Walker v. Swarthout

Filing 19

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/12/2013 RECOMMENDING that respondent's 11 motion to dismiss be granted; the action be dismissed as moot; and the Clerk be directed to close the case. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN ERIC WALKER,
Petitioner,

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vs.

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No. 2:11-cv-3193 GEB EFB P

G. SWARTHOUT,
Respondent.

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FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition on the grounds

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that petitioner’s claims are moot and for failure to state a cognizable claim for federal relief.

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Dckt. No. 11. For the reasons explained below, the undersigned recommends respondent’s

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motion be granted.

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I.

Background
Petitioner previously filed a habeas petition challenging the Board of Parole Hearings’

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(“Board”) 2009 decision finding him unsuitable for parole and deferring his next parole hearing

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for three years. Walker v. Swarthout, 2:10-cv-0540-MCE-DAD. That petition was denied on

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December 6, 2012. Id., Dckt. No. 21.

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The instant petition challenges the Board’s denial of petitioner’s January 2011 request for

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an earlier parole hearing. See Cal. Penal Code § 3041(b)(4). Petitioner contends that the

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Board’s decision to not advance his parole hearing violated his right to due process because 1)

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the terms “new information” and “change in circumstances” found in California Penal Code

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section 3041.5(b)(4) are unconstitutionally vague and ambiguous as applied to the facts of his

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case, and 2) section 3041.5(a) and (b) create a liberty interest requiring that petitioner be released

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from confinement. Pet., Dckt. No. 1 at 2. Petitioner also claims that the denial of his request for

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an advance hearing, which allegedly prolongs his time of confinement, violated his Eighth

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Amendment right to be free from cruel and unusual punishment. Id. at 12-14.

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II.

Discussion
Respondent argues that this action must be dismissed on the grounds that petitioner’s

claims are moot and, in the alternative, petitioner fails to state a federal claim for relief.
Article III of the U.S. Constitution limits a federal court’s jurisdiction to those cases

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which present “cases-or-controversies.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). “[F]ederal

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courts may not ‘give opinions upon moot questions of abstract propositions.’” Calderon v.

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Moore, 518 U.S. 149, 150 (1996) (per curiam) (quoting Mills v. Green, 159 U.S. 651, 653,

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(1895)). In habeas actions, the case-or-controversy requirement mandates that a petitioner must

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have suffered, or be threatened with, an actual injury traceable to the respondent and redressable

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by issuance of the writ. See Spencer, 523 U.S. at 7.

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Petitioner’s application only challenges the Board’s denial of his request for an advanced

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parole hearing. However, on June 26, 2012, petitioner had his regularly scheduled parole

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consideration hearing. Dckt. No. 11, Ex A. At the hearing, the Board found petitioner suitable

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for parole. Id. On November 5, 2012, petitioner filed with the court a notice of change of

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address indicating that he has been released from prison. Dckt. No. 18.

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In light of petitioner’s release on parole, the instant petition is moot. Even if petitioner

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were to successfully show that the Board unconstitutionally denied his request for an advanced
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parole hearing, the only relief available to petitioner would be an order from the court directing

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the Board to conduct a new parole suitability hearing. Since petitioner has already been found

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suitable for parole and released from prison, issuance of the writ will not provide any relief.

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Accordingly, the petition must be dismissed as moot.1 See Caswell v. Calderon, 363 F.3d 832,

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837 (9th Cir. 2004).

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III.

Conclusion

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Accordingly, it is hereby RECOMMENDED that:

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1. Respondent’s motion to dismiss, Dckt. No. 11, be granted;

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2. The action be dismissed as moot; and

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3. The Clerk be directed to close the case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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In his objections petitioner may address whether a certificate of appealability should issue in the

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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

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enters a final order adverse to the applicant).

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Dated: March 12, 2013.

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As the petition must be dismissed as moot, the undersigned declines to address
respondent’s additional argument.
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