The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, Reyes Y. Rios, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against Kathy Mendoza-Powers, Warden and Bill Lockyer, Attorney General of the State of California (collectively "Respondents"). This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On December 11, 2009, the magistrate judge filed findings and recommendations which were served on all parties and contained that any objections to the findings and recommendations were to be filed within twenty days. The findings and recommendations proposed that the instant habeas corpus petition be granted with respect to Petitioner's due process claim.
Respondents filed timely objections in response to the findings and recommendations. Respondents argued that
(1) Petitioner's release from prison renders his petition moot and;
(2) if the petition is not denied as moot, then the petition should be denied because Petitioner does not have a federally protected interest in parole.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C)and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court rejects the reasoning employed by the magistrate judge and his ultimate recommendation to grant Petitioner's application for writ of habeas corpus. For the reasons set forth below, this Court finds the action should be administratively stayed pending the Ninth Circuit's en banc rehearing of its decision in Hayward v. Marshall, 527 F.3d 797 (9th Cir. 2008).
A. Mootness of Petitioner's Claim.
The magistrate judge found that relief is not foreclosed to Petitioner in the event that he prevails on his habeas petition, and that therefore the action is not moot. Further, the magistrate judge found that "any excess time Petitioner spent in prison in violation of his right to due process could be credited against the five-year parole discharge eligibility requirement in order to mitigate any constitutional injury against Petitioner." Findings and Recommendations, 15:13-15.
Respondents counter that because Petitioner has been released from prison, he is no longer suffering an "actual injury" that can be "redressed by a favorable judicial decision." Resps.' Objections to Findings and Recommendations, 3:5-6.
Based on the language of California Penal Code § 3000.1, the trend among the state courts and the federal district courts is to deny applications for writ of habeas corpus as moot when the petitioner is released on an indeterminate parole sentence. The language in § 3000.1 states in pertinent part:
(a) In the case of an 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)...when a 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.
Overwhelmingly, the rule followed by both California and federal courts is to deny a pending habeas petition as moot if the petitioner is released from prison, and § 3000.1 is applicable to his or her case. In In re Chaudhary, 172 Cal. App. 4th 32 (Ct. App. 2009), the California Court of Appeals held that because the petitioner was not entitled to a remedy under state law in the form of credit to his lifetime period of parole supervision, his habeas petition was moot. Id. at 37-39.
In Boyd v. Salazar, 2009 WL 2252507 (C.D. Cal. July 28, 2009), the Northern District found that there was no further remedy that the federal court could fashion even if the petitioner prevailed on his habeas challenge to an earlier parole denial. Id. at *1. Similarly, the Eastern District, also relying on Chaudhary, found a petitioner's habeas petition to be moot because the petitioner was released on an indeterminate parole term and that ...