[T][U] Ornelas v. Myers

MEMORANDUM* California prisoner Robert Ornelas appeals pro se the district court's denial of his habeas corpus petition brought under 28 U.S.C. § 2254. Ornelas contends that the district court erred by finding that Ornelas was not denied due process when California prison authorities refused to transfer him to a Mexican prison to serve out the rest of his sentence. We have jurisdiction under 28 U.S.C. §§ 1291, 2253. We review the denial of a habeas petition de novo, Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir. 1994), and affirm. A threshold requirement to a substantive or procedural due process claim in this case is the showing of a liberty interest, protected by the Constitution, in being transferred to a Mexican prison. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979); Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 843 (9th Cir. 1985). Because Ornelas did not show that denial of his transfer resulted in a loss of liberty or an atypical or significant hardship, Ornelas may not possesses a liberty interest in being transferred to a Mexican prison. See Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293, 2298-2301 (1995) (liberty interest exists if prisoner suffers a ""grievous loss"" of liberty, or a restraint resulting in ""atypical and significant hardship""). However, we will assume for the purposes of appeal that such a liberty interest exists, because neither the district court nor the parties discussed the issue. See Perveler v. Estelle, 974 F.2d 1132, 1134 (9th Cir. 1992) (per curiam) (assuming a liberty interest in parole for purposes of appeal).