Evans v. Hartley

Filing 31

ORDER to Petitioner to SHOW CAUSE No Later Than Thirty (30) Days After Service of This Order Why the Petition Should Not Be Dismissed as Moot 1 , 28 ; ORDER Permitting Respondent to File No Later Than Fourteen (14) Days After Service a Reply to Petitioner's Response to the Order to Show Cause re: Mootness, signed by Magistrate Judge Sheila K. Oberto on 12/9/11. Thirty Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LATIF R. EVANS,

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Petitioner,
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v.
BOARD OF PAROLE HEARINGS
(BPH), et al.,

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Respondents.
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1:11-cv—01424-LJO-SKO-HC
ORDER TO PETITIONER TO SHOW CAUSE
NO LATER THAN THIRTY (30) DAYS
AFTER SERVICE OF THIS ORDER WHY
THE PETITION SHOULD NOT BE
DISMISSED AS MOOT (DOCS. 1, 28)
ORDER PERMITTING RESPONDENT TO
FILE NO LATER THAN FOURTEEN (14)
DAYS AFTER SERVICE A REPLY TO
PETITIONER’S RESPONSE TO THE
ORDER TO SHOW CAUSE RE: MOOTNESS

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Petitioner is a state prisoner proceeding pro se with a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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The matter has been referred to the Magistrate Judge pursuant to

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28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303.

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In the petition, Petitioner challenges procedures used in a

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parole revocation proceeding.

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petition on November 22, 2011, addressing the merits of the

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petition, which was filed at a time when Petitioner was an inmate

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of the Avenal State Prison.

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Petitioner filed a notice of change of address in which he listed

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an address in Goleta, California.

Respondent filed an answer to the

However, on November 22, 2011,

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It does not appear that

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Petitioner remains in custody, and thus it appears that

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Petitioner has been released from prison on parole.

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Federal courts lack jurisdiction to decide cases that are moot

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because the courts’ constitutional authority extends to only

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actual cases or controversies.

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Heckler, 464 U.S. 67, 70-71 (1983).

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or controversy in which a litigant has a personal stake in the

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outcome of the suit throughout all stages of federal judicial

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proceedings and has suffered some actual injury that can be

Iron Arrow Honor Society v.
Article III requires a case

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redressed by a favorable judicial decision.

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writ of habeas corpus becomes moot when it no longer presents a

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case or controversy under Article III, § 2 of the Constitution.

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Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003).

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for writ of habeas corpus is moot where a petitioner’s claim for

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relief cannot be redressed by a favorable decision of the court

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issuing a writ of habeas corpus.

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996, 1000-01 (9th Cir. 2005) (quoting Spencer v. Kemna, 523 U.S.

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1, 7 (1998)).

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Union High School District, 228 F.3d 1092, 1098-99 (9th Cir.

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2000).

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remains before the Court to be remedied.

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U.S. at 18.

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Id.

A petition for

A petition

Burnett v. Lampert, 432 F.3d

Mootness is jurisdictional.

See, Cole v. Oroville

Thus, a moot petition must be dismissed because nothing
Spencer v. Kemna, 523

A case becomes moot because of the absence of an actual case

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or controversy where the petitioner no longer suffers or

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anticipates an injury traceable to the respondent which is likely

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to be redressed by a judicial decision.

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U.S. at 11.

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has collateral consequences which prevent the release of the

Spencer v. Kemna, 523

Although it is presumed that a criminal conviction

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convicted person from rendering a challenge to a judgment or

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sentence moot, this presumption of consequences does not apply in

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the context of a parolee’s claim concerning parole revocation.

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Id. at 12-14.

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revocation proceedings is not mooted by the prisoner’s release

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from custody, the petitioner, as the party seeking the exercise

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of jurisdiction, must show that specific, concrete, collateral

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consequences affirmatively appear in the record.

To show that a complaint concerning parole

Id. at 13-14.

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In Spencer v. Kemna, the Court found the following

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circumstances speculative and insufficient to demonstrate the

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necessary consequences from a parole revocation: 1) possible

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consideration in a later parole proceeding as one of many factors

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considered in the discretion of the parole authority, 2) possible

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use to increase a sentence in future discretionary sentencing

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decisions in criminal proceedings; and 3) potential use to

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impeach the prisoner as a witness or as direct proof in a

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criminal proceeding.

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F.3d 996, 999–1001, the court concluded that the petitioner’s

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release on parole had mooted the petitioner's claim that his

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parole date had been unlawfully delayed despite his subsequent

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re-incarceration because the “actual injury traceable to the

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[state] for which [petitioner] seeks relief cannot be redressed

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by a favorable decision of the court issuing a writ of habeas

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corpus”).

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Id. at 13-18.

In Burnett v. Lampert, 432

Accordingly, it is ORDERED that no later than thirty (30)

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days after the date of service of this order, Petitioner show

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cause why the Court should not dismiss the petition for mootness.

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Respondent may FILE a reply to Petitioner’s response to this

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order to show cause no later than fourteen (14) days after the

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date of service of Petitioner’s response.

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Petitioner is INFORMED that a failure to comply with this

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order may itself be considered a basis for imposing sanctions

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against Petitioner pursuant to Local Rule 110, and it will result

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in a recommendation that the petition be dismissed.

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IT IS SO ORDERED.
Dated:
ie14hj

December 9, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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