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Shawn Christopher Alls v. J.F. Salazar

December 16, 2010

SHAWN CHRISTOPHER ALLS, PETITIONER,
v.
J.F. SALAZAR, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Manuel L. Real United States District Judge

O

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which objections were filed. As a preliminary matter, the Court believes it improper for Respondent, having declined to argue in his Answer that "some evidence" does support the underlying denial of parole, to include that very argument in his Objections.

But Respondent does make a sound objection as to the proposed remedy. The Ninth Circuit recently ruled that, when a district court grants habeas relief on the grounds that not even "some evidence" supports denial of parole, the proper remedy (in lieu of issuance of an unconditional writ) is not a grant of parole but rather a new determination by the parole board. Haggard v. Curry, ___ F.3d ___, 2010 WL 4015006, *5 (9th Cir. Oct. 12, 2010).

Accordingly, the Court accepts the findings and recommendations of the Magistrate Judge with the foregoing single exception as to the remedy.

20101216

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