                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 25 2011

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




                            FOR THE NINTH CIRCUIT



DANNY MADRID,                                    No. 08-16416

              Petitioner - Appellee,             D.C. No. 1:07-CV-00331-OWW-
                                                 SMS
  v.

KATHY MENDOZA-POWERS,                            MEMORANDUM *

              Respondent - Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                Oliver W. Wanger, Senior District Judge, Presiding

              Argued August 12, 2010; Resubmitted March 25, 2011
                          San Francisco, California

Before: GRABER, CALLAHAN, and BEA, Circuit Judges.

       Petitioner Danny Madrid was convicted in 1981 of second degree murder,

attempted murder, and two attempted robberies, and sentenced to prison for twenty

years to life. In 2006, the parole board denied him parole. The California courts

denied Madrid’s habeas petition concluding that there was “some evidence” to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
support the board’s decision. Madrid sought federal habeas relief, which the

district court granted on the ground that he “had been denied parole solely on the

basis of immutable factors of his commitment offense, previous record of violence

and social history,” and that, under California law, these do not amount to “some

evidence that he is currently an unreasonable risk of danger to the public if

released.” The state timely appealed.

      While this appeal has been pending, Madrid was granted parole and was

released from custody in February 2010. His release does not moot this appeal

because, as the parties agree, the district court’s order requires the state to credit

Madrid’s “five year parole period” with the time between the 2006 denial of parole

and his 2010 release.

      Also, while this appeal was pending, the Supreme Court decided Swarthout

v. Cooke, 131 S. Ct. 859 (2011) (per curiam). In Swarthout, the Court stated that

“it is no federal concern here whether California’s ‘some evidence’ rule of judicial

review (a procedure beyond what the Constitution demands) was correctly

applied.” Id. at 863. It held that the Federal Due Process Clause requires a

California inmate to receive only “an opportunity to be heard and . . . a statement

of the reasons why parole was denied,” and noted that the “correct application of

the State’s ‘some evidence’ standard” is not required by the Federal Due Process


                                            2
Clause. Id. at 861-62. Because the district court – not having the benefit of the

Supreme Court’s guidance – granted relief by construing an error of state law as

constituting a violation federal of due process, its grant of the habeas petition is

REVERSED.




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