Prellwitz

Petitioner Steven Prellwitz filed a petition for habeas corpus, 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.

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 *1023 prayer for relief, Petitioner 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…

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 *1025 clearly erroneous under Swarthout v. Cooke , — U.S. -, 131 S.Ct. 859 , 178 L.Ed.2d 732 (2011) (per curiam). In my view, the jurisdictional question here is better resolved on mootness grounds.

I

As an initial matter, the district court clearly erred by ordering 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 substance. 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 person confined, the federal court has the power to release him. Indeed, it…