Kunkler v. Muntz

420 F. App'x 690

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2011
• Docket: 06-55555
• Status: Unpublished

Opinion

ORDER

The State of California, on behalf of Warden Madelene Muntz, appealed the district court order granting Edgar Kunkler’s petition for a writ of habeas corpus under 28 U.S.C. § 2254. In a memorandum disposition filed March 7, 2007, we reversed, finding the California governor’s decision to deny Kunkler parole was supported by “some evidence.” Kunkler v. Muntz, 226 Fed.Appx. 669, 670-71 (9th Cir.2007). Kunkler timely petitioned for panel rehearing and rehearing en banc. Relying on Hayward v. Marshall, 603 F.3d 546 (9th Cir.2010) (en banc), Pearson v. Muntz, 606 F.3d 606, 608 (9th Cir.2010), amended on denial of reh’g, 625 F.3d 539 (9th Cir.2010), Cooke v. Solis, 606 F.3d 1206 (9th Cir.2010), rev’d, — U.S. -, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011), and In re Lawrence, 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535, 539 (2008), we vacated the March 7, 2007, 226 Fed.Appx. 669, memorandum disposition and affirmed the district court, finding the State failed to establish “some evidence” of Kunkler’s future dangerousness. Dkt. No. 50 (Dec. 27, 2010). The State petitions for panel rehearing in light of Swarthout v. Cooke, — U.S. -, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) {per curiam). Although invited to do so, Kunkler did not file a response.

In Swarthout, the Supreme Court held federal habeas review of California parole decisions is limited to procedural due process, namely whether the state parole applicant had an opportunity to be heard and received a statement of the reasons underlying the denial of parole. Id. at 862. Swarthout prohibits examination whether the California state courts applied the “some evidence” standard correctly. Id. at 862-63. In this case, there has been no showing that Kunkler was denied an opportunity to be heard at his parole hearing or was not provided a statement of the reasons for his parole denial.

Accordingly, the petition for panel rehearing is GRANTED. The December 27, 2007 order affirming the district court is VACATED. The district court order granting Kunkler’s habeas corpus petition is REVERSED. Kunkler’s motion for farther or modified order to specify the form of habeas relief is DENIED as moot.