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Steven Anthony Prellwitz v. D. K. Sisto

September 22, 2011

STEVEN ANTHONY PRELLWITZ,
PETITIONER-APPELLEE,
v.
D. K. SISTO, WARDEN, RESPONDENT-APPELLANT.



Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding D.C. No. 2:07-cv-00046-

The opinion of the court was delivered by: Graber, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

August 8, 2011-San Francisco, California

Before: Diarmuid F. O'Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Graber;

Concurrence by Judge O'Scannlain 18029

OPINION

Petitioner Steven Prellwitz filed a petition for habeas corpus, challenging the California Board of Parole Hearings' ("Board") denial of his parole. Defendant, Warden D. K. Sisto, appeals the district court's order instructing the Board to conduct a new parole hearing. Because the district court's order was not a final decision, we dismiss the appeal for lack of appellate jurisdiction.

A. Factual and Procedural Background

In 1985, Petitioner was convicted in California state court on two counts of murder and one count of assault with a deadly weapon. He was sentenced to a term of imprisonment of 18 years to life. In December 2005, the Board denied him parole. Petitioner unsuccessfully pursued habeas relief through the state courts.

On November 29, 2006, Petitioner filed in federal district court a pro se petition for a writ of habeas corpus in which he asserted seven grounds for relief.*fn1 In his prayer for relief, Petitioner asked that the court order his release on parole.

The district court referred the case to a magistrate judge. Applying then-current law, see Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007), the magistrate judge concluded that the Board had violated Petitioner's due process rights by denying him parole in the absence of "some evidence" of current dangerousness. In reaching that decision, she reasoned that the Board impermissibly relied on the commitment offense without explaining "how the ...


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