-CHS (HC) Hines v. Sisto et al, No. 2:2008cv01415 - Document 21 (E.D. Cal. 2011)

Court Description: ORDER signed by Judge Garland E. Burrell, Jr on 1/27/11 ORDERING the findings and recommendations 18 filed 12/20/10 are VACATED; new findings and recommendations will be forthcoming. (Carlos, K)

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-CHS (HC) Hines v. Sisto et al Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY HINES, Petitioner, 13 14 No. CIV S-08-CV-1415 GEB CHS P Respondent. 12 ORDER vs. D.K. SISTO,1 15 / 16 17 Petitioner, Larry Hines, is a state prisoner proceeding pro se with a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate 19 sentence of thirty-six years to life following his 1981 guilty plea to forcible rape with a penalty 20 enhancement for use of a deadly weapon and his 1982 jury conviction for first degree murder with 21 penalty enhancements for use of a deadly weapon and a prior violent felony. Here, Petitioner does 22 not challenge the constitutionality of his convictions, but rather, the execution of his sentence, and 23 specifically, the February 14, 2007 decision by the Board of Parole Hearings (the “Board”) finding 24 25 26 1 Gary Swarthout is substituted for his predecessor, D.K. Sisto, as the current acting warden at California State Prison, Solano, where Petitioner is currently incarcerated, pursuant to FED. R. CIV. P. 25(d). 1 Dockets.Justia.com 1 him unsuitable for parole. 2 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 3 § 636(b)(1)(B) and Local Rule 302. On December 20, 2010, the magistrate judge filed findings and 4 recommendations herein which recommended that the petition be denied because there was “some 5 evidence” in the record demonstrating that, at this time of his 2007 parole suitability hearing, 6 Petitioner posed an unreasonable risk of danger to society and was thus unsuitable for parole. 7 Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2010) (citing In re Rosenkrantz, 29 Cal.4th 616 8 (2002)). On January 24, 2011, subsequent to the issuance of the findings and recommendations, the 9 United States Supreme Court issued its opinion in Swarthout v. Cook, No. 10-333, slip op. at 6 (U.S. 10 Jan. 24, 2011), holding that while California prisoners possess a state created, federally protected 11 liberty interest in parole, California’s “some evidence” requirement is not a component of that 12 liberty interest. To the contrary, the protection afforded by the federal due process clause to 13 California parole decisions consists solely of the “minimal” procedural requirements set forth in 14 Greenholtz, specifically, “an opportunity to be heard and . . . a statement of the reasons why parole 15 was denied.” Id. at 4-5. See also Greenholtz, 442 U.S. at 16. 16 Accordingly, IT IS HEREBY ORDERED that the findings and recommendations 17 filed December 20, 2010 are VACATED. New findings and recommendations are forthcoming. 18 DATED: January 27, 2011 19 20 CHARLENE H. SORRENTINO UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 2

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