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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EMIL JOSEPH EKDAHL, 12 13 14 15 Petitioner, v. RALPH DIAZ, Warden, Respondents. ) Case No.: 1:13-cv-00542-AWI-JLT ) ) ORDER GRANTING PETITIONER’S MOTION ) FOR JUDICIAL NOTICE (Doc. 32) ) ) ) ) ) 16 17 18 19 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 20 sanctions that resulted, contending that they would affect Petitioner’s chances for being released on 21 parole. (Doc. 1). On June 3, 2013, Respondent filed a motion to dismiss the petition, arguing that 22 since Petitioner was serving a life sentence, the loss of credits would not affect his parole date. (Doc. 23 14). On July 26, 2014, the Court issued Findings and Recommendations to dismiss the petition. (Doc. 24 19). Pursuant to court rules, the matter was referred to the United States District Judge assigned to the 25 case, where the case remained pending the District Judge’s decision whether to adopt the Magistrate 26 Judge’s Findings and Recommendations. 27 28 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 1 1 his most recent parole hearing as proof that the disciplinary hearing affected Petitioner’s chances for 2 parole. (Doc. 32). As a result of Petitioner’s motion, which contained only selective excerpts from 3 the parole hearing, the Magistrate Judge, on September 3, 2014, ordered Respondent to file the entire 4 transcript of the parole hearing within thirty days. (Doc. 33). To date, Respondent has not complied 5 with the Court’s order to produce the transcript. On September 30, 2014, the District Judge adopted 6 in part and refused to adopt in part the Findings and Recommendations. (Doc. 33). On November 20, 7 2014, based on the District Judge’s ruling, the Magistrate Judge ordered Respondent to file a response 8 to the petition. (Doc. 35). 9 On January 20, 2015, Respondent filed the Answer along with various exhibits. (Doc. 39). 10 The Answer repeats the argument Respondent first raised in the motion to dismiss, i.e., that the Court 11 lacks habeas jurisdiction because even if the disciplinary hearing were reversed and expunged, it 12 would not necessarily accelerate the date on which Petitioner would be released on parole. As 13 mentioned, Respondent has never filed a complete transcript of that hearing, choosing instead to rely 14 upon the sliver of transcripts appended to the instant request for judicial notice. Accordingly, the Court 15 will grant Petitioner’s request for judicial notice. ORDER 16 17 18 For the foregoing reasons, it is HEREBY ORDERED that Petitioner’s request for judicial notice (Doc. 32) is GRANTED. 19 20 21 22 IT IS SO ORDERED. Dated: January 29, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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