Edward Williams v. Arnold Schwarzenegger
Opinion
Opinion
MEMORANDUM
Edward Charles Williams appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253 . We review de novo a district court’s decision to deny a habeas petition and review findings of fact for clear error. Christian v. Rhode, 41 F.3d 461, 464 (9th Cir.1994).
In its reply brief, the state argues that appellate review is proeedurally improper because Williams has already been released on parole and no certificate of appealability has been issued. As to the first contention, we conclude that the case is not moot. A live controversy exists because Williams remains on parole and we may grant his immediate release from parole if we find parole was improperly delayed. See McQuillion v. Duncan, 342 F.3d 1012, 1015 (9th Cir.2003). Second, a certificate of appealability was not issued in this case because the district court relied on since-overturned case law. The failure to issue a certificate under these circumstances is excusable. See Hayward v. Marshall, 603 F.3d 546, 554-55 (9th Cir.2010) (en banc). We may issue the certificate sua sponte, and we do so here. Id.