Brodheim v. Dickinson, et. al.

Filing 140

ORDER signed by Judge Lawrence K. Karlton on 3/5/2014 DENYING respondents' 12/20/2013 130 Motion for Reconsideration. (Marciel, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL J. BRODHEIM, 12 CIV. S-06-2326 LKK/GGH P Petitioner, 13 14 No. v. ORDER KATHLEEN DICKINSON, et al., 15 Respondents. 16 Petitioner is a state prisoner proceeding through counsel 17 18 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 19 2254. 20 claims that his constitutional rights were violated in 2004 when 21 the California Governor failed to reverse a 2003 decision of the 22 California Board of Parole Hearings (BPH) to deny petitioner a 23 parole date. 24 systemic bias against granting parole to life prisoners. 25 December 20, 2013, respondents filed a request for 26 reconsideration of this court’s December 4, 2013 denying 27 respondent’s’ motion to dismiss these claims. 28 the request. The sole claims remaining in this action are petitioner’s Petitioner claims this failure was tainted by 1 On Petitioner opposes 1 Although motions to reconsider are directed to the sound 2 discretion of the court, see Smith v. Pacific Properties and 3 Development Corp., 358 F.3d 1097, 1100 (9th Cir. 2004), 4 considerations of judicial economy weigh heavily in the process. 5 Thus Local Rule 230(j) requires that a party seeking 6 reconsideration of a district court’s order must brief “what new 7 or different facts or circumstances are claimed to exist which 8 did not exist or were not shown upon such prior motion, or what 9 other grounds exist for the motion.” L.R. 230(j). The rule 10 derives from the “law of the case” doctrine which provides that 11 the decisions on legal issues made in a case “should be followed 12 unless there is substantially different evidence . . . new 13 controlling authority, or the prior decision was clearly 14 erroneous and would result in injustice.” 15 v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also 16 Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985). 17 Handi Investment Co. Respondents raise several arguments in support of their 18 motion for reconsideration. 19 evidence of a 2004 gubernatorial review of the 2003 denial of 20 parole, in any event, that petitioner has no federally protected 21 liberty interest in gubernatorial review of any denial of parole. 22 Second, respondents contend that the court erred in its holding 23 that habeas corpus jurisdiction lies for petitioner’s remaining 24 claims. 25 the current California Governor, who has reviewed and reversed 26 two BPH grants of parole to petitioner, “has no record of bias.” 27 Defs. Req. for Recon., filed December 20, 2013 (ECF No. 130) at 28 5. First, they contend that there is no Third, they contend petitioner’s claims are moot because Finally, respondents suggest this action should be dismissed 2 1 because petitioner “is and has been pursuing his claims in a 2 related § 1983 action.” 3 Id. Respondents’ first argument misses the mark. California law 4 creates a federally protected liberty interest in parole. 5 Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011). 6 includes a guarantee that decisionmakers will be unbiased. 7 O’Bremski v. Maass, 915 F.2d 418, 422 (1990). 8 Governor conducted any review at all, and whether such review, if 9 conducted, was tainted by bias, are factual questions not 10 11 That right See Whether or not the properly before the court at this time. The court has already considered and rejected respondents’ 12 contention that there is no habeas jurisdiction over petitioner’s 13 remaining claims. 14 controlling authority renders that decision erroneous. 15 respondents’ contentions concerning Governor Brown’s record with 16 respect to parole consideration for life prisoners and whether 17 that asserted record moots this action raise questions of law and 18 fact which should be tendered, if at all, to the magistrate judge 19 in the first instance. 20 this motion for reconsideration. 21 Respondents have not shown that new Moreover, They are not properly before the court on Finally, with regard to respondents’ suggestion that 22 petitioner should be required to pursue his claims in his related 23 § 1983 action, the court observes that respondents did not object 24 to the magistrate judge’s finding that “[t]he civil rights action 25 does not affect the court’s determination of the motion to 26 dismiss in this habeas action, and further discussion of the 27 pending civil rights action is omitted.” 28 Recommendations filed August 27, 2013 (ECF No. 118) at 2; see 3 Findings and 1 Objections filed September 11, 2013 (ECF No. 120), passim. 2 Respondents’ contention is an untimely objection to that finding 3 and will not be considered. 4 See L.R. 304. For all of the foregoing reasons, IT IS HEREBY ORDERED that 5 respondents’ December 20, 2013 request for reconsideration (ECF 6 No. 130) is denied. 7 DATED: March 5, 2014. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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