                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 08 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ALEXANDER MEZHBEIN,                              No. 08-55131

              Petitioner - Appellee,             D.C. No. CV-06-08059-DOC

  v.
                                                 MEMORANDUM*
J. F. SALAZAR, Warden,

              Respondent - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                             Submitted May 7, 2012**
                               Pasadena, California

Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.

       Warden J.F. Salazar appeals the district court’s grant of inmate Alexander

Mezhbein’s 28 U.S.C. § 2254 petition for writ of habeas corpus. We have

jurisdiction under 28 U.S.C. § 2253, and we reverse.


        *
             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).
1.    Although Mezhbein was released from prison pursuant to an order of the

district court, this appeal is not moot. Mezhbein’s release was effected by the very

order that the Warden now argues was in error. See Eagles v. United States ex rel.

Samuels, 329 U.S. 304, 307–08 (1946) (“Though the writ has been granted and the

prisoner released, the appellate court by what it does is not rendering an opinion

and issuing an order which cannot affect the litigants in the case before it. . . .

Reversal undoes what the habeas corpus court did and makes lawful a resumption

of the custody.”).

2.    Mezhbein argues that the Warden failed to appeal the district court’s order

subsequent to its initial grant of Mezhbein’s habeas petition, which directed the

state governor to consent to Mezhbein’s release from prison. The Warden was not

obligated to appeal the district court’s subsequent order, because the relevant

judgment in a federal habeas appeal is the district court’s grant or denial of the writ

itself. See 28 U.S.C. § 2253(a); see also Eagles, 329 U.S. at 307.

3.     Federal due process requires only that a prisoner seeking parole receive an

opportunity to be heard, notification of the reasons for any denial, and advance

access to the record. See Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011).

Mezhbein concedes that he was afforded this constitutionally adequate process.
4.    Finally, we note that since his release, Mezhbein has lived peaceably in

Southern California for five years. That the state is constitutionally entitled to

return him to custody does not mean that it would be judicious to do so.

      REVERSED.
