Rouser v. Sullivan

Filing 24

ORDER signed by Magistrate Judge Kendall J. Newman on 4/23/2020 ORDERING Petitioner to provide the court a copy of the transcript from his 4/2/2020 parole suitability hearing within 30 days of the date of this order or if Petitioner is unable to provide this transcript to the court, within 30 days Petitioner to inform the court why he is unable to provide the transcript. (Henshaw, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

WILLIAM ROUSER,

12

No. 2: 18-cv-1659 JAM KJN P

Petitioner,

13

v.

14

W.J. SULLIVAN,

15

ORDER

Respondent.

16
17

Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas

18

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2017 prison disciplinary conviction

19

for use of a controlled substance based solely on a positive test result. Petitioner alleges that the

20

disciplinary hearing officer violated his right to due process by removing petitioner from the

21

hearing, which prevented petitioner from presenting evidence regarding false positive test results.

22

On November 15, 2018, respondent filed a motion to dismiss on the grounds that there is

23

no federal habeas jurisdiction. (ECF No. 14.) On May 1, 2019, the undersigned recommended

24

that respondent’s motion to dismiss be granted. (ECF No. 18.) In relevant part, the undersigned

25

found that petitioner’s challenge to the disciplinary conviction did not lie at the core of habeas

26

corpus because he could not show that its expungement would necessarily result in a grant of

27

parole or shorten his incarceration. (Id. at 2.) On July 11, 2019, the district court adopted the

28

May 1, 2019 findings and recommendations and judgment was entered. (ECF Nos. 21, 22.)
1

1

Pending before the court is petitioner’s April 15, 2020 motion to vacate the judgment

2

pursuant to Federal Rule of Civil Procedure 60(b). (ECF No. 23.) Petitioner argues that on April

3

2, 2020, the Board of Parole Hearings (“BPH”) denied petitioner parole for ten years. (Id.)

4

Petitioner argues that the disciplinary conviction challenged in the instant action “played a big

5

part” in the BPH’s decision. (Id.)

6

Petitioner did not attach a copy of the transcript from his April 2, 2020 parole suitability

7

hearing to his pending motion. The undersigned cannot evaluate the merits of the pending motion

8

without reviewing this transcript.

9

Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of this order,

10

petitioner shall provide the court with a copy of the transcript from his April 2, 2020 parole

11

suitability hearing; if petitioner is unable to provide this transcript to the court, within thirty days

12

petitioner shall inform the court why he is unable to provide the transcript.

13

Dated: April 23, 2020

14
15
16
Rou1659.ord
17
18
19
20
21
22
23
24
25
26
27
28
2