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Paul Edward Dewey v. D. K. Sisto

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 20, 2011

PAUL EDWARD DEWEY, PETITIONER,
v.
D. K. SISTO, WARDEN, CALIFORNIA STATE PRISON, SOLANO, RESPONDENT.

The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

ORDER

[Re: Motion at Docket No. 24] At Docket No. 23 this Court entered Judgment granting the Petition of Paul Edward Dewey for Relief Under 28 U.S.C. § 2254 and ordered the Board of Parole Hearings to hold a new parole-suitability hearing within 120 days. At Docket No. 24 Respondent timely filed a Motion to Alter Judgment, Alternatively, Motion for Relief From Judgment.

Respondent seeks to alter or amend the Judgment under Federal Rule of Civil Procedure 59(e) or, alternatively, for relief from the Judgment under Federal Rule of Civil Procedure 60(b). The motion having been filed within 28 days of the date the Judgment was entered, the Court treats the motion as having been brought under Rule 59(e).*fn1

This Court may grant relief under Rule 59(e) under limited circumstances: an intervening change of controlling authority, new evidence has surfaced, or the previous disposition was clearly erroneous and, if uncorrected, would work a manifest injustice.*fn2 To justify an amendment to a judgment based upon newly discovered evidence, the movant must show that the evidence was discovered after the judgment, that the evidence could not be discovered earlier through due diligence, and that the newly discovered evidence is of such a magnitude that had the court known of it earlier, the outcome would likely have been different.*fn3

Respondent has submitted new evidence indicating that on July 6, 2010, the Board found Dewey suitable for parole, and the Governor has declined to review that decision. Dewey has, therefore, been previously afforded the relief that this Court could grant,*fn4 and the Judgment entered herein should be vacated. 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 determining mootness is whether there is a present controversy as to which effective relief can be granted."*fn7 There being no further effective relief that this Court may grant in this case, it must be dismissed as moot.

IT IS THEREFORE ORDERED THAT the Motion to Alter Judgment, Alternatively, Motion for Relief From Judgment at Docket No. 24 is GRANTED.

IT IS FURTHER ORDERED THAT the Judgment entered herein at Docket No. 23 is hereby VACATED.

IT IS FURTHER ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DISMISSED as moot.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn8 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn9

The Clerk of the Court is to enter judgment accordingly.


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