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November 12, 2004.

J. SOLIS, Acting Warden, Respondent.

The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District

MEMORANDUM & ORDER Re: Respondent's Motion to Dismiss and Petitioner's Motion for Stay
Respondent J. Solis, Acting Warden of the Correctional Training Facility, filed this motion on September 7, 2004 to dismiss the petition for writ of habeas corpus filed by Ronnie Gene Bush. Bush's petition alleges that the Board of Prison Terms ("Board") violated the Due Process and Equal Protection Clauses of the United States Constitution when it found him unsuitable for parole in December 2001. Respondent argues that because the Board found Bush suitable for parole in a July 2004 hearing, this court can grant no further relief and the petition is moot. After having considered the parties' arguments and submissions, and for the reasons set forth below, the court rules as follows.


  Petitioner Ronnie Gene Bush began serving a life sentence with the possibility of parole in 1984 following his conviction for conspiracy to kidnap for ransom or extortion. In a series of hearings dating to 1991, the Board has considered Bush's suitability for parole and found him unsuitable seven times. Bush filed a petition for writ of habeas corpus after being found unsuitable for parole for the fifth time, on November 17, 1999. The California Superior Court found that the Board violated its discretion in finding Bush unsuitable for parole because the finding was not supported by "some evidence" as due process under the United States Constitution required. The court ordered the Board to conduct a new hearing comporting with due process. On December 20, 2001, the Board held the court ordered hearing and again found Bush unsuitable for parole. Bush then modified his habeas petition, requesting that the trial court grant his immediate release because the December hearing was not conducted in a timely fashion and the unsuitability finding again was not supported by the evidence. The trial court held that the Board had again abused its discretion in finding Bush unsuitable for parole because the record contained no factual support for the Board's findings and thus the only appropriate remedy was to find Bush suitable for parole and order his immediate release.

  The California Court of Appeal reversed the trial court, holding that the Board had "some evidence" justifying its decision. After the California Supreme Court denied review on September 24, 2003, Bush timely filed a petition for writ of habeas corpus with this court on May 7, 2004.

  While appealing the Board's 2001 decision, Bush has twice appeared before the Board for suitability hearings. At the first such hearing, on March 5, 2003, the Board found Bush unsuitable for parole. At the second hearing, on July 27, 2004, after Bush's petition had been filed with this court, the Board preliminarily found Bush suitable for parole and calculated his release date. The Board panel assessed Bush's term, considering credits and additions, as 150 months. This decision will become final on November 24, 2004. If the Board's finding of suitability goes unchallenged, it is unknown whether the Board will credit Bush for his time served beyond 150 months (which would have expired in 1997) and release him unconditionally or will grant conditional release.

  Given the preliminary nature of the Board's July 2004 decision, Bush filed a motion on August 12, 2004 to stay proceedings in this court for 150 days to allow California's parole review process to conclude. Pet. Mot. for Stay at 3. Respondent opposed the motion to stay, and filed a motion to dismiss the petition on the basis that the Board's July 2004 suitability finding mooted the petition. LEGAL STANDARD

  Mootness is a jurisdictional issue; "federal courts have no jurisdiction to hear a case that is moot, that is, where no actual or live controversy exists." Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) (quoting Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986, 989 (9th Cir. 1999)). To avoid dismissal on mootness grounds, the court must determine that the habeas petitioner continues to have a "personal stake in the outcome of the lawsuit." United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2000), cert. denied, 534 U.S. 878 (2001) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)) "This means that . . . 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." Id. (quotations omitted). The party asserting mootness bears the burden of establishing that there is no "effective relief" remaining that the court could provide. Southern Oreg. Barter Fair v. Jackson County, 372 F.3d 1128, 1134 (9th Cir. 2004).


  In order to dismiss Bush's petition as moot, the court must find that either 1) Bush no longer suffers an injury traceable to respondent, or 2) the court cannot provide relief to redress Bush's injury. Verdin, 243 F.3d at 1177. At present, Bush remains in prison and therefore continues to suffer an actual injury traceable to the Board's 2001 denial of parole. Therefore, respondent relies only on the contention that this court can no longer grant relief to redress petitioner's injury.

  Respondent raises three arguments supporting its assertion that the relief provided by the Board's July 2004 hearing mooted Bush's petition. First, that the Board's finding of suitability and calculation of a release date satisfied Bush's requested relief; second, that the injury has already been redressed by the Board's hearing as this court can only remedy a procedural due process violation in a Board hearing by granting a new hearing; and third, that any new parole board hearing moots a habeas petition based on a prior hearing. After considering each of these arguments, the court finds that Bush's petition for writ of habeas corpus is not moot. I. Respondent's Motion to Dismiss

  Respondent first argues that the relief sought by Bush in his petition has already been granted. In his petition, Bush requests that this court "[o]rder the immediate discharge of Petitioner without parole, or alternatively, order the Board to hold a new parole hearing within forty-five (45) days, and if no new information is presented that establishes that Petitioner poses a present threat of future violence, to find the petitioner suitable for parole and set a release date." Pet. for Writ of Habeas Corpus at 22. Respondent contends that the actions of the parole board on July 27, 2004 granted Bush this relief.

  At the hearing, the Board found Bush suitable for parole and calculated a release date. Resp. Mot. to Dismiss, Exh. B at 2. The Board's findings are set forth in the "Prisoner Hearing Decision Face Sheet" which states: "[T]he Board's decision at the end of the hearing is only proposed and NOT FINAL. It will not become final until it is reviewed." Id. (emphasis in original). Neither the "Face Sheet" nor respondent provide a date on which Bush must actually be released from prison. In the absence of such a date, the Board's July 2004 decision does not provide the relief sought in Bush's petition. The "release date" that Bush requests is the date on which he will be released from prison, not a theoretical date on which he became eligible for such release. Pet. Mot. for Stay at 2, ΒΆ 4. Indeed, the Board's Decision Review Committee could reverse the findings of the July 2004 Board panel prior to November 24, 2004. Id. Thus, given the preliminary nature of the current relief granted, petitioner's claim is not moot.

  Nonetheless, respondent argues that the Board's July 2004 hearing mooted Bush's claim because the only remedy this court can grant for an alleged due process violation at a Board hearing is to provide a new hearing. However, respondent's argument ignores the significant flexibility that federal district courts are afforded in granting habeas relief. This court's power to grant habeas relief includes the ability to order the immediate release of a prisoner; change the conditions of his supervised release; or to grant a conditional release, conditioned on the state remedying a constitutional violation. See McQuillion v. Duncan, 342 F.3d 1012, 1015 (9th Cir. 2003) [hereinafter McQuillion II] (granting immediate release from prison); Verdin, 243 F.3d at 1178 (holding that petition was not mooted by prisoner's release from prison due to court's ability to change the length of supervised release); Grattan v. Sigler, 525 F.2d 329, 331 (9th Cir. 1975) (granting conditional release).

  Respondent relies on Raditch v. United States, 929 F.2d 478 (9th Cir. 1991), for the proposition that the violation of a procedural right limits the court to procedural remedies. In Raditch, the Office of Workers' Compensation Programs ("OWCP") terminated the plaintiff's disability benefits without following its own procedures for granting notice and an opportunity to be heard. Id. at 480. The court held that the termination of the plaintiff's property interest without these procedural safeguards did not constitute a due process violation because the OWCP offered sufficient post-deprivation remedies for the loss. Id. at 481. The plaintiff argued that because the benefits were terminated wrongfully, they should be reinstated automatically, regardless of the post-deprivation process available. Id. The court declined to ...

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