FINDINGS AND RECOMMENDATIONS
The court has before it respondent's second and supplemental motion to dismiss on the ground that the matter is moot.
Petitioner originally brought his concerns to this court in a civil rights action under 42 U.S.C. § 1983, seeking an injunction directing the defendant prison officials to transfer plaintiff to a conservation camp or grant him the same increased credit earning status as an inmate actually placed in a camp, among other things. See Basque v. Schwarzenegger, Civ. No. S-05-1612 FCD KJM P. In that case, the court granted defendants' motion to dismiss, reasoning that if it were to grant plaintiff's request for additional good time, plaintiff would gain a speedier release from prison, a remedy available only in a habeas action. See id., Order Filed December 20, 2005.
Petitioner turned to the state courts and filed habeas petitions in Solano County Superior Court, the Court of Appeal for the First Appellate District, and the Supreme Court, all of which were denied. Pet., Exs. I, M & N.
Petitioner filed his federal petition on February 9, 2007. He alleges that because of his HIV status, he was denied a chance to be assigned to the fire camp, where he could earn additional work-time credits and thus reduce his term of imprisonment. He argues that this work assignment policy violates his rights to due process and equal protection and also violates the Americans with Disabilities Act (ADA).
Respondent filed a motion to dismiss. Following argument and briefing, this court denied respondent's motion to dismiss for lack of jurisdiction on December 27, 2007 and ordered respondent to file an answer to the petition.
Respondent filed a second and supplemental motion to dismiss on April 15, 2008. In support of this motion, respondent stated that in preparing the answer, respondent learned petitioner has been released on parole and that petitioner currently lives in the state of Oregon. Respondent argues that petitioner's release on parole renders his habeas petition moot in accordance with established Supreme Court and Ninth Circuit precedents.
Petitioner filed his opposition to respondent's motion on April 25, 2008. As directed by the court, both parties filed supplemental briefs in October 2008. The matter is now submitted.
Mootness is a jurisdictional issue directly tied to the case-or-controversy requirement of Article III, § 2, of the Constitution. A case is moot when it no longer presents a case or controversy; this requirement subsists through all stages of federal judicial proceedings, trial and appellate. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Thus, throughout the litigation, a habeas petitioner 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. "[A federal action] should . . . be dismissed as moot when, by virtue of an intervening event, a [federal court] cannot grant any effectual relief whatever in favor of the [party seeking relief]." Calderon v. Moore, 518 U.S. 149, 150 (1996). However, a habeas petition may proceed if the petitioner can establish some concrete and continuing injury from the alleged harm, some "collateral consequence" that petitioner still suffers as a result of the government action he is challenging. Spencer, 523 U.S. at 7-8. The burden of demonstrating mootness is a heavy one. Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001). Respondent has not met this burden in bringing the second and supplemental motion to dismiss.
Respondent's argument for dismissal is that the court may not grant effectual relief even if petitioner succeeds on the merits. In respondent's latest filing, counsel for respondent argues this matter should be dismissed because "[n]o statute, regulation, or case law has been cited, and none exists, to support this Court awarding Basque 'virtual credit' for a work program in which he did not participate, and then transmuting that virtual credit to a shortening of his period of parole." See Respondent's Brief Pursuant to Court Order (docket no. 26) at 4.
Respondent's contention that this court may neither retroactively award petitioner credit, nor use any such retroactive credit to reduce the petitioner's term of parole, is not well-taken. In response to the supplemental motion to dismiss, petitioner has cited several cases decided under the Determinate Sentencing Law (DSL) where courts have reduced the term of a prisoner's mandatory parole sentence by an amount of excess time spent in prison. See, e.g., In re Ballard, 115 Cal. App. 3d 647 (Cal. App. 1st Dist. 1981); In re Sosa, 102 Cal. App. 3d 1002 (Cal. App. 2nd Dist. 1980); In re Kemper, 112 Cal. App. 3d 434 (Cal. App. 1st Dist. 1980). The appellate court's reasoning in In re Ballard is particularly instructive as to the rationale behind reducing the mandatory parole term in such cases:
A defendant's prison release date is calculated by reference to the term of imprisonment assigned by the sentencing court (Pen. Code, § 1170 et seq.) or by the Board of Prison Terms (Pen. Code, § 1170.2), reduced by any applicable section 2900.5 credits for presentence time actually served, Sage*fn1 credits for good conduct and participation while in presentence custody, and credits for good conduct and participation while in prison ("section 2931 credits": Pen. Code, §§ 2930-2932). Should application of a credit to which the defendant is entitled be delayed until after his prison release date is calculated without regard to the credit, or until so late in his prison term that the credit to be applied exceeds the amount of time remaining to be served a defendant will obviously be prejudiced: his actual prison release date will be later than the prison release date to which the credit, timely applied, would have entitled him. In such situations unless some adjustment is made, the delay in releasing the person from prison will delay his release from parole. 115 Cal. App. 3d at 649 (footnote omitted).
As to the issue of awarding work credits not earned, petitioner's application cites sufficient California authority to support the use of such a remedy by this court, if the court determines in the future to grant the writ. California courts have awarded retroactive good time credit in situations where an inmate was willing to earn the credit at issue, but was prevented from doing so due to errors or omissions of prison administrators or through no fault on the inmate's part. See, e.g., In re Player, 146 Cal. App. 4th 813 (Cal. App. 4th Dist. 2007); In re Randolph, 215 Cal. App. 3d 790 (Cal. App. 1st Dist. 1989) (prisoners were due a retroactive adjustment to the length of their sentences for work credits not earned while out-to-court, including an adjustment to parole discharge dates of those prisoners already out on parole); In re Carter, 199 Cal. App. 3d 271 (Cal. App. 1st Dist. 1988); In re Reina, 171 Cal. App. 3d 638 (Cal. App. 1st Dist. 1985).*fn2 California Department of Corrections and Rehabilitation (CDCR) rules allow for credit that is not earned to be applied to a sentence. See 15 Cal. Code Regs. § 3043.2(c) (listing examples of circumstances beyond the inmate's control ...