The Ninth Circuit Court of Appeals today released an opinion in CARVER v. LEHMAN, No. 06-35176, a prisoner appeal. The panel consisted of Warren J. Ferguson, Stephen Reinhardt, and Milan D. Smith, Jr., Circuit Judges.
REINHARDT, Circuit Judge:
This case presents the question whether Washington state law creates a liberty interest in an inmate’s early release into community custody that is protected under the Due Process Clause of the Fourteenth Amendment. We hold that it does. We conclude, however, that this right was not clearly established at the time of the facts giving rise to this case. We therefore affirm the district court’s grant of qualified immunity. I. Factual and Procedural Background In August 1999, Joseph Dale Carver pled guilty to child molestation in the third degree. He was sentenced to fifty-four months of confinement in the custody of the Washington State Department of Corrections (”DOC” or “Department”). Because he was a sex offender, state law also required that Carver be sentenced to a term of community custody to begin “either upon completion of the term of confinement or at such time as [he] is transferred to community custody in lieu of earned release[.]” See WASH. REV. CODE Â§ 9.94A.710(1) (2006). He was sentenced to a thirty-six-month period of community custody. . . .
MILAN D. SMITH, JR., Circuit Judge, concurring in the judgment:
I respectfully part ways with the majority. I do not believe that Washington State law creates a Fourteenth Amendment . . .