Johnson v. Finn, et al.,

Filing 56

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/14/10 recommending that Petitioners 1 petition for writ of habeas corpus be granted; The Governors December 2001 decision reversing the Boards August 2001 finding that petitioner was suitable for parole be vacated; The Board implement its August 2001 decision finding petitioner suitable for parole; and within 30 days of an adopted order and judgment, respondent notify the court of petitioners parole date and, if that date has passed, whether petitioner has been released. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

(HC) Johnson v. Finn, et al.,

Doc. 56

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 These Findings and Recommendations presume that the mandate will have issued prior to the time for filing objections and reply. If the time for issuing a mandate has not passed, or other reasons exist for not going forward with a judgment at this time, the district judge's order will so reflect. 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ROBERT EVERETT JOHNSON, Petitioner, vs. CLAUDE E. FINN, et. al., Respondent. / The United States Court of Appeals for the Ninth Circuit has instructed the district court to grant petitioner's writ of habeas corpus pursuant to 28 U.S.C. § 2254, but has not described the precise way in which it should be granted. (Doc. No. 53.) Most writs of habeas corpus are granted conditionally, such that the respondent is provided an opportunity to redo the deficient proceeding in lieu of releasing the inmate from custody. Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994) ("Generally, a district court ruling in the petitioner's favor in a habeas case provides a reasonable time in order to afford the State an opportunity to re-try the defendant or otherwise correct the constitutional infirmity.") FINDINGS AND RECOMMENDATIONS1 No. CIV S-05-0385 DFL GGH P

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Here, however, it would make little sense to grant a conditional writ, as the Ninth Circuit has already determined that then-Governor Davis erroneously found "some evidence" of petitioner's future dangerousness based on the record before him. (Doc. No. 53 at 2.) There would be no point in sending petitioner's record to the current Governor for re-evaluation of a question already decided by the circuit court. Accordingly, the undersigned recommends that the writ be unconditionally granted. See Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005) ("Federal courts have a fair amount of flexibility in fashioning specific habeas relief. . . . The court is free to fashion the remedy as law and justice require[.]"), citing Sanders, supra, 21 F.3d at 1461 (internal quotation marks and citations omitted). In so doing, the undersigned recognizes that California statutes provide a matrix system, codified at Cal. Code Regs., tit. 15, § 2282, to assist the Board of Parole Hearings ("Board") in arriving at a base term for life prisoners after a prisoner is found suitable for parole. See id., § 2280 ("A parole date shall be set if the prisoner is found to be suitable for parole . . . in a manner that provides uniform terms for offenses of similar gravity and magnitude in respect to the threat to the public.) Upon issuance of the writ, the Board should apply this matrix as if thenGovernor Davis had affirmed its 2001 decision to grant parole to petitioner. If application of the matrix shows that petitioner should have been released by this time, he should be released immediately. Alternatively, if application of the matrix indicates that petitioner should be released at some future date, he should remain in custody until that time. Accordingly, IT IS HEREBY RECOMMENDED that a judgment be entered with the following: 1. Petitioner's petition for writ of habeas corpus (Doc. No. 1, Attachment 1) be granted; 2. The Governor's December 2001 decision reversing the Board's August 2001 finding that petitioner was suitable for parole be vacated; 3. The Board implement its August 2001 decision finding petitioner suitable for 2

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parole; and 4. Within thirty days of an adopted order and judgment, respondent notify the court of petitioner's parole date and, if that date has passed, whether petitioner has been released. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: September 14, 2010 /s/ Gregory G. Hollows GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE

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