The opinion of the court was delivered by: Honorable Christina A. Snyder United States District Judge
MEMORANDUM OPINION AND ORDER
PROCEEDINGS On October 1, 2009, Jose Guzman ("Petitioner"), filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner challenged the Board of Parole Hearings' ("Board") September 30, 2008, decision finding him unsuitable for release on parole.
On October 29, 2010, this Court issued a Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), recommending the granting of the Petition. (Dkt. No. 11.) The basis for the recommendation was the Court's finding that: (a) the Board's 2008 decision resulted in an arbitrary deprivation of Petitioner's liberty interest in parole and violated due process; and
(b) the State courts' determination affirming the denial was based on an unreasonable determination of the facts in light of the evidence presented and also involved an unreasonable application of the "some evidence" standard.
On December 28, 2010, over Respondent's Objections (Dkt. No. 13), the District Judge issued an Order approving and adopting the Report and Recommendation. (Dkt. No. 15.) On January 5, 2011, Judgment was entered granting the writ of habeas corpus as follows:
(a) The Board shall hold a parole suitability hearing to be held within thirty
(30) days of the District Court's entry of Judgment on this decision, in accordance with due process of law and consistent with the decision of this Court;ENDNOTE 1 ENDNOTE 1. The California Supreme Court recently held that the proper remedy for California appellate courts granting relief is to direct the Board to "conduct a new parole-suitability hearing in accordance with due process of law and consistent with the decision of the court." In re Prather, 50 Cal. 4th 238, 244 (2010); see also Haggard v. Curry, --- F.3d ---- , 2010 WL 4015006, at *5 (9th Cir. Oct. 12, 2010) (pursuant to In re Prather, the California-created, but federally enforceable, liberty interest in parole, gives the prisoner only the right to a redetermination by the Board consistent with the state's "some evidence" requirement). However, such an order "does not entitle the Board to 'disregard a judicial determination regarding the sufficiency of the evidence [of current dangerousness] and to simply repeat the same decision on the same record.'" Id. at 258 (quoting In re Masoner, 172 Cal. App. 4th 1098, 1110 (2009)).
(b) Petitioner shall be granted parole unless new, relevant and reliable evidence subsequent to the September 30, 2008, parole consideration hearing is introduced that is sufficient (considered alone or in conjunction with other evidence in the record, and not already considered and rejected by this Court) to support a finding that he currently poses an unreasonable risk of danger to society if released on parole;ENDNOTE 2 ENDNOTE 2. "[A] judicial order granting habeas corpus relief implicitly precludes the Board from again denying parole -- unless some additional evidence (considered alone or in conjunction with other evidence in the record, and not already considered and rejected by the reviewing court) supports a determination that the prisoner remains currently dangerous." In re Prather, 50 Cal. 4th at 258.
(c) In the absence of any such new, relevant and reliable evidence showing Petitioner's unsuitability for parole because of current dangerousness, the Board shall calculate at the hearing a prison term and release date for Petitioner in accordance with California law. If the calculated release date lapsed more than five years earlier, there shall be no term of parole imposed upon release unless for good cause the Board determines Petitioner should be retained on parole for a period pursuant to California Penal Code section 3000.1(b); if the release date lapsed less than five years earlier, the release terms may include only that period of the five-year parole eligibility term that remains. Petitioner shall remain subject to the discharge eligibility determination set forth in Penal Code section 3000.1(b).
(Report and Recommendation at 21-22.)
On January 7, 2011, Respondent filed a Notice of Appeal with the Ninth Circuit Court of Appeals. On January 10, 2011, Respondent filed an Application for a Stay of the Court's Order Granting the Petition ("Application for Stay"), and requested an expedited ruling by January 20, 2011. (Dkt. No. 19.) In the alternative, Respondent requested a temporary stay to give Respondent the opportunity to seek a stay in the Ninth Circuit before Petitioner's Court ordered parole hearing. (Id. at 2.) On January 20, 2011, the Court denied Respondent's Application for Stay. (Dkt. No. 20.)
On January 24, 2011, the United States Supreme Court issued its decision in Swarthout v. Cooke, --- S. Ct. ---, 2011 WL 197627 (U.S. Jan. 24, 2011), changing the landscape of this Court's consideration of California parole hearing denials. On January 24, 2011, ...