Thelander v. Kane

FILED
NOT FOR PUBLICATION JAN 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SCOTT THELANDER, No. 07-16448
Petitioner - Appellee, D.C. No. CV-05-04689-CW
v.
MEMORANDUM *
ANTHONY KANE, Warden,
Respondent - Appellant.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted January 11, 2011 **
San Francisco, California
Before: KOZINSKI, Chief Judge, WALLACE and SILVERMAN, Circuit Judges.
Warden Kane appeals from the district court’s order granting Thelander’s
petition for writ of habeas corpus. We dismiss the appeal as moot.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court granted Thelander’s habeas petition, concluding that his
due process rights were violated when the California Board of Parole (Board)
denied parole without “some evidence” that Thelander posed a current risk of
danger to society. See Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010)
(en banc). During the pendency of the Warden’s subsequent appeal, the Board
held another hearing and found Thelander suitable for parole, a decision that
recently became final. Accordingly, there is no case or controversy for us to
resolve. See United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001).
Additionally, “[t]he actual injury traceable to the State of [California] for
which [Thelander] seeks relief cannot be redressed by a favorable decision” from
this court. See Burnett v. Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005) (internal
alterations and quotation omitted). While Thelander remains in state custody on an
unrelated conviction, we are unable to order his release. See Haggard v. Curry, —
F.3d —, 2010 WL 4978842, at *5 (9th Cir. 2010). Based on the claims asserted in
his habeas petition, the only relief to which Thelander might be entitled is “a
redetermination by the Board consistent with [California’s] ‘some evidence’
requirement.” See id.; see also In re Chaudhary, 172 Cal. App. 4th 32, 37 (Cal. Ct.
App. 2009) (holding that time wrongfully imprisoned after erroneous parole denial
cannot be credited towards the five-year parole discharge eligibility requirement).
2
Because the Board has now found Thelander eligible for parole, it is undisputed
that he has received this relief, and his claim is therefore moot.
DISMISSED.
3