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Brian W. Thomas v. James A. Yates Warden

March 9, 2011

BRIAN W. THOMAS,
PETITIONER,
v.
JAMES A. YATES WARDEN
RESPONDENT.



The opinion of the court was delivered by: Gary A. Feess United States District Judge

ORDER DISMISSING PETITION AS MOOT

As discussed below the petition should be dismissed as moot.

BACKGROUND

On February 16, 2005, with assistance of counsel, Petitioner filed a Petition for Writ of Habeas Corpus (28 U.S.C. § 2254)("Pet.," docket no. 1) and a Memorandum of Points and Authorities ("Pet. Mem.," docket no. 4), and lodged exhibits ("Pet. Ex."). In 1982, in California Superior Court, Los Angeles County, Case no. A357307, Petitioner was convicted of second degree murder and sentenced to fifteen years to life imprisonment with the possibility of parole. [Pet.] At the time of filing Petitioner was incarcerated at Pleasant Valley State Prison. [Id.]

The petition does not challenge Petitioner's underlying conviction or sentence, but rather the denial of parole, especially in a 2003 decision by then Governor Gray Davis reversing a prior decision in which the Board of Prison Terms ("the Board") had found Petitioner suitable for parole. [Pet. Ex. A, B, C.] Petitioner asserts four grounds for federal habeas corpus relief:

1. The Governor's decision denied Petitioner due process because it was arbitrary, inapposite to the record, supported by no evidence, and irrelevant to the basis for parole determination, and because the decision was prepared by staff and signed by the Governor without the requisite personal review.

2. The Governor's decision denied Petitioner due process because the Governor did not contend that Petitioner was not suitable for parole or that he posed any risk to public safety, and because each ground stated by the Governor was supported by no evidence.

3. The Governor's decision denied Petitioner due process because it did not give individualized consideration to Petitioner's case.

4. Petitioner was denied due process by the Board's 1993 rescission of a 1990 Parole grant.

[Pet. Mem.]

Petitioner raised and exhausted these claims in petitions for collateral review at the each level of the state courts. The superior court denied relief in a reasoned decision. [Case No. BH002519, Pet. Ex. N.] The California Court of Appeal and the California Supreme Court issued summary denials. [No. B174055, Pet. Ex. T; No. S126414, Pet. Ex. U.]

On March 3, 2011, the court learned, from the inmate locator service of the California Department of Corrections and Rehabilitation, that Petitioner was released on parole on April 8, 2009. Under California law, when an inmate, convicted of first or second degree murder with a maximum term of life imprisonment, is paroled, the period of parole is the remainder of the inmate's life. Saunders v. Carey, No. CIV S-06-734-MCE-CHS-P, 2011 WL 571488, *1 and n.2 (E.D. Cal. Feb. 15, 2011)(citing Cal. Penal Code § 3000.1(a)(1)).

DISCUSSION

"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." Rules Governing Section 2254 Cases, 28 foll. ยง 2254, Rule 4. "If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. ...


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