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Hardwick v. Clarke

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


September 13, 2010

LARRY HARDWICK, PETITIONER,
v.
CLARKE, WARDEN, ET AL, RESPONDENTS.

REQUEST FOR APPOINTMENT OF COUNSEL; ORDER

Pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, and Rule 8(c), Rules Governing Section 2254 Cases, Petitioner, LARRY HARDWICK, and the Office of the Federal Defender hereby request that the Office of the Federal Defender be appointed counsel for Mr. Hardwick, for the limited purpose of representing him in connection with a contemporaneously filed motion for release, in that:

1. On July 13, 2010, this Court granted Petitioner Hardwick was habeas relief. This Court's remedial order reads: "Within thirty days from the date of service of this order, the California Board of Parole Hearings calculate a term for petitioner in accordance with the requirements of California Penal Code § 3041(a), with credit for time since the May 10, 2005, decision as if a parole date had been granted at that time, and any other term credit to which petitioner is entitled by law." Docket entry no. 23, page 4.

2. On July 30, 2010, Respondents filed a notice of appeal and an application with this court for a stay of its judgment. Docket entry nos. 26, 25.

3. On August 12, 2010, this Court granted a limited stay to permit Respondents to seek from the Ninth Circuit. Docket entry no. 29, page 3. By its own terms, that stay dissolved after August 26, 2010.

4. Meanwhile, on August 3, 2010, the Board conducted a term-setting hearing. It set Petitioner's base term at 228 months, added 24 months for the use of a firearm in the commitment offense, and then credited Petitioner with 100 months of post-conviction custody credits. Exhibit A, page 24 (copy attached to Petitioner's Motion for Immediate Release).

5. Notwithstanding the Board's August 3 action, on August 10, 2010, Respondents also requested a stay from the Circuit court. Hardwick v. Clarke, No. 10-16719, docket entry no. 2-1.

next day, the Ninth Circuit denied the stay motion. Hardwick v. Clarke, No. 10-16719, docket entry no. 3.

6. As a result of the August 3, 2010, term setting decision, Petitioner's total term on his commitment offense is 152 months. Exhibit A, page 24. This term amounts to 12 years and months. Petitioner was received by the California Department of Corrections on April 29,

CR 1, page 20 of 77. Thus, he has served over 30 years in prison. This period of custody is well in excess of the required 152 months required by the Board's August 3, 2010, decision.

7. Respondents refuse to release petitioner and instead are treating the Board's August 3, date setting decision as a normal parole suitability hearing subject to further Board and Governor review. See Exhibit A, page 25 (commissioner stating the Board's decision "is not

This decision will become final after 120 days, and only after review by the decision unit and the Governor's Office."); Declaration of Counsel, ¶ 3. After a grant of parole normal parole suitability hearing, Board and Governor reviews take 150 days. Declaration Counsel, ¶ 3.

8. Petitioner therefore seeks an order for his immediate release to enforce the July 13, grant of habeas relief and his release pending the state's further appeal pursuant to Fed. App. P. 23(c). Petitioner requires the assistance of counsel in making this request.

9. Petitioner has already separately requested appointment of counsel in the state's appeal. Hardwick v. Clarke, No. 10-16719, docket entry no. 4 (filed August 23, 2010). To date, the Court of Appeals has not decided this separate request. Respondents' opening brief in the appeal to be filed no later than November 8, 2010. 10. In the above-entitled action, Mr. Hardwick successfully challenged the May 10, 2005 decision of the Board of Parole Hearings denying him parole for want of reliable evidence to support that denial. Had Mr. Hardwick been granted and released to parole following that hearing, he would have been released to parole and begun serving a parole term of no more than five years, as called for by the 1980 judgment and sentence. See Cal. Penal Code § 3000 (West. 1978)(setting 5-year determinate parole period).

Accordingly, on behalf of Mr. Hardwick, the Federal Defender's Office requests that Court enter an order appointing the office to represent Mr. Hardwick in the above-entitled matter for the limited purpose of representing him in connection with a contemporaneously filed motion for release. A proposed order is lodged with this request.

Dated: September 9, 2010

Respectfully submitted,

ANN C. M CLINTOCK Assistant Federal Defender Seeking Appointment as Attorney for Petitioner LARRY HARDWICK

ORDER

In light of the application, and good cause appearing therefor, the Office of the Federal Defender and Assistant Federal Defender Ann C. McClintock are appointed to represent petitioner Larry Hardwick in the above-entitled matter for the limited purpose of representing in connection with his contemporaneously filed motion for release.

20100913

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