FILED
NOT FOR PUBLICATION APR 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID W. MARTIN, No. 08-55392
Petitioner - Appellant, D.C. No. 3:07-cv-01022-W-NLS
v.
MEMORANDUM *
JAMES E. TILTON, Secretary of the
Department of Corrections and
Rehabilitation; - TILTON, Secretary of
CDC&R; BEN CURRY, Warden; JERRY
BROWN, Attorney General of the State of
California,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted April 13, 2011
Pasadena, California
Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
California state prisoner David W. Martin (“Martin”) 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(a),1 and we affirm.
Even though Martin did not forfeit any work-time credits as a result of the
disciplinary finding, we have jurisdiction because the Board of Parole will consider
the charge when it evaluates Martin’s eligibility for parole. See Docken v. Chase,
393 F.3d 1024, 1028 (9th Cir. 2004) (“[H]abeas corpus jurisdiction exists when a
petitioner seeks expungement of a disciplinary finding from his record if
expungement is likely to accelerate the prisoner’s eligibility for parole.”) (citation
omitted) (alterations omitted); see also 15 Cal. Code Regs. § 2402(c)(6).
Martin contends that the senior hearing officer’s 2005 decision finding him
guilty of mutual combat without serious injury violated due process. We conclude
that the state court’s conclusion that some evidence supports the decision was not
objectively unreasonable. See 28 U.S.C. § 2254(d)(2); Yarborough v. Gentry, 540
U.S. 1, 5 (2004); see also Superintendent v. Hill, 472 U.S. 445, 454 (1985).
Because we find that some evidence supports the disciplinary charge, we
need not address whether California’s refusal to recognize Martin’s claim of self-
defense violates “clearly established Federal law.” 28 U.S.C. § 2254(d)(1).
1
We certify for appeal, on our own motion, the issue of whether the 2005
decision following the prison disciplinary hearing finding Martin guilty of mutual
combat violated due process.
Martin’s request for judicial notice is granted.
AFFIRMED.