Cooke v. Solis, No. 4:2004cv04439 - Document 50 (N.D. Cal. 2010)
Court Description: ORDER by Judge Claudia Wilken ORDER GRANTING IN PART AND DENYING IN PART 42 PETITIONERS MOTION FOR ORDER ALTERING OR AMENDING JUDGMENT (ndr, COURT STAFF) (Filed on 11/23/2010) Modified on 11/24/2010 (kc, COURT STAFF).
Download PDF
<![CDATA[
Cooke v. Solis Doc. 50 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 DAMON COOKE, 6 7 8 9 Petitioner, ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S MOTION FOR ORDER ALTERING OR AMENDING JUDGMENT (Docket No. 42) v. JOSE SOLIS, Warden, California Training Facility-Central; et al., Respondents. 10 United States District Court For the Northern District of California No. 04-4439 CW / 11 12 Pursuant to Federal Rule of Civil Procedure 59, Petitioner 13 Damon Cooke moves for an order altering or amending the Court’s 14 Order of June 24, 2010. 15 in part. 16 Having considered the papers submitted by the parties, the Court 17 GRANTS Cooke’s motion in part and DENIES it in part. The motion was taken under submission on the papers. 18 19 Respondent Jose Solis opposes the motion BACKGROUND Because the facts of this case are detailed in the Ninth 20 Circuit’s opinion on Cooke’s appeal concerning his petition for a 21 writ of habeas corpus, they will not be repeated here in their 22 entirety. 23 2010). 24 See generally Cooke v. Solis, 606 F.3d 1206 (9th Cir. The facts relevant to Cooke’s motion are as follows. In 1991, Cooke was convicted of attempted first degree murder 25 and sentenced to seven years to life in prison, with the 26 possibility of parole. 27 sentence based on the use of a firearm during the perpetration of A four-year enhancement was added to his 28 Dockets.Justia.com 1 the crime. On November 19, 2002, the California Board of Prison Terms1 2 3 held a hearing to assess Cooke’s suitability for parole. 4 found Cooke not suitable because “he ‘would pose an unreasonable 5 risk to society if released from prison.’” 6 1211. 7 The Board Cooke, 606 F.3d at On December 19, 2003, Cooke filed a petition for a writ of 8 habeas corpus in Alameda County Superior Court. 9 the petition, concluding that “there was some evidence, including The court denied United States District Court For the Northern District of California 10 but certainly not limited to the life offense, to support the 11 board’s denial of Petitioner’s parole.” 12 subsequently sought relief from the state court of appeal and the 13 California Supreme Court, both of which summarily denied his 14 requests. 15 Id. at 1212. Cooke Id. On October 18, 2004, Cooke filed a petition in this district 16 for a federal writ for habeas corpus. 17 the Honorable Martin J. Jenkins and was denied. 18 to the Ninth Circuit Court of Appeals. His petition was assigned to He timely appealed 19 On June 4, 2010, the Ninth Circuit reversed the decision of 20 the district court, concluding that the “Parole Board’s findings 21 were individually and in toto unreasonable because they were 22 without evidentiary support,” and remanded with instructions to 23 “grant the writ.” 24 issued the same day. Id. at 1216. The mandate of the Ninth Circuit Following remand, Cooke’s case was reassigned 25 26 27 28 1 On July 1, 2005, the California Board of Parole Hearings (BPH) replaced the Board of Prison Terms. Cal. Pen. Code § 5075(a). 2 1 to the undersigned because Judge Jenkins no longer sits on this 2 court. 3 On June 24, 2010, the Court granted Cooke’s petition for a writ of habeas corpus and directed the Board to hold a new hearing 5 within sixty days from the date of that Order to reevaluate Cooke’s 6 suitability for parole in accordance with the Ninth Circuit’s 7 decision. 8 suitable for parole and sets a release date and the Governor does 9 not reverse, the Court will stay Petitioner’s actual release for 10 United States District Court For the Northern District of California 4 two weeks to allow Respondents to request a stay pending appeal 11 from this Court and, if necessary, from the Court of Appeals.” 12 The Order also provided, “If the Board finds Petitioner In accordance with the Court’s June 24, 2010 Order, the Board 13 of Parole Hearings held a proceeding on August 19, 2010 to 14 determine Petitioner’s suitability for parole in light of the Ninth 15 Circuit’s decision in this case. 16 for parole based in part on conduct since his 2002 hearing. 17 Board also noted that, on April 15, 2010, Petitioner had stipulated 18 to unsuitability for three years. 19 20 Petitioner was found unsuitable The LEGAL STANDARD Rule 59(e) provides that a “motion to alter or amend a 21 judgment must be filed no later than 28 days after the entry of the 22 judgment.” 23 interpreted as motions for reconsideration, and are appropriate if 24 the district court “(1) is presented with newly discovered 25 evidence, (2) committed clear error or the initial decision was 26 manifestly unjust, or (3) if there is an intervening change in 27 controlling law.” 28 Fed. R. Civ. P. 59(e). Rule 59(e) motions are Sch. Dist. No. 1J, Multnomah County, Or. v. 3 1 AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 2 U.S. 1236 (1994). 3 DISCUSSION 4 Cooke asks the Court to amend its June 24, 2010 Order to 5 eliminate the provision for an anticipatory stay and to provide for 6 his immediate release from prison without a further parole hearing. 7 He also asks the Court to order that he be released from custody 8 and not be subject to a period of parole as required under 9 California Penal Code § 3000. Because Respondent does not oppose United States District Court For the Northern District of California 10 Cooke’s request as to the anticipatory stay, the June 24, 2010 11 Order is amended to delete the provision therefor. 12 however, opposes Cooke’s request for an order requiring his 13 immediate release without a further hearing and discharging him 14 from any parole period. 15 Respondent, In arguing for immediate release, Cooke cites McQuillion v. 16 Duncan (McQuillion I), 306 F.3d 895 (9th Cir. 2002). 17 the Ninth Circuit concluded that the Board’s 1994 rescission of its 18 original grant of parole to the petitioner was not supported by any 19 evidence and granted the petition for habeas corpus relief. 20 904-912. 21 court with instructions to “grant the writ.” 22 remand, the district court ordered the immediate release of the 23 petitioner. McQuillion v. Duncan, 253 F. Supp. 2d 1131, 1136 (C.D. 24 Cal. 2003). The warden asked the district court to order, in lieu 25 of immediate release, that the Board grant the petitioner a new 26 rescission hearing. 27 warden’s motion, but stayed its judgment to allow the warden time 28 In that case, Id. at The McQuillion I court remanded the case to the district Id. at 1133. Id. at 912. On The district court denied the 4 1 to appeal. 2 Id. at 1136. In McQuillion v. Duncan (McQuillion II), 342 F.3d 1012 (9th 3 Cir. 2003), the Ninth Circuit held that the district court had 4 properly interpreted the Ninth Circuit’s direction in McQuillion I. 5 The Ninth Circuit rejected the respondent’s argument that the case 6 should be remanded to the Board for a new rescission hearing 7 because the question before the Board at its last decision to 8 rescind the grant of parole was whether in 1979 the Board had 9 improvidently granted a parole date to the petitioner. Id. at United States District Court For the Northern District of California 10 1015. 11 to the Board to reconsider that question, given that the evidence 12 in the 1994 hearing pertained to the entirely historical question 13 of what the Board had done in 1979; given that the same evidence as 14 in 1994 would be before the Board on remand; and given that we held 15 in McQuillion I that the Board in 1994 had improperly found, based 16 on that evidence, that the parole date had been improvidently 17 granted in 1979.” 18 The Ninth Circuit explained, “There is no reason to remand Id. Here, the Board concluded that Cooke was unsuitable for 19 parole. 20 the Ninth Circuit concluded it violated Cooke’s right to due 21 process. 22 immediate release. 23 found Cooke to be suitable for parole. 24 that the Board’s rescission decision to be in error and, in 25 essence, reinstated the Board’s earlier finding of suitability. 26 such finding exists here. 27 by the Board on remand here is not similarly limited to the 28 Because this decision was not supported by some evidence, However, this does not, on its own, require Cooke’s Unlike in McQuillion’s case, no tribunal has The McQuillion I court held No Further, the evidence subject to review 5 1 evidence at issue in McQuillion II. 2 238, 256 (2010) (“Indeed, it is possible that older evidence was 3 not cited by the Board, and was not contained in the record before 4 the reviewing court, because the parties determined such evidence 5 was irrelevant. 6 suitability hearing, this older evidence may take on new relevance 7 and may provide support for a determination that a prisoner is not 8 suitable for parole.”). 9 See In re Prather, 50 Cal. 4th Yet, if new evidence emerges after the last Cooke’s argument suggests that, if the Ninth Circuit instructs United States District Court For the Northern District of California 10 a district court to “grant the writ,” the lower court must provide 11 the relief specifically sought in the writ petition which, in this 12 case, is immediate release. 13 v. California Board of Prison Terms, 611 F.3d 1015 (9th Cir. 2010), 14 reiterates the principle that district courts have discretion to 15 fashion habeas corpus relief. 16 17 18 19 However, as Cooke acknowledges, Pirtle The Ninth Circuit explained, Federal courts have the latitude to resolve a habeas corpus petition as law and justice require. Ordering the release of a prisoner is well within the range of remedies available to federal habeas courts. Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. 20 Id. at 1025 (citations and internal quotation marks omitted). 21 Thus, although a district court can order immediate release, there 22 is no requirement that it must do so, unless instructed otherwise.2 23 2 27 The Ninth Circuit has instructed district courts on the specific habeas relief necessary. See, e.g., Maxwell v. Roe, 606 F.3d 561, 577 (9th Cir. 2010) (remanding with instructions to “grant a writ of habeas corpus directing the state to provide Maxwell with a new trial in a reasonable amount of time or release him”); Chambers v. McDaniel, 549 F.3d 1191, 1201 (9th Cir. 2008) (remanding with instructions to “grant the writ of habeas corpus and order the State of Nevada to release Chambers, unless the State 28 6 24 25 26 1 Here, the Court decided to remand Cooke’s case to the Board 2 for further review in accordance with the Ninth Circuit’s decision. 3 That hearing has now been held. 4 briefing regarding the current posture of the case and their 5 proposed resolutions. 6 Board’s new reasons for finding him not suitable and the effect of 7 his April 15, 2010 stipulation of unsuitability for three years. 8 briefing schedule is provided below. 9 The parties shall provide further In particular, Petitioner shall address the A Cooke also asks the Court to order that he be relieved of United States District Court For the Northern District of California 10 serving any statutorily required parole period upon his release. 11 It is true that, under California and federal case law, habeas 12 relief could include the adjustment of a petitioner’s parole 13 period, under appropriate circumstances. 14 115 Cal. App. 3d 647 (1981); In re Kemper, 112 Cal. App. 3d 434 15 (1980); see also Thomas v. Yates, 637 F. Supp. 2d 837, 842 (E.D. 16 Cal. 2009). 17 required to, and will not, so order. 18 argue that, had the Board found him suitable for parole in 19 November, 2002, he would have been released by March, 2003 and any 20 period of parole would have already expired. 21 § 3000(b). 22 There, the court rejected the respondent’s argument that it was 23 necessary for the district court to provide for a three-year period 24 of parole when it ordered petitioner’s immediate release. 25 McQuillion II, 342 F.3d at 1015. See, e.g., In re Ballard, However, on the current facts, the Court is not Cooke cites McQuillion II to See Cal. Pen. Code As explained above, McQuillion II is inapposite. The court explained that, had the 26 27 28 elects to retry Chambers within a reasonable amount of time”). Here, no such instruction was given. 7 1 petitioner been released on the date to which he was entitled, his 2 parole period would have already expired. 3 been no finding that Cooke is suitable for parole, nor has a 4 release date been set. 5 the period Cooke has spent in prison since his 2002 suitability 6 hearing toward his period of parole. 7 4th 133, 145 (2008) (distinguishing McQuillion and concluding that 8 petitioner was not entitled to additional credits for unlawful 9 prison custody). United States District Court For the Northern District of California Here, there has Thus, the Court is not required to credit 10 11 Id. See In re Bush, 161 Cal. App. CONCLUSION For the foregoing reasons, the Court GRANTS in part and DENIES 12 in part Cooke’s motion for an order altering and amending the 13 Court’s June 24, 2010 Order. 14 does not oppose Cooke’s request to delete the provision for an 15 anticipatory stay, the Court strikes from the June 24, 2010 Order 16 the sentence that reads, “If the Board finds Petitioner suitable 17 for parole and sets a release date and the Governor does not 18 reverse, the Court will stay Petitioner’s actual release for two 19 weeks to allow Respondents to request a stay pending appeal from 20 this Court and, if necessary, from the Court of Appeals.” 21 extent Cooke asked for release without a further hearing, his 22 motion is DENIED as moot. 23 DENIED. 24 (Docket No. 42.) Because Respondent To the In all other respects, his motion is As noted above, the parties shall file briefing on the current 25 posture of this case and their proposed resolutions. 26 shall be due twenty-one days from the date of this Order. 27 Respondent’s brief shall be due fourteen days after Cooke’s brief 28 8 Cooke’s brief 1 is filed, and any reply shall be due seven days after that. 2 Court will set a hearing, if necessary. 3 The IT IS SO ORDERED. 4 5 Dated: 11/23/2010 CLAUDIA WILKEN United States District Judge 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
]]>
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.
