The opinion of the court was delivered by: Honorable Cormac J. Carney United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge, and the objections filed by Respondent and Petitioner, de novo. The Court concurs with and adopts the findings, conclusions, and recommendations of the Magistrate Judge,
IT IS ORDERED that Judgment be entered:
(1) approving and adopting this Report and Recommendation; and
(2) directing that Judgment be entered granting a writ of habeas corpus in accordance with the findings of this Report and Recommendation as follows:
(a) The Board shall hold a parole suitability hearing to be held within thirty (30) days of the District Court's entry of Judgment on this decision;
(b) Petitioner shall be granted parole unless new, relevant and reliable evidence of his conduct in prison and/or change in mental state subsequent to the June 4, 2007, parole consideration hearing is introduced that is sufficient to support a finding that he currently poses an unreasonable risk of danger to society if released on parole. Neither the Board, nor the Governor on review, if conducted, may rely on: the static factors of the commitment offense; Petitioner's 2003 or 1986 disciplinary actions; Petitioner's prior drug or alcohol use; Petitioner's 1978 misdemeanor conviction; or any other factor relied on by either the Board or the state court, as those factors did not constitute "some evidence" of Petitioner's current danger to public safety;
(c) In the absence of any such new, relevant and reliable evidence showing Petitioner's unsuitability for parole, the Board shall calculate at the hearing a prison term and release date for Petitioner in accordance with California law. If the calculated release date lapsed more than three years earlier, there shall be no term of parole imposed upon release; if the release date lapsed less than three years earlier, the release terms may include that period of the three year parole term that remains.
HONORABLE OSWALD PARADA United States Magistrate Judge
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