LeGare v. Ochoa

Filing 21

ORDER DENYING 19 Motion for Reconsideration signed by District Judge Anthony W. Ishii on 3/12/2014. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JASON PAUL LEGARE,

12

Petitioner,

13
14

15
16
17
18
19

v.
J. TIM OCHOA, Warden,
Respondent.

)
)
)
)
)
)
)
)
)
)

1:10-cv-02379 AWI GSA HC
ORDER DENYING MOTION FOR
RECONSIDERATION
[Doc. #19]

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. He is represented in this action by Stephen M. Defilippis, Esq.
On March 1, 2011, the Magistrate Judge issued a Findings and Recommendation that

20

recommended the petition be DISMISSED for lack of jurisdiction. On July 24, 2013, the undersigned

21

adopted the Findings and Recommendation in full and DISMISSED the petition.

22

On July 25, 2013, Petitioner filed a motion for reconsideration pursuant to Federal Rules of

23

Civil Procedure § 59(e), requesting that the Court reconsider and set aside the judgment. Petitioner

24

notes the Court’s finding that habeas jurisdiction is absent because expungement of the disciplinary

25

proceeding will not necessarily shorten Petitioner’s sentence. Petitioner argues that in his situation,

26

the guilty finding will operate to lengthen his sentence by four months. He states that the Board will

27

fix his term and “invariably den[y]” him four months of post-conviction credits that he would

28

otherwise be granted had he not sustained a disciplinary violation.
1

1

Petitioner’s argument is without merit. There is no certainty that Petitioner will be granted

2

parole. Only if he is granted parole will the Board consider post-conviction credit. For this reason

3

alone, the argument is speculative. Even if he is granted parole, pursuant to 15 C.C.R. § 2410, the

4

Board has the discretion to award credit against a prisoner’s sentence. Under § 2410(a)-(b), a prisoner

5

“may” earn credit against his sentence, and the suggested range based on varying criteria is between

6

zero and four months. In Petitioner’s case, he sustained a serious act of misconduct in accordance

7

with 15 C.C.R. § 3315. According to § 2410(d), he may or may not receive credit depending on

8

whether the Board finds evidence in mitigation. Moreover, the Board may deny credit for reasons

9

independent of the disciplinary violation. Therefore, Petitioner’s claim that expungement will

10
11

necessarily shorten his sentence remains speculative. Habeas jurisdiction is absent.
Accordingly, Petitioner’s motion for reconsideration is DENIED.

12
13

IT IS SO ORDERED.

14

Dated: March 12, 2014

15

SENIOR DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
2