Mark Delaplane v. John Marshall, No. 09-56910 (9th Cir. 2011)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 13 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MARK DELAPLANE, Petitioner - Appellee, No. 09-56910 D.C. No. 2:08-cv-02306-JFWMAN 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. 2
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