                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              APR 13 2011

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

MARK DELAPLANE,                                  No. 09-56910

              Petitioner - Appellee,             D.C. No. 2:08-cv-02306-JFW-
                                                 MAN
  v.

JOHN MARSHALL, Warden,                           MEMORANDUM*

              Respondent - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                     Argued and Submitted December 8, 2010
                              Pasadena, California

Before: PREGERSON, CLIFTON, and M. SMITH, Circuit Judges.

       Warden John Marshall appeals from the district court’s grant of the petition

for habeas corpus of Mark Delaplane. In light of the Supreme Court’s recent

decision in Swarthout v. Cooke, 131 S.Ct. 859 (2011), we hold that Delaplane’s

federal right to due process was not violated. Delaplane “was allowed an



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
opportunity to be heard and was provided a statement of the reasons why parole

was denied.” Id. at 862. Thus, Delaplane is not entitled to a writ of habeas

corpus.

      Delaplane argues that Cooke did not address whether the Constitution

requires a showing of some evidence of future danger before states can deny

parole. This argument has been rejected by our precedent. See Pearson v. Muntz,

--- F.3d ----, 2011 WL 1238007, at *5 (9th Cir. 2011). Delaplane also argues that

the Governor violated his due process rights by not granting Delaplane a hearing

before reversing his grant of parole. This argument was raised for the first time in

a letter filed pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure. It

was thus made too late, and is not properly before us. See id. at *5 n.5.

      REVERSED.




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