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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. BRODHEIM,

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CIV. S-06-2326 LKK/GGH P

Petitioner,

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No.

v.

ORDER

KATHLEEN DICKINSON, et al.,

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Respondents.

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Petitioner is a state prisoner proceeding through counsel

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with a petition for writ of habeas corpus pursuant to 28 U.S.C. §

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2254.

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claims that his constitutional rights were violated in 2004 when

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the California Governor failed to reverse a 2003 decision of the

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California Board of Parole Hearings (BPH) to deny petitioner a

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parole date.

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systemic bias against granting parole to life prisoners.

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December 20, 2013, respondents filed a request for

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reconsideration of this court’s December 4, 2013 denying

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respondent’s’ motion to dismiss these claims.

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the request.

The sole claims remaining in this action are petitioner’s

Petitioner claims this failure was tainted by

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On

Petitioner opposes

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Although motions to reconsider are directed to the sound

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discretion of the court, see Smith v. Pacific Properties and

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Development Corp., 358 F.3d 1097, 1100 (9th Cir. 2004),

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considerations of judicial economy weigh heavily in the process.

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Thus Local Rule 230(j) requires that a party seeking

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reconsideration of a district court’s order must brief “what new

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or different facts or circumstances are claimed to exist which

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did not exist or were not shown upon such prior motion, or what

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other grounds exist for the motion.”

L.R. 230(j).

The rule

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derives from the “law of the case” doctrine which provides that

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the decisions on legal issues made in a case “should be followed

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unless there is substantially different evidence . . . new

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controlling authority, or the prior decision was clearly

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erroneous and would result in injustice.”

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v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also

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Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985).

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Handi Investment Co.

Respondents raise several arguments in support of their

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motion for reconsideration.

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evidence of a 2004 gubernatorial review of the 2003 denial of

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parole, in any event, that petitioner has no federally protected

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liberty interest in gubernatorial review of any denial of parole.

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Second, respondents contend that the court erred in its holding

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that habeas corpus jurisdiction lies for petitioner’s remaining

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claims.

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the current California Governor, who has reviewed and reversed

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two BPH grants of parole to petitioner, “has no record of bias.”

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Defs. Req. for Recon., filed December 20, 2013 (ECF No. 130) at

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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
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because petitioner “is and has been pursuing his claims in a

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related § 1983 action.”

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Id.

Respondents’ first argument misses the mark.

California law

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creates a federally protected liberty interest in parole.

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Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011).

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includes a guarantee that decisionmakers will be unbiased.

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O’Bremski v. Maass, 915 F.2d 418, 422 (1990).

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Governor conducted any review at all, and whether such review, if

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conducted, was tainted by bias, are factual questions not

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That right
See

Whether or not the

properly before the court at this time.
The court has already considered and rejected respondents’

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contention that there is no habeas jurisdiction over petitioner’s

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remaining claims.

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controlling authority renders that decision erroneous.

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respondents’ contentions concerning Governor Brown’s record with

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respect to parole consideration for life prisoners and whether

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that asserted record moots this action raise questions of law and

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fact which should be tendered, if at all, to the magistrate judge

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in the first instance.

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this motion for reconsideration.

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Respondents have not shown that new
Moreover,

They are not properly before the court on

Finally, with regard to respondents’ suggestion that

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petitioner should be required to pursue his claims in his related

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§ 1983 action, the court observes that respondents did not object

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to the magistrate judge’s finding that “[t]he civil rights action

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does not affect the court’s determination of the motion to

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dismiss in this habeas action, and further discussion of the

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pending civil rights action is omitted.”

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Recommendations filed August 27, 2013 (ECF No. 118) at 2; see
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Findings and

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Objections filed September 11, 2013 (ECF No. 120), passim.

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Respondents’ contention is an untimely objection to that finding

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and will not be considered.

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See L.R. 304.

For all of the foregoing reasons, IT IS HEREBY ORDERED that

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respondents’ December 20, 2013 request for reconsideration (ECF

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No. 130) is denied.

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DATED:

March 5, 2014.

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