Henry Parker v. Brian Belleque ( 2010 )

FILED
NOT FOR PUBLICATION
NOV 19 2010
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HENRY JACOB PARKER,
Petitioner-Appellant, No. 08-35776
v. D.C. No. 3:06-cv-00732-MA
BRIAN BELLEQUE, MEMORANDUM *
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Argued and Submitted November 2, 2010
Portland, Oregon
Before: W. FLETCHER and FISHER, Circuit Judges, and BURY, District Judge.**
Henry Jacob Parker appeals the district court’s dismissal of his petition for
writ of habeas corpus as moot. We reverse and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
1
Parker argues that because he is currently subject to parole conditions, he
is suffering an actual injury and thus his habeas petition is not moot. We agree.
Although a habeas petition may be mooted by the prisoner’s outright release, see
Lane v. Williams, 455 U.S. 624 (1982), prisoners released on parole “have not
completed their sentences, they are serving them.” United States v. Betts, 511 F.3d
872, 876 (9th Cir. 2007). Because Parker is still serving the parole portion of his
sentence, his petition is not moot.
Because the district court dismissed Parker’s petition on the basis of
mootness, it did not evaluate his constitutional challenges to the Parole Board’s
2005 parole release determination. This matter is therefore remanded for
consideration of the merits of Parker’s constitutional claims.
REVERSED AND REMANDED.
2