FILED
NOT FOR PUBLICATION JUN 08 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEXANDER MEZHBEIN, No. 08-55131
Petitioner - Appellee, D.C. No. CV-06-08059-DOC
v.
MEMORANDUM*
J. F. SALAZAR, Warden,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted May 7, 2012**
Pasadena, California
Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.
Warden J.F. Salazar appeals the district court’s grant of inmate Alexander
Mezhbein’s 28 U.S.C. § 2254 petition for writ of habeas corpus. We have
jurisdiction under 28 U.S.C. § 2253, and we reverse.
*
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).
1. Although Mezhbein was released from prison pursuant to an order of the
district court, this appeal is not moot. Mezhbein’s release was effected by the very
order that the Warden now argues was in error. See Eagles v. United States ex rel.
Samuels, 329 U.S. 304, 307–08 (1946) (“Though the writ has been granted and the
prisoner released, the appellate court by what it does is not rendering an opinion
and issuing an order which cannot affect the litigants in the case before it. . . .
Reversal undoes what the habeas corpus court did and makes lawful a resumption
of the custody.”).
2. Mezhbein argues that the Warden failed to appeal the district court’s order
subsequent to its initial grant of Mezhbein’s habeas petition, which directed the
state governor to consent to Mezhbein’s release from prison. The Warden was not
obligated to appeal the district court’s subsequent order, because the relevant
judgment in a federal habeas appeal is the district court’s grant or denial of the writ
itself. See 28 U.S.C. § 2253(a); see also Eagles, 329 U.S. at 307.
3. Federal due process requires only that a prisoner seeking parole receive an
opportunity to be heard, notification of the reasons for any denial, and advance
access to the record. See Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011).
Mezhbein concedes that he was afforded this constitutionally adequate process.
4. Finally, we note that since his release, Mezhbein has lived peaceably in
Southern California for five years. That the state is constitutionally entitled to
return him to custody does not mean that it would be judicious to do so.
REVERSED.