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Reed v. Kernan

United States District Court, E.D. California
Feb 23, 2006
No. CIV S-05-0570 FCD GGH P (E.D. Cal. Feb. 23, 2006)

Opinion

No. CIV S-05-0570 FCD GGH P.

February 23, 2006


ORDER


Petitioner, proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner challenges a Rules Violation Report (RVR) hearing at High Desert State Prison on March 18, 2004, in which he was found guilty for refusing to sign a conditions of parole form, a condition of which required that he register as a sex offender, and, according to petitioner, at which he was assessed 90 days. Petition, p. 3. Petitioner avers that he had served his entire eight-year sentence, with no half-time credit, as of March 2, 2004, for possession of a firearm with an enhancement for serving a prior prison term. Petition, p. 5; traverse, p. 2.

Respondent's Exhibit C, however, indicates that petitioner was not assessed any loss of time credits at the March 18, 2004 RVR hearing. Answer, pp. 2-5, Exh. C. Petitioner was evidently presented with a Notice of Sex Offender Registration Requirement, which he refused to sign on February 5, 2004, for which he was issued an RVR and assessed a 30 day credit loss on February 25, 2004. Answer, pp. 2, 5, Exh. B.

Petitioner further alleges that the March 18, 2004 RVR formed the basis for his referral to the Board of Prison Terms for an April 12, 2004 parole revocation hearing, which he also challenges herein, at which he claims the evidence was insufficient to warrant his being required to register as a sex offender; at that hearing a document, the March 18, 2004 RVR report, was introduced which resulted in a six month parole violation for petitioner. Id., p. 6. This violation kept petitioner from paroling on March 2, 2004. Id.

Pending before the court is petitioner's motion to strike from respondent's answer, Exhibit A, pages 1 through 10 of petitioner's criminal history, as well as that portion of Exhibit E, a copy of the September 30, 2004 revocation hearing disposition, that states that he was provided with a copy of the conviction(s) for which he was required to register as a sex offender.

Petitioner contends that Exhibit A is not authenticated and is irrelevant to the Rules Violation Report proceedings and parole revocation at issue, although he does not assert that the criminal history recounted therein is inaccurate. In this case, the court would only consider petitioner's motion to strike on the ground that the criminal history is not authenticated if petitioner specifically identified and alleged incorrect entries.

Petitioner states that his criminal history was not presented at, or a part of, the proceedings he is challenging. Whether or not petitioner was convicted of, for example, indecent exposure is a separate question from whether or not he was, in fact, presented with evidence of such a conviction at a hearing. Should the court consider Exhibit A, it will be doing so only for the purpose of ascertaining whether or not petitioner has been convicted of offenses for which his registration as a sex offender is or could be required under the relevant state statute. The court will not grant petitioner's motion to strike any portion of this exhibit.

As to a portion of Exhibit E, petitioner does aver that the representation that he received a copy of the conviction(s) of indecent exposure (which apparently formed the basis of the requirement that he register as a sex offender) alleged is inaccurate. However, petitioner makes eminently clear in his traverse that he wholly disputes that he was provided with such a conviction at his parole revocation hearing, which conviction, moreover, he maintains is non-existent. Traverse, pp. 4-5. Thus, striking any portion of the exhibit at this time appears to be both premature and unnecessary.

It appears that this exhibit may be relevant only to a subsequent parole revocation hearing, which occurred on September 30, 2004, and which is not at issue herein; the court will only consider relevant exhibits, but will not strike an exhibit prior to reaching the merits of petitioner's claims.

Petitioner concludes his motion for the above-described exhibits to be stricken from the record with a wholly conflicting request, that the court take judicial notice of those very exhibits. Petitioner's motion will be denied.

Accordingly, IT IS ORDERED that petitioner's July 26, 2005 motion to strike any portion of Exhibits A and E from the answer is denied.


Summaries of

Reed v. Kernan

United States District Court, E.D. California
Feb 23, 2006
No. CIV S-05-0570 FCD GGH P (E.D. Cal. Feb. 23, 2006)
Case details for

Reed v. Kernan

Case Details

Full title:ALONZO REED, Petitioner, v. SCOTT KERNAN, Warden, Respondent

Court:United States District Court, E.D. California

Date published: Feb 23, 2006

Citations

No. CIV S-05-0570 FCD GGH P (E.D. Cal. Feb. 23, 2006)