Hardwick v. Clarke et al

Filing 29

ORDER signed by Senior Judge Lawrence K. Karlton on 8/11/2010 ORDERING that Resp's 25 Motion for a Stay is GRANTED IN PART. The Court's 23 Order is STAYED for 14 days. (Zignago, K.)

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 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. 2254. § v. KEN CLARKE, et al., Respondents. / LARRY HARDWICK, NO. CIV. S-06-672 LKK DAD P Petitioner, ORDER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

The petition challenges the Board of Parole Hearings'

decision to deny petitioner parole on the basis of petitioner's unsuitability. By order filed July 13, 2010, the court held that

petitioner had shown that the Board did not have "some evidence" to support its finding of suitability. The court ordered

respondents to "calculate a term for petitioner in accordance with the requirements of California Penal Code § 3041, with credit for time since the May 10, 2005, decision as if a parole date had been 1

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granted at that time, and any other term credit to which petitioner is entitled by law" within thirty days. Respondents move for a stay of that order pending appeal. In determining whether to grant a stay, the court must balance the equities, including respondents' likelihood of success on appeal and the likelihood of injury to respondent absent a stay. Nken v. Holder, ___ U.S. ___, ___, 129 S. Ct. 1749, 1761 (2009) In general, respondents have not shown an appreciable

likelihood of success on the merits. The exception is respondents' citation to In re Prather, ___ Cal.Rptr. 3d ___, 2010 WL 2946829 (Cal. July 29, 2010, S173260). In Prather, the California Supreme Court held that when a state court grants habeas on the basis of the lack of evidence supporting an unsuitability determination by the Board, the appropriate remedy is generally to remand to the Board for a renewed suitability determination. Prather based this determination largely on concerns of separation of powers between the state judicial and executive branches. It is unclear whether

Prather influences the remedy that is available or proper in a federal habeas petition. Terms, ___ F.3d ___, ___ See Pirtle v. California Bd. of Prison 2010 WL 2732888, *8 (9th Cir. Jul. 12,

2010) (in an analogous case decided prior to Prather, holding that "Ordering the release of a prisoner is well within the range of remedies available to federal habeas courts."). The notice of appeal in this case deprived this court of jurisdiction to determine Prather's precise effect. Nonetheless, the court concludes that, on the basis of Prather, respondents have 2

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raised some questions as to the merits of this court's order. Balancing the equities, the court does not conclude that this limited showing as to the merits warrants a stay pending resolution of the merits of the appeal. Nonetheless, the court will enter a

limited stay to allow respondent to seek a further stay from the Ninth Circuit. Accordingly, respondent's motion for a stay (Dkt. No. 25) is GRANTED IN PART. The court's order filed July 13, 2010 (Dkt. No.

23) is STAYED for fourteen (14) days from the date of this order. IT IS SO ORDERED. DATED: August 11, 2010.

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