FILED
NOT FOR PUBLICATION MAR 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDGAR KUNKLER, No. 06-55555
Petitioner - Appellee, D.C. No. CV-05-06473-TJH
v.
ORDER
MADELENE M. MUNTZ,
Respondent - Appellant.
Before: CANBY and THOMAS, Circuit Judges, and CONLON,* District
Judge.
The State of California, on behalf of Warden Madelene Muntz, appealed the
district court order granting Edgar Kunkler’s petition for a writ of habeas corpus
under 28 U.S.C. § 2254. In a memorandum disposition filed March 7, 2007, we
reversed, finding the California governor’s decision to deny Kunkler parole was
supported by “some evidence.” Kunkler v. Muntz, 226 Fed. Appx. 669, 670-71
(9th Cir. 2007). Kunkler timely petitioned for panel rehearing and rehearing en
banc. Relying on Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc),
Pearson v. Muntz, 606 F.3d 606, 608 (9th Cir. 2010), amended on denial of reh’g,
625 F.3d 539 (9th Cir. 2010), Cooke v. Solis, 606 F.3d 1206 (9th Cir. 2010), rev’d,
*
The Honorable Suzanne B. Conlon, United States District Judge for the
Northern District of Illinois, sitting by designation.
131 S. Ct. 859 (U.S. Jan. 24, 2011), and In re Lawrence, 190 P.3d 535, 539 (Cal.
2008), we vacated the March 7, 2007 memorandum disposition and affirmed the
district court, finding the State failed to establish “some evidence” of Kunkler’s
future dangerousness. Dkt. No. 50 (Dec. 27, 2010). The State petitions for panel
rehearing in light of Swarthout v. Cooke, 131 S. Ct. 859 (U.S. Jan. 24, 2011) (per
curiam). Although invited to do so, Kunkler did not file a response.
In Swarthout, the Supreme Court held federal habeas review of California
parole decisions is limited to procedural due process, namely whether the state
parole applicant had an opportunity to be heard and received a statement of the
reasons underlying the denial of parole. Id. at 862. Swarthout prohibits
examination whether the California state courts applied the “some evidence”
standard correctly. Id. at 862-63. In this case, there has been no showing that
Kunkler was denied an opportunity to be heard at his parole hearing or was not
provided a statement of the reasons for his parole denial.
Accordingly, the petition for panel rehearing is GRANTED. The December
27, 2007 order affirming the district court is VACATED. The district court order
granting Kunkler’s habeas corpus petition is REVERSED. Kunkler’s motion for
further or modified order to specify the form of habeas relief is DENIED as moot.
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