(HC) Adkins v. Carey et al, No. 2:2005cv01501 - Document 29 (E.D. Cal. 2011)
Court Description: ORDER signed by Magistrate Judge Charlene H. Sorrentino on 01/27/11 VACATING 24 FINDINGS AND RECOMMENDATIONS. New findings and recommendations will issue.(Williams, D)
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(HC) Adkins v. Carey et al Doc. 29 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BENJAMIN ADKINS, Petitioner, 11 12 13 14 15 16 17 No. CIV S-05-1501 JAM CHS P vs. TOM L. CAREY, et al., Respondents. ORDER VACATING FINDINGS AND RECOMMENDATIONS / Petitioner Atkins is a state prisoner proceeding pro se with a petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a March 6, 2002 decision of 19 the state parole authority that he was not suitable for parole. On July 29, 2010, findings and 20 recommendations issued herein, recommending that the petition be denied because the parole 21 authority’s decision was supported by some evidence in the record. 22 Previously, the United States Court of Appeals for the Ninth Circuit had directed 23 “courts in this circuit [to] decide whether the California judicial decision approving the 24 governor’s decision rejecting parole was an ‘unreasonable application’ of the California ‘some 25 evidence’ requirement, or was ‘based on an unreasonable determination of the facts in light of 26 the evidence.’” Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (citations omitted). 1 Dockets.Justia.com 1 Subsequent to the filing of the pending findings and recommendations, however, the United 2 States Supreme Court held in Swarthout v. Cooke, No. 10-333, slip op. at 4-5 (U.S. January 24, 3 2011), that a federal court’s inquiry into whether an inmate in California received due process in 4 the parole suitability hearing context does not include review of California’s “some evidence” 5 requirement. Rather, in the parole suitability context, “the only federal right at issue is 6 procedural.” Id. at 6. Thus, this court may only review a parole board’s procedures to see that an 7 inmate received an opportunity to be heard and a decision informing him of the reasons he did 8 not qualify for parole. See Swarthout, slip op. at 4-5 (citing Greenholtz, 442 U.S. at 16). 9 In light of this new controlling Supreme Court authority, IT IS HEREBY 10 ORDERED THAT the findings and recommendations signed on July 28, 2010 and filed on July 11 29, 2010, are VACATED. New findings and recommendations will issue. 12 DATED: January 27, 2011 13 14 CHARLENE H. SORRENTINO UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 2
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