Opinion
No. CIV S-09-CV-2999 MCE CHS P.
January 28, 2011
ORDER
Petitioner, Clarence Edward Young, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate sentence of twenty-two years to life following his 1987 conviction in Fresno County Superior Court for second degree murder with two penalty enhancements. Here, Petitioner does not challenge the constitutionality of that conviction, but rather, the execution of his sentence and, specifically, the August 23, 2007 decision by the Board of Parole Hearings finding him unsuitable for parole.
The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On December 3, 2010, the magistrate judge filed findings and recommendations herein which recommended that the petition be denied because there was "some evidence" in the record demonstrating that, at this time of his 2007 parole suitability hearing, Petitioner posed an unreasonable risk of danger to society and was thus unsuitable for parole. Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2010) (citing In re Rosenkrantz, 29 Cal.4th 616 (2002)). On January 24, 2011, subsequent to the issuance of the findings and recommendations, the United States Supreme Court issued its opinion in Swarthout v. Cook, No. 10-333, slip op. at 6 (U.S. Jan. 24, 2011), holding that while California prisoners possess a state created, federally protected liberty interest in parole, California's "some evidence" requirement is not a component of that liberty interest. To the contrary, the protection afforded by the federal due process clause to California parole decisions consists solely of the "minimal" procedural requirements set forth in Greenholtz, specifically, "an opportunity to be heard and . . . a statement of the reasons why parole was denied." Id. at 4-5. See also Greenholtz, 442 U.S. at 16.
Accordingly, IT IS HEREBY ORDERED that the findings and recommendations filed December 3, 2010 are VACATED. New findings and recommendations are forthcoming.
DATED: January 27, 2011