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Vries v. Board of Prison Hearings

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 20, 2010

MICHAEL F DE VRIES, PETITIONER,
v.
BOARD OF PRISON HEARINGS, RESPONDENT.

The opinion of the court was delivered by: Alfred T. Goodwin United States Circuit Judge Sitting by designation

ORDER

Petitioner Michael F. De Vries is a California prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In light of the complexity of the legal issues involved, the court has determined that the interests of justice require appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

In light of Hayward v. Marshall, No. 06-55392, ___ F.3d ___ , 2010 U.S. App. LEXIS 8411 (9th Cir. Cal. Apr. 22, 2010), the law of the Ninth Circuit is that California law creates an expectation of the possibility of parole under certain circumstances. The question now before the Court is whether federal due process gives a prisoner the right to have his parole determined in accordance with California law, particularly California's law regarding immutable factors (see, e.g., In re Lawrence, 190 P.3d 535 (Cal. 2008); see also Irons v. Carey, 505 F.3d 846 (9th Cir. 2007)), and if so, whether that right is clearly established federal law as determined by the Supreme Court of the United States within the meaning of 28 U.S.C. § 2254(d).

Accordingly, IT IS HEREBY ORDERED that:

1. The Federal Defender is appointed to represent petitioner.

2. The Clerk of the Court is directed to serve a copy of the petition and this order on David Porter, Assistant Federal Defender.

3. Petitioner's counsel shall contact the Clerk's Office to make arrangements for copies of documents in the file.

6. Petitioner's counsel shall file an opening brief within thirty-five (35) days hereof.

7. Respondent shall file an answer within twenty-one (21) days after Petitioner's counsel files an opening brief.

8. Petitioner's counsel shall file a traverse within seven (7) days after Respondent files an answer.

9. Argument on this matter shall be heard on Tuesday, August 17, 2010 in courtroom three of the Robert T. Matsui United States Courthouse, 501 I Street, Sacramento, California.

20100520

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