The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
The petition for writ of habeas corpus is dismissed as moot.
IT IS SO ORDERED AND ADJUDGED.
Louis Michael Paluzzi filed this pro se action seeking a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. In this action he
challenges the state's decision to deny him parole suitability.
Respondent filed an answer to the petition which asserted, among
other things, that state court remedies had not been exhausted.
Upon review of the materials in the file, the court has
discovered that the petition is moot and therefore will dismiss
Paluzzi was convicted in the San Bernardino County Superior
Court of second degree murder and sentenced to a term of 17 years
to life in prison. In this habeas action, Paluzzi does not
challenge his conviction, but instead challenges the execution of
his sentence. Paluzzi contends that the failure of the Board of
Prison Terms ("BPT") to find him suitable for parole during a
parole suitability hearing on October 30, 2000 violated his right
to due process. Paluzzi had another parole suitability hearing on
September 23, 2003, at which he again was found not suitable for
parole. See Denial and Exception To The Answer, Exh. 2,
transcript of September 23, 2003 proceedings.
This court may entertain a petition for writ of habeas corpus
"in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). A district court shall "award the writ or issue
an order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application
that the applicant or person detained is not entitled thereto."
28 U.S.C. § 2243.
Paluzzi's habeas action challenging the 2000 denial of parole
suitability is moot and therefore must be dismissed. Article III,
§ 2, of the Constitution requires the existence of a case or
controversy through all stages of federal judicial proceedings.
This means that, throughout the litigation, the plaintiff "must
have suffered, or be threatened with, an actual injury traceable
to the defendant and likely to be redressed by a favorable
judicial decision." Lewis v. Continental Bank Corp.,
494 U.S. 472, 477 (1990); see Spencer v. Kemna, 523 U.S. 1, 8-13
(1998); Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir. 1987)
(claim moot because petitioner cannot be released from term
imposed for violating parole that he has already served).
A favorable judicial decision in this action cannot provide
redress for the alleged constitutional violations at the October
30, 2000 hearing because the decision at that hearing that
Paluzzi was not suitable for parole was superseded by the
decision at the September 23, 2003 hearing that he was not
suitable for parole. Courts "are not in the business of
pronouncing that past actions which have no demonstrable
continuing effect were right or wrong." Spencer v. Kemna, 523
U.S. at 18. Paluzzi is no longer being denied parole based on the
October 30, 2000 hearing decision, and any writ issued to deal
with a constitutional violation at that hearing would be
ineffectual because his continued parole unsuitability is based
on a later decision, i.e., the decision made at the September 23,
2003 hearing. If his rights were not violated at the 2003
hearing, there would be no need to hold another hearing to
address any due process deficiencies at the 2000 hearing; on the
other hand, if his rights were violated at the 2003 hearing,
they would have to be addressed in a new and separate habeas action. (The
situation here appears to be similar to entertaining a habeas
challenge to a trial leading to a conviction when there already
has been a retrial leading to a second conviction on the same
crime the alleged error cannot be remedied in a meaningful
If Paluzzi were allowed to pursue his habeas claims regarding
the 2000 decision, he also would be able to simultaneously file
habeas actions challenging all his prior parole suitability
hearings (since none of them would have become moot under his
reasoning) and the 2003 hearing and any other parole
suitability hearing that occurs during the pendency of the
action. But the great writ can only operate effectively against
the current parole unsuitability decision, as that is the only
one that matters for the prisoner presently. Here, the current
parole unsuitability decision is the September 23, ...