In a concurring opinion, Circuit Judge Diarmuid F. O'Scannlain agreed that the Court lacked jurisdiction over the state's appeal, but not because of the majority's finality considerations, but rather because the hearing ordered by the district court had already been held, rendering the appeal moot.
Prisoner Steven Prellwitz was convicted in 1985 of two counts of second degree murder and sentenced to a term of 18 years to life in prison. After being denied parole by the Board in 2005, he sought judicial relief by way of habeas corpus.
Applying then-current circuit precedent, in May 2009, the district court found that the Board had violated Prellwitz's due process rights by denying him parole in the absence of evidence of current dangerousness. It then ordered the Board to conduct a new parole hearing for Prellwitz within 90 days. The state appealed that order.
Noting that the state did not seek interlocutory relief under 28 U.S.C. §1292(b), the majority reasoned that the district court's order was not a "final decision" under 28 U.S.C. § 1291 "because it did not order Petitioner's release if the Board failed to hold a new parole hearing." The district court, it opined, "contemplated further substantive proceedings before it." See Prellwitz v. Sisto, 657 F.3d 1035 (9th Cir.2011).
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Related legal case
Prellwitz v. Sisto
|Cite||657 F.3d 1035 (9th Cir.2011)|
|Level||Court of Appeals|