The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
[Re: Motion at Docket No. 70]
Jeffrey Price, a state parolee initially appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Price is currently in the custody of the California Department of Corrections and Rehabilitation, in parole status.*fn2 Respondent has answered, and Price has replied.
At Docket No. 68 this Court entered an Order holding this matter in abeyance pending the exhaustion of Price's state court remedies in connection with the reversal by the Governor of the Board of Parole Hearings' grant of parole in June 2009. At Docket No. 70, Price seeks reconsideration of that Order. Respondent opposes the Motion for Reconsideration, and Price has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following the entry of a guilty plea in July 1986, Price was convicted in the Los Angeles Superior Court of Murder in the Second Degree (Cal. Penal Code, §§ 187, 190), with a use of a firearm enhancement (Cal. Penal Code, § 12022.5). The trial court sentenced Price to an indeterminate term of 15 years to life, to be served consecutive to a determinate two-year term for the firearm enhancement. Price does not challenge his conviction or sentence in this proceeding.
In December 1999 the Board of Prison Terms ("Board") declined to find Price suitable for parole. Price, appearing pro se, timely filed a petition for habeas corpus relief in the Los Angeles County Superior Court, which was summarily denied.*fn3 Price, proceeding pro se, then filed a petition for habeas corpus relief in the California Court of Appeal, Second Appellate District, which was denied for failure to establish a prima facie case, citing Terhune v. Superior Court (2000) 80 Cal. App. 4th 409, 423;*fn4 In re Stanworth (1982) 33 Cal. 3d 176, 183-185 [654 P.2d 1311, 1315-17]; In re Powell (1988) 45 Cal. 3d 894, 902-906 [755 P.3d 881, 885-88].*fn5
Price then filed a pro se petition for habeas relief in the California Supreme Court, which was summarily denied without opinion or citation to authority on September 26, 2001.*fn6 Price, appearing pro se, timely filed his petition for relief in this Court on January 11, 2002.
On September 20, 2005, Price's Petition was dismissed without prejudice as moot. On appeal, the Court of Appeals, Ninth Circuit, reversed and remanded. Price, appearing through appointed counsel and with leave of court, filed an amended petition. In his amended petition, in addition to the 1999 Board denial, Price challenges the reversal by the Governor in 2004 of the Board's finding of suitability for parole, and the subsequent 2005 denial by the Board to find him suitable for parole. The later proceedings are summarized below. This Court then stayed further proceedings in this action pending decision by the en banc panel of the United States Court of Appeals for the Ninth Circuit in Hayward.*fn7 The Ninth Circuit has issued its en banc opinion in Hayward.*fn8 2003 Parole Proceedings: In September 2003 the Board found Price suitable for parole, but did not set a parole date. The Governor reversed the Board's suitability finding in February 2004. Price, proceeding pro se, timely filed a petition for habeas corpus relief in the Los Angeles County Superior Court, which denied his petition in an unpublished reasoned decision.*fn9 The California Court of Appeal, Second Appellate District, denied habeas relief stating: "The record contains sufficient evidence to support the Governor's decision. (In re Rosenkrantz (2002) 29 Cal. 4th 616, 659-682)."*fn10 On January 24, 2007, the California Supreme Court summarily denied Price's petition for habeas relief citing People v. Duvall (1995) 9 Cal.4th 464');">9 Cal. 4th 464, 474 [886 P.2d 1252, 1258].*fn11 2005 Parole Proceedings: In June 2005 the Board, sitting en banc, declined to find Price suitable for parole.*fn12 On January 24, 2007, the California Supreme Court summarily denied Price's petition for habeas relief citing People v. Duvall (1995) 9 Cal.4th 464');">9 Cal. 4th 464, 474 [886 P.2d 1252, 1258].*fn13
In August 2007 the Board again declined to find Price suitable for parole. In January 2009 the Board found Price suitable for parole, but the Governor again reversed.*fn14 In March 2010 Price again appeared before the Board for a parole-suitability hearing, and was once again denied parole.*fn15 The 2007, 2009, and 2010 proceedings are not presently before this Court.
II. GROUNDS RAISED/DEFENSES.
In his amended petition Price raises three grounds, with the first ground having four subgrounds: (1) a violation of due process in that (A) the Board is biased against granting parole to prisoners serving life terms, (B) the evidence does not support the Board's finding of unsuitability for parole, (C) the repeated refusals to find him suitable for parole based upon the unchanging circumstances of the commitment offense, and (D) the Governor's 2004 reversal of the Board's suitability finding breached his plea agreement; (2) denial of parole constitutes cruel and unusual punishment; and (3) the Governor's reversal violated the Ex Post Facto Clause. Respondent asserts no affirmative defenses.*fn16
In his motion to reconsider the Order holding this matter in abeyance, Price contends that the Ninth Circuit's decision holding that the subsequent actions by the Board and the Governor did not moot the case is the law of the case. This Court should, therefore, decide the three actions properly before it, the denials by the Board in1999 and 2005 and the 2004 reversal by the Governor, on the merits.
Given the recent decision by the United States Supreme Court in Cooke, discussed further below, there does not appear to be any reason to defer ruling on Price's Petition. Therefore, this Court will vacate the Order entered at Docket No. 68 and address the Petition on the merits.
Generally, when a higher court issues new controlling authority after briefing is complete, this Court requests further briefing from the parties addressing the new authority. The Supreme Court decision in this case is so clear that further briefing would appear to unduly prolong this old case without any possibility of changing the result. The Supreme Court has limited federal habeas review to the procedures followed by the Board and the governor and defined with care what it meant by the applicable procedures. No longer may this Court consider ...