Prellwitz v. Sisto

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN ANTHONY PRELLWITZ,  No. 09-16142

Petitioner-Appellee, D.C. No.

v.  2:07-cv-00046-

D. K. SISTO, Warden, JAM-CHS

Respondent-Appellant.

 OPINION

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted

August 8, 2011—San Francisco, California

Filed September 22, 2011

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Graber;

Concurrence by Judge O’Scannlain

18029

PRELLWITZ v. SISTO 18031

COUNSEL

Joshua M. Salzman, Wilmer Cutler Pickering Hale and Dorr

LLP, Washington, D.C., for the petitioner-appellee.

Christopher J. Rench, Deputy Attorney General, Sacramento,

California, for the respondent-appellant.

OPINION

GRABER, Circuit Judge:

Petitioner Steven Prellwitz filed a petition for habeas cor-

pus, challenging the California Board of Parole Hearings’

(“Board”) denial of his parole. Defendant, Warden D. K.

Sisto, appeals the district court’s order instructing the Board

to conduct a new parole hearing. Because the district court’s

order was not a final decision, we dismiss the appeal for lack

of appellate jurisdiction.

A. Factual and Procedural Background

In 1985, Petitioner was convicted in California state court

on two counts of murder and one count of assault with a

deadly weapon. He was sentenced to a term of imprisonment

of 18 years to life. In December 2005, the Board denied him

parole. Petitioner unsuccessfully pursued habeas relief

through the state courts.

18032 PRELLWITZ v. SISTO

On November 29, 2006, Petitioner filed in federal district

court a pro se petition for a writ of habeas corpus in which he

asserted seven grounds for relief.1 In his prayer for relief, Peti-

tioner asked that the court order his release on parole.

The district court referred the case to a magistrate judge.

Applying then-current law, see Irons v. Carey, 505 F.3d 846,

850-51 (9th Cir. 2007), the magistrate judge concluded that

the Board had violated Petitioner’s due process rights by

denying him parole in the absence of “some evidence” of cur-

rent dangerousness. In reaching that decision, she reasoned

that the Board impermissibly relied on the commitment

offense without explaining “how the offense continues to be

predictive of [Petitioner’s] current dangerousness in light of

other facts in the record.”

On May 21, 2009, the district court issued the order that is

the subject of this appeal. After noting the case’s procedural

history and the standard of review, the district court stated:

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed on

March 11, 2009, are adopted in full;

1

Specifically, Petitioner alleged that the Board had violated his rights to

due process and equal protection by: (1) presenting no evidence to sub-

stantiate its findings that Petitioner would pose a risk to public safety; (2)

ignoring evidence that contradicted its finding that Petitioner’s motive for

the crime was “inexplicable or very trivial in relation to the offense”; (3)

depriving Petitioner of his protected liberty interest in a parole date, in

violation of California Penal Code section 3041; (4) failing to set a parole

date even though both the minimum and maximum release dates have

passed (which he also challenged as cruel and unusual punishment in vio-

lation of the Eighth Amendment); (5) denying him parole in the absence

of “some evidence” of current dangerousness, in violation of California

law; and (6) relying solely on the unchanging factor of the commitment

offense. As a seventh ground for relief, Petitioner alleged that the gover-

nor had adopted an illegal, blanket policy of denying parole to life prison-

ers.

PRELLWITZ v. SISTO 18033

2. The Board of Parole Hearings is ordered to con-

duct a hearing in compliance with the recommenda-

tions within 90 days of the date of this order; and

3. Respondent is directed to file a document con-

firming that Mr. Prellwitz has received his hearing

within 120 days of the date of this order.

The district court did not issue a separate document setting

forth a judgment. The state filed a notice of appeal from the

district court’s order.

B. Appellate Jurisdiction

[1] Under 28 U.S.C. § 1291, we have jurisdiction over

appeals from “final decisions of the district courts of the

United States.” See also 28 U.S.C. § 2253 (allowing appeals

in some habeas cases from a “final order”). A final, appeal-

able decision “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” Catlin

v. United States, 324 U.S. 229, 233 (1945). To be final, a

habeas decision must “either den[y] the petition or order[ ] the

prisoner released at a specified time.” United States ex rel.

Burton v. Greer, 643 F.2d 466, 469 (7th Cir. 1981); see also

Alexander v. U.S. Parole Comm’n, 514 F.3d 1083, 1087 (10th

Cir. 2008) (holding that a conditional order is a final decision

only if it orders the prisoner released by a specified time upon

failure of the stated conditions); Allen v. Hadden, 738 F.2d

1102, 1106 (10th Cir. 1984) (same); Heirens v. Mizell, 729

F.2d 449, 454-55 (7th Cir. 1984) (same), modified on other

grounds by Granberry v. Mizell, 780 F.2d 14 (7th Cir. 1985).

Thus, conditional orders may qualify as final decisions, but

only if they order the petitioner’s release. See Browder v. Dir.,

Dep’t of Corr., 434 U.S. 257, 260 (1978) (holding that an

order “directing that petitioner be released from custody

unless the State retried him within 60 days” was a final deci-

sion); Blazak v. Ricketts, 971 F.2d 1408, 1410-11 (9th Cir.

1992) (per curiam) (holding that an order vacating a convic-

18034 PRELLWITZ v. SISTO

tion was final, even though it left the state free to retry the

petitioner, because “nothing further remained for the district

court’s consideration”). Had the district court followed the

usual formula—“do X by Y date or release the prisoner”—we

would have had jurisdiction because the order would have

been “final” within the meaning of 28 U.S.C. §§ 1291 and

2253.

[2] In this case, though, the district court’s order was not

a final decision because it did not order Petitioner’s release if

the Board failed to hold a new parole hearing. On facts indis-

tinguishable from those here, the Seventh Circuit held that an

order requiring a new parole hearing was not a final decision

—even though the order stated that the petition had been

granted—because “if no parole hearing had subsequently

been provided, [the petitioner] would not have been automati-

cally released from custody.” Heirens, 729 F.2d at 454-55. As

in Heirens, if the Board had failed to hold the new parole

hearing, Petitioner would have been required to return to the

district court to seek a further order directing his release. Such

an order would go beyond mere execution of the district

court’s previous order for a new hearing. Moreover, the

order’s instruction requiring the state to “file a document con-

firming that [Petitioner] has received his hearing” suggests

that the district court contemplated further substantive pro-

ceedings before it. See Broussard v. Lippman, 643 F.2d 1131

(5th Cir. 1981) (holding that an order requiring a parole board

to conduct a new hearing and to file a written statement with

the court was not a final, appealable decision because the

reporting requirement suggested that the district court antici-

pated further proceedings).

[3] Further, the district court, by adopting the magistrate

judge’s recommendations and by granting the new hearing,

addressed only Petitioner’s due process claim that the Board

denied his parole in the absence of “some evidence” of cur-

rent dangerousness. As noted, however, Petitioner asserted

several additional grounds for relief, including equal protec-

PRELLWITZ v. SISTO 18035

tion violations, a violation of the Eighth Amendment, and

other due process violations. Thus, the district court’s order

was not final because it did not dispose of the action as to all

claims between the parties. See Fed. R. Civ. P. 54(b) (provid-

ing that, unless a district court expressly determines that there

is no just reason for delay, “any order or other decision, how-

ever designated, that adjudicates fewer than all the claims or

the rights and liabilities of fewer than all the parties does not

end the action as to any of the claims or parties”); Chacon v.

Babcock, 640 F.2d 221, 222 (9th Cir. 1981) (holding that a

summary judgment order that does not dispose of all claims

between the parties does not confer appellate jurisdiction

because it is not a final decision under 28 U.S.C. § 1291).2

[4] For all these reasons, we conclude that we lack appel-

late jurisdiction to review the district court’s order, and we

therefore dismiss the appeal.

DISMISSED.

O’SCANNLAIN, Circuit Judge, concurring in the judgment:

I agree with the court that we lack jurisdiction to consider

this appeal. I write separately because I cannot join in the

majority’s newly-fashioned rule, which would bar the State of

California from appealing district court decisions that were

clearly erroneous under Swarthout v. Cooke, 131 S. Ct. 859

(2011) (per curiam). In my view, the jurisdictional question

here is better resolved on mootness grounds.

2

The government relies exclusively on 28 U.S.C. § 1291. The govern-

ment did not seek an interlocutory appeal under 28 U.S.C. § 1292(b).

Therefore, we need not and do not decide whether an interlocutory appeal

would have been available in the circumstances.

18036 PRELLWITZ v. SISTO

I

As an initial matter, the district court clearly erred by order-

ing the State of California to grant Prellwitz another parole

hearing. As the Supreme Court recently reminded us, federal

courts may not review state parole decisions for their sub-

stance. See Swarthout, 131 S. Ct. at 862-63.

In any event, in my view the district court lacked the

authority to order California to conduct a parole hearing

because the writ of habeas corpus is limited to either granting

or denying a release from custody. Crow v. United States, 186

F.2d 704, 706 (9th Cir. 1951). “Habeas lies to enforce the

right of personal liberty; when that right is denied and a per-

son confined, the federal court has the power to release him.

Indeed, it has no other power; it cannot revise the state court

judgment; it can act only on the body of the petitioner.” Fay

v. Noia, 372 U.S. 391, 430-31 (1963), overruled on other

grounds, Wainwright v. Sykes, 433 U.S. 72 (1977); see also

Picrin-Peron v. Rison, 930 F.2d 773, 775 (9th Cir. 1991)

(same).

Thus, if the district court determined that habeas relief were

necessary because of a defective parole hearing (which it

should not have), the proper remedy was to grant a condi-

tional writ. See Hilton v. Braunskill, 481 U.S. 770, 775 (1987)

(“[The Supreme] Court has repeatedly stated that federal

courts may delay the release of a successful habeas petitioner

in order to provide the State an opportunity to correct the con-

stitutional violation found by the court.”). Then, California

could have “take[n] some remedial action” of its own choos-

ing. Harvest v. Castro, 531 F.3d 737, 741 (9th Cir. 2008).

II

Regardless of what it should have done, the district court

ordered a new parole hearing and that hearing has occurred.

Prellwitz has received the relief he sought, and California has

PRELLWITZ v. SISTO 18037

held the hearing it did not wish to hold. Thus, this appeal is

moot, and we lack jurisdiction. See Foster v. Carson, 347

F.3d 742, 746 (9th Cir. 2003) (“Where the activities sought to

be enjoined already have occurred, and the appellate courts

cannot undo what has already been done, the action is moot,

and must be dismissed.” (internal quotation marks omitted)).

By ruling on finality grounds, the majority puts states in the

untenable position of being unable to appeal erroneous district

court orders. I agree that “[t]o be final, a habeas decision must

either den[y] the petition or order[ ] the prisoner released at

a specified time.” Op. at 18033 (alterations in original) (inter-

nal quotation marks omitted). But before the Supreme Court’s

decision in Swarthout, any number of habeas petitions were

likely granted in our circuit — without a specific release date

— only so that another parole hearing could be held. After

Swarthout, it is crystal clear that those decisions were errone-

ous.

But under the court’s decision today, the government could

rarely — if ever — appeal such an order. If the state obeys

the order and holds the hearing, the appeal (like this one) is

moot. If the state does not wish to obey the order, it would

have no guarantee of immediate review under the rule

announced today. Nor could the state ignore the order in the

hope of later challenging it in an enforcement proceeding. See

Walker v. City of Birmingham, 388 U.S. 307 (1967); In re

Establishment Inspection of Hern Iron Works, Inc., 881 F.2d

722, 725 (9th Cir. 1989) (“In brief, the collateral bar rule per-

mits a judicial order to be enforced through criminal contempt

even though the underlying decision may be incorrect and

even unconstitutional.”).

Moreover, even application of the seemingly bright-line

rule proposed by the majority would be difficult in practice.

As in this case, it is often difficult to tell whether a district

court is actually granting a writ of habeas corpus. See Alexan-

der v. U.S. Parole Comm’n, 514 F.3d 1083, 1087 (10th Cir.

18038 PRELLWITZ v. SISTO

2008) (“Unfortunately, not all orders state clearly whether

release has been granted or denied.”). Thus, closer inspection

would be needed on a case-by-case basis to determine

whether an ambiguous order is “the functional equivalent of

a conditional release order.” Id. at 1089. I think it inappropri-

ate for us to be undertaking such an inquiry.

III

Given these difficulties with the majority’s new rule, I can-

not join in its opinion. I do, however, agree that we do not

have jurisdiction over this appeal. Accordingly, I would dis-

miss for mootness and vacate the judgment of the district

court. See Burke v. Barnes, 479 U.S. 361, 365 (1987).