 SASS v. CALIFORNIA BOARD OF PRISON TERMS

COUNSEL Margaret Littlefield and Michael Satris, Law Offices of Michael Satris, Bolinas, California, for the petitioner- appellant. Julie L. Garland, Supervising Deputy Attorney General, San Diego, California, for the respondent-appellee.

OPINION 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 pro- cess rights.

We hold that California inmates continue to have a liberty interest in parole after In re Dannenberg, 34 Cal. 4th 1061 (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.1

1 We deny the government’s motion for reconsideration of the order granting Sass’ motion to supplement the record on appeal. SASS v. CALIFORNIA BOARD OF PRISON TERMS 10567 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 pos- sibility 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’ “escalat- ing pattern of criminal conduct,” and his “unstable social his- tory 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 fail- ure 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 consider- ation hearing, and found Sass unsuitable for parole. The Board found that Sass “would pose an unreasonable risk of danger