FILED
NOT FOR PUBLICATION JUL 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FREDDIE LOUIS BENNETT, No. 08-16690
Petitioner - Appellant, D.C. No. 3:07-CV-02261-SI
v.
MEMORANDUM *
B. CURRY, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted June 15, 2010 **
San Francisco, California
Before: RYMER and FISHER, Circuit Judges, and PALLMEYER, District
Judge.***
*
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 Honorable Rebecca R. Pallmeyer, United States District Judge for
the Northern District of Illinois, sitting by designation.
Freddie Louis Bennett, appearing pro se, appeals the dismissal of his habeas
petition for failure to state a claim on which relief can be granted. We have
jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 and we affirm.
Bennett contends that he had a liberty interest protected by the
Due Process Clause in certain prison disciplinary proceedings he says were unfair.
In particular, he argues that the disciplinary proceedings and associated penalties
triggered a liberty interest because they “will inevitably affect the duration of his
sentence.” Sandin v. Conner, 515 U.S. 472, 487 (1995). His allegations do not
support that claim. Even assuming disciplinary proceedings might inevitably
affect the duration of confinement for a California indeterminate prisoner in some
circumstances, Bennett’s petition and documents crucial to it that he submitted to
the district court demonstrate that the Board of Parole Hearings has deemed
Bennett unsuitable for parole for several independently adequate reasons and not
only because of the disciplinary record he seeks to challenge. Because his
disciplinary record did not “alter the balance” in his parole suitability
determination, its effect if any on the duration of his sentence “is simply too
attenuated to invoke the procedural guarantees of the Due Process Clause.”
Sandin, 515 U.S. at 487.
2
Bennett also contends that he had a liberty interest in the disciplinary
proceedings because they resulted in good time and postconviction credit penalties
that he says will affect the duration of his sentence. His allegations do not support
this claim because he is an indeterminate-term prisoner who has exceeded his
minimum sentence and served over 30 years, and it is therefore unlikely – and
certainly not inevitable – that any actual release date would be affected by these
penalties if he is ever deemed suitable for parole.
AFFIRMED.
3