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Shelton v. California Board of Prison

February 6, 2009

MICHAEL SHELTON, PETITIONER,
v.
CALIFORNIA BOARD OF PRISON, RESPONDENT.



The opinion of the court was delivered by: Theresa A. Goldner United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS PETITION (Doc. 9)

ORDER DIRECTING OBJECTIONS TERMS BE FILED WITHIN FIFTEEN DAYS

Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 17, 2008, Petitioner filed his petition for writ of habeas corpus in this Court. (Doc. 1).

Petitioner, who, at the time of filing of the petition, was incarcerated in North Kern State Prison, Delano, Wasco, California, as a result of a parole violation, challenges the revocation of parole itself and, more specifically, challenges a purportedly illegal condition of parole restricting his ability to associate with his wife. (Doc. 1, p. 12).

On May 23, 2008, the Court ordered Respondent to file a response. (Doc. 4). That same day, Petitioner filed with the Court a notice of change of address to a street address in Oakhurst, California. (Doc. 5). On August 20, 2008, Respondent filed a motion to dismiss the petition, arguing that because Petitioner had completed his revocation period and is once again on parole, the revocation issue is moot, and also that the purportedly illegal condition of parole is not subject to habeas review. (Doc. 9). Petitioner has not filed an opposition to Respondent's motion to dismiss.

DISCUSSION

A. Procedural Grounds for Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-603 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the court should use Rule 4 standards to review the motion.

In this case, Respondent's motion to dismiss is based on a claim of mootness and failure to state a cognizable habeas claim. Because Respondent's motion is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal answer, the Court will review Respondent's motion pursuant to its authority under Rule 4.

B. Mootness

The case or controversy requirement of Article III of the Federal Constitution deprives the Court of jurisdiction to hear moot cases. Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 104 S.Ct. 373 (1983); N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir. 1984). A case becomes moot if the "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181 (1982). The Federal Court is "without power to decide questions that cannot affect the rights of the litigants before them." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402 (1971) (per curiam)(quoting Aetna Life Ins. Co. v. Hayworth, 300 U.S. 227, 240-241, 57 S.Ct. 461 (1937)).

Here, Petitioner's primary objection appears to be to the condition of parole precluding him from associating with his wife. Petitioner's objection to his parole revocation appears to derive from the same complaint, i.e., that the parole board should not have revoked his parole based on his violation of an improper condition of parole, i.e., that he not associate with his wife. The extent to which Petitioner's objections to the parole revocation extends beyond the board's implicit "endorsement" of a condition of parole Petitioner considers illegal is unclear. However, ultimately, it is irrelevant because, having served his revocation and now being once again on parole, the revocation issue is moot.

In support of the motion to dismiss, Respondent has submitted documents establishing that Petitioner was placed on parole on May 5, 2008, having completed his period of incarceration related to his purportedly unlawful revocation. (Doc. 9, Exh. A). This documentation is further supported by the notice of change of address filed by Petitioner on May 23, 2008, indicating his change of address from North Kern State Prison to a private address in Oakhurst, California. (Doc. 5). Thus, to the extent that the petition is challenging the parole revocation itself, there is no case or controversy because there is nothing the Court can do at this juncture that would affect the period of incarceration for revocation, ...


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