(HC) Trevino v. Mendoza-Powers, No. 1:2007cv00169 - Document 43 (E.D. Cal. 2010)

Court Description: ORDER Granting Motion To Vacate Judgment, And Vacating Order And Entry Of Judgment Issued March 24, 2010 (Docs. 33 , 34 , 38 ), ORDER Adopting Findings And Recommendation, Granting Petition For Writ Of Habeas Corpus, Directing Entry Of Judgment For Petitioner, And Granting Stay Of Order For Respondent To File Notice Of Appeal With Ninth Circuit Court Of Appeals (Doc. 30 ), signed by District Judge Lawrence J. O'Neill on 9/30/2010. (Scrivner, E)
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(HC) Trevino v. Mendoza-Powers Doc. 43 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ARNOLD TREVINO, 10 1:07-cv-00169 LJO DLB (HC) Petitioner, 11 ORDER GRANTING MOTION TO VACATE JUDGMENT, AND VACATING ORDER AND ENTRY OF JUDGMENT ISSUED MARCH 24, 2010 v. 12 KATHY MENDOZA-POWERS, Warden, [Docs. 33, 34, 38] 13 Respondent. ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING ENTRY OF JUDGMENT FOR PETITIONER, AND GRANTING STAY OF ORDER FOR RESPONDENT TO FILE NOTICE OF APPEAL WITH NINTH CIRCUIT COURT OF APPEALS 14 15 16 17 18 / [Doc. 30] 19 Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. 21 I. Order Adopting Findings and Recommendation 22 On March 24, 2010, the undersigned adopted the Findings and Recommendation in full 23 and judgment was entered. (Court Docs. 33, 34.) However, on March 24, 2010, Respondent 24 filed a reply to the Court’s order.1 (Court Doc. 35.) Petitioner filed a response on March 25, 25 2010. (Court Doc. 37.) Both parties correctly point out that the Court’s March 24, 2010, was 26 premature as the deadline to file a reply to any objections was that day. Accordingly, the Court 27 28 1 It appears Respondent filed the same reply twice on the same day. (Court Doc. 36.) 1 Dockets.Justia.com 1 2 will hereby vacate the order issued March 24, 2010, and said order is re-issued herein. On February 5, 2010, the Magistrate Judge issued Findings and Recommendation that the 3 Petition for Writ of Habeas Corpus be GRANTED. This Findings and Recommendation was 4 served on all parties and contained notice that any objections were to be filed within thirty (30) 5 days of the date of service of the order. 6 7 8 On March 10, 2010, Petitioner and Respondent filed timely objections to the Findings and Recommendation. (Court Docs. 31, 32.) In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted 9 a de novo review of the case. In his reply, Respondent argues, among other things, that because 10 Petitioner is subject to an indeterminate lifetime parole period pursuant to California Penal Code 11 section 3000.1, he is not entitled to credit against that period of time. (Court Doc. 35, Reply at 12 3.) The Court finds Respondent’s argument persuasive on this point. Because Petitioner’s crime 13 was committed after January 1, 1983, he is subject to a lifetime term of parole under section 14 3000.1, and he is not entitled to credit for the period of incarceration beyond the date he should 15 have been released pursuant to the Board of Parole Hearings’ 2005 decision. See e.g. Rios v. 16 Mendoza-Powers, 2010 WL 1032696 *1-3 (E.D. Cal.) Respondent’s objections present no 17 further grounds for questioning the Magistrate Judge's analysis. 18 The Court notes that on April 22, 2010, subsequent to the Findings and Recommendation, 19 the Ninth Circuit Court of Appeals rendered its decision in Hayward v. Marshall, 603 F.3d 546 20 (9th Cir.2010) (en banc). In Hayward, the Ninth Circuit held that “[t]here is no general 21 constitutional ‘some evidence’ requirement for denial of parole, in the absence of state law 22 creating an enforceable right to parole.” Id. at 559. However, the Ninth Circuit held that in 23 reviewing a California judicial decision approving a governor’s or parole board’s decision, the 24 federal court must determine whether that decision “was an ‘unreasonable application’ of the 25 California ‘some evidence’ requirement, or was ‘based on an unreasonable determination of the 26 facts in light of the evidence.’” Id. at 562-563, citing 28 U.S.C. § 2254(d)(1)-(2). On May 24, 27 2010, the Ninth Circuit further clarified its decision in Hayward, stating the following: 28 Through its state statutory and constitutional law, California has created a parole system 2 1 that independently requires the enforcement of certain procedural and substantive rights, including the right to parole absent ‘some evidence’ of current dangerousness. Hayward, slip op. at 6327-30 (discussing, inter alia, In re Lawrence, 190 F.3d 535 (Cal.2008); In re Shaputis, 190 F.3d 573 (Cal.2008); and In re Rosenkrantz, 59 F.3d 174 (Cal.2002). California law gives rise to a liberty interest on the part of its prisoners covered by its parole system. Having guaranteed the prisoners of the state that they will not be denied a parole release date absent ‘some evidence’ of current dangerousness, California is not permitted under the federal Constitution arbitrarily to disregard the ‘some evidence’ requirement in any particular case. It is therefore our obligation, as we held in Hayward, to review the merits of a federal habeas petition brought by a California prisoner who asserts that the decision to deny him parole was not supported by ‘some evidence’ of his current dangerousness. Under AEDPA, this means that we review ‘whether the California judicial decision approving the governor’s [or parole board’s] decision rejecting parole was an ‘unreasonable application’ of the California ‘some evidence’ requirement, or was ‘based on an unreasonable determination of the facts in light of the evidence.’’ Hayward, slip op. at 6330 (quoting 28 U.S.C. § 2254(d)(1)-(2)). 2 3 4 5 6 7 8 9 Pearson v. Muntz, 606 F.3d 606, 611 (9th Cir. 2010) (per curiam) (footnote omitted). 10 Petitioner correctly points out that Hayward has not changed the framework with respect 11 to cases in which the Court finds no evidence to support a state-court decision denying a habeas 12 petition in a life-term prisoner case. Pearson v. Muntz, 606 F.3d at 611-612; Cooke v. Solis, 606 13 F.3d 1206, 1214-1216 (9th Cir. 2010) Having carefully reviewed the entire file, including the 14 objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is 15 supported by the record and proper analysis. 16 II. Motion To Stay Proceedings Pending Appeal 17 Respondent has filed a motion to stay the judgment in this case pending resolution of 18 appeal to the Ninth Circuit Court of Appeals pursuant to Rule 62(c) of the Federal Rules of Civil 19 Procedure. Petitioner opposes the stay. 20 Rule 62(c) provides that if an appeal is taken from a final judgment granting an 21 injunction, the court may exercise its discretion to suspend the injunction during the pendency of 22 the appeal upon terms to secure the rights of the adverse party. Fed.R.Civ.P. 62(c). The factors 23 that must be considered when determining whether a stay of release should be granted are set 24 forth in the Supreme Court’s decision of Hilton v. Braunskill, 481 U.S. 770, 776 (1987). In 25 Hilton, the Court outlined the following four factors to consider: (1) whether the applicant has set 26 forth a strong showing that he/she is likely to succeed on the merits; (2) whether the application 27 will be irreparably harmed if stay not issued; (3) whether a stay will substantially injure other 28 3 1 interested parties; and (4) the public interests involved. Id. The Court will consider each of the 2 following four factors separately. 3 1. Likelihood of Success on the Merits 4 Respondent argues that he has a likelihood of success on the merits based on the 5 deferential standard of federal habeas review under AEDPA. Respondent’s argument relies 6 primarily on the claim that there is no clearly established federal requirement applying the some 7 evidence standard to parole determinations, and therefore it cannot be said that the state courts 8 misapplied clearly established federal law. However, for the reasons set forth in the Findings and 9 Recommendations, the Court finds sufficient authority under existing Ninth Circuit law to find 10 that the state court’s conclusion that the commitment offense constituted “some evidence” to 11 support the Governor’s decision constituted an unreasonable application of California’s some 12 evidence standard. Hayward, 603 F.3d 5620563. Thus, Respondent has not demonstrated a 13 likelihood of success on the merits. 14 2. Irreparable Harm to Respondent if Stay Not Imposed 15 Respondent argues that a stay is necessary to maintain the status quo pending the outcome 16 of an appeal, and he may be deprived of an opportunity to seek a meaningful challenge to this 17 Court’s decision. While Respondent’s argument does have some merit, this Court and the Board 18 of Parole Hearings’ determined that Petitioner no longer remains a danger to public safety if 19 released and Respondent would not be irreparably harmed if he were released. 20 3. Injury to Petitioner 21 Respondent argues that because Petitioner is serving an indeterminate life term, his “hope 22 that he may someday be granted early release does not rise to the level of a significant hardship 23 tipping the balance in his favor.” However, this Court agrees with the analysis of several other 24 district courts that have addressed this very same argument. More specifically, the Court agrees 25 with the reasoning of the United States District Court for the Northern District of California, 26 which stated, “[t]o remain in prison after a successful habeas petition injures [Petitioner] and 27 extends the due process violation already recognized by the court.” McCullough v. Kane, No. C 28 05-02207 MHP, 2008 WL 512709 *6 (N. D. Cal. Feb. 25, 2008); Mezhbein v. Salazar, No. CV 4 1 06-8059-DOC-MLG, 2008 1908533 *3 (C. D. Cal. April 27, 2008) (finding stay pending appeal 2 will substantially harm Petitioner as he will face prolonged incarceration even after it has been 3 determined that the denial of parole was not supported by some evidence); see also Saldate v. 4 Adams, 573 F.Supp.2d 1303, 1315 (E.D. Cal. July 10, 2008) (finding stay would substantially 5 injure Petitioner and finding Hilton standard not met). 6 4. Public Interest 7 Respondent argues that the public has an interest in preserving the Governor’s decision 8 until Respondent has had the opportunity to pursue an appeal of this Court’s decision. The Court 9 does not find Respondent’s argument persuasive as the public also has an interest in preserving 10 this Court’s decision as well as the Board of Parole’s decision finding Petitioner suitable for 11 release. 12 Based on the foregoing, the Court does not find that the Hilton factors have been met, and 13 Respondent’s motion for a stay pending appeal shall be denied. 14 III. 15 Temporary Stay of Order Pending Application to the Ninth Circuit However, in the alternative, the Court will grant Respondent a temporary stay to file an 16 application for a sta or other applicable interim relief pending an appeal to the Ninth Circuit 17 Court of Appeals. 18 ORDER 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. The Court’s March 24, 2010, order and entry of judgment is VACATED; 21 2. The Findings and Recommendation issued February 5, 2010, is ADOPTED IN 22 FULL; 23 3. The Petition for Writ of Habeas Corpus is GRANTED; 24 4. The Board of Parole Hearings’ (BPH) 2005 finding of suitability for release on 25 26 parole be reinstated; 5. Respondent is directed to release Petitioner from custody within ten (10) days 27 from the date of service of this order, subject to the terms and conditions set by 28 the Board; and 5 1 6. 2 This Order is TEMPORARILY STAYED for a period of fourteen (14) days for Respondent to file in the Ninth Circuit an application to stay pending appeal. 3 4 5 6 7 8 IT IS SO ORDERED. Dated: b9ed48 September 30, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6