                                                                           FILED
                           NOT FOR PUBLICATION                              APR 29 2011

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




                            FOR THE NINTH CIRCUIT



DAVID W. MARTIN,                                 No. 08-55392

              Petitioner - Appellant,            D.C. No. 3:07-cv-01022-W-NLS

  v.
                                                 MEMORANDUM *
JAMES E. TILTON, Secretary of the
Department of Corrections and
Rehabilitation; - TILTON, Secretary of
CDC&R; BEN CURRY, Warden; JERRY
BROWN, Attorney General of the State of
California,

              Respondents - Appellees.



                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                       Argued and Submitted April 13, 2011
                              Pasadena, California

Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      California state prisoner David W. Martin (“Martin”) appeals from the

district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 28 U.S.C. § 2253(a),1 and we affirm.

      Even though Martin did not forfeit any work-time credits as a result of the

disciplinary finding, we have jurisdiction because the Board of Parole will consider

the charge when it evaluates Martin’s eligibility for parole. See Docken v. Chase,

393 F.3d 1024, 1028 (9th Cir. 2004) (“[H]abeas corpus jurisdiction exists when a

petitioner seeks expungement of a disciplinary finding from his record if

expungement is likely to accelerate the prisoner’s eligibility for parole.”) (citation

omitted) (alterations omitted); see also 15 Cal. Code Regs. § 2402(c)(6).

      Martin contends that the senior hearing officer’s 2005 decision finding him

guilty of mutual combat without serious injury violated due process. We conclude

that the state court’s conclusion that some evidence supports the decision was not

objectively unreasonable. See 28 U.S.C. § 2254(d)(2); Yarborough v. Gentry, 540

U.S. 1, 5 (2004); see also Superintendent v. Hill, 472 U.S. 445, 454 (1985).

      Because we find that some evidence supports the disciplinary charge, we

need not address whether California’s refusal to recognize Martin’s claim of self-

defense violates “clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

      1
        We certify for appeal, on our own motion, the issue of whether the 2005
decision following the prison disciplinary hearing finding Martin guilty of mutual
combat violated due process.
Martin’s request for judicial notice is granted.

AFFIRMED.
