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Welch v. Haviland

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


October 12, 2010

THOMAS WELCH, PETITIONER,
v.
J. W. HAVILAND, WARDEN, CALIFORNIA STATE PRISON SOLANO, RESPONDENT.

The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

DISMISSAL ORDER

Petitioner Thomas Welch, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. In his Petition, Welch challenged the November 2007 decision of the Board of Parole Hearings denying him parole for a period of one year. Subsequently, at the parole-suitability hearing in December 2008, the Board granted Welch parole, subject to review by the Governor.*fn1 Upon review, the Governor, invoking his authority, requested an en banc review by the Board.*fn2

This Court entered an Order directing the Respondent to file a status report of the action, if any, taken by the Board of Parole Hearings ("Board"), sitting en banc, after remand to it by the Governor.*fn3 In his status report, Respondent reported that the Board held a rescission hearing and did not rescind the December 2008 decision granting Welch parole. Welch was released to parole status January 8, 2010.*fn4

Federal courts lack jurisdiction to consider moot claims.*fn5 "If there is no longer a possibility that [a party] can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction."*fn6 "The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted."*fn7 In the case of a denial of parole by the Board, the appropriate remedy is to vacate the decision of the Board and remand for a new hearing consistent with the requirements of due process.*fn8 The Board having held a new hearing and granted Welch parole, there is no further remedy that this Court may grant. Accordingly,

IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DISMISSED as moot.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn9 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn10

The Clerk of the Court is to enter final judgment accordingly.


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