The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner represented by counsel, has filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges the Governor's 2006 decision reversing the 2005 decision by the California Board of Parole Hearings ("Board") finding him suitable for parole. (Dkt. No. 18 ("Ptn.").) Petitioner claims the Governor's decision (1) violated his federal due process rights because there was insufficient evidence to find him unsuitable for parole; and (2) violated the ex post facto clause of the Constitution, because the state constitutional provision allowing the Governor to review and reverse a Board parole determination was passed after petitioner's 1981 offense and applied retroactively to increase the length of his sentence. At issue is respondent's April 14, 2011 motion to dismiss arguing that, because petitioner was released on parole in August 2010, he has received the relief he requested and the petition is moot. Alternatively, respondent argues that the due process and ex post facto claims should be dismissed because petitioner has not stated a cognizable federal claim pursuant to section 2254. (Dkt. No. 47 ("Mot.").) Respondent's motion to dismiss came on regularly for hearing on October 5, 2011. Ann McClintock appeared on behalf of petitioner, who did not attend in person. Krista Pollard appeared on behalf of respondent.
Upon review of the documents in support of and in opposition to the motion, upon hearing the arguments of the parties, and good cause appearing therefor, the court concludes that the motion to dismiss should be granted.
In 1981, petitioner was involved in a business with a family friend, Larry Lowery, that dealt in stolen computer parts. In September 1981, Lowery had been criminally charged and faced trial in connection with some $3 million worth of stolen computer parts. David Roberts was to be a witness in the case against Lowery. Lowery and others hatched a scheme to murder Roberts before he could testify, and Roberts was bludgeoned and stabbed to death. Petitioner did not witness the murder but was involved in this scheme and in the concealment of Roberts' body. Afterward, petitioner went back to work for Lowery. He was not arrested for the murder until July 1984. (Ptn. at 2-4; see Dkt. 18-7 at 2-3.) In 1987, he pled no contest to first degree murder in the San Mateo County Superior Court and was sentenced to an indeterminate term of 25 years to life. (Id. at 1-2; Dkt. No. 20-1 at 2 (abstract of judgment).)
In December 2005, the Board issued a decision granting parole to petitioner, pending gubernatorial review. (Dkt. No. 18-5 at 57-66.) In support of its decision, the Board noted that petitioner has no juvenile record, assault of others while in prison. He has enhanced his ability to function within the law. He's participated in education program . . . self-help, therapy, . . . vocational programs.
He lacks any criminal history of violent crime. . . . He has realistic parole plans and has job offers and family support. He has maintained family ties while in prison. . . . He has maintained positive institutional behavior, which indicates . . . self control. (Id. at 58-59.) One Board member described him as "very bright . . . exceptional." (Id. at 64-65.)
In May 2006, the Governor invoked his authority pursuant to California Penal Code section 3041.2 to reverse the Board's grant of parole. (Dkt. No 18-6 at 2-4.) His cited reasons included that petitioner "was an active, willing participant in the planning and carrying out of a murder intended to prevent testimony in a criminal trial" and that the murder was "carried out in a brutal fashion." (Id. at 4.) The Governor noted that petitioner "[a]t age 45 now, . . . has matured and made creditable gains in prison." However, the Governor concluded that the "gravity of [the offense] outweighs the positive factors supporting [petitioner's] parole suitability" such that "his release from prison would pose an unreasonable risk of danger to society." (Id. at 4.)
On July 3, 2006, petitioner filed a petition for writ of habeas corpus in the San Mateo County Superior Court challenging the Governor's reversal. (Dkt. No. 20-1 at 9-23.) The superior court denied the petition on August 22, 2006 in a reasoned decision. (Dkt. No. 20-3 at 3-10.) Petitioner next filed a petition for writ of habeas corpus in the California Court of Appeal, First Appellate District, which issued a summary denial on November 22, 2006. (Dkt. No. 20-6 at
1.) Petitioner then filed the petition in the California Supreme Court, which issued a summary denial on February 14, 2007. (Dkt. No. 20-6 at 36.)
On March 12, 2007, petitioner originated this action by filing a petition for federal writ of habeas corpus. On August 27, 2007, he filed the operative amended petition. Respondent filed an answer on October 25, 2007, and petitioner filed a traverse on January 23, 2008.
On May 20, 2008, the magistrate judge previously assigned to this case granted petitioner's motion to conduct discovery into the Governor's record of reviewing, affirming, and reversing Board grants of parole to inmates with indeterminate sentences. (Dkt. No. 34.) The court explained that, "without foreclosing a more fully briefed challenge, this court finds there is sufficient merit to petitioner's claims to allow him to proceed with discovery" pursuant to Garner v. Jones, 529 U.S. 244 (2000), which allowed for as-applied ex post facto challenges in some circumstances. (Id. at 3-5.) On November 20, 2009, the previously assigned magistrate judge granted petitioner's motion for additional discovery into the Governor's parole review process.*fn1
On August 18, 2010, the Office of the Governor informed petitioner that it declined to review the Board's most recent grant of parole. (Mot., Ex. A (Dkt. 47-1).) Accordingly, petitioner was released on parole on August 19, 2010. (Dkt. No. 48 ("Opp.') at 4.)
On September 22, 2010, respondent filed a motion to dismiss the petition, arguing that it was mooted by petitioner's release. (Dkt. No. 40.) Petitioner did not file an opposition. The previously assigned magistrate judge issued findings and recommendations granting the motion, but later vacated this decision because it appeared that respondent failed to properly notice the motion for hearing. (Dkt. No. 42, 46.) On March 8, 2011, the previously assigned magistrate judge denied respondent's first motion to dismiss without prejudice. (Dkt. No. 46.)
Respondent filed the instant motion to dismiss on April 14, 2011. Petitioner filed an opposition, and respondent filed a reply. As noted above, a hearing on the motion was held on October 5, 2011.
The first question before the court is whether petitioner's August 2010 release on parole renders the petition moot.
Respondent argues that a claim for wrongful denial of parole is mooted by the grant of parole. In support, respondent cites Brady v. U.S. Parole Comm'n, 600 F.2d 234, 236 (9th Cir. 1979) (holding that prisoner's appeal from the dismissal of his habeas petition attacking the Parole Commission's parole denial was moot because the prisoner had been released on parole); and Fendler v. U.S. Bureau of Prisons, 846 F.2d 550, 555 (9th Cir. 1988) (holding that, where petitioner challenged parole denial and sought only the remedy of immediate release, his subsequent release on parole mooted his claim). Respondent also argues that the petition is moot because petitioner "has received all the relief he requested, release on parole." (Mot. at 3.)
Petitioner counters that his release on parole does not render the petition moot because the court can still fashion a meaningful remedy "by ordering, in essence, Petitioner's discharge from parole." (Opp. at 4.) He asserts that his parole term cannot exceed five years; thus,"had the Governor not denied [Biggs] parole in May 2006, Biggs would have begun serving this five year parole no later than December 2008, and . . . be discharged from parole in December 2013. Instead, Biggs remained unlawfully in prison until August 19, 2010 and is not expected to be discharged from parole until August 2015." (Id.) He requests an order "directing CDCR to credit [time] Biggs served in prison in violation ...