Montes v. Adams

Filing 27

ORDER signed by Chief Judge Anthony W. Ishii on 9/27/2010 adopting 15 FINDINGS AND RECOMMENDATIONS; granting 11 Motion to Dismiss, but granting Petitioner leave to file amended petition and REFERRING CASE back to Magistrate Judge for further proceedings. (Amended Petition due by 11/1/2010). (Lundstrom, T)

(HC) Montes v. Adams

Doc. 27

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 DERRAL G. ADAMS, Warden 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 On February 18, 2010, the Magistrate Judge issued Findings and Recommendation that 18 the Motion to Dismiss be GRANTED, but Petitioner be given leave to file an amended petition. 19 This Findings and Recommendation was served on all parties and contained notice that any 20 objections were to be filed within thirty (30) days of the date of service of the order. 21 On March 26, 2010, Petitioner filed timely objections to the Findings and 22 Recommendation. Pursuant to Court order, Respondent filed supplemental objections on May 23 21, 2010. Petitioner filed a supplemental reply on June 18, 2010. 24 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted 25 a de novo review of the case. Having carefully reviewed the entire file, including Respondent's 26 objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is 27 supported by the record and proper analysis. 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT

CARLOS MONTES, Petitioner, v.

1:09-cv-01214-AWI-SMS (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATION AND REFERRING MATTER BACK TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS [Doc. 15] /

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In his objections, Respondent contends that the instant petition is moot because any future challenge to his ability to earn good time credits is moot because he has completed his minimum term of imprisonment and was denied parole at his initial parole hearing on September 5, 2008. The Court does not find merit to Respondent's argument. Petitioner challenges an administrative decision to retain him in the Security Housing Unit (SHU) which took place on December 8, 2005-almost three years prior to the completion of his minimum term of imprisonment. Thus, the Court cannot determine, at this juncture, that the instant petition is moot because it challenges actions which took place prior to the action which Respondent claims rendered the instant moot. As Petitioner argues in his reply, the effect of Petitioner's retention in the SHU and inability to earn good-time credits may have resulted in an earlier minimum eligibility release date. Therefore, Respondent's objections present no grounds for questioning the Magistrate Judge's analysis, and Petitioner should be given the opportunity to amend his petition to clarify his claim(s) for relief. Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendation issued February 18, 2010 , is ADOPTED IN FULL; 2. Respondent's Motion to Dismiss is GRANTED, but Petitioner is GRANTED leave to file an amended petition within thirty (30) days from the date of service of this order; and 3. The matter if referred back to the Magistrate Judge for further proceedings.

IT IS SO ORDERED. Dated: 0m8i78 September 27, 2010 CHIEF UNITED STATES DISTRICT JUDGE

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