FINDINGS AND RECOMMENDATIONS
Petitioner, a prisoner without counsel, has filed a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss this action on the grounds that the petition is moot and unexhausted. Dckt. No. 11. For the reasons explained below, the court recommends that this action be dismissed as moot.
In 1994, petitioner was convicted of second degree murder with an enhancement for use of a firearm. Pet. at 1. He is serving a sentence of 18 years to life. Id.
Petitioner became eligible for parole on May 25, 2006. Id. at 6D. On February 7, 2007, the Board of Parole Hearings ("Board") found petitioner suitable for parole at his initial parole consideration hearing. Id. On June 14, 2007, the Governor reversed the Board's grant of parole. Id. at 6D-6E; Resp.'s Mot. to Dism. ("Mot."), Ex. 1 at Ex. B.
On February 20, 2008, petitioner challenged the Governor's reversal in a petition for writ of habeas corpus filed in the Sacramento County Superior Court. Id., Ex. 1. In addition to his claim that the Governor's reversal was unlawful, petitioner alleged that the Board lacked jurisdiction to extend his sentence beyond the minimum eligible parole date when it failed to provide a timely initial parole consideration hearing in accordance with California Penal Code section 3041(a). Id., Ex. 1 (Mem. of P. & A.) at 1-2.
The superior court granted the petition, vacated the Governor's June 2007 decision, and remanded the matter to the Governor "for further consideration in light of In re Lawrence, (2008) 44 Cal. 4th 1181 and In re Shaputis, (2008) 44 Cal. 4th 1241." Id., Ex. 2 at 1-2.
After the superior court granted his petition, petitioner filed petitions in the California Court of Appeal, Third Appellate District, and in the California Supreme Court. Id., Exs. 3, 5. In these petitions, petitioner again claimed that the Board lost jurisdiction to extend petitioner's confinement when it failed to conduct a timely parole consideration hearing and that the Governor's 2007 reversal violated due process. Id.,Ex. 3 at 7, Ex. 5 at 7.Petitioner also claimed that the proper remedy was to reinstate the release date established by the Board, rather than to remand to the Governor for further consideration. Id.,Ex. 3 at 7, Ex. 5 at 7. Both of these petitions were summarily denied. Id., Exs. 4, 6.
On June 11, 2008, petitioner received his second parole suitability hearing. Id., Ex. 7. At this hearing, the Board found petitioner unsuitable for parole. Id.
On September 29, 2009, the Governor issued a remanded decision, again reversing the Board's 2007 decision to grant petitioner parole. Id., Ex. 8.
On January 19, 2010, petitioner filed the instant petition. Dckt. No. 1. On May 3, 2010, respondent filed the pending motion to dismiss. Dckt. No. 11.
Petitioner alleges that his initial parole consideration hearing was untimely. He alleges that the Board's failure to timely conduct the hearing deprived the Board of its jurisdiction and invalidated any action by the Board or the Governor that extended petitioner's confinement. Pet., Mem. of P. & A. in Supp. Thereof at 1.
Respondent argues that the most favorable outcome petitioner could have hoped for in the event of an untimely hearing, was for an order directing the Board to hold a hearing. Mot. at 3. Respondent argues that this claim is now moot because the Board held a hearing in 2007 and again in 2008. Id. Thus, respondent argues, petitioner has received all the process that is due. Id. Respondent also points out, without expanding on its legal significance, that the state courts denied this claim. Id.
The case or controversy requirement of Article III of the United States Constitution deprives a court of jurisdiction to hear moot cases. Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70 (1983). "The case-or-controversy requirement demands that, through all stages of federal judicial proceedings, the parties continue to have a personal stake in the outcome of the lawsuit." United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001) (internal quotations omitted). "This means that, throughout the litigation, the plaintiff 'must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)). The party ...