FINDINGS AND RECOMMENDATIONS
Petitioner Thomas Eugene Saunders, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. At the time the petition was filed, he was serving a prison term of 15 years to life resulting from a 1988 second degree murder conviction in the Colusa County Superior Court. The petition challenges Governor Schwarzenegger's 2004 reversal of a decision of the state parole authority that petitioner was suitable for parole.*fn1 On November 2, 2010, respondent filed a motion to dismiss which is still pending. /////
II. FACTUAL AND PROCEDURAL BACKGROUND
In 1988, petitioner pleaded guilty to one count of second degree murder and was sentenced to 15 years to life with the possibility of parole. His term began on March 10, 1988. On October 17, 2003, at his third subsequent parole suitability hearing, a panel of the Board of Prison Terms found him suitable for parole. On March 15, 2004, Governor Schwarzenegger invoked his authority pursuant to article V, section 8, subdivision (b) of the California Constitution, to reverse the grant of parole. Petitioner pursued relief without success in the California state courts, after which this action was filed.
On November 2, 2010, respondent filed a motion to dismiss this case pursuant to 28 U.S.C. § 2254, Rule 4, on the ground that it has become moot because petitioner has been paroled. Petitioner has failed to oppose or otherwise respond to the motion.
Rule 4 of the Rules Governing Section 2254 Cases provides, in relevant part: "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner."
A case or controversy must exist throughout all stages of litigation. Spencer v. Kemna, 523 U.S. 1, 7 (1998). If at any time during the course of litigation a plaintiff ceases to suffer, or be threatened with, "an actual injury traceable to the defendant," and that is "likely to be redressed by a favorable judicial decision," the matter is moot. Id. at 7.
An exception to the mootness doctrine applies to claims that are "capable of repetition , yet evading review." Spencer, 523 U.S. at 17. To invoke this exception, it must be shown that "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and (2) there [is] a reasonable expectation that the same complaining party will be subjected to the same action again." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978) (citation omitted). "A mere speculative possibility of repetition is not sufficient." Williams v. Alioto, 549 F.2d 136, 143 (9th Cir. 1977). "There must be a cognizable danger, a reasonable expectation, of recurrence for the repetition branch of the mootness exception to be satisfied." Id.
Where a petitioner challenges the denial of parole but is later
paroled, the claim is moot. See Brady v. U.S. Parole Comm'n, 600 F.2d
234, 236 (9th Cir. 1979). "Overwhelmingly, the rule followed by both
California and federal courts is to deny a pending habeas petition as
moot if the prisoner is released from prison, and § 3000.1*fn2
is applicable to his or her case." Rios
v. Mendoza-Powers, 2010 WL 1032696 (E.D. Cal. 2010) (citing collected
cases) (citation omitted).
Respondent has provided evidence that petitioner has been released to parole following a subsequent favorable decision by the state parole authority which the governor declined to review. Respondent asserts this action should therefore be dismissed as moot. Petitioner has failed to (a) rebut the evidence that he was paroled, (b) provide legal authority to the contrary, or (c) allege an exception to the mootness doctrine or continuing adverse consequences. Because petitioner has been paroled, the petition is moot.*fn3 See Burnett v. Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005) (a habeas petition becomes moot where the petitioner's injury cannot be redressed by a favorable decision). Respondent's motion to dismiss should be granted.
For the foregoing reasons, IT IS HEREBY RECOMMENDED that respondent's November 2, 2010 motion to dismiss be GRANTED, and the petition for writ of habeas corpus be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. Failure to file objections within the specified time may ...