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Hernandez v. Hartley

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 17, 2009

TRINIDAD HERNANDEZ, PETITIONER,
v.
PAROLE J. HARTLEY, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DIRECTING RESPONDENT TO SUBMIT EVIDENCE TO SUPPORT CLAIM OF PETITIONER'S RELEASE TO [Doc. 13]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner filed the instant petition for writ of habeas corpus on April 6, 2009, and challenges the 2008 Board of Parole Hearings' decision finding him unsuitable for release on parole. Respondent filed an answer to the petition on June 15, 2009, and Petitioner filed a traverse on July 16, 2009. (Court Docs. 10, 11.)

On September 3, 2009, Respondent filed a notice of Petitioner's release on parole. Respondent indicates that on March 19, 2009, Petitioner appeared at a subsequent parole consideration hearing, and the Board found him suitable for parole. (Exhibit 1, to Notice.) Governor Schwarzenegger thereafter declined to review the Board's decision to grant Petitioner release on parole. Respondent submits that "[p]rison staff confirmed with Respondent's counsel that [Petitioner] was released to parole on August 25, 2009." (Id. at 1.)

While Respondent's contention appears to be correct, there is no solid evidence, beyond counsel's assertion, that Petitioner has actually been released from custody to parole. In order for this Court to make such determination, Respondent must submit further evidence, such as a parole status sheet, to substantiate the claim that Petitioner had indeed been released on parole.

Accordingly, it is HEREBY ORDERED that within twenty (20) days from the date of service, Respondent shall submit further evidence in support of the claim that Petitioner has been released on parole.

IT IS SO ORDERED.

20090917

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