Bisel v. Fisher et al
Filing
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ORDER DENYING 77 Motion to Include Late Discovery; FINDINGS and RECOMMENDATIONS to Deny 76 Motion for Temporary Restraining Order and Stay of Parole Conditions signed by Magistrate Judge Sheila K. Oberto on 05/25/2022. Referred to Judge Drozd; Objections to F&R due within Twenty-One Days. (Flores, E)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GREGORY EUGENE BISEL,
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Petitioner,
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ORDER DENYING MOTION TO INCLUDE
LATE DISCOVERY
[Doc. 77]
v.
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Case No.: 1:17-cv-00013-DAD-SKO (HC)
RAY FISHER, JR., et al.,
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Respondents.
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FINDINGS AND RECOMMENDATION TO
DENY MOTION FOR TEMPORARY
RESTRAINING ORDER AND STAY OF
PAROLE CONDITIONS
[Doc. 76]
[21-DAY DEADLINE]
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Petitioner is a state parolee proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254.
On October 4, 2021, Respondent filed an answer to the first amended petition. (Doc. 65.)
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On February 28, 2022, Petitioner filed a traverse to the answer. (Doc. 72.) On April 29, 2022,
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Petitioner filed a motion for a temporary restraining order. (Doc. 76.) On May 23, 2022,
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Petitioner filed a motion for leave to include late discovery. (Doc. 77.) For the reasons set forth
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below, the Court will deny the motion for late discovery and recommend that the motion for
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temporary restraining order be denied.
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DISCUSSION
I.
Motion to Include Discovery
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Petitioner moves to include “new evidence . . . of outright theft of Petitioner’s funds by
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jail officers, who apparently stole his debit card from jail’s property room, and used it to pilfer
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$872.00 from 10-19-12 through 10-31-12, by making 4 withdrawals from same ATM machine on
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the Fulton Mall.” (Doc. 77 at 1.) According to the exhibits Petitioner has submitted, it appears
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Petitioner was the victim of credit card fraud. The Fraud Services Department of Direct Express,
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a credit card company, determined that $872.00 was fraudulently withdrawn from Petitioner’s
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account, and thereafter restored that amount to Petitioner’s account. However, there is no
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foundation for Petitioner’s claim that jail officers were responsible for the fraud. In any case, the
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evidence is irrelevant to any of Petitioner’s claims as it has no bearing on Petitioner’s 2014
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convictions. Therefore, the motion will be denied.
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II.
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Motion for Restraining Order
On April 29, 2022, Petitioner filed a motion entitled, “Emergency Motion for Order of
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Protection for Witness Alex G.; Stay of Probation and/or Parole; Motion to Allow New Exhibits
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Re: Trial Judge Petrucelli.” (Doc. 76.) Petitioner first alleges that “[i]t appears highly likely Alex
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G. (the victim in this case), and his family are in danger of threats, harassment, jailing, or worse,
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by the full law enforcement element of the Fresno County Court system.” (Doc. 76 at 2.)
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Petitioner’s allegation is completely baseless. He submits nothing in support of this unfounded
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allegation. It is also outside this Court’s jurisdiction to issue such an order.
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Petitioner mentions certain “restrictive, worsening and ever-changing ‘special
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conditions’” for parole, and he claims the victim may “not provide Petitioner or this Court with
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evidence he was improperly induced to maintain his fabricated testimony during Petitioner’s
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trial.” (Doc. 76.) If Petitioner is seeking this Court’s aid to bypass certain special conditions and
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restrictions of his parole, so as to allow him contact with the victim, Petitioner is gravely
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mistaken. Such a request should and will be rejected. The allegation also concerns the conditions
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of Petitioner’s confinement and is not properly brought in a habeas proceeding.
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Petitioner further “requests immediate relief in the form of stay from all forms of state
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probation and/or parole, until such time as the petition is resolved . . . .” (Doc. 76 at 5.) Federal
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courts reserve bail pending resolution of a habeas corpus petition to "extraordinary cases
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involving special circumstances" and where there is a high probability of the petitioner's success
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on the merits. United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (quoting Land v. Deeds,
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878 F.2d 318, 318-319 (9th Cir. 1989)). A petitioner must also show circumstances that make
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him exceptional and especially deserving of special treatment in the interests of justice. Benson
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v. California, 328 F.2d 159, 162 (9th Cir. 1964). The Court must consider the petitioner’s risk of
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flight and the danger to the community should the petitioner be released. Marino v. Vasquez, 812
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F.2d 499, 508-09 (9th Cir. 1987). None of these requirements have been met in the case before
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the Court. First, the likelihood of success on the merits is low. Second, Petitioner has shown no
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circumstances which would make him exceptional or especially deserving of special treatment.
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Third, his risk of danger to the community is demonstrated herein by his request to avoid the
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special conditions and restrictions of parole in order to, among other things, contact the victim.
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In his motion, Petitioner also requests leave to include newly discovered evidence of the
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trial judge’s serious reprimand proceedings. None of the allegations of misconduct presented
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concern Petitioner’s trial; therefore, the material is irrelevant to these proceedings. The request
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will be denied.
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ORDER
Based on the foregoing, IT IS HEREBY ORDERED that the motions for late discovery
(Doc. 77) and leave to include additional exhibits (Doc. 76) are DENIED.
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RECOMMENDATION
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The Court RECOMMENDS that the motions for restraining order and for stay of all
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parole restrictions be DENIED.
This Findings and Recommendation is submitted to the United States District Court Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the
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Local Rules of Practice for the United States District Court, Eastern District of California. Within
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twenty-one (21) days after being served with a copy of this Findings and Recommendation, any
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party may file written objections with the Court and serve a copy on all parties. Such a document
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should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies
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to the Objections shall be served and filed within ten (10) court days (plus three days if served by
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mail) after service of the Objections. The Court will then review the Magistrate Judge’s ruling
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pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file
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objections within the specified time may waive the right to appeal the Order of the District Court.
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
/s/ Sheila K. Oberto
May 25, 2022
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UNITED STATES MAGISTRATE JUDGE
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