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Barry Floyd Braeske v. Michael Martel

January 12, 2011


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


On January 3, 2011, Respondent filed a "Motion for Reconsideration; [or in the Alternative an] Application for a Stay of the Court's December 27, 2010 Order," which granted Petitioner Braeske ("Petitioner")'s petition for writ of habeas corpus. (ECF No. 48.) Respondent argues:

The Board . . . conducted a parole consideration hearing for [Petitioner] on May 25, 2010 . . . [which] complies with In re Lawrence, 44 Cal. 4th 1181 (2008), upon which Hayward and Pearson are based. Thus, [Petitioner] has already received the remedy ordered by this Court . . . and his Petition should be dismissed as moot." (Resp't Mot. ("Mot.") 2:5-9, 3:19-20.) Respondent argues in the alternative, should the Court find "that dismissal is not warranted," a stay "pending resolution of Respondent's appeal" or "a temporary stay to give him the opportunity to seek a stay in the Ninth Circuit" is "necessary and appropriate to preserve the status quo." Id. at 2:10-19.

Respondent requested an "expedited ruling by January 10, 201[1] because the Court's December 27, 2010 order requires the Board to hold a new hearing for [Petitioner] within thirty days[, and Petitioner] has been scheduled for a court-ordered hearing on January 20, 201[1]." Id. at 2:20-22.

An order was filed on January 4, 2011, which requested Petitioner to file a written response to Respondent's motion no later than January 7, 2011. (ECF No. 49.) Petitioner filed an opposition to Respondent's motion on January 7, 2011. (ECF No. 50.)


This action involves Petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2254, in which he challenges a 2003 denial of parole. The matter was referred to a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

The magistrate judge filed findings and recommendations on September 30, 2010, which recommended the Petitioner's application be granted since "[o]ther than the circumstances of his commitment offense, there is no evidence in the record to establish petitioner is a danger to others." (ECF No. 39 at 10:7-8.) Therefore, the magistrate judge found the "decision that there was sufficient evidence of dangerousness to deny petitioner parole [was] an unreasonable application of the 'some evidence' standard and an unreasonable interpretation of the facts." Id. at 10:8-11.

The findings and recommendations provided notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. Respondent filed timely objections.

(ECF No. 41.) After conducting a de novo review of the action, the district judge filed an Order on December 27, 2010 adopting the magistrate judge's findings and recommendations "in full as to the recommendation that Petitioner's application for writ of habeas corpus be granted." (ECF No. 46.) The December 27, 2010 Order directed Respondent, inter alia, "to release petitioner within thirty days unless a new parole suitability hearing is held in accordance with the provisions required by the Fourteenth Amendment of the United States Constitution and identified in the September 30, 2010 findings and recommendations." Id. at 2:6-9.


Respondent requests the Court "reconsider its [December 27, 2010 Order] and dismiss [Petitioner's] Petition," arguing Petitioner "already received the remedy ordered by this Court" when the Board conducted a "parole consideration hearing for [Petitioner] on May 25, 2010." (Mot. 2:5-9.) Petitioner counters that Respondent did not make the required showing that he is entitled to reconsideration, and "even if [the] Court considers Respondent's tardy proffer of further evidence, it should deny the motion" because "Respondent has not provided [the] Court with a record to determine the fairness of the Board's 2010 decision." (Pet'r Opp'n ("Opp'n") 2:22-24, 3:11-16, 3:21-22, 3:28-4:4.)

"Absent 'highly unusual circumstances,' reconsideration of a final judgment is appropriate only where (1) the court is presented with newly-discovered evidence, (2) the court committed 'clear error or the initial decision was manifestly unjust,' or (3) there is an intervening change in the controlling law." Calif. Dump Truck Owners Ass'n v. Davis, 302 F. Supp. 2d 1139, 1141 (E.D. Cal. 2002) (quoting School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

Respondent does not address this standard in his moving papers; nor has he made any showing under its criteria. However, even assuming that the May 25, 2010 parole consideration hearing is "newly-discovered evidence," Respondent has not shown that reconsideration is appropriate in this case because he has not provided a sufficient record to determine if the 2010 hearing complied with the Court's December 27, 2010 Order.*fn2 See Sass v. Calif. Board of Prison Terms, 376 F. Supp. 2d 975, 978-79 (E.D. Cal. 2005) (stating that respondent's assertion that subsequent parole hearings mooted Petitioner's application for writ of habeas corpus incorrectly "assumes that all of the subsequent hearings were conducted in accordance with federal law"); see also Jackson v. Carey, No. 2:02-cv-0946 FCD KJN P, 2010 WL 27772656, at *2 (E.D. Cal. July 13, 2010) ("Subsequent parole denials do not render this claim moot. ...

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