                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FREDERICK NEWHALL WOODS,                         No.   15-15363

              Petitioner-Appellant,              D.C. No. 4:14-cv-01936-CW

 v.
                                                 MEMORANDUM*
ELVIN VALENZUELA, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                     Claudia Wilken, District Judge, Presiding

                        Argued and Submitted May 15, 2017
                             San Francisco, California

Before: KLEINFELD and WARDLAW, Circuit Judges, and MORRIS,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
      Frederick Newhall Woods (“Woods”) appeals the district court’s denial of

his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253. We vacate and remand.1

      1.     Woods’ claim was not mooted by his subsequent parole hearing. A

case is not moot where “some concrete and continuing injury” exists. Spencer v.

Kemna, 523 U.S. 1, 7 (1998). “It is sufficient . . . that the litigant show the

existence of an immediate and definite governmental action or policy that has

adversely affected and continues to affect a present interest.” Super Tire Eng’g

Co. v. McCorkle, 416 U.S. 115, 125–26 (1974). Even where a parolee has been

conditionally paroled after an alleged due process violation in an earlier parole

proceeding, if “the release was conditioned upon respondent’s compliance with

terms that significantly restrict his freedom,” the subsequent parole does not moot

his claim. Jago v. Van Curen, 454 U.S. 14, 21 n.3 (1981). Because Woods

continues to be incarcerated and therefore has an ongoing interest “in the

procedures followed by [the state] in granting parole,” Weinstein v. Bradford, 423

U.S. 147, 148 (1975), his claim implicates a live controversy and is not moot.




      1
          Woods’ Request for Judicial Notice is DENIED as moot. Although the
request was relevant to the adjudication of Woods’ then pending motion for a
certificate of appealability, it is not relevant to the merits of the appeal.
                                           2
      Furthermore, Woods’ appeal is not moot because the alleged due process

violation in the 2012 proceeding inflicts a continuing harm. Woods received a

2015 parole hearing and was again denied parole. But the sole reason the 2015

parole hearing occurred was that Woods was denied parole in 2012 based on a

process he alleges was constitutionally deficient; the 2012 denial made Woods’

continued incarceration possible, and it is the ongoing injury from that particular

proceeding that Woods seeks to remedy. So long as Woods is incarcerated, he will

continue to experience the effects of the 2012 denial and any constitutional injuries

he suffered.

      2.       Woods’ claim falls outside “the core of habeas corpus” and is

therefore not cognizable in habeas. Nettles v. Grounds, 830 F.3d 922, 931, 935

(9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 645 (2017). If success on the

merits of a state prisoner’s argument “would necessarily demonstrate the invalidity

of confinement or its duration,” habeas is the appropriate avenue for bringing that

claim. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). Yet if a favorable judgment

for the prisoner would not “necessarily lead to his immediate or earlier release

from confinement,” he may assert his claim only under 42 U.S.C. § 1983. Nettles,

830 F.3d at 935. Woods alleges that the presiding commissioner who conducted

his 2012 parole proceeding had a pending job application with the district


                                           3
attorney’s office that opposed parole during his hearing and that this constituted a

conflict of interest that deprived Woods of due process. Woods seeks an

evidentiary hearing to prove his allegation that the commissioner suffered from a

disqualifying conflict and, if that is successful, an order affording him a new parole

hearing before an unbiased panel. Because the ultimate relief Woods seeks

through his petition is “a new parole hearing at which . . . parole authorities may, in

their discretion, decline to shorten his prison term,” Dotson, 544 U.S. at 82, a

favorable judgment would not necessarily result in earlier release. His claim is

thus not cognizable in habeas, and we vacate for lack of habeas jurisdiction the

district court’s denial on the merits of Woods’ habeas claim.

      3.     If his allegations that a member of his 2012 parole panel had an

impermissible conflict are proven true, Woods states a viable claim under

Swarthout v. Cooke, 562 U.S. 216 (2011), that the hearing did not meet minimal

due process requirements. On remand, Woods should be afforded leave to amend

his petition to assert his claim under 42 U.S.C. § 1983. Nettles, 830 F.3d at 936.

      Each party shall bear its own costs.

      VACATED and REMANDED.




                                           4
                                                                              FILED
Woods v. Valenzuela, 15-15363
                                                                              SEP 18 2017
KLEINFELD, Senior Circuit Judge, dissenting:                              MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS




      I agree with the majority that under Nettles v. Grounds1 this case cannot be

brought as a habeas petition. I dissent because I believe this case is moot, and that

accordingly we lack the power to remand the case to the district court.



      The harm that Woods alleges in this case is that his 2012 parole panel was

biased against him due to parole panel member Jeffery Ferguson’s pecuniary

interest in a pending job application with the Alameda County District Attorney’s

office—the same office that sought to keep Woods incarcerated at the parole

hearing. All Woods seeks in this case is a parole board that lacks such bias.2 But

his injury, denial of parole by a biased parole board, was cured in 2015 when

Woods received a new parole hearing before an unbiased board. Woods in 2015

got exactly what he wanted from this case, an unbiased parole board. Therefore,

Woods lacks an “actual injury that can be redressed by a favorable judicial


      1
          830 F.3d 922 (9th Cir. 2016) (en banc).
      2
        Indeed, a federal court could not order state officials to release Woods on
parole because only a California parole board can “prescribe an end date to a
prisoner’s indeterminate sentence.” Haggard v. Curry, 631 F.3d 931, 938–39 (9th
Cir. 2010) (per curiam).
decision,” and his case is moot.3



      I am not convinced by the two Supreme Court decisions cited by the

majority concerning mootness in parole cases. Weinstein v. Bradford held only

that a petitioner whose parole “ripened into complete release” no longer had an

interest “in the procedures followed by [the state] in granting parole,” and therefore

had a moot case against the state for procedural violations in his parole.4 This is

inapposite to Woods’s case. And in Jago v. Van Curen, the petitioner brought a

habeas petition claiming his rights had been violated due to revocation of his

parole without a hearing.5 Subsequent to the filing of the petition, he was granted

parole.6 The Court found the petitioner still had an injury because “the release was

conditioned upon respondent’s compliance with terms that significantly restrict his

freedom.”7 The Court found that the petitioner’s relief was not moot because if the

petitioner won on the merits of his claim (which he did not), the district court could

order on remand that he no longer be subject to the restrictions placed upon him in

      3
          Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 70 (1983) (per curiam).
      4
          423 U.S. 147, 147–148 (1975) (per curiam).
      5
          454 U.S. 14, 16 (1981) (per curiam).
      6
          Id. at 21 n.3
      7
          Id.

                                          2
parole.8 In this case the only relief we could give is a new parole hearing, relief

that Woods already received in the form of the 2015 hearing.



      Furthermore, this case does not fit into the “capable of repetition yet evading

review” exception for mootness, because Woods cannot make a “reasonable

showing” that he will face the same legal issue in this case again—that a parole

panel member would be biased against him.9



      For these reasons, I would dismiss for mootness, and not reach the merits of

the case. I do agree that Nettles would require dismissal if we were to reach the

merits.10 I dissent rather than concur because we lack jurisdiction to remand this

moot case to the district court to afford Woods leave to amend his petition to assert

his claim under 42 U.S.C. § 1983.




      8
           Id.
      9
           See City of L.A. v. Lyons, 461 U.S. 95, 109 (1983).
      10
           See Nettles v. Grounds, 830 F.3d 922, 929 (9th Cir. 2016) (en banc).

                                           3
