The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
ORDER DISMISSING PETITION
Petitioner Charles G. Reece, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Reece is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison Solano. Respondent has answered, and Reece has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In 1985, following a jury trial in the Los Angeles County Superior Court, Reece was convicted of one count of kidnaping (Cal. Penal Code § 209(b)) and two counts of robbery (Cal. Penal Code § 211). The trial court sentenced Reece to an indeterminate prison term of six years to life. Reece does not challenge his conviction or sentence in these proceedings.
In April 2007 Reece appeared for a parole-suitability hearing before the California Board of Prison Terms ("Board"). The Board, finding Reece unsuitable for parole, denied Reece parole for a period of two years. Reece filed a timely petition for habeas relief in the Los Angeles County Superior Court, which denied his petition in an unpublished, reasoned decision. Reece then filed a petition for habeas relief in the California Court of Appeal, Second Appellate Division, which summarily denied his petition without opinion or citation to authority. Reece's subsequent petition for habeas relief was also summarily denied without opinion or citation to authority by the California Supreme Court on July 8, 2009. Reece timely filed his Petition for relief in this Court on July 25, 2009.
The Los Angeles County Superior Court found there was sufficient evidence to sustain denial of parole, holding:
As indicated in Rosenkrantz, supra, 29 Cal. 4th 616, 677, it is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole, as long as there is some evidence to support the finding of unsuitability. In this case, the Petitioner's recent serious 115 provides some evidence of his continued unsuitability for parole.*fn1 The Los Angeles Superior Court also held:
However, there does not appear to be some evidence supporting the Board's finding that it would not be reasonable to expect the Petitioner would be suitable for parole for two years. If the Board finds the inmate unsuitable for parole, the next hearing is normally scheduled for the following year. Penal Code § 3041.5(b)(2). In this case, the committing offenses were not especially heinous, atrocious, or cruel, as provided in the applicable regulations. The Petitioner has now served 23 years in prison for a crime in which no victim was physically injured.
Thus, the decision to postpone the Petitioner's next hearing for two years must be vacated and Petitioner is entitled to a parole consideration hearing pursuant to Penal Code § 3041.5. Accordingly, the petition is denied regarding the Board's finding that the Petitioner is not suitable for parole. However, as it has been more than one year since the Petitioner's last hearing, the Board must schedule the Petitioner's next parole consideration hearing to be conducted no later than 90 days from the date of this order.
Accordingly, the Petition is denied.*fn2
II. ISSUES RAISED/DEFENSES
In his petition, Reece contends that the Los Angeles County Superior Court: (1) erroneously determined that the Board used the serious disciplinary infractions as a basis for the finding of unsuitability for parole; (2) that the serious disciplinary infraction was an insufficient basis upon which to deny him parole; and, (3) the California Supreme Court's summary denial of his petition without an opinion violated his right to due process. Respondent has asserted no affirmative defense.*fn3
Even though neither party has raised the issue, because the Los Angeles Superior Court granted Reece partial relief, as a threshold question this court must examine its jurisdiction sua sponte.*fn4 Federal courts lack jurisdiction to consider moot claims.*fn5 "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."*fn6 "The basic question in ...