White v. Cate , 395 F. App'x 489 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGORY ROSS WHITE, No. 06-56174
Petitioner - Appellant, D.C. No. CV-04-05968-SJO
v.
MEMORANDUM **
MATTHEW CATE,* Secretary of the
California Department of Corrections;
MARGARITA E. PEREZ, Chairperson,
California Board of Prison Terms,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted May 7, 2008
Pasadena, California
Submission withdrawn May 23, 2008
Resubmitted September 9, 2010
*
Matthew Cate, Secretary of the California Department of Corrections, is
substituted for his predecessor, J.S. Woodford, Warden. Fed. R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FISHER and BERZON, Circuit Judges, and ROBART, District Judge.***
Gregory Ross White appeals from the judgment of the district court
dismissing his 28 U.S.C. § 2254 habeas corpus petition challenging the 1996
rescission of parole. We dismiss the appeal as moot.
White filed his habeas petition on July 22, 2004, while he was incarcerated
by the State of California at the Oregon State Penitentiary in Salem, Oregon. In his
petition, White sought an order vacating his 1996 parole rescission order,
reinstating his parole date and requiring the Department of Corrections to release
him from prison “in accordance with the terms of his parole.” Supplement Pet.
Habeas Corpus 13. On January 22, 2010, while this appeal was pending, White
was released on parole. White has, accordingly, been granted the relief he sought
in his habeas petition. This renders his appeal moot. See Munoz v. Rowland, 104
F.3d 1096, 1097-98 (9th Cir. 1997) (“We are precluded by Article III of the
Constitution . . . from entertaining an appeal if there is no longer a live case or
controversy.”).
In his supplemental brief, White argues that his case is not moot because this
court could order his discharge from parole. Cf. McQuillion v. Duncan, 342 F.3d
1012, 1015 (9th Cir. 2003). White, however, raises this claim for relief for the first
***
The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
2
time in his supplemental brief on appeal. We therefore treat this argument as
waived. See Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir. 2006).
APPEAL DISMISSED.
3