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Scott Lane Nelson v. D.K. Sisto


June 9, 2011


The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge


Nelson filed a petition for habeas corpus in December 2006. Nelson argues that he was deprived of his right to due process when Governor Schwarzenegger reversed a favorable parole suitability decision, which had been issued previously by the California Board of Prison Terms (Board). According to Nelson, the Governor's reversal should be overtured because it is not supported by "some evidence" of current dangerousness.

Relying on precedent at the time, I initially granted the writ in a November 2010 order. See Nelson v. Sisto, No. 06-CV-2809, 2010 WL 4530356 (Nov. 2, 2010). Before the judgment became final, however, the Court of Appeals for the Ninth Circuit issued its decision in Haggard v. Curry, 623 F.3d 1035, amended by 631 F.3d 931 (9th Cir. 2010) (refining the liberty interest created by California's some evidence standard for parole determinations). Based on Haggard, I vacated my previous judgment, reopened this matter, and directed the parties to provide supplemental briefs. See No. 06-CV-2809, Doc. 17.

In their supplemental briefs, the Respondents acknowledged the potential applicability of Haggard, but they argued that this intervening authority did not matter because Nelson had already been released. In light of Nelson's release, of which I had not previously been apprised, I ordered both sides to show cause why this case should not be dismissed as moot.

In the time since I issued the order to show cause, and notwithstanding the potential for mootness, additional intervening authority has made it abundantly clear that Nelson's habeas claims are without merit. In a recent decision, the Supreme Court held that "the responsibility for assuring that the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts," not the federal judiciary. See Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011). The Court of Appeals's well-reasoned decision in Roberts v. Hartley, further clarifies that it makes "no difference" for purposes of the Due Process Clause that an inmate "may have been subjected to a misapplication of California's 'some evidence' standard." - F.3d -, 2011 WL 1365811, at *3 (9th Cir. Apr. 12, 2011). Instead, the due process inquiry turns on whether the person seeking parole was given "an opportunity to be heard and . . . a statement of the reasons why parole was denied." See id., quoting Cooke, 131 S. Ct. at 862. Because it is undisputed that Nelson received these procedural protections, his habeas claims necessarily fail. See id..

It is of no consequence that "the Governor, rather than the Board, denied [Nelson's] request for parole." See Styre v. Adams, - F.3d -, 2011 WL 2176465, at *1 (9th Cir. June 6, 2011). In Styre, the Court of Appeals definitively resolved that "the Due Process Clause does not require that the Governor hold a second suitability hearing before reversing a parole decision." Id. Styre was given an opportunity to be heard before the Board and received an explanation of reasons underlying the State's decision. This is all that is required. Id.

It ORDERED that Nelson's petition for a writ of habeas corpus is denied. The clerk of the court is directed to enter judgment in Respondents' favor and to TERMINATE this action WITH PREJUDICE.

J. Clifford Wallace


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