Hempstead v. Ornoski

Filing 18

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 1/14/2010. (Attachments: # 1 Certificate of Service)(be, COURT STAFF) (Filed on 1/22/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a State of California prisoner incarcerated at San Quentin State Prison, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the decision of the Governor of the State of California to revoke a parole date granted him by the California Board of Parole Hearings ("BPH") on his 17 years-to-life sentence for second degree murder with use of a firearm. Respondent has moved to dismiss the petition as moot because petitioner has been released on parole. Doc. #17. Petitioner has not opposed the motion. It is undisputed that petitioner was granted a parole date on May 6, 2009, a decision which became final in October 2, 2009 when the governor declined to IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

FRED HEMPSTEAD, Petitioner, v. R. L. AYERS, JR., Warden, Respondent.

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No. C 06-7467 CRB (PR) ORDER OF DISMISSAL

(Doc. #17)

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review the matter. Doc. #17 at 2-3. Because BPH found petitioner suitable for parole, and because petitioner has now been released on parole, the petition for a writ of habeas corpus is DISMISSED as moot. See Fendler v. United States Bureau of Prisons, 846 F.2d 550, 555 (9th Cir. 1988) (habeas challenge to denial of parole will become moot if petitioner is released on parole before court considers petition); see also Burnett v. Lampert, 432 F.3d 996, 999-1001 (9th Cir. 2005) (finding habeas petition still moot after petitioner violated parole and was reincarcerated). Respondent's motion to dismiss (Doc. #17) is GRANTED. The clerk shall enter judgment in accordance with this order and close the file. SO ORDERED. DATED: Jan. 14, 2010 CHARLES R. BREYER United States District Judge

G:\PRO-SE\CRB\HC.06\Hempstead-06-7467-BPH dismiss as moot.wpd

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