The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
[Re: Motion at Docket No. 46]
Petitioner, Keith Somers, a state prisoner appearing through counsel, filed a petition for habeas corpus relief under 28 U.S.C. § 2254. At Docket No. 46, Respondent has moved this Court to dismiss the petition as moot. Somers, has opposed the motion. In his motion, Respondent contends that the grant of parole and the Governor's decision not to review that grant render this matter moot and the petition should be dismissed. In his opposition to the motion, Somers contends that the Board of Parole Hearings ("Board") misapplied California law in setting his release date, thereby leaving matters for this Court to decide. Therefore, Somers argues the matter is not moot. Somers is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California Substance Abuse Treatment Facility and State Prison, Corcoran.
II. BACKGROUND/PRIOR PROCEEDINGS
After a jury trial, Somers was convicted of one count each of Murder in the Second Degree (Cal. Penal Code § 187(a)), Gross Vehicular Manslaughter While Intoxicated (Cal. Penal Code § 191.5(a)), Evading an Officer (Cal. Vehicle Code § 2800.3), Driving Under the Influence/Injury (Cal. Vehicle Code § 23153(A)), and Driving Under the Influence (Cal. Penal Code § 23253(B)). Somers was sentenced to a prison term of 15 years to life on the murder conviction, six years on the gross vehicular manslaughter charge, three years on the evading an officer conviction, and two years on each of the driving under the influence convictions. All terms were to be served concurrently. Somers does not challenge his conviction and sentence.
In his petition, Somers challenges the action of the Board in denying him parole in 2003. After the pleadings were complete and the issues joined, this Court stayed further proceedings in this action pending the issuance of the mandate by the United States Court of Appeals for the Ninth Circuit in Hayward v. Marshall, 512 F.3d 536, rehrg en banc granted, 527 F.3d 797 (9th Cir. 2008), Case No. 06-55392. Respondent was also ordered to inform this Court should Somers be granted parole. In compliance with this Court's order, Respondent has advised this Court that the Board has found Somers suitable for parole, set his parole date, and the Governor has declined to exercise his authority to review that decision.
Respondent contends that, in light of the fact that the Board found Somers suitable for parole, set his parole date, and that the Governor has declined to exercise his statutory authority to review that determination, there is no further effective relief that this Court may grant in this case. Somers counters that the Board erred in determining and setting his release date; therefore, there are issues remaining to be resolved in order for Somers to be granted complete relief. The sole issue before this Court is whether, in light of the action by the Board and the Governor, there is any remaining effective relief that this Court may grant.
Federal courts lack jurisdiction to consider moot claims.*fn2 "If there is no longer a possibility that [a party] can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction."*fn3 "The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted."*fn4
Somers contends that, although the Board granted him parole and set a release date, the Board erred in setting his release date. First, Somers argues that the Board applied the wrong category under the applicable California regulation:*fn5 the Board should have used a matrix of 17-18-19 years instead of the 19-20-21 years that was used. Somers also argues that the Board improperly selected the upper term rather than the mid-term despite a prior state court holding that the mid-term was appropriate. Finally, Somers argues that the Board improperly added one-half of his concurrent sentence time for the alternative counts as consecutive time, adding three years for the vehicular manslaughter conviction and one and one-half years for the evading-an-officer conviction. Thus, according to Somers, his correct release date should have been calculated as 18 years instead of the 251/2 years calculated by the Board. Consequently, Somers argues, his release date is past and he should be released immediately.*fn6
In arguing against dismissal, Somers correctly points out that he has not been given complete relief, i.e., he has not yet been released from custody. Somers contends that although his suitability for parole has been resolved, there remains a controversy to be resolved-the term. Somers requests that this matter be remanded to the Board to set a term that would then be reviewable, and hence, ...