(HC) Burnight v. Sisto, No. 2:2008cv01894 - Document 22 (E.D. Cal. 2011)

Court Description: ORDER signed by Magistrate Judge Charlene H. Sorrentino on 01/27/11 VACATING 18 FINDINGS AND RECOMMENDATIONS. New findings and recommendations will issue.(Williams, D)

Download PDF
(HC) Burnight v. Sisto Doc. 22 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JON BURNIGHT, Petitioner, 11 12 13 14 15 16 17 No. CIV S-08-1894 MCE CHS P vs. D.K.SISTO, Respondent. ORDER VACATING FINDINGS AND RECOMMENDATIONS / Petitioner Burnight is a state prisoner proceeding pro se with a petition for a writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a January 23, 2007 19 decision of the state parole authority that he was not suitable for parole. On November 16, 2010, 20 findings and recommendations issued herein, recommending that the petition be granted because 21 the state parole authority’s decision was unsupported by some evidence in the record. This 22 particular finding relied on formerly controlling authority of the United States Court of Appeals 23 for the Ninth Circuit, directing that “courts in this circuit... need only decide whether the 24 California judicial decision approving the governor’s decision rejecting parole was an 25 ‘unreasonable application’ of the California ‘some evidence’ requirement, or was ‘based on an 26 unreasonable determination of the facts in light of the evidence.’” Hayward v. Marshall, 603 1 Dockets.Justia.com 1 F.3d 546, 562-63 (9th Cir. 2010) (citations omitted). Subsequent to the filing of the pending findings and recommendations, however, 2 3 the United States Supreme Court held in Swarthout v. Cooke, No. 10-333, slip op. at 4-5 (U.S. 4 January 24, 2011), that a federal court’s inquiry into whether an inmate in California received 5 due process in the parole suitability hearing context does not include review of California’s 6 “some evidence” requirement. Rather, in the parole suitability context, “the only federal right at 7 issue is procedural.” Id. at 6. Thus, this court may only review a parole board’s procedures to 8 see that an inmate received an opportunity to be heard and a decision informing him of the 9 reasons he did not qualify for parole. See Swarthout, slip op. at 4-5 (citing Greenholtz, 442 U.S. 10 11 at 16). In light of this new controlling Supreme Court authority, IT IS HEREBY 12 ORDERED THAT the findings and recommendations signed on November 15, 2010 and filed on 13 November 16, 2010, are VACATED. New findings and recommendations will issue. 14 DATED: January 27, 2011 15 16 CHARLENE H. SORRENTINO UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.