FINDINGS AND RECOMMENDATIONS
Petitioner is a former state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2007 decision by the Board of Parole Hearings denying him parole. Before the court is respondent's motion to dismiss the petition (Doc. No. 12) as moot in light of the fact that petitioner has since been granted parole.
Petitioner was convicted in 1976 of first degree murder with use of a firearm. He was sentenced to life imprisonment with the possibility of parole. (Answer at 1.) In his habeas petition before this court, petitioner contends that the Board's 2007 decision violated his due process rights because there was no evidence before the Board of his then-current dangerousness to the public. Petitioner argues that continuing to deny him parole based on immutable factors, such as his commitment offense and prior criminal history, violates the Due Process Clause.
Respondent filed an answer to the petition on November 21, 2008. Petitioner filed his traverse on December 4, 2008. On January 30, 2009, respondent filed the pending motion to dismiss after the Governor declined to review the Board's decision to grant petitioner parole and petitioner was released from prison on January 29, 2009. Following his release from confinement, petitioner remains on parole supervision for three years until January 29, 2012.
Respondent moves to dismiss solely on the basis that petitioner has now been granted his release on parole. Respondent has provided the court a copy of a letter dated January 23, 2009, from the Office of the Governor, indicating that the Governor has declined to review the Board's decision to grant petitioner parole.
Petitioner eventually filed his opposition to the pending motion on July 15, 2009, after being granted two extensions of time to do so. Therein, petitioner argues that his petition has not been rendered moot because he remains in the "constructive custody of the Department of Corrections which still dictates where he lives, works, travels" and the persons petitioner may not associate with while on supervised release. (Opp'n at 4-5.)
Petitioner also asserts that he was sentenced under the Indeterminate Sentencing Law which was repealed effective July 1, 1977. According to petitioner, under the Board's rules in effect prior to July 1, 1977, the base term for a first degree murder conviction was 15-19 years. Although petitioner does not contest his base term or net term after applying time credits, he argues that the disparity between his base term (19 years) and the actual time he was required to serve in prison (32 years), entitles him to discharge from parole supervision at this time. (Opp'n at 5.)
Finally, petitioner points out that while the statutory provisions now governing parole mandate a life term of parole for those convicted of murder, in 1976 when he was sentenced he was subject to a determinate parole term of three years or less. (Id.)
"Article III, Section 2 of the United States Constitution establishes the scope of federal court jurisdiction, which includes 'all Cases . . . arising under this Constitution . . . [and] Controversies to which the United States shall be a Party . . . ." Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005). Mootness is jurisdictional. Id.; Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) ([F]ederal courts "have no jurisdiction to hear a case that is moot, that is, where no actual or live controversy exists."). 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.), cert. denied, 534 U.S. 878 (2001). In this regard, "throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable decision." Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation marks and citations omitted). However, the "party moving for dismissal on mootness grounds bears a heavy burden." Hunt v. Imperial Merchant Services, Inc., 560 F.3d 1137, 1141 (9th Cir. 2009) (quoting Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004)).
A habeas petition is moot where a petitioner's claim for relief cannot be redressed by a favorable decision of the court issuing a writ of habeas corpus. Spencer, 523 U.S. at 7; Burnett, 432 F.3d at 1000-01. The question of when a collateral attack on a parole denial is rendered moot by a subsequent grant of parole is one that has recently been addressed by several district courts in California.*fn1 In those cases where the petitioner has been relieved of any and all parole outright, the habeas petition has been found moot. See Hamilton v. Schwartz, No. CV 08-04551-JVS (VBK), 2009 WL 2380093, *2-3 (C. D. Cal. July 30, 2009). Likewise, it has been suggested that if a petitioner is subsequently released on parole for a term of life, there may be no further remedy that the court can fashion even if he prevailed on his challenge to an earlier parole denial. See Thomas v. Yates, ___F. Supp. 2d ___, No. 1:05-cv-01198-LJO-JMD-HC, 2009 WL 1743628, *2 (E.D. Cal. June 17, 2009). But see Thompson v. Carey, No. CIV S-05-1708 GEB EFB P, 2009 WL 1212202, *4-5 (E.D. Cal. May 5, 2009).
However, where a petitioner has subsequently been released to a determinate period of parole supervision, federal courts have concluded that the petitioner, should he prevail, may still obtain an order directing California authorities to credit him with the time served in prison in violation of his constitutional rights towards his determinate period of parole supervision. See McQuillion v. Duncan, 342 F.3d 1012, 1015 (9th Cir. 2003) ("McQullion II") (noting that the appropriate remedy was immediate release without parole supervision where petitioner's parole supervision period would have lapsed but for the constitutional violation); Thomas v. Yates, 2009 WL 1743628, at *2-3 (concluding that the habeas petition challenging the denial of parole was not rendered moot despite petitioner's release to a determinate term of parole because the court could afford petitioner a remedy with respect to the length of that parole term); Thompson v. Carey, No. CIV S-05-1708 GEB EFB P, 2009 WL 453053, at *4 (E.D. Cal. Feb. 23, 2009) (concluding that "petitioner is entitled to be placed in a position he would have been in had he been released [on parole] on time.")*fn2 ; Basque v. Schwartz, No. CIV S-07-0258 GEB KJM P, 2009 WL 187920, at *2-3 (E.D. Cal. Jan. 20, 2009) (denying motion to dismiss petition as moot where, if he prevailed, petitioner could obtain a reduction of the mandatory parole term by the amount of excess time spent in prison); Carlin v. Wong, No. C 06-4145 SI, 2008 WL 3183163 (N.D. Cal. Aug. 4, 2008) ("Here, petitioner is entitled to credit against his parole period for his time in confinement that was in violation of his due process rights."). In such instances, courts have uniformly found that a petition for writ of habeas corpus challenging an earlier parole denial on constitutional grounds has not been rendered moot. Id.
Such is the case here. As noted above, petitioner contends that when he was sentenced in 1976, he was subject to a determinate term of parole on release. California Penal Code § 3000.1, which imposes a lifetime parole term for "any inmate sentenced . . . for any offense of first or second degree murder with a maximum term of life imprisonment," does not apply here since petitioner's crime was committed prior to January 1, 1983. See Thomas v. Yates, 2009 WL 1743628, at *2 (citing In re Chaudhary, 172 Cal. App. 4th 32, 34 (2009)). Petitioner contends that should he prevail on the pending petition he would be entitled to discharge from parole supervision because of the additional years he served in confinement in violation of his constitutional rights. Specifically, if this court were to determine that petitioner's due process rights were violated when he was denied parole in 2007, his mandated 3-year period of parole would ...