United States District Court, N.D. California
November 12, 2004.
RONNIE GENE BUSH, Petitioner,
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
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, ¶ 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 reinstate the benefits, holding that "[a]
violation of procedural rights requires only a procedural
correction, not the reinstatement of a substantive right to which
the claimant may not be entitled on the merits." Id.
As an initial matter, the court observes that Bush's petition
asserts violations of his equal protection rights as well as due
process violations, thereby rendering Raditch's
substance-procedure distinction inapposite. In any event, the
court does not view Raditch as limiting the availability of
substantive relief in the instant action. The due process claim
in Bush's habeas petition does not limit this court to the
procedural relief granted by the Raditch court. As the Ninth
Circuit observed in Biggs v. Terhune, 334 F.3d 910 (9th Cir.
2003), "[t]he requirements of due process vary with the private
and governmental interests at stake and the circumstances of the
alleged deprivation." Id. at 916 (citations omitted). Applying
this general standard to a California inmate's challenge to a
parole board's finding of his unsuitability for parole, the
Biggs court held that California law vests in prisoners a
liberty interest in being granted parole. Biggs,
334 F.3d at 915. Accordingly, a deprivation of this interest must satisfy two
requirements to comport with due process. First, the Board must
provide prisoners with adequate procedural safeguards such as the
opportunity to attend suitability hearings and to speak and offer
evidence on their own behalf. Id. Second, due process requires that "some evidence" with an adequate level of
reliability supports the Board's decision. Biggs,
334 F.3d at 915. If a habeas petitioner only claims that procedural
safeguards have been denied, a procedural remedy may be the
appropriate relief. E.g. United States ex rel. D'Agostino v.
Keohane, 877 F.2d 1167, 1173 (3d Cir. 1989); Brown v.
Woodford, 2000 U.S. Dist. LEXIS 11712, at *4 (N.D. Cal. August
9, 2000) (Legge J.). However, if the court determines that there
was no evidence in the record to support the Board's decision,
remanding the case for a new hearing may be futile. McQuillion
II, 342 F.3d at 1015-16. Such a hearing could result in repeated
due process violations in which subsequent hearings deny parole
on the same constitutionally infirm grounds. See Butler v.
Calderon, 1998 U.S. Dist. LEXIS 10212 at *3 (N.D. Cal. July 6,
1998) (Breyer J.). Under such circumstances, the only adequate
remedy may be for the court to grant the release of the prisoner.
McQuillion II, 342 F.3d at 1015. In this action, there is no
dispute that Bush's petition alleges that the Board's decision
was unsupported by the evidence in the record. Thus, the court is
not limited to procedural relief.*fn1
Respondent also contends that this court may not rely on
McQuillion II, in which the 9th Circuit granted a prisoner's
release, as the facts in McQuillion II are "highly
distinguishable because they involved a parole rescission case."
Resp. Mot. to Dismiss at 4. The nearly identical interests at
stake at parole rescission and parole suitability hearings do not
justify this distinction. Both threaten to deprive a convict of a
constitutionally protected liberty interest in parole. Biggs,
334 F.3d at 914-15 (parole suitability hearing); McQuillion v.
Duncan, 306 F.3d 895, 902 (9th Cir. 2002) [McQuillion I],
aff'd, McQuillion II, 342 F.3d at 1015 (parole rescission
hearing) (both citing Greenholtz v. Inmates of Nebraska Penal,
442 U.S. 1, 7, 11-12 (1979)). The McQuillion I court did note
that the petitioner there possessed a particularly strong liberty
interest because he had already been granted a release date which
was then revoked. 306 F.3d at 903. However, under California's
parole scheme "the liberty interest is created not upon the grant
of the parole date, but upon the incarceration of the inmate."
Biggs, 334 F.3d at 915. Every subsequent decision resulting in
a deprivation of that interest must comport with the same due
process standard; it must be supported by "some evidence" that is
"reliable." Biggs, 334 F.3d at 915; McQuillion I,
306 F.3d at 904-905. When a decision violates this standard, the court may provide any
relief under its habeas power appropriate to remedy the
violation, including release. McQuillion II, 342 F.3d at 1015.
As this court may still grant Bush effective relief, he still
has a "personal stake" in the outcome of this litigation and it
is not moot. Id. at 1179 (quoting Spencer,
523 U.S. at 7).*fn2
In summary, respondent's arguments seem to amount to little
more than an assertion that any subsequent hearing by the Board
of Prison Terms moots a habeas petition based on a prior hearing.
However, Ninth Circuit law does not support this conclusion. As
cases in this Circuit have made clear, a court may continue to
decide a habeas petition challenging a prior denial of parole on
the merits despite the fact that the petitioner has received a
subsequent parole board hearing. See, e.g., Biggs,
334 F.3d at 913; Brown v. Hamlet, 2002 U.S. Dist. LEXIS 22907 at *10
(N.D. Cal. Nov. 27, 2002) (Breyer J.). Because Bush continues to
suffer an injury for which this court can provide relief, his
claims are not mooted.
II. Petitioner's Motion to Stay
As previously noted, petitioner has moved to stay proceedings
in this court pending a decision of the Board whether to review
its July 27, 2004 suitability finding and a possible request by
the Governor of California for an en banc review. "A district
court has discretion to stay a [habeas corpus] petition which it
may validly consider on the merits." Greenawalt v. Stewart,
105 F.3d 1268, 1274 (9th Cir. 1997), cert. denied, 519 U.S. 1102
(1997). As Bush's petition is not moot, this court retains
jurisdiction to hear it on its merits. The decisions of the Board
in the upcoming weeks will determine whether Bush is released
from prison and under what terms, which may moot his claims.
Thus, a stay of proceedings in this court is appropriate to allow
the State of California to finalize review of the Board's July
2004 decision. The court hereby orders further proceedings in
this action stayed pending a final decision on petitioner's
suitability for parole by the State of California. CONCLUSION
For the reasons stated above, this action is not moot.
Therefore, respondent's motion to dismiss is DENIED and
petitioner's motion to stay is GRANTED.
IT IS SO ORDERED.