Caswell v. Calderon

• Decision Date: 18 March 2004
• Docket Number: No. 02-17177.,02-17177.
• Citation: 363 F.3d 832
• Parties: Steven H. CASWELL, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

363 F.3d 832

Steven H. CASWELL, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.

No. 02-17177.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 12, 2003.

Filed March 18, 2004.

COPYRIGHT MATERIAL OMITTED

Eric S. Multhaup, Esq., Mill Valley, CA, for the petitioner-appellant.

Michael J. Williams, Esq. and Stephen W. Perkins, Esq., Sacramento, CA, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, District Judge, Presiding. D.C. No. CV-91-01079-FCD/PAN.

Before O'SCANNLAIN, TASHIMA, Circuit Judges, and MATZ,^* District Judge.

MATZ, District Judge.

INTRODUCTION

On this appeal from the District Court's denial of a habeas corpus petition and denial of leave to amend the petition, we are presented with two issues. First, is the claim of petitioner Steven H. Caswell that the California Board of Prison Terms ("the Board") violated the Ex Post Facto Clause when it calculated his term of confinement moot, because he has already served the sentence the Board initially imposed and remains in prison only because the Board subsequently rescinded his parole release date? Second, should the petitioner be granted leave to amend his petition to add new constitutional claims?

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253 and we affirm in part and reverse in part. In doing so, we hold that:

(1) Caswell's Ex Post Facto claim is moot, and thus it is unnecessary to address the merits of that claim.

(2) Caswell should be granted leave to amend his habeas petition to add a due process claim, but not an equal protection claim.

BACKGROUND

The facts of this case are fully recited in In re Caswell, 92 Cal.App.4th 1017, 112 Cal.Rptr.2d 462; 92 Cal.App.4th 1017, 112 Cal.Rptr.2d 462 (2001). In short, in May 1976, Caswell was convicted of four counts of kidnapping for the purpose of robbery, for which he received an indeterminate life sentence with the possibility of parole. Caswell was also convicted of four counts each of first degree robbery, assault with a deadly weapon and attempted murder. His prison sentences as to those counts were stayed.

I. The Board's 1986 Decisions

Caswell became eligible for parole in April 1983. In March 1986, after previously denying Caswell a parole release date four times, the Board found Caswell suitable for parole under the Uniform Determinate Sentencing Act ("DSL"). The Board calculated Caswell's sentence under the DSL as 391 months (32 years and 7 months), with a December 2006 release date.

However, because Caswell committed his crimes prior to the DSL's effective date, the Board reconvened in June 1986 to re-calculate Caswell's release date under the Indeterminate Sentence Law ("ISL"), which was in effect at the time of Caswell's crimes. Using the ISL, the Board calculated Caswell's sentence to be 293 months (24 years and 5 months), with a September 2000 release date.¹ This is the sentence and release date that Caswell now challenges.

II. The Board's Subsequent Rescission of Caswell's Parole Release Date

In March 1999, after conducting a rescission hearing, a panel of Board members unanimously found good cause to rescind Caswell's September 2000 parole release date. As support for its finding, the Board reasoned that (1) Caswell's crime was very serious; (2) the granting panel did not consider the stayed convictions; (3) the granting panel improperly found the fact that Caswell did not actually shoot any victim to be a mitigating factor, rather than an aggravating factor; (4) Caswell minimized his role in the crime; and (5) the granting panel "missed the point" in assessing Caswell's role in the attempted murder of one of the victims. In re Caswell, 92 Cal.App.4th at 1030, 112 Cal.Rptr.2d at 471-72.

III. Caswell's Habeas Petitions

In Caswell's first federal petition, filed in 1986 in the Eastern District of California, he challenged the trial court's failure to give a proper aiding and abetting jury instruction. The district court dismissed that petition because of Caswell's failure to exhaust his state court remedies. In 1991, after exhausting those remedies, Caswell filed another habeas petition in the Eastern District of California, again challenging the jury instruction. In 1993, the district court ruled that the trial court did not err, and it granted summary judgment to the State. This court initially affirmed the district court's ruling, but subsequently reversed and remanded on rehearing. The United States Supreme Court granted certiorari, vacated our decision on rehearing, and remanded the case. On remand in 1997, we affirmed the district court's grant of summary judgment to the State.²

On October 20, 1997, following our ruling, Caswell informed the district court that he intended to proceed with his claim for relief based on the Board's alleged violation of the Ex Post Facto Clause. While the parties engaged in discovery on that claim, Caswell filed a new habeas petition in state court, challenging the Board's 1999 decision to rescind his then-scheduled 2000 parole release date. Eventually, on January 15, 2002, the California Supreme Court denied review of the California Court of Appeal's dismissal of that petition.

Also on January 15, 2002, Caswell filed a motion for summary judgment on his Ex Post Facto claim and sought leave to amend his habeas petition to add equal protection and due process challenges to the Board's 1999 rescission of his parole release date. On July 30, 2002, the district court denied both Caswell's motion for summary judgment and his request for leave to amend his habeas petition. On September 9, 2002, the district court entered judgment in favor of the State.

STANDARD OF REVIEW

The district court's denial of Caswell's § 2254 petition is reviewed de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).³ The district court's decision to deny leave to amend is reviewed for abuse of discretion. Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir.1996).

DISCUSSION

I. The Nature of Caswell's Ex Post Facto Claim

Caswell argues on appeal that the Board violated the Ex Post Facto Clause by failing to apply two "rules of practice" in effect in May 1976, when he committed the crimes: (1) All prisoners similarly situated were released within five years of being found parole suitable ("the five-year rule"); and (2) Separate assessments for contemporaneous offenses occurring in a single transaction were rarely, if ever, imposed in calculating prisoners' sentences, and if they were, the additional assessments were limited to two years ("the separate assessment rule"). Caswell contends that had the Board properly applied the above mentioned "rules of practice," he would have been released on parole in the early 1990s.

II. Mootness

Neither party briefed the issue of mootness in the proceedings before either the district court or this Court. However, we must consider jurisdictional issues even when they are not raised by the parties. Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir.2002).

A case is moot if it does not satisfy the case-or-controversy requirement of Article III, § 2, of the Constitution. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). "The case-or-controversy requirement demands that, through all stages of federal judicial proceedings, the parties continue to have a personal stake in the outcome of the law suit." United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir.2001) (internal quotation marks and citation omitted). "This means that, throughout the litigation, the plaintiff `must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" Spencer, 523 U.S. at 7, 118 S.Ct. 978 (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). A challenge to a prison sentence becomes moot once the sentence has been served unless the petitioner continues to suffer collateral consequences. United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999).

We find that Caswell's Ex Post Facto challenge is moot. First, Caswell has already served the term of confinement initially set for him. He remains in prison beyond his scheduled September 2000 release date not because of any decision made by the granting panel in June 1986, but because of the Board's subsequent decision in 1999 to rescind his parole release date. It is of course true that if Caswell actually had been released in the early 1990s, as he claims he should have been under 1976 parole release "rules of practice," then in 1999 the Board would have had nothing to rescind. However, the Board's 1999 decision was not an "actual collateral consequence []" of the Board's 1986 calculation of Caswell's parole release date. Zegarra-Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir.2003) (emphasis added).

Moreover, Caswell's Ex Post Facto challenge is moot because we cannot provide Caswell with any effective relief. See Spencer, 523 U.S. at 7, 118 S.Ct. 978 (injury must be "likely to be redressed by a favorable judicial decision.") A remand to the Board with instructions to re-calculate Caswell's parole release date under the pre-1986 "rules of practice" would be meaningless precisely because in 1999 the Board determined that Caswell was not even eligible for parole. Thus, in order for this Court to provide Caswell with effective relief, we would also have to vacate the Board's 1999 decision. However, as of this point we cannot do so because Caswell has not yet established that the Board committed constitutional error in 1999. Because Caswell's Ex Post Facto claim is moot, we need not address the district court's rejection of this claim on the merits.

III. Caswell Should Be Granted Leave to Amend His Habeas Petition to Include a Due Process Claim, But Not an Equal Protection Claim.

On January 15, 2002,...