Guardado v. Hoshino et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS 8 ; denies Respondents' motion to dismiss 4 and denies Petitioner's request for a stay 5 .In addition, the Court dismisses Respondents M. Hoshino, M. Cate, B. Curry, and Edmund G. Brown, Jr. Signed by Judge Thomas J. Whelan on 9/15/2010.(All non-registered users served via U.S. Mail Service)(tkl)

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-RBB Guardado v. Hoshino et al Doc. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 M. HOSHINO, Chairman, California Board of Parole Hearings, M. CATE, Director, California Department of Corrections and Rehabilitation, B. CURRY, Warden CTF, G. NEOTTI, Warden RJD, EDMUND G. BROWN, JR., Attorney General of the State of California, Respondents. On December 28, 2009, Paul Albert Guardado ("Petitioner"), a state prisoner vs. PAUL ALBERT GUARDADO, Petitioner, CASE NO. 09-CV-2913 W (RBB) ORDER (1) ADOPTING REPORT AND RECOMMENDATION [DOC. 8], (2) DENYING MOTION TO DISMISS [DOC. 4], (3) DENYING MOTION FOR STAY [DOC. 5] AND (4) DISMISSING RESPONDENTS M. HOSHINO, M. CATE, B. CURRY, AND EDMUND G. BROWN, JR. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 24 proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 1 25 ("Petition"). On February 23, 2010, Respondents filed a Motion to Dismiss. On April 26 27 Because the Petition is not consecutively paginated, the Court will use the page 28 numbers assigned by the electronic case filing system. -109cv2913w 1 Dockets.Justia.com 1 16, 2010, United States Magistrate Judge Ruben B. Brooks issued a Report and 2 Recommendation ("Report"), recommending that this Court deny the motion and sua 3 sponte dismiss Respondents M. Hoshino, M. Cate, B. Curry, and Edmund G. Brown, Jr. 4 On May 21, 2010, Respondents filed an Objection to the Report's recommendation to 5 deny the motion to dismiss. On June 6, 2010, Petitioner filed a Reply to the Objection. 6 The Court decides the matters on the papers submitted and without oral 7 argument. See Civ. L.R. 7.1(d.1). For the reasons outlined below, the Court ADOPTS 8 the Report (Doc. 8), DENIES the motion to dismiss (Doc. 4), DENIES the motion to 9 stay (Doc. 5), and DISMISSES Respondents M. Hoshino, M. Cate, B. Curry, and 10 Edmund G. Brown, Jr. 11 12 I. 13 15 16 17 18 A. Petitioner's Previous Challenge of the Board of Parole Hearing's 2006 Decision. In 1989, Petitioner was convicted of second degree murder and sentenced to He challenged those denials in a BACKGROUND Petitioner did not object to the Report's factual summary. Accordingly, the 14 following facts are taken from the Report. 19 fifteen-years-to-life in prison. (Pet. [Doc. 1], at 1-2.) Between 2002 and 2006, 20 Petitioner was denied parole several times. 21 consolidated petition filed in the United States District Court for the Northern District 22 of California (the "2007 Petition"). (Pet., at 13; Not. of Lodgment ("NOL") [Doc. 4-1], 23 No. 1 at 1-2.) 24 On April 9, 2008, the court issued an order granting the 2007 Petition and 25 invalidating the Board of Parole Hearing's (the "Board") 2006 decision that Petitioner 26 was unsuitable for parole. (NOL, No. 5 at 1). The court ordered the Board to hold a 27 rehearing, which was held on August 12, 2008. (Id.) The Board again found Petitioner 28 unsuitable for parole. (Id.) -209cv2913w 1 Petitioner then filed an application for an order enforcing the writ of habeas 2 corpus along with a request that the Board's decision be submitted to the Governor. 3 (NOL, No. 2 at 1-2). On January 22, 2009, the court granted Petitioner's application 4 and concluded that the August 12, 2008 parole hearing did not comply with the court's 5 prior order. (Pet., Ex. A at 6, 10.) The court remanded the case to the Board with 6 instructions, and directed the Board to submit its decision to the Governor. (Id., at 11.) 7 On March 4, 2009, Respondents informed the court that the Board's decision had 8 been submitted to the Governor, who declined to review the decision. (NOL, No. 2 at 9 Ex. 1, p. 2). On March 10, 2009, the court ordered that another parole hearing take 10 place no later than June 23, 2009. (Id., at 2-3.) 11 On June 23, 2009, the Board held a hearing and calculated a date for Petitioner 12 to be released. (Pet., Ex. C at 1.) However, the Board did not find Petitioner suitable for 13 parole. (NOL, No. 4, Ex. 3 at 6.) 14 On July 21, 2009, the Governor reviewed and reversed the Board's decision. 15 (See NOL, No. 5 at 2.) Petitioner then filed an emergency motion requesting the 16 district court to order his immediate release. (Id.) On December 14, 2009, the court 17 remanded Petitioner's case to the Board with an order to release Petitioner, but stayed 18 the release for ten days to allow Respondents to seek a stay from the Ninth Circuit. (Id. 19 at 2, 10.) On February 12, 2010, the Ninth Circuit stayed Petitioner's release pending 20 resolution of the appeal.(NOL, No. 6 at 1.) 21 22 23 B. Petitioner's Challenge of the Board's September 25, 2008 Decision. On September 25, 2008, Petitioner had a separate parole hearing, in which the 24 Board found him unsuitable for parole. (Pet., at 7, 9, 11, 13.) On February 2, 2009, 25 Petitioner filed a habeas petition in the Orange County Superior Court challenging the 26 Board's decision. (NOL, No. 7.) On February 25, 2009, the superior court denied the 27 petition. (Id., No. 3 at 1, 3.) 28 -309cv2913w 1 On April 14, 2009, Petitioner filed a habeas petition in the California Court of 2 Appeal. (NOL, No. 8.) On July 16, 2009, the appellate court denied the petition as 3 moot. (Id., No. 10.) On August 12, 2009, Petitioner filed a petition in the California 4 Supreme Court, which was denied on October 22, 2009. (Id., Nos. 11, 12.) On December 28, 2009, Petitioner filed the instant Petition challenging the 5 6 Board's September 25, 2008 decision. On February 23, 2010, Respondents filed the 7 motion to dismiss, arguing that the Petition is moot. On March 18, 2010, Petitioner's 8 Opposition and Request for Stay was filed. On April 26, 2010, Judge Brooks issued the Report recommending that the Court 9 10 deny the motion. (Report, at 15.) The Report found that the Petition is not moot and 11 also falls within the exception to mootness. (Id., at 11-14, 15.) Judge Brooks also found, 12 sua sponte, that Respondents M. Hoshino, M. Cate, B. Curry, and Edmund G. Brown, 13 Jr. should be dismissed. (Id., at 3.) 14 16 17 II. 18 LEGAL STANDARD The duties of the district court in connection with a magistrate judge's report and On May 21, 2010 Respondents filed an Objection to the Report. On June 4, 15 2010, Petitioner filed a Reply to Respondents' Objection. 19 recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 20 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those 21 portions of the report ... to which objection is made," and "may accept, reject, or modify, 22 in whole or in part, the findings or recommendations made by the magistrate." 28 23 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 24 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). 25 26 III. 27 D ISCUSSION In the motion to dismiss, Respondents argued that the Petition should be 28 dismissed because it is moot. Petitioner argues that because he is still physically -409cv2913w 1 confined, the Petition is not moot, and argues alternatively that his claim falls within 2 the "capable of repetition, yet evading review" exception to the mootness doctrine. The 3 Report agreed with Petitioner. Having read and considered the Petition, Report, and Objection, the Court finds 4 5 the Report presents a well-reasoned analysis of the issues. The Court, therefore, 6 concludes that the Petition is not moot. In addition, because the Court dismisses the 7 motion to dismiss, Petitioner's request for a stay is denied. 8 9 10 A. Petitioner's Claim is not Moot Because he is Incarcerated. A petition for habeas corpus becomes moot when a prisoner who requests release 11 from custody is released before the court has addressed the merits of the petition. Lane 12 v. Williams, 455 U.S. 624, 631 (1982); Picrin-Peron v. Rison, 930 F.2d 773, 775-776 13 (9th Cir. 1991); Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir. 1987) ("Petitioners 14 cannot be released from a term of incarceration that they have already served.); see also 15 Burnett v. Lampert, 432 F.3d 996, 999-1001 (9th Cir. 2005) (denying habeas petition 16 that sought credit for an allegedly unconstitutional delay of parole in part because 17 Burnett's release on parole and reimprisonment rendered his petition moot). A 18 petitioner's claim that he should receive an earlier parole date is moot when he is 19 paroled. See Brady v. U.S. Parole Comm'n, 600 F. 2d 234, 236 (9th Cir. 1979). In the instant case, the Board has set a release date for the Petitioner, but he still 20 21 remains in custody. (Report, at 11.) In light of Petitioner's continued incarceration, the 22 Report correctly found that Petitioner's claims are not moot. (Id.) 23 24 25 26 B. Petitioner's Claim is not Moot Because it Presents a Valid Case or Controversy. Article III, section 2 of the United States Constitution provides federal courts 27 with jurisdiction over actions with a valid case or controversy. U.S. Const. art. III, §2. 28 The case or controversy requirement exists throughout all stages of federal proceedings, -509cv2913w 1 trial and appellate. Spencer v. Kemna, 523 U.S. 1, 7(1998) (quoting Lewis v. 2 Continental Bank Corp., 494 U.S. 472, 477-78 (1990)). Accordingly, parties must 3 continue to have a personal stake in the outcome of the lawsuit. Lewis, 494 U.S. at 4774 78 (quoting Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)); see also Preiser v. Newkirk, 5 422 U.S. 395, 401 (1975). In other words, the Petition is not moot if Petitioner can 6 show that (1) he has suffered or is threatened with an actual injury, (2)which is 7 traceable to the defendant, and (3) which is likely to be redressed by a favorable judicial 8 decision. See Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005) (quoting Spencer, 9 523 U.S. at 7; Lewis, 494 U.S. at 477). 10 11 12 13 1. Petitioner has alleged an injury relating to the September 25, 2008 hearing. Petitioner alleges due-process violations related to his September 25, 2008 parole 14 hearing. (Pet., at 1, 7, 9, 11.) Petitioner has a right to a hearing that comports with due15 process. Accordingly, while he remains in custody, Petitioner has an actual injury 16 relating to the September 25, 2008 hearing. 17 18 19 2. Petitioner's alleged injury is traceable to Respondents. Respondents contend that Petitioner's current custody is traceable only to the 20 Governor's decision reversing the Board's setting of a release date for Petitioner. (Mot. 21 Dismiss [Doc. 4], at 5.) But Petitioner's incarceration can also be traced to the Board's 22 September 25, 2008 hearing, wherein Petitioner was denied parole. In short, if the Board 23 had found Petitioner suitable for parole, arguably he would not be incarcerated. Thus, 24 Petitioner's current custody is traceable to the September 25, 2008 hearing. 25 26 27 3. Petitioner's alleged injury is likely to be redressed. Respondents suggest that if Petitioner succeeded on his Petition, at most he 28 would be entitled to a new parole hearing comporting with due process. (Mot. Dismiss, -609cv2913w 1 at 4.) Respondents contend, however, that with respect to the 2007 Petition, he has 2 already received a release date, and thus has "received more than the relief he is entitled 3 to in the instant matter." (Id.) Respondent's argument requires the Court to assume that Petitioner will be 4 5 released as a result of the 2007 Petition. But that court-ordered release is on appeal. 6 If the district court's order is affirmed, Petitioner will be released; if reversed, however, 7 Petitioner will remain in custody, and the current Petition is likely to redress Petitioner's 8 injury. In short, at present, the Petition is not moot. 9 10 11 12 C. Petitioner's Claim is not Moot Because it falls Within the "Capable of Repetition, yet Evading Review" Exception to the Mootness Doctrine. The "capable of repetition, yet evading review" exception to the mootness 13 doctrine is applicable "where two elements combin[e]: (1) the challenged action [is] in 14 its duration too short to be fully litigated prior to its cessation or expiration, and (2) 15 there [is] a reasonable expectation that the same complaining party would be subjected 16 to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per 17 curiam); see also Davis v. Federal Election Comm'n, 551 U.S. -- , 128 S. Ct. 2759, 2769 18 (2008) (quoting Spencer, 523 U.S. at 17 (internal quotations omitted)). The assertion 19 that a subsequent parole necessarily moots a previous hearing "assumes that all of the 20 subsequent hearings were conducted in accordance with federal law." Sass v. California 21 Bd. Of Prison Terms, 376 F. Supp. 2d 975, 979 (E.D. Cal. 2005) (citing Spencer, 523 22 U.S. at 17-18). 23 If a series of unconstitutional parole hearings could moot earlier ones, a 24 petitioner's efforts to cure constitutional violations would be thwarted. See id.; accord 25 Irons v. Sisto, 2007 U.S. Dist. LEXIS 95310, at **7-8 (E.D. Cal. Dec. 17, 2007). In light 26 of the foregoing, the Report correctly found that the exception to mootness applies. 27 28 -709cv2913w 1 2 D. Report's Recommendation to Dismiss Certain Respondents is Granted. Neither party objects to the Report's recommendation that Respondents M. 3 Hoshino, M. Cate, B. Curry, and Edmund G. Brown, Jr. be dismissed because they are 4 not proper parties to the petition. (Report, at 3 (citing Stanley v. Cal. Sup. Ct., 21 F.3d 5 359,360 (9th Cir. 1994)).) Respondent Neotti is the warden of the correctional facility 6 where Petitioner is currently housed and is therefore the only proper Respondent to the 7 Petition. Stanley, 21 F.3d at 360. Accordingly, Respondents M. Hoshino, M. Cate, B. 8 Curry, and Edmund G. Brown, Jr. are dismissed. 9 10 11 12 E. Petitioner's Alternative Request for Stay is not Necessary Because the Motion to Dismiss has not Been Granted. Petitioner requested that in lieu of dismissing the Petition, the Court grant a stay 13 to allow the parties to proceed through the Ninth Circuit appeal process. (Opp'n. [Doc. 14 5], at 8-9.) In light of the fact that the Court denies granting the motion to dismiss, 15 Petitioner's request for a stay is denied. 16 17 IV. 18 CONCLUSION AND ORDER2 In light of the foregoing, the Court ADOPTS the Report [Doc. 8], DENIES 19 Respondents' motion [Doc. 4] and DENIES Petitioner's request for a stay [Doc. 5]. 20 // 21 // 22 // 23 24 Respondents raise, for the first time in their Objection, that dismissal is supported by 25 the principals of comity and federalism. The court is unimpressed with the argument for at least two reasons. First, this argument was not raised in the motion to dismiss and, therefore, 26 neither the Petitioner nor Magistrate had an opportunity to address the argument. Second, 27 Respondents devote a single sentence to the argument, and thus utterly fail to explain how these principals support dismissal of the case. 2 28 -8- 09cv2913w 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition, the Court DISMISSES Respondents M. Hoshino, M. Cate, B. Curry, 2 and Edmund G. Brown, Jr. IT IS SO ORDERED. DATED: September 15, 2010 Hon. Thomas J. Whelan United States District Judge -9- 09cv2913w

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