                                                                          FILED
                           NOT FOR PUBLICATION                             JUL 07 2010

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




                            FOR THE NINTH CIRCUIT



FREDDIE LOUIS BENNETT,                           No. 08-16690

              Petitioner - Appellant,            D.C. No. 3:07-CV-02261-SI

       v.
                                                 MEMORANDUM *
B. CURRY, Warden,

              Respondent - Appellee.

                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                             Submitted June 15, 2010 **
                              San Francisco, California

Before: RYMER and FISHER, Circuit Judges, and PALLMEYER, District
        Judge.***




        *
        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 Honorable Rebecca R. Pallmeyer, United States District Judge for
the Northern District of Illinois, sitting by designation.
      Freddie Louis Bennett, appearing pro se, appeals the dismissal of his habeas

petition for failure to state a claim on which relief can be granted. We have

jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 and we affirm.

      Bennett contends that he had a liberty interest protected by the

Due Process Clause in certain prison disciplinary proceedings he says were unfair.

In particular, he argues that the disciplinary proceedings and associated penalties

triggered a liberty interest because they “will inevitably affect the duration of his

sentence.” Sandin v. Conner, 515 U.S. 472, 487 (1995). His allegations do not

support that claim. Even assuming disciplinary proceedings might inevitably

affect the duration of confinement for a California indeterminate prisoner in some

circumstances, Bennett’s petition and documents crucial to it that he submitted to

the district court demonstrate that the Board of Parole Hearings has deemed

Bennett unsuitable for parole for several independently adequate reasons and not

only because of the disciplinary record he seeks to challenge. Because his

disciplinary record did not “alter the balance” in his parole suitability

determination, its effect if any on the duration of his sentence “is simply too

attenuated to invoke the procedural guarantees of the Due Process Clause.”

Sandin, 515 U.S. at 487.




                                           2
      Bennett also contends that he had a liberty interest in the disciplinary

proceedings because they resulted in good time and postconviction credit penalties

that he says will affect the duration of his sentence. His allegations do not support

this claim because he is an indeterminate-term prisoner who has exceeded his

minimum sentence and served over 30 years, and it is therefore unlikely – and

certainly not inevitable – that any actual release date would be affected by these

penalties if he is ever deemed suitable for parole.

      AFFIRMED.




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