FINDINGS AND RECOMMENDATIONS
Petitioner is a former state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges California Governor Arnold Schwarzenegger's reversal of the 2004 decision by the Board of Parole Terms (hereinafter the "Board")*fn1 finding petitioner suitable for parole. In addition, petitioner claims that the Governor exceeded his authority by applying a law to him that was not in effect at the time of petitioner's conviction, in violation of the Ex Post Facto Clause. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be granted with respect to his due process claim.
On April 21, 1988, petitioner was convicted in the Sacramento County Superior Court of second degree murder in violation of California Penal Code § 187. (Answer, Ex. 1, Ex. 2 at 3.) On July 18, 1989, he was sentenced to 16 years to life in state prison for that offense, including a one-year sentencing enhancement pursuant to California Penal Code § 12022(b) for the use of a deadly weapon. (Id.)
On May 3, 2004, petitioner appeared before the Board for his fourth subsequent parole consideration hearing and was found suitable for parole. (Traverse at 2.) At that time, petitioner had served 17 years of his 16 years to life sentence. (Answer, Ex. 3 at 3.) The Board tentatively set a parole release date and that decision was approved and became final on August 31, 2004. (Id. at 1.) On September 30, 2004, the Governor reversed the Board's grant of parole. (Id. & Ex. 2.)
Petitioner subsequently filed an application for a writ of habeas corpus in Sacramento County Superior Court, in which he challenged the Governor's decision finding him unsuitable for parole. (Answer, Ex. 3) On December 15, 2004, in a reasoned decision, the Superior Court denied the petition. (Id.) On January 3, 2005, petitioner filed an application for a writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Answer, Ex. 4.) That petition was summarily denied by order dated February 10, 2005. (Id.) Petitioner subsequently filed an application for a writ of habeas corpus in the California Supreme Court, which was summarily denied on August 10, 2005. (Answer, Ex. 5.)
On August 24, 2005, petitioner filed the habeas petition pending before this court. On October 7, 2005, respondents moved to dismiss the petition for lack of subject matter jurisdiction. That motion was denied on September 5, 2006. Respondents were then ordered to file a response to the petition. Respondents filed an answer on October 5, 2006, and petitioner filed his traverse on October 25, 2006. Petitioner was released from prison on April 4, 2007.
II. Case No. CIV S-06-1047 MCE GGH P
On August 23, 2005, less than one year after the Governor's reversal of the Board's 2004 grant of parole at issue in this action, petitioner appeared again before the Board for his fifth subsequent parole consideration hearing. (Traverse at 2.) This time, the Board found petitioner unsuitable for parole. Rios v. Mendoza-Powers, CIV S-06-1047 MCE GGH P, 2007 WL 2155730, at *3 (E.D. Cal. July 26, 2007). On May 12, 2006, after exhausting his state court remedies, petitioner filed a habeas petition in this court challenging the Board's 2005 denial of parole. Id. District Judge Morrison E. England, Jr. and Magistrate Judge Gregory G. Hollows were the judges assigned to that action.
As noted, petitioner was released from prison on April 4, 2007. After petitioner filed a notice of change of address which reflected that he had been released on parole, Magistrate Judge Hollows ordered petitioner to show cause why his petition in CIV S-06-1047 MCE GGH P should not be dismissed as moot. After receiving briefing on this issue, Magistrate Judge Hollows concluded that the petition was not moot.*fn2 However, he recommended that the petition be denied on the merits, finding that the circumstances of petitioner's offense constituted "some evidence" supporting the Board's unfavorable suitability decision.*fn3 On September 14, 2007, District Judge England adopted those Findings and Recommendations and judgment was entered denying the petition in Case No. CIV S-06-1047 MCE GGH P.
By order dated April 16, 2009, this court requested that respondent file a brief addressing whether the petition pending before this court was rendered moot by petitioner's release from prison. Specifically, the court asked whether relief would still be available to petitioner in the event that this court found the Governor's reversal of the Board's 2004 suitability decision violated petitioner's right to due process.*fn4 Both parties have filed briefs in response to this order.
All parties agree that petitioner is subject to parole as set forth in California Penal Code § 3000.1, which provides as follows:
(a) In the case of any inmate sentenced under [California Penal Code] §1168 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.
Respondent argues that because petitioner is subject to lifetime parole pursuant to California Penal Code § 3000.1, there is no effective relief this court could grant (in the form of release from parole supervision) if his habeas petition is granted. Therefore, according to respondent, the instant petition is moot. (Resp't's Brief, at 1, 3.) In the alternative, respondent contends that if "[petitioner's] due process rights were violated by the Governor's decision . . . then the appropriate remedy is a remand to the Governor to proceed in accordance with due process, as ordered by the Court." (Id. at 2.)*fn5
Petitioner, on the other hand, contends that "the petition is not moot and that petitioner is entitled to time spent in illegal custody credited toward his mandatory parole period." (Pet'r's Brief filed June 29, 2009 at 1.) In this regard, petitioner explains:
Denying petitioner...credit toward his parole period for excess time spent in prison after a judgment his incarceration during that period was unlawful is... 'unreasonably harsh.' It would not only serve to deny petitioner any credit at all for time spent in a conforming manner in state custody, but it would deny him credit for time spent unlawfully in state custody. That is patently and fundamentally unfair.
The Court must remember granting this credit would not entitle petitioner to discharge from parole supervision, rather it would only advance the point in time that petitioner would be eligible for a discretionary discharge review by parole officials.
(Id. at 4.) (emphasis in original.) Finally, petitioner states that a remand to the Governor would be "pointless" in his case. (Id. at 2.)
"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.'") (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. 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). "Thus, in deciding a mootness issue, the question is not whether the precise relief sought . . . is still available; rather, the question is whether there can be any effective relief." Hamilton v. Schwartz, No. CV 08-04551-JVS (VBK), 2009 WL 2380093, at *2 (C.D. Cal. July 30, 2009) (quoting Northwest Environmental Defense Center v. Gordon, 894 F.2d 1241 (9th Cir. 1988)). A 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)).
Under California law, "an inmate-turned-parolee remains in the legal custody of the California Department of Corrections through the remainder of his term, and must comply with all of the terms and conditions of parole, including mandatory drug tests, restrictions on association with felons or gang members, and mandatory meetings with parole officers." Samson v. California, 547 U.S. 843, 851 (2006) The restrictions imposed on a parolee constitute a concrete injury for purposes of a mootness analysis. See, e.g., Spencer, 523 U.S. at 7-8 (restrictions imposed by the terms of the parole constitute a concrete injury); Jones v. Cunningham, 371 U.S. 236, 243 (1963) (same).
The question of when a collateral attack on a parole denial is rendered moot by a subsequent grant of parole has recently been addressed by the California courts. In In re Chaudhary, 172 Cal. App. 4th 32 (2009), the California Court of Appeal for the Sixth Appellate District reversed a decision by the Superior Court to credit the excess time Chaudhary had served in prison in violation of his due process rights to his parole term under § 3000.1(b). The appellate court in that case held:
Section 3000.1's five-year parole discharge eligibility requirement is expressly limited to the period of time after the parolee "has been released on parole" and requires that the parolee serve five continuous years on parole "since [the parolee's] release from confinement." By placing these explicit limitations on the parole discharge eligibility requirement, the Legislature made unmistakably clear that a parolee must first have "been released on parole" and must then complete five continuous years on parole after the parolee's "release from confinement." This intent explicitly precludes the application of any time spent in custody prior to release to satisfy any part of section 3000.1's five-year parole discharge eligibility requirement.
[ ] There is no way to apply 'credits' to a lifetime parole period. Even if we were to assume that a parolee would be entitled to credit against his or her parole period for time spent unlawfully incarcerated, that would not establish that section 3000.1's parole discharge eligibility requirement could be satisfied with such 'credits.' The extremely clear language of section 3000.1 establishes that time spent in prison prior to release from confinement cannot be applied to satisfy any part of section 3000.1's five-year parole discharge eligibility requirement.
Id. at 37-38. The state appellate court in Chaudhary concluded that because the petitioner was not entitled to a remedy under state law in the form of credit to his period of parole supervision, his habeas petition was moot.
The same mootness question has also been addressed by the federal courts in California. In those cases where the petitioner is no longer subject to parole supervision after his release, his pending habeas petition has been found moot. See Hamilton, 2009 WL 2380093, at *2-3 (where the state court granted the petitioner's habeas petition and issued an order "extinguishing any and all parole outright," the federal petition was moot because there was no longer any effective relief the court could grant). Where a petitioner has 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 three-year parole supervision period would have lapsed but for the constitutional violation); Thomas v. Yates, 637 F.Supp.2d 837, 842 (E.D. Cal. 2009) (concluding that the habeas petition challenging the denial of parole was not rendered moot despite petitioner's release to a five-year determinate term of parole because the court could afford petitioner a remedy with respect to the length of that parole term); 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 determinate parole term by the length of time unlawfully spent in prison); Carlin v. Wong, No. C 06-4145 SI, 2008 WL 3183163, at *2 (N.D. Cal. Aug. 4, 2008) ("Here, petitioner is entitled to credit against his [five-year] parole period for his time in confinement that was in violation of his due process rights."). In such circumstances, federal courts have uniformly found that a petition for writ of habeas corpus challenging an earlier parole denial on constitutional grounds is not rendered moot by the petitioner's release from prison.*fn6
Courts have reached differing conclusions in cases involving prisoners released to an indeterminate period of parole, as is the case with petitioner in the present action. In Thompson v. Carey, No. CIV S-05-1708 GEB EFB P, 2009 WL 453053 (E.D. Cal. Feb. 23, 2009), amended Thompson v. Carey, 2009 WL 1212202 (E.D. Cal. May 5, 2009), Findings and Recommendations adopted at 2009 WL 1605803 (E.D. Cal. June 8, 2009), the petitioner prevailed on his challenge to several parole denials and was released on parole pursuant to California Penal Code § 3000.1. The district court concluded that the petitioner was entitled to a credit against his period of parole of the time he had spent in prison in violation of his right to due process. The court explained:
However, neither respondent nor the Chaudhary court addressed the federal due process ramifications of a prisoner, such as petitioner, being excessively confined for several years. Application of Section 3000.1 in the manner suggested by respondent and the Chaudhary court would leave those prisoners without any effective remedy for their unconstitutional confinement. The Ninth Circuit's ruling in McQuillion v. Duncan, 342 F.3d 1012, 1015 (9th Cir. 2003) ("McQuillion II") suggests that such an application is not constitutionally acceptable.
In McQuillion v. Duncan, 306 F.3d 895, 912 (9th Cir. 2002) ("McQuillion I"), the Ninth Circuit determined that the appropriate remedy for a state prisoner whose parole date had been rescinded in violation of due process was immediate release. However, there had been at least a three-year delay between the constitutional injury, i.e., the illegal restraint, and the grant of habeas relief. McQuillion II, 342 F.3d at 1015. Thus, in response to the California Attorney General's later assertion that the appropriate relief was release to a state-mandated three-year period of parole, the Ninth Circuit explained:
This argument overlooks the fact that if McQuillion had been released on the date to which he was entitled, he would have been released in May 1994.
The three-year parole, which he would have been required to serve if he had been released on time, has long since expired.
McQuillion II, 342 F.3d at 1015. Although the Chaudhary court distinguished McQuillion on the grounds that McQuillion was subject to a fixed parole period, not lifetime parole, the Chaudhary court did not acknowledge the rationale set forth in McQuillion: that a prisoner who is unconstitutionally confined should be given credit for that time and placed in the position he would have been in had he been released on time. McQuillion II, 342 F.3d at 1015; see also Carlin v. Wong, 2008 WL 3183163, at *2 (N.D. Cal. Aug. 4, 2008) ("[T]he court finds that the actual surplus time that petitioner has been incarcerated beyond his parole date should be credited toward his post-release parole ...