Pratt v. Ylst

Full title: Larry PRATT, Petitioner-Appellant, v. Eddie YLST, Respondent-Appellee…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 15, 2003

61 F. App'x 432 (9th Cir. 2003)

Opinion

61 Fed.Appx. 432 (9th Cir. 2003) Larry PRATT, Petitioner-Appellant, v. Eddie YLST, Respondent-Appellee. No. 02-15840. D.C. No. CV-93-00639-GEB. United States Court of Appeals, Ninth Circuit. April 15, 2003

Submitted April 7, 2003. ^*

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

California state prisoner appealed from an order of the United States District Court for the Eastern District of California, Garland E. Burrell, J., denying his habeas petition. The Court of Appeals held that California law did not require California's Board of Prison Terms to set a new parole date within six months of rescinding prisoner's parole date.

Affirmed.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, District Judge, Presiding.

Before RYMER, KLEINFELD and FISHER, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

California state prisoner Larry Pratt appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Reviewing de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001), we affirm.

Pratt contends that California law required California's Board of Prison Terms ("Board") to set a new parole date within six months of rescinding his parole date and that because the Board did not do so in his case, his due process rights were violated. However, the statutes at issue did not require the Board to set a new parole date. See Cal.Penal Code § 3041.5(b)(4) (providing that after rescission, the Board must set a new date "in accord with the provisions of Section 3041," which in turn provides that the Board may choose not to set a parole date under circumstances applicable here) (1980); see also Kennick v. Superior Court, 736 F.2d 1277, 1280 (9th Cir.1984) (stating that a failure to follow state law constitutes a federal due process violation only when the failure is arbitrary or discriminatory).

Page 433.

The district court therefore properly denied Pratt's petition. ¹

1 We do not address Pratt's other contentions because they are not included in the certificate of appealability. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).

AFFIRMED.