(HC) Johnson v. Finn, et al.,, No. 2:2005cv00385 - Document 56 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/14/10 recommending that Petitioners 1 petition for writ of habeas corpus be granted; The Governors December 2001 decision reversing the Boards August 2001 finding that petitioner was suitable for parole be vacated; The Board implement its August 2001 decision finding petitioner suitable for parole; and within 30 days of an adopted order and judgment, respondent notify the court of petitioners parole date and, if that date has passed, whether petitioner has been released. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
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(HC) Johnson v. Finn, et al., Doc. 56 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROBERT EVERETT JOHNSON, 11 12 13 Petitioner, No. CIV S-05-0385 DFL GGH P vs. CLAUDE E. FINN, et. al., 14 FINDINGS AND RECOMMENDATIONS1 Respondent. 15 / 16 The United States Court of Appeals for the Ninth Circuit has instructed the district 17 court to grant petitioner’s writ of habeas corpus pursuant to 28 U.S.C. § 2254, but has not 18 described the precise way in which it should be granted. (Doc. No. 53.) 19 Most writs of habeas corpus are granted conditionally, such that the respondent is 20 provided an opportunity to redo the deficient proceeding in lieu of releasing the inmate from 21 custody. Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994) (“Generally, a district court 22 ruling in the petitioner’s favor in a habeas case provides a reasonable time in order to afford the 23 State an opportunity to re-try the defendant or otherwise correct the constitutional infirmity.”) 24 1 25 26 These Findings and Recommendations presume that the mandate will have issued prior to the time for filing objections and reply. If the time for issuing a mandate has not passed, or other reasons exist for not going forward with a judgment at this time, the district judge’s order will so reflect. 1 Dockets.Justia.com 1 Here, however, it would make little sense to grant a conditional writ, as the Ninth Circuit has 2 already determined that then-Governor Davis erroneously found “some evidence” of petitioner’s 3 future dangerousness based on the record before him. (Doc. No. 53 at 2.) There would be no 4 point in sending petitioner’s record to the current Governor for re-evaluation of a question 5 already decided by the circuit court. Accordingly, the undersigned recommends that the writ be 6 unconditionally granted. See Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005) (“Federal 7 courts have a fair amount of flexibility in fashioning specific habeas relief. . . . The court is free 8 to fashion the remedy as law and justice require[.]”), citing Sanders, supra, 21 F.3d at 1461 9 (internal quotation marks and citations omitted). 10 In so doing, the undersigned recognizes that California statutes provide a matrix 11 system, codified at Cal. Code Regs., tit. 15, § 2282, to assist the Board of Parole Hearings 12 (“Board”) in arriving at a base term for life prisoners after a prisoner is found suitable for parole. 13 See id., § 2280 (“A parole date shall be set if the prisoner is found to be suitable for parole . . . in 14 a manner that provides uniform terms for offenses of similar gravity and magnitude in respect to 15 the threat to the public.) Upon issuance of the writ, the Board should apply this matrix as if then- 16 Governor Davis had affirmed its 2001 decision to grant parole to petitioner. If application of the 17 matrix shows that petitioner should have been released by this time, he should be released 18 immediately. Alternatively, if application of the matrix indicates that petitioner should be 19 released at some future date, he should remain in custody until that time. 20 21 Accordingly, IT IS HEREBY RECOMMENDED that a judgment be entered with the following: 22 23 24 25 26 1. Petitioner’s petition for writ of habeas corpus (Doc. No. 1, Attachment 1) be granted; 2. The Governor’s December 2001 decision reversing the Board’s August 2001 finding that petitioner was suitable for parole be vacated; 3. The Board implement its August 2001 decision finding petitioner suitable for 2 1 parole; and 2 3 4. Within thirty days of an adopted order and judgment, respondent notify the court of petitioner’s parole date and, if that date has passed, whether petitioner has been released. 4 These findings and recommendations are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 6 days after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 9 shall be served and filed within seven days after service of the objections. The parties are 10 advised that failure to file objections within the specified time may waive the right to appeal the 11 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 DATED: September 14, 2010 13 /s/ Gregory G. Hollows 14 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 15 16 17 GGH:0014 john0385.remand 18 19 20 21 22 23 24 25 26 3