                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 14 2012

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



                            FOR THE NINTH CIRCUIT


DAVID UPTON,                                     No. 10-55536

               Petitioner - Appellant,           D.C. No. 5:08-cv-01497-ABC-
                                                 PJW
    v.

AREF FAKHOURY,                                   MEMORANDUM*

               Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                 Audrey B. Collins, Chief District Judge, Presiding

                           Submitted February 10, 2012**
                               Pasadena, California

Before: WARDLAW and CALLAHAN, Circuit Judges, and MARTINEZ, 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 Ricardo S. Martinez, District Judge for the U.S.
District Court for Western Washington, sitting by designation.
      David Upton appeals from the district court’s dismissal of his petition for

writ of habeas corpus as moot. We have jurisdiction under 28 U.S.C.

§ 2253, and we affirm.

      Because Upton challenges the validity of his parole revocation, and has

since been released from prison, he must demonstrate continuing collateral

consequences to avoid mootness. The possibility that Upton’s prior revocation, or

the allegedly false and misleading information in his parole violation report, will

be used against him in subsequent parole proceedings is too speculative to satisfy

the case or controversy requirement. Cf. Spencer v. Kemna, 523 U.S. 1, 14 (1998)

(declining to find collateral consequences of a prior parole revocation because,

inter alia, under Missouri law a single parole revocation “‘[does] not render an

individual ineligible for parole[,] [but is] simply one factor, among many, that may

be considered by the parole authority in determining whether there is a substantial

risk that the parole candidate will not conform to the reasonable conditions of

parole”) (quoting Lane v. Williams, 455 U.S. 624, 633 n.13 (1982)).

      Upton asserts that the use of the allegedly false information in future parole

hearings is “capable of repetition yet evading review.” Even assuming the one-

year maximum term of any return to custody Upton might suffer as the result of

future parole violations, see Cal. Code Regs. tit. 15, § 2635.1(c), is a short enough


                                          2
period to satisfy the “evading review” prong, see Tyars v. Finner, 709 F.2d 1274,

1280 (9th Cir. 1983), Upton has not shown a reasonable expectation that the Board

will use the allegedly false information against him in subsequent parole

proceedings. See City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (the

capable-of-repetition doctrine generally applies only where the named plaintiff

“can make a reasonable showing that he will again be subjected to the alleged

illegality”). Upton’s single parole revocation does not create a reasonable

expectation that he will again come before the Board, or that, if he does, his parole

officer will submit the same information again. Cf. Foster v. Carson, 347 F.3d

742, 748 (9th Cir. 2003) (“Plaintiffs do not establish a reasonable expectation that

they will be subjected to the challenged action again in the future. The only fact in

the record before us that supports this claim is that it happened once.”).

      Nor has Upton demonstrated a reasonable expectation that, should he come

before the Board again, it would rely on the allegedly false information in making

its determination. See Cal. Code Regs. tit. 15, § 2636(a) (a parole violation report

is required each time a suspected parole violation is reported to the Board);

§ 2643(d) (at a revocation hearing, a parolee may request the presence of witnesses

and may request subpoenas or subpoenas duces tecum); § 2665 (“all evidence

relevant to the charges or disposition” is admissible in parole revocation


                                          3
proceedings); cf. Foster, 347 F.3d at 748 (“The mere fact that a similar order . . .

might someday issue does not establish a ‘reasonable expectation’ that such an

order will issue. We have held that a mere possibility that something might happen

is too remote to keep alive a case as an active controversy.”) (emphasis in

original)).

AFFIRMED.




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