                                                                              FILED
                            NOT FOR PUBLICATION                                MAY 20 2011

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



                            FOR THE NINTH CIRCUIT

JEANETTE BRANHAM,                                No. 09-56650

              Petitioner - Appellee,             D.C. No. 5:06-cv-01294-ODW-OP

  v.
                                                 MEMORANDUM*
DAWN DAVISON,

              Respondent - Appellant.


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

                        Submission Deferred March 9, 2011
                               Pasadena, California
                            Submitted May 20, 2011**

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       The respondent appeals an order of the district court granting the petitioner

habeas relief and ordering that the California Board of Parole Hearings (1) conduct

a new hearing within 30 days, (2) find her suitable for parole, absent any new


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
evidence suggesting she would pose a danger to society, and (3) calculate a prison

term and release date. The district court reasoned that the Board’s decision was

not supported by “some evidence” that the petitioner would be a danger to public

safety if paroled, and therefore that the decision to deny her parole amounted to an

arbitrary deprivation of her liberty interest in parole, in violation of due process.

      In the time since the district court issued its order, however, the rights of

parole applicants under the Due Process Clause have been reduced drastically. In

Swarthout v. Cooke, 131 S. Ct. 859 (2011), the Supreme Court “held that, under

the Fourteenth Amendment’s Due Process Clause, the protections to which a

California inmate is entitled prior to a denial of parole do not include a showing of

some evidence of future dangerousness. While the Court did not define the

minimum process required by the Due Process Clause for a denial of parole under

the California system, it made clear that the Clause’s requirements were satisfied

where the inmates ‘were allowed to speak at their parole hearings and to contest

the evidence against them, were afforded access to their records in advance, and

were notified as to the reasons why parole was denied.’” Pearson v. Muntz, No.

08-55728, 2011 WL 1238007, at *4 (9th Cir. Apr. 5, 2011) (internal citations

omitted) (quoting Cooke, 131 S. Ct. at 862).




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      The petitioner “has never argued that [she] was denied an opportunity to

speak at [her] hearing and contest the evidence against [her], that [she] was denied

access to [her] record in advance, or that [she] was not notified of the reasons why

parole was denied. [Her] complaint has been all along that there was not ‘some

evidence’ of future dangerousness in [her] case, resulting in a violation of [her]

rights to due process guaranteed by the Constitution. Cooke makes clear that we

cannot consider whether ‘some evidence’ of dangerousness supported a denial of

parole on a petition filed under 28 U.S.C. § 2254.” Id. at *5 (footnote omitted).

      The petitioner nevertheless contends that, apart from the “some evidence”

requirement, the Board’s decision was so arbitrary as to violate due process. Her

argument, however, is based entirely on the relationship between the facts found by

the Board and those that she suggests the record before the Board actually

supported. Cooke forecloses such an argument. To be sure, even after Cooke the

Due Process Clause must still protect parole applicants against truly arbitrary

determinations to deny parole – such as those based on random factors unrelated to

the applicant’s own record – but that is not what happened here. “Cooke was

unequivocal in holding that if an inmate seeking parole receives an opportunity to

be heard, a notification of the reasons as to denial of parole, and access to their

records in advance, ‘that should be the beginning and the end of the inquiry into


                                           3
whether the inmate received due process.’ To reiterate, [the petitioner] has not

questioned whether those procedures were provided, and therefore, after Cooke,

our inquiry is at its end.” Id. at *5 (quoting Cooke, 131 S. Ct. at 862) (alterations

omitted). The district court’s decision to grant the petition must therefore be

reversed.

      We note, in closing, our deep regret at the California Attorney General’s

outright refusal to engage in mediation in this case, when we referred it to our

court’s pioneering mediation unit. It is clear that the petitioner has been a model

inmate who has avoided trouble and has participated in numerous rehabilitative

and skills-training programs in the 24 years since she committed the only violent

act of her life: a crime that was, as the district court found, “aberrant behavior and

committed during a period of significant stress” – her recent separation from the

victim – “rather than as part of a pattern of continuing violent criminality.” We

very much doubt that, under the law that existed at the time, the district court erred

in granting relief accordingly. Had the parties not taken extensions of time to file

their briefs on appeal, or had this case been set for oral argument a few months

sooner, this court would in all likelihood have affirmed. If ever there was a case

for which the representatives of the People might have considered the options for




                                           4
compromise and creativity that may be developed in mediation, surely this was it.

We are sorry that the Attorney General refused to do so.

      REVERSED.




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