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Guardado v. Hoshino

September 15, 2010

PAUL ALBERT GUARDADO, PETITIONER,
v.
M. HOSHINO, CHAIRMAN, CALIFORNIA BOARD OF PAROLE HEARINGS, DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, B. CURRY, WARDEN CTF, G. NEOTTI, WARDEN RJD, EDMUND G. BROWN, JR., ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER (1) ADOPTING REPORT AND RECOMMENDATION [DOC. 8], (2) DENYING MOTION TO DISMISS [DOC. 4], (3) DENYING MOTION FOR STAY [DOC. 5] AND (4) DISMISSING RESPONDENTS M. HOSHINO, M. CATE, M. CATE, B. CURRY, AND EDMUND G. BROWN, JR.

On December 28, 2009, Paul Albert Guardado ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ("Petition").*fn1 On February 23, 2010, Respondents filed a Motion to Dismiss. On April 16, 2010, United States Magistrate Judge Ruben B. Brooks issued a Report and Recommendation ("Report"), recommending that this Court deny the motion and sua sponte dismiss Respondents M. Hoshino, M. Cate, B. Curry, and Edmund G. Brown, Jr. On May 21, 2010, Respondents filed an Objection to the Report's recommendation to deny the motion to dismiss. On June 6, 2010, Petitioner filed a Reply to the Objection.

The Court decides the matters on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons outlined below, the Court ADOPTS the Report (Doc. 8), DENIES the motion to dismiss (Doc. 4), DENIES the motion to stay (Doc. 5), and DISMISSES RespondentsM. Hoshino, M. Cate, B. Curry, and Edmund G. Brown, Jr.

I. BACKGROUND

Petitioner did not object to the Report's factual summary. Accordingly, the following facts are taken from the Report.

A. Petitioner's Previous Challenge of the Board of Parole Hearing's 2006 Decision

In 1989, Petitioner was convicted of second degree murder and sentenced to fifteen-years-to-life in prison. (Pet. [Doc. 1], at 1-2.) Between 2002 and 2006, Petitioner was denied parole several times. He challenged those denials in a consolidated petition filed in the United States District Court for the Northern District of California (the "2007 Petition"). (Pet., at 13; Not. of Lodgment ("NOL") [Doc. 4-1], No. 1 at 1-2.)

On April 9, 2008, the court issued an order granting the 2007 Petition and invalidating the Board of Parole Hearing's (the "Board") 2006 decision that Petitioner was unsuitable for parole. (NOL, No. 5 at 1). The court ordered the Board to hold a rehearing, which was held on August 12, 2008. (Id.) The Board again found Petitioner unsuitable for parole. (Id.)

Petitioner then filed an application for an order enforcing the writ of habeas corpus along with a request that the Board's decision be submitted to the Governor. (NOL, No. 2 at 1-2). On January 22, 2009, the court granted Petitioner's application and concluded that the August 12, 2008 parole hearing did not comply with the court's prior order. (Pet., Ex. A at 6, 10.) The court remanded the case to the Board with instructions, and directed the Board to submit its decision to the Governor. (Id., at 11.)

On March 4, 2009, Respondents informed the court that the Board's decision had been submitted to the Governor, who declined to review the decision. (NOL, No. 2 at Ex. 1, p. 2). On March 10, 2009, the court ordered that another parole hearing take place no later than June 23, 2009. (Id., at 2-3.)

On June 23, 2009, the Board held a hearing and calculated a date for Petitioner to be released. (Pet., Ex. C at 1.) However, the Board did not find Petitioner suitable for parole. (NOL, No. 4, Ex. 3 at 6.)

On July 21, 2009, the Governor reviewed and reversed the Board's decision. (See NOL, No. 5 at 2.) Petitioner then filed an emergency motion requesting the district court to order his immediate release. (Id.) On December 14, 2009, the court remanded Petitioner's case to the Board with an order to release Petitioner, but stayed the release for ten days to allow Respondents to seek a stay from the Ninth Circuit. (Id. at 2, 10.) On February 12, 2010, the Ninth Circuit stayed Petitioner's release pending resolution of the appeal.(NOL, No. 6 at 1.)

B. Petitioner's Challenge of the Board's September 25, 2008 Decision

On September 25, 2008, Petitioner had a separate parole hearing, in which the Board found him unsuitable for parole. (Pet., at 7, 9, 11, 13.) On February 2, 2009, Petitioner filed a habeas petition in the Orange County Superior Court challenging the Board's decision. (NOL, No. 7.) On ...


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