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9th Circuit: Appeals Court Lacks Jurisdiction over Non-Final Order For New Parole Hearing

The Ninth Circuit has held that it lacks jurisdiction to hear an appeal of a district court order instructing California's Board of Parole Hearings (Board) to conduct a new parole hearing, where that order, because it did not order the prisoner's release in the event that the state failed to conduct the hearing within a specified period of time, was not deemed a "final decision" under 28 U.S.C. § 1291.

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