Zaccardi v. Arnold

Filing 30

ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 1/25/2019 ORDERING, petitioner shall show cause, if any he has, why this action should not be dismissed as moot; respondent shall file a reply within 14 days thereafter. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALBERT ZACCARDI,

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Petitioner,

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No. 2:17-cv-1405 MCE KJN P

v.

ORDER TO SHOW CAUSE

E. ARNOLD,

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Respondent.

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Introduction

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Petitioner is a former state prisoner challenging the 2015 denial of parole. Respondent

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filed an answer; petitioner did not file a reply. However, on January 3, 2019, respondent filed a

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notice of petitioner’s release from prison on parole, and argues that because petitioner has been

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found suitable for parole and released from prison, his challenge to the Board’s 2015 denial of

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parole is moot, citing Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). As discussed

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below, petitioner must show cause why this action should not be dismissed as moot.

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Petitioner’s First Claim

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In his first claim in his amended petition, petitioner alleges that as a result of the October

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16, 2015 three-year denial of parole, petitioner’s sentence is excessive, disproportionate, and

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cruel and unusual punishment in violation of the Eighth Amendment.1 (ECF No. 15 at 4.)

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Governing Standards

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A case becomes moot when it no longer satisfies the case-or-controversy requirement of

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Article III, Section 2, of the Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998). This

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requirement demands that the parties continue to have a personal stake in the outcome of a federal

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lawsuit through all stages of the judicial proceeding. Id. “This means that, throughout the

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litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury traceable to the

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defendant and likely to be redressed by a favorable judicial decision.’” Id. (quoting Lewis, 494

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U.S. at 477). A habeas petition is moot when the petitioner’s claim for relief cannot be redressed

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by issuance of a writ of habeas corpus by the court. See id. Mootness is jurisdictional. DeFunis

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v. Odegaard, 416 U.S. 312, 316 (1974). Thus, this court has an independent duty to consider

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whether a case is moot. See, e.g., Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (“we

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have an independent duty to consider sua sponte whether a case is moot.”) When, because of

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intervening events, a court cannot give any effectual relief in favor of the petitioner, the

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proceeding should be dismissed as moot. Calderon v. Moore, 518 U.S. 149, 150 (1996).

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Discussion
Here, the “in custody” requirements of 28 U.S.C. § 2254 were met at the time petitioner

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filed the petition for writ of habeas corpus, because at that time he was incarcerated and his

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second claim challenged the legality of the underlying conviction, which always satisfies the case

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or controversy requirement. Id. This requirement is because “collateral consequences” of the

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conviction result in “a substantial stake in the judgment of conviction which survives the

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satisfaction of the sentence imposed upon him.” Carafas v. LaValle, 391 U.S. 234, 237 (1968)

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(quoting Fiswick v. United States, 329 U.S. 211, 222 (1946)). However, a petition challenging a

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parole board decision to delay release on parole may be rendered moot by the petitioner’s

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subsequent release. See Burnett v. Lampert, 432 F.3d 996, 1001 (9th Cir. 2005) (finding

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prisoner’s petition was rendered moot by his release from custody, and his reincarceration was

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Petitioner’s second claim was dismissed as barred by the statute of limitations. (ECF No. 27.)
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based on a parole violation, not the Board’s actions prior to his first release on parole).
Because petitioner’s remaining claim challenges the 2015 denial of parole, it is unclear

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what relief the court could grant petitioner on his Eighth Amendment claim. Petitioner has now

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been granted parole and released from prison, so a new parole hearing is not available relief.

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Under these circumstances, it does not appear that collateral consequences can be presumed.

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Therefore, petitioner must show cause why this action should not be dismissed because he no

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longer faces collateral consequences sufficient to meet the case-or-controversy requirement under

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Article III. In other words, to avoid having this case dismissed as moot, petitioner must

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demonstrate that collateral consequences pertinent to his parole board challenge exist, and

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identify relief that could be provided by a favorable court order. In the alternative, petitioner may

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file a notice of voluntary dismissal.

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Petitioner is cautioned that failure to timely show cause will result in a recommendation
that this action be dismissed as moot.
Accordingly, IT IS HEREBY ORDERED that within twenty-one days from the date of

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this order, petitioner shall show cause, if any he has, why this action should not be dismissed as

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moot; respondent shall file a reply within fourteen days thereafter.

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Dated: January 25, 2019

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/zacc1405.osc

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