(HC) Hodge v. Carey et al, No. 2:2006cv00483 - Document 55 (E.D. Cal. 2011)
Court Description: ORDER VACATING 47 FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Charlene H. Sorrentino on 1/27/11. (Manzer, C)
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(HC) Hodge v. Carey et al Doc. 55 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ARBBIE M. HODGE, Petitioner, 11 12 13 14 15 16 No. CIV S-06-483 FCD CHS P vs. THOMAS L. CAREY, Warden, et al., Respondents. ORDER VACATING FINDINGS AND RECOMMENDATIONS / 17 Petitioner Hodge is a state prisoner proceeding through counsel with a petition for 18 a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a February 20, 2004 19 reversal by Governor Schwarzenegger of the September 25, 2003 decision of the state parole 20 authority that he was not suitable for parole. On April 27, 2010, findings and recommendations 21 issued herein, recommending that the petition be granted because the governor’s decision was 22 unsupported by some evidence in the record. 23 Previously, the United States Court of Appeals for the Ninth Circuit had directed 24 “courts in this circuit [to] decide whether the California judicial decision approving the 25 governor’s decision rejecting parole was an ‘unreasonable application’ of the California ‘some 26 evidence’ requirement, or was ‘based on an unreasonable determination of the facts in light of 1 Dockets.Justia.com 1 the evidence.’” Hayward v. Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (citations omitted). 2 Subsequent to the filing of the pending findings and recommendations, however, the United 3 States Supreme Court held in Swarthout v. Cooke, No. 10-333, slip op. at 4-5 (U.S. January 24, 4 2011), that a federal court’s inquiry into whether an inmate in California received due process in 5 the parole suitability hearing context does not include review of California’s “some evidence” 6 requirement. Rather, in the parole suitability context, “the only federal right at issue is 7 procedural.” Id. at 6. Thus, this court may only review a parole board’s procedures to see that an 8 inmate received an opportunity to be heard and a decision informing him of the reasons he did 9 not qualify for parole. See Swarthout, slip op. at 4-5 (citing Greenholtz, 442 U.S. at 16). 10 In light of this new controlling Supreme Court authority, IT IS HEREBY 11 ORDERED THAT the findings and recommendations signed and filed on April 27, 2010, are 12 VACATED. New findings and recommendations will issue. 13 DATED: January 27, 2011 14 15 CHARLENE H. SORRENTINO UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 2
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