Ekdahl v. Diaz

Filing 40

ORDER GRANTING 32 Petitioner's Motion for Judicial Notice signed by Magistrate Judge Jennifer L. Thurston on 1/29/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EMIL JOSEPH EKDAHL,

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Petitioner,
v.
RALPH DIAZ, Warden,
Respondents.

) Case No.: 1:13-cv-00542-AWI-JLT
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) ORDER GRANTING PETITIONER’S MOTION
) FOR JUDICIAL NOTICE (Doc. 32)
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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
The petition was filed on April 16, 2013, challenging a prison disciplinary hearing and the

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sanctions that resulted, contending that they would affect Petitioner’s chances for being released on

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parole. (Doc. 1). On June 3, 2013, Respondent filed a motion to dismiss the petition, arguing that

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since Petitioner was serving a life sentence, the loss of credits would not affect his parole date. (Doc.

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14). On July 26, 2014, the Court issued Findings and Recommendations to dismiss the petition. (Doc.

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19). Pursuant to court rules, the matter was referred to the United States District Judge assigned to the

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case, where the case remained pending the District Judge’s decision whether to adopt the Magistrate

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Judge’s Findings and Recommendations.

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During this year-long period, Petitioner filed numerous motions, including, on July 10, 2014,
the instant request for judicial notice in which Petitioner requests that the Court consider excerpts from
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his most recent parole hearing as proof that the disciplinary hearing affected Petitioner’s chances for

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parole. (Doc. 32). As a result of Petitioner’s motion, which contained only selective excerpts from

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the parole hearing, the Magistrate Judge, on September 3, 2014, ordered Respondent to file the entire

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transcript of the parole hearing within thirty days. (Doc. 33). To date, Respondent has not complied

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with the Court’s order to produce the transcript. On September 30, 2014, the District Judge adopted

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in part and refused to adopt in part the Findings and Recommendations. (Doc. 33). On November 20,

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2014, based on the District Judge’s ruling, the Magistrate Judge ordered Respondent to file a response

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to the petition. (Doc. 35).

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On January 20, 2015, Respondent filed the Answer along with various exhibits. (Doc. 39).

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The Answer repeats the argument Respondent first raised in the motion to dismiss, i.e., that the Court

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lacks habeas jurisdiction because even if the disciplinary hearing were reversed and expunged, it

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would not necessarily accelerate the date on which Petitioner would be released on parole. As

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mentioned, Respondent has never filed a complete transcript of that hearing, choosing instead to rely

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upon the sliver of transcripts appended to the instant request for judicial notice. Accordingly, the Court

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will grant Petitioner’s request for judicial notice.
ORDER

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For the foregoing reasons, it is HEREBY ORDERED that Petitioner’s request for judicial
notice (Doc. 32) is GRANTED.

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IT IS SO ORDERED.
Dated:

January 29, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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