FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On February 23, 2009, the undersigned issued findings and recommendations in this action, recommending that petitioner's application for a writ of habeas corpus be granted and that respondent be directed to discharge petitioner from parole. In an order filed March 25, 2009, the district judge adopted the findings and recommendations in full, granted petitioner's habeas application, and ordered that petitioner be discharged from parole within 10 days (by April 8, 2009). Also on March 25, 2009, judgment was entered in favor of petitioner.
In the late afternoon on April 7, 2009, respondent filed a motion for relief from the March 25, 2009 judgment and a request for a stay pending a decision on the motion for relief from judgment. Respondent sought the ruling by "12:00 p.m. on April 8, 2009" -- the day petitioner was to be discharged from parole. On April 8, 2009, the district judge granted respondent's request for a stay, stayed the March 25, 2009 order and judgment pending decision on respondent's motion for relief from judgment, and referred the motion for relief from judgment to the undersigned for preparation of findings and recommendations.
Motion for Relief from Judgment
Respondent argues he is entitled to relief from the judgment entered in this action because the court's March 25 order "was based on a mistake of material fact." Mot. for Relief from J. ("Resp.'s Mot.") at 1. Respondent contends that although the "Notice and Conditions of Parole received by [petitioner] indicated that he was subject to a five-year parole period," "[i]n preparing the documentation to discharge [petitioner] from parole, Respondent . . . learned that pursuant to California Penal Code section 3000.1 [petitioner] is subject to a lifetime parole period rather than the five-year period indicated on his Notice and Conditions of Parole." Id. at 2. Petitioner contends that "[d]ue to [the error on Petitioner's release document and Respondent's inadvertence and mistake], the Court relied on a material mistake of fact when issuing its order granting the petition for writ of habeas corpus."*fn1 Id. at 3.
California Penal Code section 3000.1 ("Section 3000.1") provides, in pertinent part:
(a) In the case of any inmate sentenced . . . for any offense of first or second degree murder with a maximum term of life imprisonment, the period of parole, if parole is granted, shall be the remainder of the inmate's life.
(b) Notwithstanding any other provision of law, when any person referred to in subdivision (a) has been released on parole from the state prison, and has been on parole continuously for . . . five years in the case of any person imprisoned for second degree murder, since release from confinement, the board shall, within 30 days, discharge that person from parole, unless the board, for good cause, determines that the person will be retained on parole. The board shall make a written record of its determination and transmit a copy of it to the parolee.
(c) In the event of a retention on parole, the parolee shall be entitled to a review by the board each year thereafter.
Petitioner does not dispute that Section 3000.1 applies to him. Opp'n to Resp.'s Mot. ("Opp'n) at 3. Petitioner contends, however, that section 3000.1 cannot be applied in a manner that violates federal constitutional guarantees of due process.*fn2 Id. at 3. Petitioner contends that respondent's position regarding Section 3000.1 -- that there is no effective remedy for the unconstitutional confinement of petitioner, even though petitioner would have been discharged from parole absent a showing of good cause had he not been unconstitutionally confined -- offends the due process clause of the United States Constitution and simply cannot be. Opp'n at 2, 3. Petitioner argues that because he has been a model parolee, as he was a model prisoner, and his own parole agent reportedly is prepared to recommend that he be discharged from parole, respondent does not have good cause for not discharging him.*fn3 Id. at 1-2. Therefore, according to petitioner, "this court was wholly within its authority to order that [petitioner] -- who was unconstitutionally confined for three years, ten months and 24 days, and has now spent an additional one year, six months, and 15 days successfully on parole, equaling more than five years since his incarceration should have ended -- be discharged from parole." Id. at 2.
Federal Rule of Civil Procedure 60(b) provides that "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect . . . ."*fn4 Here, the parties do not dispute that they were mistaken -- and therefore the court was misinformed -- regarding petitioner's parole term.*fn5 Rather, the question at issue is whether the mistake was material to the court's March 25 order and judgment, such that relief from judgment is warranted.
The February 23 findings and recommendations and the March 25 order adopting those findings and recommendations determined that the state court decisions upholding the California Governor's November 2003 and November 2004 reversals of the parole board's findings that petitioner was suitable for parole were contrary to and/or an unreasonable application of clearly established federal law. The reversals were not supported by "some evidence" of petitioner's current threat to public safety. The fact that petitioner is subject to a lifetime parole term rather than a five year parole term does not have any impact on that determination. Regardless of petitioner's parole term, for the reasons set forth in the February 23 findings and recommendations and the March 25 order, petitioner's due process rights were violated by the Governor's November 2003 and November 2004 reversals of the Board.
However, in deciding the remedy available to petitioner, the court found that if the Governor had not reversed the Board's suitability finding in November 2003, petitioner's five year parole term would now be complete; therefore, the court determined that petitioner should be discharged from the remainder of his parole term. The determination regarding this remedy was dependent upon the representations from the parties (and on the Parole Release Form) that petitioner was subject to a five year maximum parole term. Accordingly, the court must determine what remedy, if any, is available to petitioner now that the court is properly informed regarding his parole term under Section 3000.1.
Petitioner contends that although Section 3000.1 imposes a lifetime parole term, it also provides that a parolee who was convicted of second degree murder should be discharged from parole after five years unless the parole board finds that there is good cause not to discharge the parolee. According to petitioner, his excess time served in prison should be applied to that five year parole term in order to mitigate the irreparable injury he suffered, making petitioner eligible for discharge absent a written determination by the Board that there is good cause not to discharge petitioner. Opp'n at 5. Petitioner contends that because there is no good cause not to discharge him, he should be discharged from parole. Id.
Respondent counters that Section 3000.1 provides for a lifetime of parole and that the five-year presumptive parole term for second degree murderers begins only upon "release from confinement"; therefore, petitioner "must serve five years of continuous parole beginning from his release date ...