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United States District Court, N.D. California

July 23, 2004.

J. SOLIS, warden, Respondent.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


The petition for writ of habeas corpus is dismissed as moot.




  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 it.


  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 way.)

  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, 2003 decision: if Paluzzi is today being held in custody in violation of his constitutional rights, it is because of that decision and not an earlier one.


  The petition for writ of habeas corpus is dismissed as moot. The clerk shall close the file.



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