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Michael Armando Omara v. Frank X. Chavez

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 3, 2012

MICHAEL ARMANDO OMARA, PETITIONER,
v.
FRANK X. CHAVEZ, WARDEN, RESPONDENT.

The opinion of the court was delivered by: John A. Kronstadt United States District Judge

ORDER ACCEPTING AND MODIFYING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, Petitioner's March 19, 2012 Traverse, and Petitioner's Objections. After having considered Petitioner's arguments in the Traverse as well as his Objections and made a de novo determination of the Report and Recommendation, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge with the following modification.

Pursuant to 28 U.S.C. § 2254(a), the Court may not reach the merits of a habeas petitioner's claim unless the petitioner is "in custody."

Although the petitioner "must be in custody at the time that the petition is filed . . . the petitioner's subsequent release from custody does not itself deprive the federal habeas court of its statutory jurisdiction." Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010) (internal citations and quotation marks omitted). Specifically, a state prisoner "remains in 'custody' for purposes of habeas jurisdiction while she is on parole" and the "case is not moot because the adverse consequences of her criminal conviction remain." Goldyn v. Hayes, 444 F.3d 1062, 1064 n.2 (9th Cir. 2006) (internal quotation marks and alterations omitted).

According to the Prisoner Services Division at Sierra Conservation Center, the state facility where Petitioner was housed, Petitioner was recently released to County supervision. However, despite his release, Petitioner's habeas petition is not moot and he is still "in custody" because he is subject to continuing supervision by the Orange County Probation Department. Consequently, the Court retains jurisdiction to rule on the merits of the Petition.

For the reasons stated in the Report and Recommendation, IT IS ORDERED that the Petition is denied and Judgment shall be entered dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

20120503

© 1992-2012 VersusLaw Inc.



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