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).