Birch v. Board of Parole Post Prison Supervision

Filing 51

Opinion and Order. The Court DENIES AS MOOT the Petition for Writ of Habeas Corpus. Signed on 2/17/09 by Judge Anna J. Brown. (ljl)

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I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON MARTIN B I R C H , Civil No. 06-1364-BR Pet.it.ioner, O P I N I O N AND ORDER

v.
BRIAN BELLEQUE, S u p e r i n t . e n d e n t . , East.ern Oreqon Correctional Inst.it.ution, Respondent.. K R I S T I N A HELLMAN

Assistant Federal Public Defender 1 0 1 SW M a i n S t r e e t Suite 1700 P o r t l a n d , OR 97204 Attorney for Petitioner
HARDY MYERS

Attorney General
LESTER R . HUNTSINGER

Senior Assistant Attorney General Department of Justice 1 1 6 2 C o u r t S t r e e t NE S a l e m , OR 9 7 3 0 1 Attorneys for Respondent

1 - OPINION AND ORDER -

BROWN, J u d q e .

Petitioner,

an

inmate

at

the

Oregon

State

Penitentiary,
§

b r i n g s t h i s habeas corpus a c t i o n p u r s u a n t t o 28 U.S.C. For the reasons that follow,

2254.

the Petition for Writ of Habeas

C o r p u s i s DENIED AS MOOT.
BACKGROUND

In March 1989,

P e t i t i o n e r was convicted on two counts of The t r i a l judge sentenced him to with

Robbery in the First Degree. consecutive,

indeterminate 20-year terms of imprisonment,

consecutive 10-year minimum terms. Petitioner does not challenge the legality of his conviction or sentence in this habeas corpus action. Instead, Petitioner

challenges a decision by the Oregon Board of Parole and PostPrison Supervision (the "Boardll ) deferring Petitioner's parole

r e l e a s e d a t e f o r 24 months.

Petitioner challenges the deferral on

ex post facto and due process grounds. On D e c e m b e r 1 0 , Court, 2008, in response to a request from the The on

P e t i t i o n e r f i l e d a " S t a t e m e n t o f C u s t o d y S t a t u s . 11 confirms that P e t i t i o n e r was released on parole

Statement

August 19, 2008, and t h a t , as of December 3, 2008, he remained on parole.

2 - OPINION AND ORDER -

DISCUSSION

The case or controversy provision of Article I I I , United States Constitution
~subsists

§

2 of the

through all stages of federal The p a r t i e s must the outcome' of the

judicial proceedings, t r i a l and appellate. continue lawsuit." to have a 'personal stake in

S p e n c e r v . Kemna, 5 2 3 U . S . 1 , 7 ( 1 9 9 8 )

(quoting Lewis this
~must

v. Continental Bank Corp., 494 U.S. 472, 477-78 (1955) ) .
means t h a t , throughout the l i t i g a t i o n , a habeas p e t i t i o n e r

have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable

judicial decision."

Id.
~in

Assuming that the
§

custody" requirement o f 28 U.S.C.

2254 was met a t the time of f i l i n g of a p e t i t i o n for writ of corpus, a parolee's challenge to the legality of the

habeas

underlying conviction always satisfies the case or controversy requirement. This is so because in
~a ~collateral

consequences" of the in the judgment of

conviction result

substantial stake

conviction which survives the satisfaction of the sentence imposed upon" a petitioner. (citation omitted). does not, however, a

Carafas v. LaValle, 391 U.S. 234, 237 (1968)
The presumption of c o l l a t e r a l consequences necessarily extend to other contexts. Board decision to In delay

particular,

petition challenging a

release on parole i s rendered moot by the p e t i t i o n e r ' s subsequent

3 - OPINION AND ORDER -

release. 2005) .

Burnett v.

Lampert,

432 F. 3d 996,

1000-01

(9th Cir.

As noted,

P e t i t i o n e r was released on parole on August 19, As such, t h i s case does

2008, during the pendency of this action.

not meet the case or controversy requirement of Article I I I , and the actual injury for which Petitioner seeks r e l i e f cannot be redressed by a favorable decision of this Court.
CONCLUSION

F o r t h e s e r e a s o n s , t h e C o u r t DENIES AS MOOT t h e P e t i t i o n f o r Writ of Habeas Corpus. I T I S SO ORDERED. DATED t h i s

tl~day o f

February, 2009.

---A-~------United States District Judge

4 - OPINION AND ORDER -

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