Velasco v. Kane

FILED
NOT FOR PUBLICATION JUN 08 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

RICHARD VELASCO, No. 08-55176

Petitioner - Appellant, D.C. No. CV-05-00960-AHS

v.
MEMORANDUM *
A. P. KANE,

Respondent - Appellee.

Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding

Submitted May 24, 2011 **

Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.

California state prisoner Richard Velasco appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 2253,*** and we affirm.

Velasco contends that his right to due process was violated because he was

denied parole in violation of the terms of his plea agreement. Specifically, Velasco

contends, first, that his plea agreement set forth a determinate 15-year sentence,

and, second, that the prosecutor violated his plea agreement when describing

Velasco’s crime before the Board. To the extent that Velasco’s contentions are not

foreclosed by Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per curiam), they fail

because the California court’s rejection of these claims was neither contrary to nor

an unreasonable application of federal law, nor based on an unreasonable

determination of the facts. See 28 U.S.C. § 2254(d); see also Ricketts v. Adamson,

483 U.S. 1, 6 n.3 (1987) (construction of state court plea agreements is matter of

state law).

AFFIRMED.

***
We certify for appeal, on our own motion, the issues of whether
Velasco was entitled to a 15-year determinate sentence and whether the
government breached the plea agreement in its testimony before the parole board.
See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.
1999) (per curiam).

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