                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 14 2011

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



                           FOR THE NINTH CIRCUIT


EDWARD CHARLES WILLIAMS,                         No. 08-55395

              Petitioner - Appellant,            D.C. No. 2:06-cv-04494-DDP-SH

  v.
                                                 MEMORANDUM*
ARNOLD SCHWARZENEGGAR,
Governor,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   Dean D. Pregerson, District Judge, Presiding

                     Argued and Submitted October 11, 2011
                              Pasadena, California

Before:       LEAVY and WARDLAW, Circuit Judges, and MAHAN, District
              Judge.**

       Edward Charles Williams appeals from the district court’s judgment denying

his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
§ 2253. We review de novo a district court’s decision to deny a habeas petition

and review findings of fact for clear error. Christian v. Rhode, 41 F.3d 461, 464

(9th Cir. 1994).

      In its reply brief, the state argues that appellate review is procedurally

improper because Williams has already been released on parole and no certificate

of appealability has been issued. As to the first contention, we conclude that the

case is not moot. A live controversy exists because Williams remains on parole

and we may grant his immediate release from parole if we find parole was

improperly delayed. See McQuillion v. Duncan, 342 F.3d 1012, 1015 (9th Cir.

2003). Second, a certificate of appealability was not issued in this case because the

district court relied on since-overturned case law. The failure to issue a certificate

under these circumstances is excusable. See Hayward v. Marshall, 603 F.3d 546,

554-55 (9th Cir. 2010) (en banc). We may issue the certificate sua sponte, and we

do so here. Id.

      Under AEDPA, a habeas petitioner must demonstrate that the state court’s

decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States”

or was “based on an unreasonable determination of the facts in light of the

evidence presented.” 28 U.S.C. § 2254(d).


                                           2                                       08-55395
      Williams’ due process claims are precluded by the Supreme Court’s recent

decision in Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per curiam). In Swarthout

the Supreme Court explained that in habeas petitions challenging parole denials,

the federal due process clause requires only an opportunity to be heard and a

statement of the reasons why parole was denied. Id. at 862. (citing Greenholtz v.

Inmates of Neb. Penal and Correctional Complex, 422 U.S. 1, 16 (1979)). As the

Court explained, this is “the beginning and the end of the federal habeas courts’

inquiry into whether [an inmate] receive[s] due process.” Id. Williams received an

opportunity to be heard and a statement of reasons why parole was denied.

      The state court decisions rejecting Williams’s ex post facto claims are not

contrary to, nor an unreasonable applications of, clearly established federal law, as

reflected in Supreme Court decisions. In Garner v. Jones, 529 U.S. 244 (2000),

the Supreme Court held that a Georgia law reducing the frequency of parole

hearings did not violate the ex post facto clause because it did not lead to the

exercise of less discretion. Id. at 254. In summarily dismissing Williams’s state

habeas petition, the California Court of Appeal cited In re Rosenkrantz, 29 Cal. 4th

616 (2002). In that decision, the California Supreme Court concluded that nothing

in Garner leads to the conclusion that art. V, § 8(b) of the California constitution


                                           3                                       08-55395
(providing for gubernatorial review of state parole board decisions) violated the ex

post facto clause, so long as “the Governor’s review is limited to the same

considerations that inform the Board’s decision.” In re Rosenkrantz, 29 Cal. 4th at

651, 660-61. Here, the governor found that Williams’s role in the murder was

sufficient to reverse the board’s decision to grant parole. This consideration was

equally available to the board.

      Further, it cannot “be said with certainty that the [board] would have granted

[Williams] parole had it possessed the final review authority. Johnson v. Gomez,

92 F.3d 964, 967 (9th Cir. 1996). Therefore, Williams cannot show “with

certainty” that the board would have granted parole absent the governor’s power of

review. See id. at 967-68. The board explained that it disagreed with court orders

recommending a finding of parole suitability, but nevertheless set a parole date.

Had the board known it was the final arbiter of Williams’ parole suitability, it may

have been less lenient and more steadfast in its opposition to the court’s

recommendations.

      Accordingly, Williams has failed to establish that the state court decisions

rejecting his ex post facto claims were contrary to, or unreasonable applications of,

clearly established federal law, as reflected in Supreme Court decisions.

      AFFIRMED.


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