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Arbbie M. Hodge v. Thomas L. Carey

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


January 27, 2011

ARBBIE M. HODGE, PETITIONER,
v.
THOMAS L. CAREY, WARDEN, ET AL., RESPONDENTS.

ORDER VACATING FINDINGS AND RECOMMENDATIONS

Petitioner Hodge is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a February 20, 2004 reversal by Governor Schwarzenegger of the September 25, 2003 decision of the state parole authority that he was not suitable for parole. On April 27, 2010, findings and recommendations issued herein, recommending that the petition be granted because the governor's decision was unsupported by some evidence in the record.

Previously, the United States Court of Appeals for the Ninth Circuit had directed "courts in this circuit [to] decide whether the California judicial decision approving the governor's decision rejecting parole was an 'unreasonable application' of the California 'some evidence' requirement, or was 'based on an unreasonable determination of the facts in light of the evidence.'" Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (citations omitted). Subsequent to the filing of the pending findings and recommendations, however, the United States Supreme Court held in Swarthout v. Cooke, No. 10-333, slip op. at 4-5 (U.S. January 24, 2011), that a federal court's inquiry into whether an inmate in California received due process in the parole suitability hearing context does not include review of California's "some evidence" requirement. Rather, in the parole suitability context, "the only federal right at issue is procedural." Id. at 6. Thus, this court may only review a parole board's procedures to see that an inmate received an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. See Swarthout, slip op. at 4-5 (citing Greenholtz, 442 U.S. at 16).

In light of this new controlling Supreme Court authority, IT IS HEREBY ORDERED THAT the findings and recommendations signed and filed on April 27, 2010, are VACATED. New findings and recommendations will issue.

20110127

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