                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 13 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SCOTT THELANDER,                                 No. 07-16448

              Petitioner - Appellee,             D.C. No. CV-05-04689-CW

  v.
                                                 MEMORANDUM *
ANTHONY KANE, Warden,

              Respondent - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                           Submitted January 11, 2011 **
                             San Francisco, California

Before: KOZINSKI, Chief Judge, WALLACE and SILVERMAN, Circuit Judges.

       Warden Kane appeals from the district court’s order granting Thelander’s

petition for writ of habeas corpus. We dismiss the appeal as moot.




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       The district court granted Thelander’s habeas petition, concluding that his

due process rights were violated when the California Board of Parole (Board)

denied parole without “some evidence” that Thelander posed a current risk of

danger to society. See Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010)

(en banc). During the pendency of the Warden’s subsequent appeal, the Board

held another hearing and found Thelander suitable for parole, a decision that

recently became final. Accordingly, there is no case or controversy for us to

resolve. See United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001).

      Additionally, “[t]he actual injury traceable to the State of [California] for

which [Thelander] seeks relief cannot be redressed by a favorable decision” from

this court. See Burnett v. Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005) (internal

alterations and quotation omitted). While Thelander remains in state custody on an

unrelated conviction, we are unable to order his release. See Haggard v. Curry, —

F.3d —, 2010 WL 4978842, at *5 (9th Cir. 2010). Based on the claims asserted in

his habeas petition, the only relief to which Thelander might be entitled is “a

redetermination by the Board consistent with [California’s] ‘some evidence’

requirement.” See id.; see also In re Chaudhary, 172 Cal. App. 4th 32, 37 (Cal. Ct.

App. 2009) (holding that time wrongfully imprisoned after erroneous parole denial

cannot be credited towards the five-year parole discharge eligibility requirement).


                                          2
Because the Board has now found Thelander eligible for parole, it is undisputed

that he has received this relief, and his claim is therefore moot.

      DISMISSED.




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