Guardado v. Perez et al

Filing 119

ORDER DENYING PETITIONERS MOTION TO RECONSIDER AND 44 VACATING JUDGMENT. Signed by Judge Claudia Wilken on 10/12/2011. (ndr, COURT STAFF) (Filed on 10/12/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PAUL ALBERT GUARDADO,

No. 05-00194 CW

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Petitioner,

ORDER DENYING
PETITIONER’S
MOTION TO
RECONSIDER AND
VACATING JUDGMENT

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v.
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MARGARITA PEREZ, et al.,
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United States District Court
For the Northern District of California

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Respondents.
_____________________________________

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PAUL ALBERT GUARDADO,

No. 08-003268 CW

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Petitioner,

ORDER VACATING
STAY AND DENYING
PETITION

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v.
J. DAVIS, Chairman, California Board
of Parole Hearings, et al.,

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Respondents.
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In case number C 05-0194 CW, Petitioner Paul Albert Guardado,

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a state prisoner, files an emergency motion for reconsideration,

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challenging the Governor’s July 23, 2009 decision reversing the

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June 23, 2009 decision of the Board of Parole Hearings (BPH)

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granting him a parole date.

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Petitioner has filed a reply.

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Respondents file a motion to dismiss the petition.

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filed a letter requesting the Court to stay ruling on Respondents’

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motion to dismiss until it has considered his motion for

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reconsideration in case C 05-0194 CW.

The matters were taken under

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submission and decided on the papers.

Having considered all the

Respondents oppose the motion and
In case number C 08-3268 CW,
Petitioner has

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papers filed by the parties, the Court denies Petitioner’s motion

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for reconsideration in case number C 05-0194 CW and grants

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Respondent’s motion to dismiss the petition in case number C 08-

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3268 CW.

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cases.

The Court denies certificates of appealability in both

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BACKGROUND
I. Case Number C 05-0194 CW
Petitioner filed several petitions for habeas corpus relief
challenging BPH’s decisions finding him unsuitable for parole.

United States District Court
For the Northern District of California

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These petitions were consolidated in the instant action.

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9, 2008, the Court issued an Order Granting Petition for Writ of

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Habeas Corpus, invalidating BPH’s 2006 decision denying parole.

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The order was based on BPH’s failure to cite some evidence that

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Petitioner would be a danger to the public if released.

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was entered in favor of Petitioner on the same day.

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Petitioner filed several motions to enforce the judgment, which the

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Court granted.

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hearing and set a release date for Petitioner.

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the Governor reversed BPH’s June 23, 2009 decision on the ground

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that Petitioner’s release would pose an unreasonable risk to public

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safety.

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April 9, 2008 order granting habeas relief, citing Swarthout v.

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Cooke, 131 S. Ct. 859, 863 (2011), in which the United States

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Supreme Court “held that reviewing California’s ‘some evidence’

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standard ‘is no part of the Ninth Circuit’s business’” and that the

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Constitution “affords parole applicants only ‘minimal’ due process:

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an opportunity to be heard and a statement of reasons why parole

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On April

Judgment

During 2009,

On June 23, 2009, BPH conducted a date calculation
On July 23, 2009,

On April 25, 2011, the Ninth Circuit reversed this Court’s

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was denied.”

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2011).

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II. Case Number C 08-3268 CW

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Guardado v. Perez, No. 09-17832 (9th Cir. April 25,

On May 17, 2011, the Ninth Circuit issued its mandate.

In this case, Petitioner filed a petition for writ of habeas

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corpus challenging BPH’s September 25, 2007 decision that he was

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unsuitable for parole.

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petition because Respondents’ appeal of the Court’s order granting

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habeas relief in case number C 05-0194 CW was pending before the

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Ninth Circuit and, if the Ninth Circuit affirmed that order, the

United States District Court
For the Northern District of California

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2008 petition would become moot.

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On January 20, 2010, the Court stayed this

DISCUSSION
I. Motion for Reconsideration in C 05-0194 CW
Petitioner argues that Cooke’s holding, that federal courts

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cannot review whether some evidence supported the state’s decision

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that the prisoner would be a danger to the public if released, does

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not foreclose his procedural argument that the Governor was without

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authority to reverse BPH’s June 23, 2009 decision setting a release

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date for him.

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Court’s ruling in Cooke are not persuasive.

Petitioner’s efforts to circumvent the Supreme

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In light of Cooke, the Court’s April 9, 2008 Order and

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judgment were erroneous and were correctly reversed by the Ninth

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Circuit.

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orders enforcing the judgment were in error, and BPH’s June 23,

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2009 decision setting a release date pursuant to those orders was

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erroneous.

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to reverse BPH’s June 23, 2009 decision is moot, given that BPH

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would not have ordered Petitioner’s release but for this Court’s

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Likewise, in light of Cooke, the Court’s subsequent

Therefore, whether the Governor acted without authority

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orders.
Therefore, the Court denies Petitioner’s motion for

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reconsideration.

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amended judgment denying the petition will be entered separately.

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II. Motion to Dismiss in C 08-3268 CW

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The April 9, 2008 judgment is vacated.

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The Court stayed the petition in case C 08-3268 CW prior to

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the Supreme Court’s decision in Cooke, which foreclosed federal

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review of whether the state’s parole denial was based on some

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evidence of the prisoner’s dangerousness.

Petitioner’s petition

United States District Court
For the Northern District of California

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raises the same claim, that BPH found him unsuitable for parole

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without some evidence that he would be a danger to the public if

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released.

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the stay of the petition is vacated and the petition is denied.

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Judgment shall be entered separately.

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III. Certificates of Appealability

Because the Court cannot grant relief on such a claim,

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The Court must rule on a certificate of appealability.

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Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll.

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§ 2254 (requiring district court to rule on certificate of

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appealability in same order that denies petition).

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of appealability should be granted "only if the applicant has made

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a substantial showing of the denial of a constitutional right."

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U.S.C. § 2253(c)(2).

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Petitioner has not made a sufficient showing of the denial of a

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constitutional right to justify a certificate of appealability.

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See

A certificate

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The Court finds that, in each case,

CONCLUSION
For the foregoing reasons, Petitioner’s motion for

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reconsideration in case number C 05-0194 CW is denied and the April

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9, 2008 judgment is vacated.

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petition will be issued separately.

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3268 CW is vacated and the petition is denied.

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issued separately.

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both cases.

An amended judgment denying the
The stay in case number C 08A judgment shall be

Certificates of appealability are denied in

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IT IS SO ORDERED.

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Dated: 10/12/2011
CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

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