The opinion of the court was delivered by: John F. Walter United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus, all of the records herein, the Report and Recommendation of United States Magistrate Judge, Respondent's Objections ("Objections"), and Petitioner's Response to Respondent's Objections. The Court has conducted a de novo review of those matters to which objections have been made.
Respondent argues that Petitioner's release on parole precludes this Court from fashioning a remedy to redress his injury, because the only proper remedy would be remand for a new parole decision consistent with due process. (Objection at 3-4.) Because Petitioner has already been released, Respondent argues, the Court no longer can afford him a remedy, and the Petition is moot. (Id.) Respondent cites the Ninth Circuit's recent decision in Chioino v. Kernan, 581 F.3d 1182, 1186 (9th Cir. 2009), in which the Ninth Circuit held that the proper remedy for Sixth Amendment error under Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007), is remand to the state trial court for re-sentencing. However, unlike a state trial court's sentencing authority under California's new discretionary sentencing scheme, the Governor's authority with respect to parole decisions is limited. The Governor may only review the evidence that was before the Board of Parole Hearings ("Board") at the time it rendered its decision and base his decision on that evidence. Cal. Const. art. V, § 8 (b); see also Cal. Penal Code § 3041.2.
Thus, when a court has concluded that the record does not contain "some evidence" to support the Governor's determination that an inmate is unsuitable for parole, a remand to the Governor would not serve any purpose, and the proper disposition is to reinstate the Board's decision and order the inmate's release if the release date set by the Board has passed. See In re Dannenberg, 173 Cal. App. 4th 237, 256-57, 92 Cal. Rptr. 3d 647, 661-62 (2009); In re Vasquez, 170 Cal. App. 4th 370, 386, 87 Cal. Rptr. 3d 853, 863-64 (2009). When, as here, the inmate has already been released and is subject to a determinate period of parole, the remedy is to credit his incarceration since the date he would have been released, if the Board's decision granting parole had not been reversed by the Governor, to his period of parole supervision. See, e.g. Thomas v. Yates, 637 F. Supp. 2d 837, 842 (E.D. Cal. 2009). Thus, the Court can afford Petitioner a remedy, and therefore, the Petition is not moot.
Respondent argues that, to the extent the Magistrate Judge's conclusion that the Governor's decision is not supported by "some evidence" rests on the absence of a nexus between Petitioner's commitment offense and Petitioner's current dangerousness, the Magistrate Judge is applying state law rather than clearly established federal law. (See Objections at 10-11). The Court rejects this argument. The Magistrate Judge applied the "some evidence" standard set forth by the Supreme Court in Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768 (1985), which constitutes the clearly established federal law in this area. Pursuant to Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007), the Court "must look to California law to determine the findings that are necessary to deem a prisoner unsuitable for parole, and then must review the record in order to determine whether the state court decision... constituted an unreasonable application of the 'some evidence' principle articulated in Hill." In In re Lawrence, 44 Cal. 4th 1181, 1210, 82 Cal. Rptr. 3d 169, 189 (2008), the California Supreme Court clarified that California law requires a rational nexus between factors indicating unsuitability and the determination of current dangerousness. Thus, a federal court's application of the Hill "some evidence" standard is informed by the California Supreme Court's explication in Lawrence of what evidence is necessary under California law to support the Board's or the Governor's decision that an inmate is unsuitable for parole.
Moreover, in Lawrence, the California Supreme Court made clear that it was merely clarifying existing California law. See In re Lawrence, 44 Cal. 4th at 1227, 82 Cal. Rptr. 3d at 203 ("The relevant determination by the Board and the Governor is, and always has been, an individualized assessment of the continuing danger and risk to public safety posed by the inmate."). Thus, it is irrelevant that Lawrence was handed down after the Governor issued his decision regarding Petitioner's suitability for parole, and after the state court applied the "some evidence" standard to the Governor's decision.
Having completed its review, the Court accepts and adopts the Magistrate Judge's Report and Recommendation and the findings of fact, conclusions of law, and recommendations therein.
IT IS ORDERED that the Petition is GRANTED based on Ground One and DENIED based on Grounds Two and Three. A writ of habeas corpus shall issue as follows: the Board shall calculate the remaining period, if any, of Petitioner's three-year parole term by crediting him for his incarceration between the date he would have been released on parole pursuant to the Board's May 4, 2006 decision, if that decision had not been reversed by the Governor, and Petitioner's release on parole on November 13, 2008. If Petitioner has already served his re-computed parole term, the Board shall discharge him from parole.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order and the Judgment herein on counsel for Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
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