NOT FOR PUBLICATION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, No. 09-56910
Petitioner - Appellee, D.C. No. 2:08-cv-02306-JFW-
MAN
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.
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