FILED
NOT FOR PUBLICATION APR 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES ELMOND DUVAL, No. 09-15126
Petitioner - Appellant, D.C. No. 2:08-cv-01591-JFM
v.
MEMORANDUM *
M. C. KRAMER,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John F. Moulds, Magistrate Judge, Presiding **
Submitted April 5, 2011 ***
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
California state prisoner James Elmond Duval appeals from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Duval contends that the Board of Parole’s 2007 denial of parole violated his
right to due process because it violated the terms of his plea agreement. This
contention is belied by the record. The transcript of the plea colloquy clearly and
unambiguously indicates that Duval would first become eligible for parole in
approximately “thirteen and one-third years,” that parole may never be granted,
and that the plea contained no assurance that he would be released on a date
certain.
Further, the district court did not abuse its discretion by declining to hold an
evidentiary hearing on this claim. See Schriro v. Landrigan, 550 U.S. 465, 474
(2007) (“if the record refutes the applicant’s factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary
hearing.”).
Appellee’s motion for judicial notice is granted. See Smith v. Duncan, 297
F.3d 809, 815 (9th Cir. 2002) (judicial notice taken of relevant state court
documents with a direct relationship to appeal).
AFFIRMED.
2 09-15126