(HC)Crapo v. Curry, No. 2:2007cv02554 - Document 19 (E.D. Cal. 2010)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 11/02/10 denying 17 Motion to withdraw the findings and recommendations. Respondent's objections to the findings and recommendations are due within 28 days of the date of this order; petitioner may file a reply within 14 days thereafter. (Plummer, M)
Download PDF
(HC)Crapo v. Curry Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DALE CRAPO, 11 12 13 14 Petitioner, No. 2: 07-cv-2554 JAM KJN P Respondent. ORDER vs. BEN CURRY, 15 16 / On October 8, 2010, the undersigned recommended that petitioner’s application 17 for a writ of habeas corpus be granted and that the California Board of Parole Hearings (“BPH”) 18 be directed to set a parole date for petitioner within thirty days of the adoption of the findings and 19 recommendations. 20 On October 28, 2010, respondent filed a motion for withdrawal of the findings 21 and recommendations or, in the alternative, for an extension of time to file objections. 22 Respondent states that the findings and recommendations should be withdrawn because on 23 October 12, 2010 the Ninth Circuit decided Haggard v. Curry, No. 10-16819, 2010 WL 4015006 24 (9th Cir. Oct. 10, 2010). In Haggard, the Ninth Circuit held that if a district court determines that 25 the BPH’s decision is not supported by “some evidence,” the correct remedy is not to order that 26 the petitioner be released on parole, but rather to order the BPH to conduct another eligibility 1 Dockets.Justia.com 1 hearing at which the prisoner’s rights are respected. 2 3 Withdrawal of the findings and recommendations is not warranted. The parties may address Haggard v. Curry in their objections and/or reply briefing. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Respondent’s motion to withdraw the findings and recommendations (Dkt. No. 6 17) is denied; 7 2. Respondent’s objections to the finding and recommendations are due within 8 twenty-eight days of the date of this order; petitioner may file a reply within fourteen days 9 thereafter. 10 DATED: November 2, 2010 11 12 13 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 14 15 crap2554.eot 16 17 18 19 20 21 22 23 24 25 26 2