Blair v. Wong

Filing 11

ORDER by Judge Lucy H. Koh granting 9 Motion to Dismiss (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 10/26/2010)

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Blair v. Wong Doc. 11 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 JOHN BLAIR, Petitioner, v. ROBERT K. WONG, Warden, Respondent. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) No. C 09-6048 LHK (PR) ORDER GRANTING MOTION TO DISMISS Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. 2254 challenging a decision by the California Board of Parole Hearings ("Board") in finding him unsuitable for parole. According to the petition, Petitioner was convicted in 1983 of second degree murder, and was sentenced to seventeen years to life in state prison. In 2008, the Board found Petitioner suitable for parole. Later that year, the Governor of California reversed the Board's decision to grant parole. After exhausting his state court remedies, Petitioner filed the underlying federal habeas petition. On August 19, 2010, Respondent filed a motion to dismiss the case as moot because Petitioner was released on parole on July 31, 2010. Where a prisoner seeks release on parole and does not challenge the validity of his conviction, his habeas petition becomes moot once he is Order Granting Motion to Dismiss P:\PRO-SE\SJ.LHK\HC.09\Blair048dismoot.wpd 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 released on parole. See Fendler v United States Bureau of Prisons, 846 F.2d 550, 555 (9th Cir. 1988); 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); Reimers v Oregon, 863 F.2d 630, 632 (9th Cir. 1988) (a moot action is one in which the parties lack a legally cognizable interest in the outcome). In his federal petition, Petitioner claimed that the Governor's 2008 reversal of the Board's grant of parole violated his right to due process. Because Petitioner has now been released on parole, does not challenge his conviction, and is subject to a lifetime parole term, see Boyd v. Salazar, 2009 WL 2252507 (C.D. Cal. July 28, 2009) (citing In re Chaudhary, 172 Cal. App. 4th 32, 34 (2009)); Irons v. Sisto, 2009 WL 2171084, at *3 (E.D. Cal. July 20, 2009) (same), he lacks a cognizable interest in the outcome of this action. See Reimers, 863 F.2d at 632. That the relief he seeks may result in the possible earlier termination of parole supervision does not circumvent mootness. See Fendler, 846 F.2d at 555 (rejecting claim of exception to mootness by federal prisoner who could seek review of his eligibility for early termination of parole by applying to the parole commission). Accordingly, the petition for a writ of habeas corpus under 28 U.S.C. 2254 is DISMISSED as moot. In addition, the Court notes that on August 18, 2010, mail sent to Petitioner was returned as undeliverable because Petitioner had been paroled. As of the date of this order, Petitioner has not updated his address with the Court or submitted any further pleadings in this case. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes while an action is pending must promptly file a notice of change of address specifying the new address. See L.R. 3-11(a). The Court may, without prejudice, dismiss a petition when: (1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written communication from the pro se party indicating a current address. See L.R. 3-11(b). More than sixty days have passed since the mail sent to Petitioner by the Court was returned as Order Granting Motion to Dismiss P:\PRO-SE\SJ.LHK\HC.09\Blair048dismoot.wpd 2 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 undeliverable. The Court has not received a notice from Petitioner of a new address. Accordingly, the petition is DISMISSED pursuant to Rule 3-11 of the Northern District Local Rules. The Clerk shall enter judgment in accordance with this order and close the file. The federal rules governing habeas cases brought by state prisoners require a district court that denies a habeas petition to grant or deny a certificate of appealability ("COA") in its ruling. See Rule 11(a), Rules Governing 2254 Cases, 28 U.S.C. foll. 2254 (effective December 1, 2009). For the reasons set out in the discussion above, Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right [or] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED. IT IS SO ORDERED. DATED: 10/26/2010 LUCY H. KOH United States District Judge Order Granting Motion to Dismiss P:\PRO-SE\SJ.LHK\HC.09\Blair048dismoot.wpd 3

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