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Walker v. Guirbino

February 4, 2010

HAROLD WALKER, PETITIONER,
v.
GEORGE S. GUIRBINO, RESPONDENT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

(Doc. 17)

FINDINGS AND RECOMMENDATIONS REGARDING PETITIONER'S MOTION FOR EMERGENCY INJUNCTIVE RELIEF

(Doc. 8)

ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS ORDER DENYING PETITIONER'S MOTION FOR RELEASE

(Doc. 15)

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 this petition on March 19, 2009, raising a series of claims, the exact number of which cannot precisely be determined since Petitioner has listed them in a running narrative in his form petition. However it appears that Petitioner is seeking to raise three primary claims, two of which challenge parole revocations, and one of which challenges a disciplinary proceeding that extended the terms of his parole revocation. (Doc. 1).*fn1

The Court notes that this is not the first time Petitioner has appears in habeas proceedings in this Court. Petitioner originally challenged his 2004 conviction, out of which these subsequent parole revocations and extensions arise, in case no. 1:04-cv-06452-TAG. On October 3, 2008, the Court denied Petitioner's claims on their merits and entered judgment against Petitioner. (Docs. 61 & 62 in case no. 1:04-cv-06452-TAG). Petitioner's appeal of that final order is still pending in the Ninth Circuit.*fn2

From the order on the merits in case no. 1:04-cv-06452-TAG, the Court has determined that Petitioner was originally convicted in the Fresno County Superior Court in 2004 of the following: (1) corporal injury to a co-habitant (Cal. Pen. Code § 273.5(a)); false imprisonment by violence (Pen. Code § 236); (3) dissuading a witness by force or threat (Pen. Code § 136.1(c)(1)); (4) resisting or obstructing a police officer (Pen. Code § 148(a)(1)); (5) vandalism (Pen. Code § 594(a)); and (6) false imprisonment by violence (Pen. Code § 236). Petitioner was sentenced to a term of three years and eight months.

It appears that Petitioner was originally paroled on November 26, 2006. (Doc. 8, p. 8). Less than two months later, Petitioner violated his parole and was re-incarcerated until mid-December 2007, when he was again released on parole. (Id.). Three weeks later, on January 4, 2008, Petitioner was cited for a parole violation that forms the basis for his claims in this petition, alleging that Petitioner had used cocaine and had failed to participate in a drug treatment program. (Doc. 1, p. 4). Petitioner alleges that his parole was revoked and he was incarcerated for those violations on February 2, 2008. (Id.).

Although the record is far from clear, it appears that Petitioner was released from that parole revocation incarceration on May 26, 2008, and the following day, on May 27, 2008, Petitioner complied with an order to appear at the Fresno Parole Office following his release from prison. (Doc. 8, p. 8; Doc. 1, p. 11). At that time, Petitioner refused to provide a urine sample for anti-narcotics testing. (Id.). Petitioner refused to provide a urine sample several days later, on June 2, 2008. (Id.). On June 5, 2008, a parole officer attempted to confirm that Petitioner was residing at the Fresno Rescue Mission, but the sign-in sheets did not contain any signatures for Petitioner. (Id.). On June 9, 2008, Petitioner again refused to provide a urine sample and was taken into custody for a parole revocation hearing. (Id.). On July 14, 2008, the Board of Parole Hearings ("the Board") revoked his parole and Petitioner was re-incarcerated as a result of these violations. (Doc. 8, p. 1).

Thereafter, Petitioner was scheduled to be paroled again on November 8, 2008, but, after a Board extension hearing on November 16, 2008, his parole revocation was extended for committing a disciplinary violation, i.e., battery on another inmate, on October 17, 2008. (Id.; Doc. 17, Ex. 5; Doc. 8, p. 1). This rules violation extended Petitioner's parole release date until April 7, 2009. (Doc. 1, p. 5).

This chronology coincides with the Court's own docket in this case, which indicates that Petitioner filed a Notice of Change of Address on April 9, 2009, indicating that he had been released on parole. (Doc. 7). On July 17, 2009, however, Petitioner filed a second Notice of Change of Address, indicating he had been re-incarcerated at Kern Valley State Prison ("KVSP"), Delano, California. (Doc. 16). From the present record, the Court cannot determine the reasons for Petitioner's latest re-incarceration in July 2009. However, inasmuch as the instant petition was filed four months ...


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