Evans v. Hartley

Filing 34

FINDINGS and RECOMMENDATIONS to Dismiss the Petition as Moot 1 ; FINDINGS and RECOMMENDATIONS to Direct the Clerk to Close the Case and to Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 2/20/12. Petition for Writ of Habeas Corpus filed by Latif R. Evans. Referred to Judge O'Neill. (Verduzco, M)

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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
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION AS MOOT
(DOC. 1)
FINDINGS AND RECOMMENDATIONS TO
DIRECT THE CLERK TO CLOSE THE
CASE AND TO DECLINE TO ISSUE A
CERTIFICATE OF APPEALABILITY

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Petitioner is a state prisoner proceeding pro se and in

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forma pauperis with a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254.

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Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules

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302 and 304.

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was filed on August 25, 2011, and the Court’s order to Petitioner

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to show cause why the petition should not be dismissed as moot,

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which was served by mail on Petitioner on December 12, 2011.

The matter has been referred to the

Pending before the Court are the petition, which

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I.

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In the petition, Petitioner challenges procedures used in a

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Background

parole revocation proceeding.

Respondent filed an answer to the
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petition on November 22, 2011, addressing the merits of the

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petition, which was filed when Petitioner was an inmate of the

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Avenal State Prison.

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

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in Goleta, California, which did not appear to be a custodial

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institution.

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to show cause, which was served on December 12, 2011, and which

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granted Petitioner thirty (30) days in which to respond to the

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Court’s concern that the petition had been rendered moot by

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However, on November 22, 2011, Petitioner

Petitioner has not responded to the Court’s order

Petitioner’s release on parole.

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II.

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Federal courts lack jurisdiction to decide cases that are

Mootness

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moot 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

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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.

Iron Arrow Honor Society v.
Article III requires a case

Id.

A petition for

A petition

Burnett v. Lampert, 432 F.3d

Mootness is jurisdictional.

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See, Cole v. Oroville

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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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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

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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.

Spencer v. Kemna, 523

Although it is presumed that a criminal conviction

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 of the parole revocation in a later parole

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proceeding as one of many factors considered in the discretion of

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the parole authority, 2) possible use to increase a sentence in

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future discretionary sentencing decisions in criminal

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proceedings; and 3) potential use to impeach the prisoner as a

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witness or as direct proof in a criminal proceeding.

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concluded that the petitioner’s release on parole had mooted the

Id. at 13-

In Burnett v. Lampert, 432 F.3d 996, 999–1001, the court

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petitioner's claim that his parole date had been unlawfully

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delayed despite his subsequent re-incarceration because the

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“actual injury traceable to the [state] for which [petitioner]

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seeks relief cannot be redressed by a favorable decision of the

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court issuing a writ of habeas corpus”.

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Id.

Here, the record is devoid of any showing of any specific,

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concrete, collateral consequences that would result from the

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parole determination challenged in the petition.

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Petitioner was given ample opportunity to provide the Court with

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such a showing, Petitioner failed to make the required showing.

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Accordingly, the Court concludes that the petition has been

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rendered moot by Petitioner’s release.

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moot, it must be dismissed.

Although

Because the petition is

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III.

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Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

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appealability, an appeal may not be taken to the Court of Appeals

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from the final order in a habeas proceeding in which the

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detention complained of arises out of process issued by a state

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court.

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U.S. 322, 336 (2003).

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only if the applicant makes a substantial showing of the denial

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of a constitutional right.

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petitioner must show that reasonable jurists could debate whether

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the petition should have been resolved in a different manner or

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that the issues presented were adequate to deserve encouragement

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to proceed further.

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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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certificate should issue if the Petitioner shows that jurists of

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue

§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336

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A

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reason would find it debatable whether the petition states a

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valid claim of the denial of a constitutional right and that

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jurists of reason would find it debatable whether the district

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court was correct in any procedural ruling.

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529 U.S. 473, 483-84 (2000).

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Slack v. McDaniel,

In determining this issue, a court conducts an overview of

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the claims in the habeas petition, generally assesses their

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merits, and determines whether the resolution was debatable among

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jurists of reason or wrong.

Id.

It is necessary for an

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applicant to show more than an absence of frivolity or the

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existence of mere good faith; however, it is not necessary for an

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applicant to show that the appeal will succeed.

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Cockrell, 537 U.S. at 338.

Miller-El v.

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A district court must issue or deny a certificate of

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appealability when it enters a final order adverse to the

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applicant.

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Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

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debate whether the petition should have been resolved in a

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different manner.

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of the denial of a constitutional right.

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recommended that the Court decline to issue a certificate of

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appealability.

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IV.

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Accordingly, it is RECOMMENDED that:

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1) The petition for writ of habeas corpus be DISMISSED as

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Petitioner has not made a substantial showing
Accordingly, it will be

Recommendations

moot; and
2) The Court DECLINE to issue a certificate of
appealability; and
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3)

The Clerk be DIRECTED to close the case because

dismissal will terminate the action in its entirety.

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These findings and recommendations are submitted to the

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United States District Court Judge assigned to the case, pursuant

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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

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the Local Rules of Practice for the United States District Court,

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Eastern District of California.

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being served with a copy, any party may file written objections

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with the Court and serve a copy on all parties.

Within thirty (30) days after

Such a document

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should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.”

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and filed within fourteen (14) days (plus three (3) days if

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served by mail) after service of the objections.

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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

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§ 636 (b)(1)(C).

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objections within the specified time may waive the right to

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appeal the District Court’s order.

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1153 (9th Cir. 1991).

Replies to the objections shall be served

The Court will

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

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IT IS SO ORDERED.

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Dated:
ie14hj

February 20, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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