The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
On May 27, 2011, this court ordered petitioner and respondent to file a joint status report detailing the remaining claims to be decided following the Ninth Circuit remand,*fn1 and what process is necessary to decide them. In that order, the undersigned stated that if the parties could not agree, the respective disagreements were to be set forth separately in the joint statement; moreover, if a party, or the parties, believed that the case could proceed on the same issues presented in the Gilman class action referenced in the undersigned's findings and recommendations, the belief that this habeas case can proceed with the same issues being adjudicated in the Gilman case shall be supported by legal authority.
Petitioner, within the joint statement, sets forth the unresolved claims, as follows:
(1) [claim 2] violation of due process by parole authority's decade-long policy of rejecting the parole application of every male prisoner serving a sentence of 25 years to life for first degree murder; (2) [claim 3]violation of due process by parole authority's policy of systematically characterizing every first-degree murder as sufficiently exceptional to warrant denial of parole; (3) [claim 6] violation of due process because parole authority was not sufficiently neutral and detached, but rather systematically biased in its decision-making; and (4) [claim 7] violation of Mr. Brodheim's federal equal protection rights.
Joint Statement (JS), p. 3.
The court's own review essentially confirms this summary.*fn2
Findings and Recommendations (docket # 51), pp. 4-5, citing
Amended Petition (AP), pp. 12, 36.*fn3 Petitioner
believes that the remaining claims cannot be resolved on the existing
state record and seeks to have thirty days following the date of this
order to file a motion for an evidentiary hearing. JS, p.
3. Petitioner contends that he may pursue the same claims in this action as are being litigated in the class action, Gilman v. Schwarzenegger,*fn4 No. Civ. S 05-0830 LKK GGH. Id.
Respondent contends there is no necessity for an evidentiary hearing, maintaining as to claim (2), the claim of a due process violation by the parole authority's policy of systematically characterizing every first-degree murder as sufficiently exceptional to warrant denial of parole, is foreclosed by Swarthout v. Cooke, __ U.S. ___,131 S. Ct. 859, 862-863 (2011) (per curiam). JS, p. 4. Respondent also avers that, under AEDPA,*fn5 federal habeas relief with regard to petitioner's remaining claims must be denied unless the state courts' adjudication was contrary to, or involved an unreasonable application of, clearly established Supreme Court authority, citing 28 U.S.C. § 2254(d). Id. Respondent states further:
The Supreme Court recently reiterated that this standard is "'difficult to meet,'" and "'demands that the state court decisions be given the benefit of the doubt.'" Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (quoting Harrington v. Richter, 131 S. Ct. 770, 786 (2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
Respondent further observes that in Pinholster, 131 S. Ct. at 1398, it was held "that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." JS, p. 5. Respondent moreover alleges there is no basis for an equal protection claim, citing the answer, and maintains claims of due process violations with regard to any alleged parole policy in 2003, which occurred during the Davis administration, are moot as petitioner has had a number of subsequent parole consideration hearings and the only appropriate remedy for a due process violation with respect to a parole denial is a new hearing. Id., citing Haggard v. Curry, 631 F.3d 931, 937 (9th Cir. 2010). Respondent also questions why petitioner should be permitted to proceed on three separate tracks with regard to the claims at issue in the Gilman class action.*fn6 Id., at 6.
Having summarized the positions of the parties with respect to the remaining claims, the court will now set a further schedule.
1. Respondent must file any motion to dismiss the remaining claims ...