Wang v. De Jesus et al

Filing 13

ORDER DISMISSING CASE AS MOOT AND DENYING CERTIFICATE OF APPEALABILITY by Judge Phyllis J. Hamilton denying 6 Motion to Amend/Correct ; denying as moot 9 Motion (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 8/30/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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CHARLES WANG,
Petitioner,

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For the Northern District of California

United States District Court

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No. C 10-4629 PJH (PR)

vs.
Parole Officer CARLOS DE JESUS;
State CDCR HEAD; DEPARTMENT
OF CORRECTIONS; ELMWOOD
FACILITY CHIEF; STATE ATTORNEY
GENERAL; GOVERNOR OF STATE
OF CALIFORNIA,

ORDER DISMISSING CASE
AS MOOT AND DENYING
CERTIFICATE OF
APPEALABILITY

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Respondents.
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/

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This is a habeas case challenging a revocation of parole on January 5, 2010.

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In its initial review order the court noted that it appeared from the allegations in the

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petition that petitioner might not have been in custody when he filed the petition, and that

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the case might be moot because he had served the revocation term. He was ordered to

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show cause why the case should not be dismissed for those reasons.

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Petitioner has filed a “Motion to Amend” in response to the order to show cause. He

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does not address the court’s concerns directly, but has attached a verified state habeas

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petition in which he clearly says that he was released in March of 2010, and he does not

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even suggest in his motion that he is still subject to any collateral effects of the revocation.

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A petitioner who seeks to challenge the revocation of his parole must demonstrate

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that continuing collateral consequences exist if the underlying sentence has expired, see

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Spencer v. Kemna, 523 U.S. 1, 14-18 (1998), or if the term imposed for violating parole has

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been served, see Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir. 1987) (claim moot because

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petitioner cannot be released from term imposed for violating parole that he has already

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served). This case is moot.

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The motion for leave to amend (document number 6 on the docket) is DENIED as

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unnecessary, as the court ordered petitioner to show cause in the initial review order. This

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case is DISMISSED as moot. The pending motion for ruling (document number 9) is

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DENIED as moot.

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Because reasonable jurists would not find the court’s ruling on mootness debatable

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or wrong, a certificate of appealability is DENIED. See Rule 11(a), Rules Governing

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§ 2254 Cases, 28 U.S.C. foll. § 2254; see also 28 U.S.C. § 2253(c) (COA requirement);
Slack v. McDaniel, 529 U.S. 473, 483 (2000) (standard). Petitioner is advised that he may

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For the Northern District of California

United States District Court

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not appeal the denial of a COA, but he may ask the court of appeals to issue a COA under

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Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a), Rules Governing §

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2254 Cases.

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The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: August 30, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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P:\PRO-SE\PJH\HC.10\WANG4629.DSM.wpd

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