David Upton v. Aref Fakhoury

* 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).
*** The Honorable Ricardo S. Martinez, District Judge for the U.S.
District Court for Western Washington, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID UPTON,
Petitioner - Appellant,
v.
AREF FAKHOURY,
Respondent - Appellee.
No. 10-55536
D.C. No. 5:08-cv-01497-ABC-
PJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Submitted February 10, 2012 **
Pasadena, California
Before: WARDLAW and CALLAHAN, Circuit Judges, and MARTINEZ, District
Judge.***
FILED
MAR 14 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
David Upton appeals from the district court’s dismissal of his petition for
writ of habeas corpus as moot. We have jurisdiction under 28 U.S.C.
§ 2253, and we affirm.
Because Upton challenges the validity of his parole revocation, and has
since been released from prison, he must demonstrate continuing collateral
consequences to avoid mootness. The possibility that Upton’s prior revocation, or
the allegedly false and misleading information in his parole violation report, will
be used against him in subsequent parole proceedings is too speculative to satisfy
the case or controversy requirement. Cf. Spencer v. Kemna, 523 U.S. 1, 14 (1998)
(declining to find collateral consequences of a prior parole revocation because,
inter alia, under Missouri law a single parole revocation “‘[does] not render an
individual ineligible for parole[,] [but is] simply one factor, among many, that may
be considered by the parole authority in determining whether there is a substantial
risk that the parole candidate will not conform to the reasonable conditions of
parole”) (quoting Lane v. Williams, 455 U.S. 624, 633 n.13 (1982)).
Upton asserts that the use of the allegedly false information in future parole
hearings is “capable of repetition yet evading review.” Even assuming the one-
year maximum term of any return to custody Upton might suffer as the result of
future parole violations, see Cal. Code Regs. tit. 15, § 2635.1(c), is a short enough

-- 2 of 4 --

3
period to satisfy the “evading review” prong, see Tyars v. Finner, 709 F.2d 1274,
1280 (9th Cir. 1983), Upton has not shown a reasonable expectation that the Board
will use the allegedly false information against him in subsequent parole
proceedings. See City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (the
capable-of-repetition doctrine generally applies only where the named plaintiff
“can make a reasonable showing that he will again be subjected to the alleged
illegality”). Upton’s single parole revocation does not create a reasonable
expectation that he will again come before the Board, or that, if he does, his parole
officer will submit the same information again. Cf. Foster v. Carson, 347 F.3d
742, 748 (9th Cir. 2003) (“Plaintiffs do not establish a reasonable expectation that
they will be subjected to the challenged action again in the future. The only fact in
the record before us that supports this claim is that it happened once.”).
Nor has Upton demonstrated a reasonable expectation that, should he come
before the Board again, it would rely on the allegedly false information in making
its determination. See Cal. Code Regs. tit. 15, § 2636(a) (a parole violation report
is required each time a suspected parole violation is reported to the Board);
§ 2643(d) (at a revocation hearing, a parolee may request the presence of witnesses
and may request subpoenas or subpoenas duces tecum); § 2665 (“all evidence
relevant to the charges or disposition” is admissible in parole revocation

-- 3 of 4 --

4
proceedings); cf. Foster, 347 F.3d at 748 (“The mere fact that a similar order . . .
might someday issue does not establish a ‘reasonable expectation’ that such an
order will issue. We have held that a mere possibility that something might happen
is too remote to keep alive a case as an active controversy.”) (emphasis in
original)).
AFFIRMED.

-- 4 of 4 --