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Trevino v. Mendoza-Powers

September 30, 2010

ARNOLD TREVINO, PETITIONER,
v.
KATHY MENDOZA-POWERS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER GRANTING MOTION TO VACATE JUDGMENT, AND VACATING ORDER AND ENTRY OF JUDGMENT ISSUED MARCH 24, 2010 [Docs. 33, 34, 38]

ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING ENTRY OF JUDGMENT FOR PETITIONER, AND GRANTING STAY OF ORDER FOR RESPONDENT TO FILE NOTICE OF APPEAL WITH NINTH CIRCUIT COURT OF APPEALS/[Doc. 30]

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I. Order Adopting Findings and Recommendation

On March 24, 2010, the undersigned adopted the Findings and Recommendation in full and judgment was entered. (Court Docs. 33, 34.) However, on March 24, 2010, Respondent filed a reply to the Court's order.*fn1 (Court Doc. 35.) Petitioner filed a response on March 25, 2010. (Court Doc. 37.) Both parties correctly point out that the Court's March 24, 2010, was premature as the deadline to file a reply to any objections was that day. Accordingly, the Court will hereby vacate the order issued March 24, 2010, and said order is re-issued herein.

On February 5, 2010, the Magistrate Judge issued Findings and Recommendation that the Petition for Writ of Habeas Corpus be GRANTED. This Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order.

On March 10, 2010, Petitioner and Respondent filed timely objections to the Findings and Recommendation. (Court Docs. 31, 32.)

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. In his reply, Respondent argues, among other things, that because Petitioner is subject to an indeterminate lifetime parole period pursuant to California Penal Code section 3000.1, he is not entitled to credit against that period of time. (Court Doc. 35, Reply at 3.) The Court finds Respondent's argument persuasive on this point. Because Petitioner's crime was committed after January 1, 1983, he is subject to a lifetime term of parole under section 3000.1, and he is not entitled to credit for the period of incarceration beyond the date he should have been released pursuant to the Board of Parole Hearings' 2005 decision. See e.g. Rios v. Mendoza-Powers, 2010 WL 1032696 *1-3 (E.D. Cal.) Respondent's objections present no further grounds for questioning the Magistrate Judge's analysis.

The Court notes that on April 22, 2010, subsequent to the Findings and Recommendation, the Ninth Circuit Court of Appeals rendered its decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir.2010) (en banc). In Hayward, the Ninth Circuit held that "[t]here is no general constitutional 'some evidence' requirement for denial of parole, in the absence of state law creating an enforceable right to parole." Id. at 559. However, the Ninth Circuit held that in reviewing a California judicial decision approving a governor's or parole board's decision, the federal court must determine whether that decision "was an 'unreasonable application' of the California 'some evidence' requirement, or was 'based on an unreasonable determination of the facts in light of the evidence.'" Id. at 562-563, citing 28 U.S.C. § 2254(d)(1)-(2). On May 24, 2010, the Ninth Circuit further clarified its decision in Hayward, stating the following:

Through its state statutory and constitutional law, California has created a parole system that independently requires the enforcement of certain procedural and substantive rights, including the right to parole absent 'some evidence' of current dangerousness. Hayward, slip op. at 6327-30 (discussing, inter alia, In re Lawrence, 190 F.3d 535 (Cal.2008); In re Shaputis, 190 F.3d 573 (Cal.2008); and In re Rosenkrantz, 59 F.3d 174 (Cal.2002). California law gives rise to a liberty interest on the part of its prisoners covered by its parole system. Having guaranteed the prisoners of the state that they will not be denied a parole release date absent 'some evidence' of current dangerousness, California is not permitted under the federal Constitution arbitrarily to disregard the 'some evidence' requirement in any particular case. It is therefore our obligation, as we held in Hayward, to review the merits of a federal habeas petition brought by a California prisoner who asserts that the decision to deny him parole was not supported by 'some evidence' of his current dangerousness. Under AEDPA, this means that we review 'whether the California judicial decision approving the governor's [or parole board's] decision rejecting parole was an 'unreasonable application' of the California 'some evidence' requirement, or was 'based on an unreasonable determination of the facts in light of the evidence." Hayward, slip op. at 6330 (quoting 28 U.S.C. § 2254(d)(1)-(2)).

Pearson v. Muntz, 606 F.3d 606, 611 (9th Cir. 2010) (per curiam) (footnote omitted).

Petitioner correctly points out that Hayward has not changed the framework with respect to cases in which the Court finds no evidence to support a state-court decision denying a habeas petition in a life-term prisoner case. Pearson v. Muntz, 606 F.3d at 611-612; Cooke v. Solis, 606 F.3d 1206, 1214-1216 (9th Cir. 2010) Having carefully reviewed the entire file, including the objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis.

II. Motion To Stay Proceedings Pending Appeal

Respondent has filed a motion to stay the judgment in this case pending resolution of appeal to the Ninth Circuit Court of Appeals pursuant to Rule 62(c) of the Federal Rules of ...


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