Tash v. Kane et al

Filing 32

AMENDED JUDGMENT. Signed by Judge Claudia Wilken on 3/4/2011. (ndr, COURT STAFF) (Filed on 3/4/2011)

Tash v. Kane et al

Doc. 32

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 based upon Governor Arnold Schwarzenegger's 2004 reversal of the decision by the Board of Parole Hearings finding Petitioner suitable for parole. The v. BEN CURRY, Warden, Respondent. / PAUL TASH, Petitioner, No. C 05-2417 CW (PR) AMENDED JUDGMENT

Court granted the petition and remanded this case to the Governor to vacate his reversal and to re-evaluate Petitioner's suitability for parole. In its analysis, the Court relied upon a number of

Ninth Circuit Court of Appeals cases to conclude, "In light of the extensive evidence of Petitioner's in-prison rehabilitation and exemplary behavior, the reliance on the unchanging facts of the murder to deny Petitioner parole for the tenth time -- twenty-two years into his minimum seventeen year sentence -- violated his right to due process." (Aug. 27, 2008 Order at 23.) Respondent

timely appealed to the Ninth Circuit. On February 1, 2011, the Ninth Circuit reversed the decision of the district court by relying on Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 863 (2011), and stating that the "Supreme Court recently held that although California might create a liberty interest in parole through its 'some evidence' standard, federal

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

courts are limited on habeas to a review of the process that the petitioner received." Tash v. Curry, No. 08-17150, slip op. at 2 The Ninth Circuit concluded, "Because

(9th Cir. Feb. 1, 2011).

Tash was afforded constitutionally adequate process, his petition should have been denied." Id. at 3. The mandate of the Ninth

Circuit issued on February 23, 2011. Pursuant to the Ninth Circuit memorandum opinion and mandate, the Court issues this Amended Judgment. August 27, 2008 is VACATED. of habeas corpus is DENIED. file. IT IS SO ORDERED.
DATED: 3/4/2011 CLAUDIA WILKEN United States District Judge

The judgment entered on

Accordingly, the petition for a writ The Clerk of the Court shall close the

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1 2 3 TASH, 4 Plaintiff, 5 v. 6 KANE et al, 7 Defendant. 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Paul R. Tash C-73850 P.O. Box 689 Soledad, CA 93960-0689 Dated: March 4, 2011

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV05-02417 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 4, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk

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