The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On February 28, 2008, the magistrate judge filed findings and recommendations granting Petitioner's Motion for Partial Summary Judgment (ECF No. 26). Those findings and recommendations, which were served on all parties, contained notice to all parties that any objections to the findings and recommendations had to be filed within fifteen days.
Respondent filed objections to said findings and recommendations on March 14, 2008, and Petitioner thereafter submitted his reply. On December 8, 2008, this Court then administratively stayed the matter pending the Ninth Circuit's en banc review of Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008). The Hayward en banc decision was issued on April 22, 2010. Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). By Minute Order dated September 17, 2010, the Court requested supplemental briefing pertaining to Petitioner's ongoing incarceration since 2007.
That briefing was submitted by both parties on November 1, 2010.
On January 24, 2011, the Supreme Court issued a decision finding that California's "some evidence" requirement for use of parole decisions is not protected by federal due process. Swarthout v. Cooke, 2011 WL 1197627 at * 3. Instead, the Supreme Court reasoned that the only federal right implicated by California's parole system is whether Petitioner's procedural rights were satisfied in a decision denying parole. The Supreme Court made it clear that the substantive issue of whether the matter was decided correctly is not a proper federal subject of concern. Id.
In the present matter, adherence to Petitioner's procedural rights is not at issue. Instead, the dispute hinges on whether there was "some evidence" to support Governor Davis' reversal of the 2002 decision of the California Board of Prison Terms ("Board") granting Petitioner parole, as well as whether the Board's subsequent decisions in 2003 and 2004 denying Petitioner parole had any evidentiary basis. This Court's review of those questions has been squarely precluded by Swarthout.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this Court has consequently conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the magistrate judge's findings and recommendations to be not supported by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed February 28, 2008, are REJECTED; and
2. Petitioner's March 15, 2007 motion for partial summary judgment is DENIED.