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Bush v. Solis

United States District Court, Northern District of California

November 16, 2004


The opinion of the court was delivered by: Patel, Chief J.


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.


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.


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.


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