(HC) Bryant v. Haviland et al, No. 2:2009cv03462 - Document 16 (E.D. Cal. 2011)
Court Description: ORDER signed by Magistrate Judge Charlene H. Sorrentino on 1/27/2011 ORDERING that the 14 Findings and Recommendations are VACATED. New F&Rs are forthcoming. (Zignago, K.)
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(HC) Bryant v. Haviland et al Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODNEY ALTON BRYANT, Petitioner, 12 13 14 15 16 No. CIV S-09-CV-3462 GEB CHS P vs. JOHN W. HAVILAND, et al., Respondent. ORDER / 17 Petitioner, Rodney Alton Bryant, is a state prisoner proceeding pro se with a petition 18 for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an 19 indeterminate sentence of fifteen years to life following his 1990 guilty plea to second degree 20 murder in Sacramento County Superior Court. 21 constitutionality of his conviction, but rather, the execution of his sentence and, specifically, the 22 April 9, 2009 decision by the Board of Parole Hearings finding him unsuitable for parole. Here, Petitioner does not challenge the 23 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 24 § 636(b)(1)(B) and Local Rule 302. On January 4, 2011, the magistrate judge filed findings and 25 recommendations herein which recommended that the petition be denied because there was “some 26 evidence” in the record demonstrating that, at this time of his 2009 parole suitability hearing, 1 Dockets.Justia.com 1 Petitioner posed an unreasonable risk of danger to society and was thus unsuitable for parole. 2 Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2010) (citing In re Rosenkrantz, 29 Cal.4th 616 3 (2002)). On January 24, 2011, subsequent to the issuance of the findings and recommendations, the 4 United States Supreme Court issued its opinion in Swarthout v. Cook, No. 10-333, slip op. at 6 (U.S. 5 Jan. 24, 2011), holding that while California prisoners possess a state created, federally protected 6 liberty interest in parole, California’s “some evidence” requirement is not a component of that 7 liberty interest. To the contrary, the protection afforded by the federal due process clause to 8 California parole decisions consists solely of the “minimal” procedural requirements set forth in 9 Greenholtz, specifically, “an opportunity to be heard and . . . a statement of the reasons why parole 10 11 was denied.” Id. at 4-5. See also Greenholtz, 442 U.S. at 16. Accordingly, IT IS HEREBY ORDERED that the findings and recommendations 12 filed January 4, 2011 are VACATED. New findings and recommendations are forthcoming. 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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