Jay v. Kane

Filing 51

ORDER by Judge Claudia Wilken denying 49 MOTION to Stay Respondent's Second Request to Stay November 12, 2008 Order and Judgment (scc, COURT STAFF) (Filed on 2/3/2009)

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 v. ANTHONY KANE, Respondent. / MATTHEW ADAM JAY, Petitioner, No. C 06-01795 CW ORDER DENYING RESPONDENT'S SECOND REQUEST TO STAY NOVEMBER 12, 2008 ORDER AND JUDGMENT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Respondent makes a second request for the Court to stay its November 12, 2008 Order granting Petitioner Matthew Adam Jay's petition for writ of habeas corpus challenging the Board of Parole Hearing's May 5, 2004 decision denying him parole. The Court

ordered that, within sixty days of the date of the November 12, 2008 Order, the Board hold a new hearing in accordance with the Order. On December 31, 2008, Respondent filed its first motion to

stay the November 12, 2008 Order, pending its appeal to the Ninth Circuit, on the ground that the Board had held a parole hearing on August 12, 2008 and had found Petitioner suitable for parole. Petitioner agreed to a temporary stay reasoning that, if the Governor's review of the Board's decision resulted in an affirmance, the Court's order for the Board to hold another hearing would become moot. On January 9, 2009, the Court issued an Order

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Granting, in part, Respondent's first request to stay the November 12, 2008 Order. In this Order, the Court granted the stay until

February 23, 2009, explaining that, if the Governor reversed the Board's August 12, 2008 grant of parole, the Court would order a new hearing, but if the Governor allowed the Board's decision to stand, the Order for a new hearing would be vacated as moot. On January 14, 2009, Petitioner filed a "Response" to the Court's January 9, 2009 Order asking that Respondent's request for a stay be denied because, on January 6, 2009, the Governor reversed the Board's August 12, 2008 grant of parole. On January 16, 2009,

Respondent filed its second request for a stay arguing that the Court's November 12, 2008 Order was still moot because Petitioner had received a grant of parole from the Board, the only relief the Board could give him. The Governor did not have this Court's Order when he reversed the Board's August 12, 2008 decision. Therefore, the Court's

November 12, 2008 Order is not moot and Respondent's request to stay that Order is DENIED. Respondent requests that the Court allow the Board 110 days from the date of its Order to hold a new parole hearing so that it can give the ninety-day notice to victims required by California Penal Code § 3043(a)(1).1 Petitioner requests that the Court order

that the hearing take place sixty days from January 6, 2009, the date the Governor reversed the parole grant.
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The Court orders that

California Penal Code § 3043(a)(1), enacted by referendum on November 4, 2008, provides that, upon request, notice of a hearing on parole suitability shall be sent to the victim of any crime committed by the prisoner, or to the next of kin of the victim if the victim has died, at least ninety days before the hearing. Prior to November 4, 2008, thirty days notice was required. 2

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the Board hold a new parole hearing within 110 days of the date of this Order and re-evaluate Petitioner's suitability for parole in accordance with the November 12, 2008 Order. The Court retains If the Board

jurisdiction to review compliance with its order.

finds Petitioner suitable for parole and the Governor does not reverse that decision, Respondent may again move for a stay.

IT IS SO ORDERED.

Dated: 2/3/09

CLAUDIA WILKEN United States District Judge

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