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Thompson v. Carey

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 6, 2009

JIMMIE THOMPSON, PETITIONER,
v.
THOMAS L. CAREY, RESPONDENT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On February 23, 2009, the magistrate judge issued findings and recommendations in this action, recommending that petitioner's application for a writ of habeas corpus be granted and that respondent be directed to discharge petitioner from parole. In an order filed March 25, 2009, the undersigned adopted the findings and recommendations in full, granted petitioner's habeas application, and ordered that petitioner be discharged from parole. Also on March 25, 2009, judgment was entered in favor of petitioner.

On April 7, 2009, respondent filed a motion for relief from the March 25, 2009, judgment and a request for a stay pending a decision on the motion for relief from judgment. On April 8, 2009, the undersigned granted respondent's request for a stay, stayed the March 25, 2009, order and judgment pending decision on respondent's motion for relief from judgment, and referred the motion for relief from judgment to the magistrate judge for preparation of findings and recommendations pursuant to 28 U.S.C. § 636 and Local Rule 72-302.

On May 5, 2009, the magistrate judge issued findings and recommendations which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within ten days. Respondent has filed objections to the findings and recommendations and petitioner has filed a response thereto.

In accordance with the provisions of 28 U.S.C. § 636(b)(1) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed May 5, 2009, are adopted in full;

2. Respondent's motion for relief from judgment is granted;

3. The March 25, 2009 order and judgment are vacated;

4. Petitioner's application for a writ of habeas corpus is granted for the reasons set forth in the March 25, 2009 order;

5. Respondent is directed to discharge petitioner from parole within 30 days of this order, as provided by California Penal Code section 3000.1(b), unless the Board of Parole Hearings determines that there is good cause to retain petitioner on parole, makes a written record of its determination, and transmits a copy of it to petitioner; and

6. In the event petitioner is retained on parole, respondent is directed to provide petitioner with a review by the Board of Parole Hearings each year thereafter, as provided by section 3000.1(c).

20090606

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