                                                                          FILED
                               NOT FOR PUBLICATION                         MAR 09 2011

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




                              FOR THE NINTH CIRCUIT

EDGAR KUNKLER,                                   No. 06-55555

             Petitioner - Appellee,              D.C. No. CV-05-06473-TJH

  v.
                                                 ORDER
MADELENE M. MUNTZ,

             Respondent - Appellant.

         Before: CANBY and THOMAS, Circuit Judges, and CONLON,* District
Judge.

         The State of California, on behalf of Warden Madelene Muntz, appealed the

district court order granting Edgar Kunkler’s petition for a writ of habeas corpus

under 28 U.S.C. § 2254. In a memorandum disposition filed March 7, 2007, we

reversed, finding the California governor’s decision to deny Kunkler parole was

supported by “some evidence.” Kunkler v. Muntz, 226 Fed. Appx. 669, 670-71

(9th Cir. 2007). Kunkler timely petitioned for panel rehearing and rehearing en

banc. Relying on Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc),

Pearson v. Muntz, 606 F.3d 606, 608 (9th Cir. 2010), amended on denial of reh’g,

625 F.3d 539 (9th Cir. 2010), Cooke v. Solis, 606 F.3d 1206 (9th Cir. 2010), rev’d,


         *
       The Honorable Suzanne B. Conlon, United States District Judge for the
Northern District of Illinois, sitting by designation.
131 S. Ct. 859 (U.S. Jan. 24, 2011), and In re Lawrence, 190 P.3d 535, 539 (Cal.

2008), we vacated the March 7, 2007 memorandum disposition and affirmed the

district court, finding the State failed to establish “some evidence” of Kunkler’s

future dangerousness. Dkt. No. 50 (Dec. 27, 2010). The State petitions for panel

rehearing in light of Swarthout v. Cooke, 131 S. Ct. 859 (U.S. Jan. 24, 2011) (per

curiam). Although invited to do so, Kunkler did not file a response.

      In Swarthout, the Supreme Court held federal habeas review of California

parole decisions is limited to procedural due process, namely whether the state

parole applicant had an opportunity to be heard and received a statement of the

reasons underlying the denial of parole. Id. at 862. Swarthout prohibits

examination whether the California state courts applied the “some evidence”

standard correctly. Id. at 862-63. In this case, there has been no showing that

Kunkler was denied an opportunity to be heard at his parole hearing or was not

provided a statement of the reasons for his parole denial.

      Accordingly, the petition for panel rehearing is GRANTED. The December

27, 2007 order affirming the district court is VACATED. The district court order

granting Kunkler’s habeas corpus petition is REVERSED. Kunkler’s motion for

further or modified order to specify the form of habeas relief is DENIED as moot.




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