Opinion
Case No. CV 07-3508-GW(JC)
12-27-2011
AARON DWAYNE MCCOY, Petitioner, v. LYDIA HENSE, Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative First Amended Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition"), all of the records herein, and the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"). The Court approves and accepts the Report and Recommendation, but notes the following:
1. The Court's docket reflects that Petitioner has been paroled at least as of November 7, 2011. (Docket Nos. 48, 49). "For a federal court to have jurisdiction over a habeas petition filed by a state prisoner, the petitioner must be 'in custody.'" Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001) (citation omitted). Therefore, as a general rule, "a petition for habeas corpus becomes moot when a prisoner completes his sentence before the court has addressed the merits of his petition." Id. (citation omitted). However, a petition for habeas corpus does not become moot when a prisoner is released on parole. Goldyn v. Hayes, 444 F.3d 1062, 1063 n.2 (9th Cir. 2006) (state prisoner "remains in 'custody' for purposes of habeas jurisdiction while . . . on parole") (citing Jones v. Cunningham, 371 U.S. 236, 243 (1963)). Although a petitioner's parole "releases him from immediate physical imprisonment," such parole "imposes conditions which significantly confine and restrain his freedom" which is sufficient to constitute "'custody' . . . within the meaning of the habeas corpus statute." Jones, 371 U.S. at 243; see also Goldyn, 444 F.3d at 1064 n.2 (state habeas petition "not moot" where "adverse consequences of [petitioner's] criminal conviction remain") (citation and quotation marks omitted). Accordingly, the fact that petitioner has been paroled does not divest this Court of jurisdiction.
On November 7, 2011, mail addressed to petitioner from the Court was returned undelivered with a note stating "Return to Sender [¶] Inmate Paroled." (Docket Nos. 48, 49).
2. On page 8, line 23 of the Report and Recommendation, the street name "Hold" is replaced with "Holt"; and
3. On page 13, line 12 of the Report and Recommendation, the unnecessary blank space is removed.
IT IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Report and Recommendation, and the Judgment herein on petitioner and counsel for respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
____________
HONORABLE GEORGE H. WU
UNITED STATES DISTRICT JUDGE