Opinion
No. CIV S-06-1567 MCE GGH P.
October 10, 2008
ORDER
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 27, 2008, the court recommended that this action be stayed pending the Ninth Circuit's decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, ___ F.3d ___, No. 06-55392 (9th Cir. filed May 16, 2008). On September 12, 2008, petitioner filed objections to the findings and recommendations. For the following reasons, the court vacates the findings and recommendations.
In this action, petitioner alleges that the Board of Parole Hearings (BPH) has found him unsuitable based on false information contained in his rap sheet. In particular, petitioner alleges that his rap sheet identifies several convictions and arrests that are not valid. As relief, petitioner seeks expungement of this information from his rap sheet. Hayward v. Marshall, supra, addressed whether the BPH's reliance on unchanging factors to find a prisoner unsuitable for parole violated due process. The claims raised in the instant action do not implicate Hayward, at least not directly. Accordingly, the August 27, 2008, findings and recommendations are vacated.
Accordingly, IT IS HEREBY ORDERED that:
1. The August 27, 2008, findings and recommendations are vacated;
2. This habeas corpus petition is submitted for decision.