David Murr v. John Marshall

NOT FOR PUBLICATION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

DAVID MICHAEL MURR, No. 09-56960

Petitioner - Appellee, D.C. No. 5:04-cv-01380-TJH-
MAN
v.

JOHN MARSHALL, Warden, MEMORANDUM*

Respondent - Appellant.

Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Senior 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 David Michael Murr. In light of the Supreme Court’s recent

decision in Swarthout v. Cooke, 131 S.Ct. 859 (2011), we hold that Murr’s federal

right to due process was not violated. Murr “was allowed an opportunity to be

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
heard and was provided a statement of the reasons why parole was denied.” Id. at

862. Thus, Murr is not entitled to a writ of habeas corpus.

Murr 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). Murr also argues that the Governor

violated his due process rights by not granting Murr 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.