Ekdahl v. Diaz

Filing 33

ORDER REQUIRING Respondent to Lodge Transcript of Parole Hearing Within Thirty Days; ORDER PERMITTING Respondent to File Memorandum Brief; ORDER DENYING Petitioner's Motion for Stay as MOOT 27 ; ORDER DENYING as MOOT Petitioner's Motion for Production of New Evidence 30 ; ORDER DENYING as MOOT Petitioner's Motion for Stay 31 , signed by Magistrate Judge Jennifer L. Thurston on 9/3/14. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EMIL JOSEPH EKDAHL,
Petitioner,
v.
RALPH DIAZ, Warden,
Respondent.

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Case No.: 1:13-cv-00542-AWI-JLT
ORDER REQUIRING RESPONDENT TO LODGE
TRANSCRIPT OF PAROLE HEARING WITHIN
THIRTY DAYS
ORDER PERMITTING RESPONDENT TO FILE
MEMORANDUM BRIEF
ORDER DENYING PETITIONER’S MOTION
FOR STAY AS MOOT (Doc. 27)
ORDER DENYING AS MOOT PETITIONER’S
MOTION FOR PRODUCTION OF NEW
EVIDENCE (Doc. 30)
ORDER DENYING AS MOOT PETITIONER’S
MOTION FOR STAY (Doc. 31)

Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
PROCEDURAL HISTORY
Petitioner filed the instant petition on April 16, 2013. (Doc. 1). On April 19, 2013, 2012, the

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Court ordered Respondent to file a response to the petition within sixty days and set a briefing

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schedule. (Doc. 5). On June 3, 2013, Respondent filed a motion to dismiss in lieu of filing an answer.

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(Doc. 14). Petitioner filed his opposition on June 27, 2013. (Doc. 14). On July 26, 2013, the Court
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issued Findings and Recommendations to grant Respondent’s motion to dismiss. (Doc. 19). In short,

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the Court determined the motion to dismiss should be granted because there was no showing that, if

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Petitioner were successful, that this would not necessarily impact the length of his sentence. Id.

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The matter remains pending before the U.S. District Judge for a final decision.

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On December 19, 2013, Petitioner filed a motion to stay his parole hearing, which was

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scheduled for February 5, 2014. (Doc. 27) Petitioner asserted that the discipline imposed upon him

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(which is challenged in this petition) could affect his chance for being granted parole. (Doc. 27). On

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April 24, 2014, that parole hearing was held and Petitioner was found not suitable for parole. (Doc.

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30). On May 29, 2014, Petitioner filed a motion to produce the transcript of that hearing, for judicial

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notice of the results of the parole hearing, and for a stay of proceedings until that transcript can be

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obtained. Petitioner contends that the transcript contains a statement by a member of the parole board

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which affirmed, in essence, that but for the discipline at issue in this petition, Petitioner would have

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been granted parole. (Docs. 30 & 31). Upon this evidence, Petitioner argues that this demonstrates

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habeas jurisdiction exists.

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DISCUSSION
Regarding Petitioner’s first motion for stay filed on December 19, 2013, that motion is now

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moot in light of the fact that the parole hearing Petitioner sought to have stayed has already been

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conducted. Moreover, as a habeas court, this Court may grant or deny a habeas petition filed by a state

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inmate; however, the Court has absolutely no authority to stay any proceedings of the California Board

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of Parole Hearings. Accordingly, Petitioner’s motion to stay is DENIED as MOOT.

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Regarding Petitioner’s later-filed motions related to obtaining a transcript of the April 24, 2014

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parole hearing, the Court will order Respondent to obtain and file with the Court a transcript of that

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hearing in order to confirm or deny Petitioner’s allegation that a member or members of the Board of

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Parole Hearings represented to Petitioner that “but for” his disciplinary hearing and sanctions resulting

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from that hearing, the Board would have found Petitioner suitable for parole at the April 24, 2014

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hearing. Respondent will be permitted to file a memorandum brief along with the transcript, should

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Respondent wish to do so, addressing whether anything in the parole hearing transcript should affect

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or alter the Findings and Recommendations issued on July 26, 2013.
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ORDER

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For the foregoing reasons, the Court ORDERS:

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1.

MOOT;

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2.

Respondent SHALL lodge a true and correct copy of Petitioner’s April 24, 2014 parole
hearing transcript within 30 days of the date of this order;

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Petitioner’s motion for stay filed December 19, 2013 (Doc. 27), is DENIED as

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Within 30 days after filing the transcript, Respondent is granted leave to file a

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memorandum brief addressing whether anything in the April 24, 2014 transcript should

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alter or affect the Court’s Findings and Recommendations issued on July 26, 2013;

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4.

and,

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Petitioner’s motion for production of new evidence (Doc. 30), is DENIED as MOOT;

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Petitioner’s motion for stay until new evidence is reviewed (Doc. 31), is DENIED as
MOOT.

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IT IS SO ORDERED.
Dated:

September 3, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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