                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 22 2010

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




                            FOR THE NINTH CIRCUIT



RANDALL COWANS,                                  No. 09-56880

              Petitioner - Appellee,             D.C. No. 2:05-cv-06276-RSWL-
                                                 OP
  v.

JOHN MARSHALL, Warden,                           MEMORANDUM *

              Respondent - Appellant.



                  Appeal from the United States District Court
                      for the Central District of California
                Ronald S.W. Lew, Senior District Judge, Presiding

                        Argued and Submitted July 16, 2010
                               Pasadena, California

Before: FARRIS and SILVERMAN, Circuit Judges, and ROBART, District
Judge.**

       Respondent-Appellant John Marshall (“the Warden”) appeals the district

court’s order granting Petitioner-Appellee Randall Cowans immediate release from




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
prison without serving a period of parole.1 We have jurisdiction pursuant to 28

U.S.C. § 2253 and we affirm.

      The district court did not abuse its discretion when it ordered Cowans’s

immediate release without serving a period of parole. “Federal courts have the

latitude to resolve a habeas petition ‘as law and justice require.’” Pirtle v. Cal. Bd.

of Prison Terms, — F.3d —, 2010 WL 2732888, at *8 (9th Cir. July 12, 2010)

(quoting 28 U.S.C. § 2243). “Ordering the release of a prisoner is well within the

range of remedies available to federal habeas courts. ‘Habeas lies to enforce the

right of personal liberty; when that right is denied and a person confined, the

federal court has the power to release him.’” Id. (quoting Fay v. Noia, 372 U.S.

391, 430-31 (1963), overruled on other grounds by Wainwright v. Sykes, 433 U.S.

72 (1977)). Moreover, we have approved the practice of crediting unlawful time

spent in custody against a prisoner’s period of parole supervision. See McQuillion

v. Duncan, 342 F.3d 1012, 1015 (9th Cir. 2003). Here, the district court granted

Cowans’s habeas petition because Cowans had been unlawfully denied parole in

2001 and 2003. The California Board of Prison Terms failed to comply with

district court’s order to hold a hearing within 30 days of judgment to set Cowans’s




      1
       The Warden does not appeal the district court’s grant of Cowans’s petition
for a writ of habeas corpus.
release date. The district court acted well within its discretion when it then ordered

Cowans’s immediate release.

      AFFIRMED.
