(HC) Thompson v. Carey et al, No. 2:2005cv01708 - Document 88 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 01/05/10 ORDERING that the 01/06/09 hearing on petitioner's motion 85 is vacated. Also, RECOMMENDING that petitioner's motion for discharge from parole 85 be denied and the clerk be directed to enter final judgment. MOTION to ENFORCE JUDGMENT 85 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
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(HC) Thompson v. Carey et al Doc. 88 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JIMMIE THOMPSON, Petitioner, 11 12 13 14 15 16 No. CIV S-05-1708 GEB EFB P vs. THOMAS L. CAREY, ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. / On June 8, 2009, the assigned district judge adopted the undersigned’s May 5, 2009 17 findings and recommendations, granted plaintiff’s application for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254, and directed respondent “to discharge petitioner from parole 19 within 30 days of this order, as provided by California Penal Code section 3000.1(b), unless the 20 Board of Parole Hearings determines that there is good cause to retain petitioner on parole, 21 makes a written record of its determination, and transmits a copy of it to petitioner.” Dckt. No. 22 84 at 2. On December 2, 2009, petitioner filed a motion for an order discharging petitioner from 23 parole and noticed the matter for hearing before the undersigned on January 6, 2010. Dckt. No. 24 85. Respondent opposes the motion. Dckt. No. 86. 25 Petitioner argues that respondent violated the June 8, 2009 order by failing to provide 26 petitioner (by July 8, 2009) with a copy of a written decision to retain him on parole, and by 1 Dockets.Justia.com 1 retaining petitioner on parole “despite a lack of ‘good cause’ required by the Court to do so.” 2 Dckt. No. 85 at 3. Petitioner further contends that respondent “violated the Court’s order in that 3 the process that led to the decision to retain [petitioner] on parole was based on errors and 4 omissions, and was highly irregular and suspect indicating lack of good faith compliance with 5 the order.” Id. at 3-4. Therefore, petitioner contends that “[b]ecause the Court’s order required 6 that [petitioner] be discharged from parole unless Respondent, in good faith, complied with the 7 conditional terms of the alternative order by July 8, 2009, and Respondent has not complied, 8 [petitioner] must be discharged from parole.” Id. at 4. 9 Respondent acknowledges that he “inadvertently” failed to serve petitioner with a written 10 copy of the Board’s decision on July 6, 2009 to retain him on parole, but contends that because 11 petitioner “was notified of the Board’s decision orally and has received a written copy of the 12 Board’s decision, and because the Board found good cause to retain him on parole, his motion 13 should be denied.” Dckt. No. 86 at 2. Respondent argues that the inadvertent failure to timely 14 provide petitioner with a written copy of the Board’s decision did not cause petitioner any harm 15 and does not warrant his discharge from parole. Id. at 3. Respondent further contends that, 16 contrary to petitioner’s allegations, the Board found that petitioner’s commitment offense and 17 the fact that he had been in the community for less than two years and needed further supervision 18 constituted good cause to retain him on parole. Id. at 3-4. Respondent argues that petitioner’s 19 contention that the Board’s decision is not supported by good cause “is a question of state law,” 20 and if petitioner “wishes to challenge the propriety of the Board’s decision, then he can and 21 should file a state petition for writ of habeas corpus.” Id. at 4. 22 Respondent’s “inadvertent” failure to timely provide petitioner with a copy of the 23 Board’s written decision is disconcerting. Nonetheless, petitioner has not shown that the failure 24 warrants his discharge from parole. There is no dispute that he was orally notified of the 25 decision at the end of July 2009. Moreover, he received his denial paperwork a few days later, 26 and has now received a copy of the Board’s formal written decision. Dckt. No. 85-6 at 3; 87 at 2 1 2. Further, although petitioner raises several potentially legitimate concerns regarding the 2 Board’s justification for retaining petitioner on parole, the undersigned will not recommend that 3 this court second guess the Board’s “good cause” determination without permitting the state 4 court to first consider the issue.1 See 28 U.S.C. § 2254(b)(1) (“An application for a writ of 5 habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not 6 be granted unless it appears that – (A) the applicant has exhausted the remedies available in the 7 courts of the State; or (B)(I) there is an absence of available State corrective process; or (ii) 8 circumstances exist that render such process ineffective to protect the rights of the applicant.”). 9 As respondent points out, if petitioner wishes to challenge the Board’s decision to retain him on 10 11 parole, he may file a state habeas petition challenging that decision. Accordingly, it is hereby ORDERED that the January 6, 2009 hearing on petitioner’s 12 motion is vacated. Further, it is hereby RECOMMENDED that petitioner’s motion for discharge 13 from parole, Dckt. No. 85, be denied and the Clerk be directed to enter final judgment. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 19 1 20 21 22 23 24 25 26 Petitioner contends that because the “good cause” requirement was incorporated into the Court’s June 8, 2009 order, in order to enforce that order, the Court “is empowered to determine if there is evidence of good cause to retain [petitioner] on parole. If there is not, the Court should order his discharge.” Dckt. No. 87 at 3. Petitioner argues that “due process of law requires as much, for retention on parole without any evidence establishing cause for such is arbitrary and capricious – for the same reasons that denial of parole without any supporting evidence violates due process.” Id. Petitioner is correct that the June 8, 2009 order required the Board to discharge petitioner absent a determination that there is good cause for his retention. However, the order specifically referenced and cited to the procedures set forth in California Penal Code section 3000.1. Here, the Board determined that petitioner’s commitment offense and the fact that petitioner had been in the community for less than two years and needed further supervision provided good cause to retain petitioner on parole. Whether or not those reasons amount to “good cause” within the meaning of section 3000.1, and therefore whether petitioner’s retention on parole violates due process, should first be considered by the state court. 3 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: January 5, 2010. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4
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