Porras v. Curry

Filing 7

ORDER by Judge Claudia Wilken denying 4 RESPONDENT'S MOTION TO DISMISS AND SETTING BRIEFING SCHEDULE (scc, COURT STAFF) (Filed on 12/29/2009)

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 Petitioner Neville Porras, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole by the California Board of Parole Hearings (Board) on July 31, 2007. On June 22, 2009, the Court found that Petitioner's claim appeared cognizable under § 2254 and ordered Respondent to show cause why a writ of habeas corpus should not be granted. Before the Court is Respondent's motion to dismiss the petition as moot. Respondent alleges that on September 4, 2008, Thereafter, the v. BEN CURRY, Warden, Respondent. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA NEVILLE PORRAS, Petitioner, No. C 08-5252 CW (PR) ORDER DENYING RESPONDENT'S MOTION TO DISMISS AND SETTING BRIEFING SCHEDULE (Docket no. 4)

the Board found Petitioner suitable for parole.

governor exercised his discretion and reversed the Board's decision. Respondent argues that the Board's 2008 decision

finding Petitioner suitable for parole renders moot the present challenge to the Board's 2007 parole denial. Petitioner filed

an opposition to the motion to dismiss, and Respondent filed a reply.

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

DISCUSSION The case or controversy requirement of Article III of the United States Constitution deprives a court of jurisdiction to hear moot cases. 67, 70 (1983). Iron Arrow Honor Society v. Heckler, 464 U.S.

To satisfy the Article III case or controversy

requirement, the petitioner "must have suffered, or be threatened with an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." v. Continental Bank Corp., 494 U.S. 472, 477 (1990). Lewis

The party

asserting mootness bears the burden of establishing that there is no "effective relief" remaining that the court could provide. Southern Oreg. Barter Fair v. Jackson County, 372 F.3d 1128, 1134 (9th Cir. 2004). The present action challenging the Board's 2007 decision is not rendered moot by the Board's subsequent 2008 decision finding Petitioner suitable for parole. The alleged injury -­ a

constitutionally deficient parole suitability hearing -­ can be redressed effectively with a new parole hearing. Even though

Petitioner has been found suitable by the Board in 2008, the governor has reversed that finding and Petitioner is still in custody. The present petition challenging the Board's 2007

denial has not lost its character as a present, live controversy because the alleged injury can be redressed by a favorable judicial decision. If the Court granted the present petition,

it would remand this case to the Board to evaluate Petitioner's suitability for parole in accordance with due process of law and retain jurisdiction to enforce its order. The Board would reEven if the Board

evaluate Petitioner's suitability for parole. 2

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

found Petitioner suitable for parole, the governor could reverse the Board's suitability finding. At that point, the Court could

review and overturn the governor's reversal, if appropriate. Accordingly, the Court DENIES Respondent's motion to dismiss the federal petition as moot. CONCLUSION For the foregoing reasons, 1. Respondent's motion to dismiss the petition (docket

no. 4) is DENIED. 2. Within sixty (60) days of the date of this Order,

Respondent shall file an Answer showing cause why a writ of habeas corpus should not be issued. Respondent shall file with

the Answer a copy of all state records that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. 3. If Petitioner wishes to respond to the Answer, he

shall do so by filing a Traverse with the Court and serving it upon Respondent within thirty (30) days of his receipt of the Answer. Should Petitioner fail to do so, the petition will be

deemed submitted and ready for decision thirty (30) days after the date Petitioner is served with Respondent's Answer. 4. Petitioner must keep the Court informed of any change

of address. 5. This Order terminates Docket no. 4.

IT IS SO ORDERED.
DATED: 12/29/09 CLAUDIA WILKEN United States District Judge

P:\PRO-SE\CW\HC.08\Porras5252.DENYdismiss(moot).frm

3

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 Neville Porras E-37606 P.O. Box 689 YW-337 Soledad, CA 93960-0689 Dated: December 29, 2009 NEVILLE PORRAS, Plaintiff, v. BEN CURRY et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV08-05252 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 December 29, 2009, 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: Sheilah Cahill, Deputy Clerk

P:\PRO-SE\CW\HC.08\Porras5252.DENYdismiss(moot).frm

4