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John H. Pirtle v. California Board of Prison Terms

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 19, 2012

JOHN H. PIRTLE, PETITIONER,
v.
CALIFORNIA BOARD OF PRISON TERMS, RESPONDENT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Petitioner is a former state prisoner proceeding through counsel with an application for writ of habeas corpus under 28 U.S.C. § 2254. His petition challenges the Board of Prison Terms' (hereinafter, "the Board") decision to deny him parole in 2002. The court granted his petition on May 29, 2007, finding that the denial did not meet California's "some evidence" standard and thus violated petitioner's right to due process. See Docket No. 25. The Board appealed the court's ruling, and the court stayed its order for petitioner's release pending the resolution of the appeal. See Docket No. 35. On August 11, 2010, while that appeal was still pending, the Board granted petitioner his latest application for parole. Taking notice of that decision, the court ordered the petitioner's immediate release, on August 27, 2010. See Docket No. 57. The Board filed a notice of petitioner's release on September 14, 2010. See Docket No. 58.

On September 21, 2011, the Ninth Circuit rendered its decision on the Board's appeal of this court's grant of the instant petition. The Ninth Circuit reversed that decision in light of Swarthout v. Cooke, 562 U.S. ___, 131 S.Ct. 859 (2011). The Ninth Circuit remanded the case without instructions. See Docket No. 60.

Given that petitioner has been released on his successful 2010 application for parole, the court will require respondent to show cause why this case, which challenges the Board's 2002 denial of parole, is not now moot.

Accordingly, IT IS HEREBY ORDERED that respondents have fourteen days from the entry of this order in which to show cause why this case should not be closed as moot. Petitioner may respond, if his counsel deems it necessary, within seven days of respondent's compliance with this order.

20120319

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