The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on respondent Jill Brown's ("respondent") renewed application for a stay of the court's March 14, 2008 order granting petitioner Noel Valdivia, Sr.'s ("petitioner") habeas petition. Respondent moves for a stay of the court's order pending appeal in light of intervening authority. Petitioner opposes the motion, asserting that the motion is moot under the circumstances in this case.
Federal Rule of Appellate Procedure 8(a) provides that a party must move in the district court for a stay of the judgment or order of a district court pending appeal. In the context of a habeas corpus matter, "Federal Rule of Appellate Procedure 23(c) provides that, when the Government appeals a decision granting a writ of habeas corpus, the habeas petitioner shall be released from custody," unless the court rendering the decision orders otherwise. Hilton v. Braunskill, 481 U.S. 770, 772 (1987).*fn1
Rule 23(c) "undoubtedly creates a presumption of release from custody in such cases," but the presumption may be overcome where the factors traditionally considered in deciding whether to stay a judgment in a civil case, "tip the balance against it." Id. at 774, 777. These factors include: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits [of its appeal]; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Id. at 776-77.
In this case, the court's March 14, 2008 order, which granted petitioner's habeas petition, ordered:
Within thirty days of the date of this order, the California Board of Parole Hearings (formerly the Board of Prison Terms) must calculate a term for Petitioner in accordance with the requirements of California Penal Code § 3041(a). Within forty days of this order, respondent must file a notice with the court identifying the date set for Petitioner's release.
After the court denied respondent's motion to stay on March 21, 2008, respondents successfully moved for a stay in the United States Court of Appeals for the Ninth Circuit. Subsequently, on May 5, 2010, the Ninth Circuit lifted its stay, noting that respondents had failed to demonstrate a likelihood of success on the merits.
On June 4, 2010, the Board of Parole Hearings conducted a remedial parole hearing and set Valdivia's total period of confinement at 284 months, or 12 years and 8 months. At that time, Valdivia had served almost 29 years in prison. On June 7, 2010, Valdivia moved for his immediate release. On June 25, 2010, the court granted the motion and ordered Valdivia released from prison within fifteen days. On July 8, 2010, Valdivia was released from prison.*fn2
Because the Board of Parole hearings calculated a term for Petitioner in accordance with the requirements of California Penal Code § 3041(a) and set a date for release, and because petitioner has been released, the court's March 14, 2008 order has been fully executed. As such, there is nothing for the court to stay.*fn3 Accordingly, respondent's motion to stay is DENIED as MOOT.