Birch v. Board of Parole Post Prison Supervision, No. 3:2006cv01364 - Document 51 (D. Or. 2009)

Court Description: Opinion and Order. The Court DENIES AS MOOT the Petition for Writ of Habeas Corpus. Signed on 2/17/09 by Judge Anna J. Brown. (ljl)

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FllEYog FEB i 716G9USllC-(iP IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MARTIN BIRCH, Civil No. 06-1364-BR Pet.it.ioner, OPINION AND ORDER v. BRIAN BELLEQUE, Superint.endent., East.ern Oreqon Correctional Inst.it.ution, Respondent.. KRISTINA HELLMAN Assistant Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 Attorney for Petitioner HARDY MYERS Attorney General LESTER R. HUNTSINGER Senior Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER - BROWN, Judqe. Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus action pursuant to 28 U.S.C. For the reasons that follow, § 2254. the Petition for Writ of Habeas Corpus is DENIED AS MOOT. BACKGROUND In March 1989, Petitioner was convicted on two counts of Robbery in the First Degree. consecutive, The trial judge sentenced him to indeterminate 20-year terms of imprisonment, with consecutive 10-year minimum terms. Petitioner does not challenge the legality of his conviction or sentence in this habeas corpus action. Instead, Petitioner challenges a decision by the Oregon Board of Parole and PostPrison Supervision (the "Board l l ) release date for 24 months. deferring Petitioner's parole Petitioner challenges the deferral on ex post facto and due process grounds. On December 10, Court, 2008, in response to a request from the Petitioner filed a "Statement of Custody Status. 11 Statement confirms that Petitioner was released on parole The on August 19, 2008, and that, as of December 3, 2008, he remained on parole. 2 - OPINION AND ORDER - DISCUSSION The case or controversy provision of Article III, ~subsists United States Constitution to lawsuit." have a 'personal 2 of the through all stages of federal judicial proceedings, trial and appellate. continue § stake in The parties must the outcome' Spencer v. Kemna, 523 U.S. 1, 7 (1998) of the (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1955) ) . this means that, throughout the litigation, a habeas petitioner ~must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable Id. judicial decision." Assuming that the § ~in custody" requirement of 28 U.S.C. 2254 was met at the time of filing of a petition for writ of habeas corpus, a parolee's challenge to the legality of the underlying conviction always satisfies the case or controversy requirement. This is so because conviction result in ~a ~collateral substantial stake consequences" of the in the judgment of conviction which survives the satisfaction of the sentence imposed upon" a petitioner. Carafas v. LaValle, 391 U.S. 234, 237 (1968) (citation omitted). The presumption of collateral consequences does not, particular, however, a necessarily extend to other contexts. petition challenging a Board decision to In delay release on parole is rendered moot by the petitioner's subsequent 3 - OPINION AND ORDER - release. Burnett v. Lampert, 432 F. 3d 996, 1000-01 (9th Cir. 2005) . As noted, Petitioner was released on parole on August 19, 2008, during the pendency of this action. As such, this case does not meet the case or controversy requirement of Article III, and the actual injury for which Petitioner seeks relief cannot be redressed by a favorable decision of this Court. CONCLUSION For these reasons, the Court DENIES AS MOOT the Petition for Writ of Habeas Corpus. IT IS SO ORDERED. DATED this tl~day of February, 2009. ---A-~------United States District Judge 4 - OPINION AND ORDER - F:\Share\Brown-LawClerks\06-1364birch0212opin.wpd

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