Thelander v. Kane, No. 07-16448 (9th Cir. 2011)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JAN 13 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT SCOTT THELANDER, No. 07-16448 Petitioner -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
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