UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
November 8, 2011
JEROME O. DIXON
JOHN MARSHALL, WARDEN
The opinion of the court was delivered by: Hon. Margaret A. Nagle , United States Magistrate Judge
CIVIL MINUTES - GENERAL
ENTRY: ORDER TO SHOW CAUSE RE: DISMISSAL FOR MOOTNESS
Earlene Carson N/A
Deputy Clerk Court Reporter/Tape No.
ATTORNEYS PRESENT FOR PETITIONER: ATTORNEYS PRESENT FOR RESPONDENTS:
PROCEEDINGS (In Chambers):
26, 2010, Petitioner filed a 28 U.S.C. § 2254 habeas petition in the United States District Court for the District of California, which alleges a single claim ("Petition"). In brief, Petitioner asserts that the Board of Parole Hearings erred in finding Petitioner to be unsuitable for parole on June 3, 2008. contends that, because he allegedly is innocent of the crime of which he was convicted and his confession illegally coerced, the California Board of Parole Hearings should not have found that he poses an unreasonable risk of danger to public safety.
26, 2010, the Petition was ordered transferred to this district. The parties thereafter filed their briefs, and the case is under submission to the Court.
21, 2011, Petitioner filed a notice of change of address, which indicated that he "currently reside[s] in Angeles" and is utilizing a Los Angeles post office box for his address of record. On October 28, 2011, filed various notices and lodged documents. An Offender Based Information System printout generated 26, 2011 (see Docket Entry 16 and related lodged document) establishes that, on October 17, 2011, Petitioner was paroled.
becomes moot when it no longer satisfies the case or controversy requirement of Article III, Section 2 of the Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983 (1998). The case or controversy requirement that the parties continue to have a personal stake in the outcome of a federal lawsuit through all stages of the judicial proceedings. Id. "This means that, throughout the litigation, the plaintiff 'must have suffered, or be with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial Id. (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253 (1990)).
petition is moot when petitioner's claim for relief cannot be redressed by a favorable decision of the court issuing a writ of habeas corpus. See Spencer, 523 U.S. at 7, 118 S. Ct. at 983; Burnett v. Lampert, 432 1000-01 (9th Cir. 2005). "The question is whether there can be any effective relief." Cantrell v. City of Beach, 241 F.3d 674, 678 (9th Cir. 2001); see also NASD Dispute Resolution, Inc. v. Judicial Council of State 488 F.3d 1065. 1067 (9th Cir. 2007) (whether a case or controversy remains depends on whether the court the litigant "'any effective relief in the event that it decides the matter on its merits in his favor'")(citation
arguendo, Petitioner could prevail on the habeas claim alleged in the Petition, the only relief he could *fn1 is "a redetermination by the Board consistent with the state's 'some evidence' requirement, not the right to on parole." Haggard v. Curry, 631 F.3d 931, 937 (9th Cir. 2010). As Petitioner has been released on parole, no such redetermination by the Board of Parole Hearings is needed or even feasible.
Petitioner is subject to the lifetime parole supervision requirements of California Penal Code § 3000.1, the second degree murder of which he was convicted was committed after January 1, 1983. See In re 172 Cal. App. 4th 32, 34, 90 Cal. Rptr. 3d 678, 679 (2009). Under California law, the time Petitioner imprisoned after the allegedly wrongful denial of parole in 2008 cannot be credited toward the five-year provision of California Penal Code § 3000.1. Chaudhary, 172 Cal. App. 4th at 37, 90 Cal. Rptr. 3d at 681-
In re Gomez, 190 Cal. App. 4th 1291, 1310, 118 Cal. Rptr. 3d 900, 914 (2010) (same). This Court, cannot order a reduction in Petitioner's parole term through a grant of habeas relief. See, e.g., Masoner 2011 WL 863289, at *4 (C.D. Cal. Feb. 17, 2011) (collecting cases and finding that a habeas petition -by a prisoner convicted of second degree murder in 1987, and who had been released on parole -- was moot, the Court could not credit any extra time served in prison against the petitioner's parole term), adopted by WL 863013 (C.D. Cal. March 10, 2011); Jandu v. Salazar, 2010 WL 5625070, at *1-*2 (C.D. Cal. Dec. 2, (also finding that a petitioner subject to a lifetime parole term could not receive habeas relief reducing his term based on allegedly excess time served in prison), adopted by 2011 WL 202195 (C.D. Cal. Jan. 19,
to Petitioner's release on parole, there is no relief this Court can grant him. As a result, he no longer has any cognizable interest in the resolution of the Petition, and the Petition is moot. See Thelander v. Kane, 2011
In fact, if the Court were to resolve the Petition on its merits, it would recommend that federal habeas 108341, at *1 (9th Cir. Jan. 11, 2011) (because the Board of Parole Hearings found the petitioner eligible for parole, he had received the only relief to which he was entitled and his claim was moot).
Petitioner is ORDERED TO SHOW CAUSE why this action should not be dismissed, without on the ground of mootness. By no later than November 22, 2011, Petitioner shall file and serve a to this Order in which he states whether or not he concedes that this case is moot and should be dismissed on that ground. If Petitioner disputes that this case is moot, he must explain, in detail, why his case is not moot. If Petitioner concedes that the case is moot and may be dismissed, he simply may file and serve a Fed. R. Civ. P.
Notice of Dismissal form. The Clerk is directed to send to Petitioner, with this Order, a copy of Form CV- of Dismissal), should Petitioner wish to dismiss this action.
is cautioned that a failure to timely respond to this Order will be deemed to constitute a concession that the Petition is moot and should be dismissed.
IT IS SO ORDERED.